H O U S E O F K E Y S O F F I C I A L R E P O R T

R E C O R T Y S O I K O I L Y C H I A R E A S F E E D

P R O C E E D I N G S

D A A L T Y N

(HANSARD)

C O M M I T T E E O N THE C R I M I N A L J U S T I C E ( M I S C E L L A N E O U S P R O V I S I O N S ) B I L L

B I N G Y C H I A R E A S F E E D M Y C H I O N E B I L L E Y C A I R Y S K I M M E E ( C A G H L A A G H Y N D Y C H I A R A I L Y N )

Douglas, Friday, 1st April 2011

All published Official Reports can be found on the Tynwald website www.tynwald.org.im Official Papers/Hansards/Please select a year:

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PP98/11 KCJB, No. 1

Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © Court of Tynwald, 2011 BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Members Present:

Mr C R Robertshaw, MHK (Chairman) Mrs B J Cannell, MHK M Q B Gill, MHK

Clerk: Mr R I S Phillips, Secretary of the House

BUSINESS TRANSACTED Page

Procedural ...... 3

Evidence of Hon. A Earnshaw, MHK, Minister for Home Affairs ...... 3

The Committee adjourned at 11.13 a.m. and resumed its sitting at 11.18 a.m. when Mr Greenhow and Mr Lalor-Smith were called.

Evidence of Mr W Greenhow, former Chief Executive, and Mr J Lalor-Smith, Director of Administration and Legislation, Department of Home Affairs ...... 22

Procedural ...... 39

Mrs Cannell left the Committee at 12.21 p.m., when Mr Langdon was called.

Evidence of Mr M Langdon, Chief Constable ...... 40

The Committee sat in private at 1.22 p.m.

______2 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

House of Keys Committee on the Criminal Justice (Miscellaneous Provisions) Bill

The Committee sat in public at 9.58 a.m. in the Legislative Council Chamber, Legislative Buildings, Douglas

[MR ROBERTSHAW in the Chair]

Procedural

5 The Chairman: (Mr Robertshaw): Good morning everyone. Can I welcome you all to this meeting of the House of Keys Committee on the Criminal Justice (Miscellaneous Provisions) Bill. The Committee was appointed on 23rd November 2010. We are meeting this morning to take oral evidence. We have invited Mr Adrian Earnshaw, MHK, Minister for Home Affairs to give evidence 10 today. Further sessions will take place after his evidence with Mr Will Greenhow, as Chief Executive of the Department at the time that the Bill was prepared. He will be accompanied by Mr Julian Lalor-Smith who is the official who is in charge of the Bill. Finally, we will hear evidence from the Chief Constable. The Committee will examine the Bill in subject areas. Today, we will ask some general 15 questions about the architecture of the Bill, but we will mainly concentrate on Police powers. Other evidence sessions will be arranged. I would like to introduce my fellow members of the Committee: Mrs Brenda Cannell, MHK, and Mr Quintin Gill, MHK. Mr Phillips, who is Secretary to the House and Counsel to the Speaker, is the Committee’s Clerk and legal adviser. 20 In the corner, we have our Hansard editor, who is recording this morning’s proceedings. At this point, could I ask everyone please to kindly ensure that their mobile phones are switched off or silent, because they do interfere with recording equipment.

EVIDENCE OF HON. A EARNSHAW, MHK

The Chairman: So without further ado, Minister, perhaps we could commence. Good morning. 25 Mr Earnshaw: Good morning.

Q1. The Chairman: Mr Earnshaw, in the light of the size of this Bill, the Committee have decided to deal with it in six sections. The six sections are: Police powers; licensing; sex offences; 30 drug offences; community safety; and miscellaneous amendments. In our part one questions to you this morning, we will be concerned with the overview issues relating to the Bill, whilst our part two questions today are concerned with those clauses relating to the Police powers and procedures. So, part one: Mr Earnshaw, why did you decide to allow such a large and diverse Bill to go 35 forward to the House in the first place?

Mr Earnshaw: First of all, Chairman, if I may, I would like to… I have got a prepared statement I would like to read to you.

40 The Chairman: By all means, please. Thank you very much. ______3 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Earnshaw: If I may do that, I would be very grateful.

The Chairman: Thank you.

45 Mr Earnshaw: I would like to begin by saying – and I think this will help answer a lot of the questions that you intend to put to me – in answering the questions posed as to the origins of the Bill and the thinking behind it, it is important that I explain why the Bill is of such importance. This is because it updates the legislation related to criminal offences, the Police and the courts. Similar legislation has proven of benefit elsewhere and is considered necessary in the light of 50 developments in society, criminal behaviour and in technology to ensure the Isle of Man is similarly empowered to fight modern-day crime. Over the last three years, the Police have improved detection rates and reduced crime and have been assisted, in part, due to the legislation the Constabulary operates under and the determination of the Department to keep the Island’s legislation up to date. Since the last Criminal Justice Bill in 55 2007, the approach of the criminal fraternity has become more sophisticated – and I think you may wish to talk a little bit about the internet later on; I think that is a very good example there – and society’s problems have changed, but on the positive side, legislative powers are also available to combat these advances and changes. The Bill is therefore designed to introduce legislative powers to improve community safety and public order, prevent crime, improve enforcement, ensure 60 adequate punishment of criminal offences and reinforce existing legislation. It is not designed to impact on the majority of the Island’s residents, who are law-abiding citizens. In March 2010, the Department published its response to the consultation exercise and made changes to the Bill as a result of the issues raised. The changes were important and demonstrate that the Department has listened, made amendments and, in some cases, removed provisions. The 65 changes we incorporated included amendments to the clauses on dangerous weapons, misuse of a telecommunications system and fixed penalties. In addition, the removal of the entire provisions on the ownership of swords, late-night food establishments, conditional cautions, internet searches, intimate samples and hate crime were agreed, and a new clause in relation to childhood cruelty was added. 70 The Bill is important to the Isle of Man, because, without it, the courts and the enforcement agencies will be hampered, without the wherewithal to deal with criminal justice issues in the modern world. For example, the powers to deal with sex offenders, such as the case of the Queen Elizabeth II High School in Peel in 2009, cannot be dealt with without assistance from the UK, which may not always be available. Police conduct and disciplinary regulations cannot be updated 75 to ensure they are fit for purpose and breach of bail is not available as a specific offence. UK wholesale traders can continue to sell liquor, in competition with local firms without benefiting the Island. Video recording of interviews is not permitted. Entry to sex offenders premises will continue to be a problem. Cautions will remain on a person’s criminal record and never be spent or removed. The powers to return children to care remain not available, and the ability to ban persons 80 from licensed premises for failing to pay a fine for a drink-related offence cannot be implemented. In my view, it is most disappointing that the entire Bill has been sent to Committee. It was also in my view for the House of Keys to debate each individual clause, and if support had not been forthcoming for any clause, then I would, of course, accept that, as the will of the House. The Bill’s provisions have already been extensively aired in public and changes made, where 85 appropriate, and Members have had ample opportunity to examine the Bill during this process. I do believe a great disservice has been done to the people we represent, by delaying this Bill. It is important to residents because had it been enacted, it would help to keep crime low, reduce the number of victims and increase public safety. The Committee will also be aware the Bill cannot now be progressed until after the Election, 90 and as a result it is likely another 18 months will be lost before we deliver to the public the modern tools the law-enforcement agencies need to keep our Island safe. This hiatus will, without doubt, provide further opportunity for criminals to prosper in areas which would have been more tightly controlled under enhanced powers. Now, Mr Chairman, turning to the history and the origins of the Bill, the majority of the 66 95 clauses which were withdrawn from the Criminal Justice, Police and Courts Act – an earlier piece of legislation – have been incorporated in the Criminal Justice (Miscellaneous Provisions) Bill’s provisions and the principles of these provisions were publicly consulted upon in December 2004. As a result of this consultation exercise, the Department established a criminal justice working group, with representation from the Prison, Probation, Police and the courts. The working group 100 deliberations continued over 2005 and liaised with officers, including those from the then Department of Education, the Department of Health and Social Security, and importantly, the then ______4 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

High Bailiff, Mr Michael Moyle. The substantive outcome of these meetings was to develop a Bill which was then considered by the Department, which agreed to publicly consult to gauge the public and political views on the Bill. 105 The Bill was subsequently amended by the Department after the consultation exercise. I understand Mr Gill will be familiar with the provisions as he was a Member of the Department of Home Affairs at the time. It was decided by the Department, before reading of the clauses in the House of Keys, that, given the size of the Bill, there was a danger that time was not going to allow it to progress 110 through the legislative process and to obtain Royal Assent prior to the 2006 election. A decision was therefore made to remove clauses that were, at the time, less critical, in order to progress 49 clauses into statute before the election. At no time did the Department accept that the clauses removed were not required. After the 2006 election, the working group met to reconsider the provisions removed from the 115 Criminal Justice (Police and Courts) Act 2007 and to ascertain if there were other changes required in the intervening period on which consideration should be given by the Departments to add to a new Bill. A special Department meeting was held under Minister Quayle, my predecessor, which examined each issue, including those previously agreed by the Department, under Mr Shimmin, when Mr Gill was a member. 120 As you are aware a ministerial swap took place in August 2008, when I became Minister for the Department of Home Affairs. In order to ensure I was content with the proposals, I held various meetings, which concluded in December 2008 when, at a Department meeting, it was agreed that we were now in a position to submit drafting instructions to Chambers. The Bill was drafted and submitted to the Department for approval to consult and Council of Ministers’ 125 approval was gained. The extended consultation period commenced on 8th October 2009 and concluded on 16th December 2009. The Department considered, at a special meeting, the results of the consultation exercise and amended the Bill accordingly where it felt appropriate, and the Bill was duly submitted to the House of Keys. 130 In regard to whether the Department considered progressing a number of short Bills, the answer is no, not at the time, and I will explain why. The Department has, for many years, progressed Criminal Justice Bills designed to keep the Island’s laws updated in line with modern practice and able to deal with new technologies and advances in criminal sophistication. These Bills have included many diverse issues and have been extensive in size. Such Criminal Justice 135 Bills include the Criminal Justice Acts 1990, 1991 and 2001, the Criminal Justice, Police and Courts Act 2007 and the Bill currently before the Committee. Therefore, on the basis that previous Bills of a similar size and diverse nature had been accepted by both branches previously over the last two decades, with the lack of questioning in the past and the precedent established on the acceptability of such Bills the Department was content that the Bill would also be acceptable in its 140 proposed form. It is interesting to note that Mr Gill was a Member of the Department when the Criminal Justice, Police and Courts Bill was being progressed, which at one point, I believe, contained 114 clauses – 36 clauses larger than the Bill subject to the Committee’s consideration now. I understand at no point did Mr Gill question the size of that Bill or its diverse nature. It appears that 145 Mr Gill has now changed his stance on the acceptability of such Bills, although the number of Members holding this view was not apparent from the consultation exercise. Indeed, I am advised that Mrs Cannell, who moved the motion to send the Bill to Committee did not, in fact, respond to the consultation exercise or attend the Members’ presentation or take up the opportunity to meet with officers at any stage in the legislative process. 150 It is therefore difficult to see how the Department could have gauged the concerns of Members, when even the two Members of the Committee – Mr Gill and Mrs Cannell – failed entirely to express their concerns to the Department about the size or the scope of the Bill. Mr Gill, I can confirm, did meet with senior officers in the Department about the Bill and he raised various points which resulted in the deletion of a clause and expressed what appeared to be his 155 contentment with the majority of the Bill’s provisions, and at no time did he mention the size or scope of the Bill. Therefore, although we may have preferred fewer clauses, the size or scope of the Bill was not a significant concern for the Department and the Bill was drafted on the instructions of the Department by Her Majesty’s Attorney General’s Chambers. In relation to the question of using UK statute to provide for Manx law, where it is identified 160 there is a necessity for legal provision to be provided, and where there is UK statute which will provide for this and it is considered appropriate for the Island’s needs, we will use it and amend it if necessary. There seems very little point in reinventing the wheel. ______5 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

It should be made clear, however, Mr Chairman, that one of the reasons we have Bills such as the one before the Committee is that we do not and will not import UK legislation on a wholesale 165 basis. What we want to provide, as far as possible, is legislation that is required and tailored for the needs of the Isle of Man. So, what we actually do is when a need for a law is identified and it is agreed and justification provided that is required, the Department examines statute in the UK, if it exists, and adapts it to the Island’s needs and puts all such criminal justice provisions in one Bill to progress. This is why we can end up with such diverse and lengthy Bills customised to the needs 170 of the Isle of Man, because we actually bring into law far less statute than on the adjacent isle and we tend to use one instrument to bring all criminal justice matters into force. The Department of Home Affairs recognises the House of Keys may not welcome extensive Criminal Justice Bills, but as I have outlined, Mr Chairman, sometimes these issues are difficult to avoid. I very much hope that the public appreciate that the Department’s purpose was and is to protect 175 them and the special quality of life we enjoy in the Isle of Man. I also hope that the implications of the delay expressed in the Department’s response to the Committee’s consultation do not lead to the very people we serve being adversely affected. I also wish to record my concerns at the refusal of the Committee to let me be accompanied by a senior officer of the Department, which would have assisted the Committee in obtaining the 180 detailed answers on the process prior to my being Minister of the Department. I am, however, content to answer questions the Committee may pose, but may have to defer those of a technical nature to my legislative officer, who will accompany my former Chief Executive Officer, Mr Greenhow, at 11.00 a.m.. In summary, Mr Chairman, I should make it clear that a considerable number of these 185 provisions from 2005 have been subject to consideration by a cross-departmental working group of senior officers, personal input from a previous High Bailiff, approval of three different Ministers and their Members, two Chief Ministers and their Councils, it has been subject to three public consultation exercises and now it is subject to a Committee of the House of Keys for examination. In financial terms, I would estimate at least £100,000 of public money has been 190 invested in bringing matters to this stage. I very much hope we can deliver the criminal justice needs of the Island’s residents and that this is the final hurdle this Bill has to jump, before the legislative processes commence again after the election and we can at last meet the public’s expectations of modern provisions to combat crime. 195 Thank you, Mr Chairman.

The Chairman: Mr Earnshaw, thank you very much. Thank you for your statement.

Mr Earnshaw: I hope it has been helpful. 200 Q2. The Chairman: It has taken some considerable time. I hope that you will not mind that we might now find it necessary to overshoot our time allocation somewhat. I hope that does not happen. (Interjection by Mr Earnshaw) Could we also please have a copy of that statement for further consideration at a later date as a 205 Committee?

Mr Earnshaw: I do not see why not. It will be on Hansard anyway, Chairman.

Q3. The Chairman: Thank you very much indeed. We would prefer to have a copy if it was 210 possible, as soon as we can. Clearly, from your statement, Mr Earnshaw, there is huge amount of work gone on in a variety of offices, prior to the Bill arriving in the House – an enormous amount of work. Do you not think it is extraordinary, therefore, that you consider it reasonable for the House to consider such an enormous amount of legislation in one short sitting? Do you not think it was just too much for the 215 House to grasp in one go?

Mr Earnshaw: Well, I do not agree that it has to be in one short sitting. It can spill over more than one sitting, if needs be. So it does not have to be completed in one day, and in fact, I expected it to be more than one day of the sittings of the House of Keys to cover all the clauses that were in 220 this, because I expected to be challenged on quite a number of the clauses that were in here and I prepared myself to do that. I think as I have explained in the outline statement, the genesis of this goes back to about 2004, and there are changes of Ministers that take place over that period of time. When you are ______6 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

appointed Minister, I think it takes a little bit of time to get your feet under the table, to understand 225 the issues that are going on, and to get your head around the sort of information that is in here yourself, because you are the one who has to move this legislation and explain it to the Members of the House of Keys. It is not put forward to the House of Keys with any trickery in mind; it is put forward as a good piece of well researched legislation and, in this particular case, very well researched legislation, because there has been so much consultation and so much input over a 230 considerable number of years. So there has been a cumulative effect. What concerns me by delaying this now is that cumulative effect does not stop. The modernisation process goes on, because the sophistication of criminals changes. The needs of the Police and the judiciary change all the time. So next time round, whoever the person is who has to move this Bill – it probably will not be me – they will have probably now a bigger piece of 235 legislation to move. So that is a concern that I have got. I do not think we should lose sight – if I may just continue – that our primary function is the passing of legislation. We were elected – that is our primary function, as a Member of the House of Keys – to make the law. We should not lose sight of that. It is hard work sometimes. A lot of hard work has gone into this Bill. Members have had a lot of time to look at it 240 themselves because the consultation process was extended to the best part of three months, as far as I recall, so ample time. Every consideration was given by my Department to accommodate Members with presentations, opportunities to talk to the legislative officers concerned and to divide this Bill into smaller sections, digestible portions.

245 The Chairman: Mrs Cannell, do you have a – ?

Q4. Mrs Cannell: Yes, Chairman. If I might, Minister… We are where we are, are we not? The Bill, in fact, is delayed because we have a Committee of the House that is examining it, so we are where we are, whether one is 250 happy with that or not. You said that, in 2005, a working group was established that developed the Bill and got it, as I understand it, at that stage, to 49 clauses. Then, following the General Election in 2006, the working group recommenced their consideration of the Bill, and then it grew to 78 clauses, but you did say earlier on that it grew to over a hundred and then was reduced down to 78. I take it 255 therefore that it has taken something like five or six years before it has come forward. So, would I be mistaken then in believing that, in fact, the matters contained within the Bill, as before us at present, are not urgent, because had they been urgent they would have come sooner, would they not, in a smaller Bill?

260 Mr Earnshaw: I think it is difficult to describe certain things as urgent. I do not think I could describe them as urgent, but they are needed. There may be certain things that are urgent, that we have to respond to, but we cannot always do that at the drop of a hat, because it is primary legislation that we are looking at here. I think I referred to the facts: Mr Lalor-Smith will be able to help you more accurately with this 265 because he has been involved with it all the way through the process, but I think in my speaking notes, I referred to 114 clauses at one stage. That was chopped back because of the approach of the 2006 General Election and concerns that, like now, we may end up with nothing. So, I think it was chopped back to a certain number of clauses – I cannot remember what I said now – but the clauses that were taken out were still needed. They were not superfluous clauses, so there still was 270 a need. Some of them will be involved with Police procedures, etc. There is still a need for those, so they have to be reintroduced at some later date. So we have got that accumulative effect now. Some of what you are seeing in front of you in this Bill is the residue of the 2006 Bill. I think Mr Quayle, when he was Minister, was brought up to speed, with this, with the intention that he moved it earlier in the life of this Government. Unbeknown to Mr 275 Quayle and to myself, there was a swap made in 2008. I think we were about 18 months into our ministerial careers. We were both new men in those jobs. So, quite where he was with it, I am not sure. I have not spoken to him in detail about this, but I think he was probably approaching a position where he would have been able to move it, which would have been helpful. That opportunity was lost, so then the baton was handed to me. 280 I am merely the holder of the baton. It has got to be done by somebody. We want laws in the Isle of Man to protect the public, I am sure you will agree, Mr Chairman.

Q5. Mrs Cannell: Thank you, Minister.

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Whilst accepting the explanation, and the ministerial reshuffles have certainly not helped 285 progress the legislation, would you not agree that it has accumulated since 2005 – delayed because of a General Election, now delayed further because the House is looking at it and we are facing another General Election – and it is likely to be some time in 2012 when it will begin progression again? You were saying earlier that it has been a cumulative effect, in terms of different provisions 290 from the different sections within the Departments requiring extra provision in law all coming together in one huge Bill, that if it carries on like this it will just continue and continue to be a much thicker Bill than it is currently. Perhaps that is where the mistake is being made by the Department, in that it might be more advantageous for the Department to start breaking up the provisions contained within the Bill and moving smaller, swifter Bills and bringing those before 295 the Keys following public consultation, that in fact the Department might be more successful in getting the provisions that are required into law.

Mr Earnshaw: That may be the case, but legislation was passed in 2006 – it did not fail in 2006; legislation was passed – and a lot of clauses that have been worked up, probably since 2004, 300 were included in the 2006 legislation. The residue that I am talking about was what was taken out of that Bill to try and make sure it succeeded before the 2001-06 Government came to the end of its working life. So, ideally – and I think I referred to this in my notes – yes, we may have preferred fewer clauses to be there, but I have a duty to the public, as far as I am concerned, to try and deliver legislation. We do not live in an ideal world. I would certainly have preferred fewer 305 clauses – why wouldn’t I, because it makes life easier for me? – but that was not the case. I had to get my head round all the clauses that were in here. I did my best to do that, with the help of the team that I have around me, and like you said in your opening remarks, we are where we are.

Q6. Mrs Cannell: Can I just ask one more question, Mr Chairman? 310 I just want to clarify for the record then, who was the actual architect of the Bill that is before us currently?

Mr Earnshaw: I do not think there was one particular architect. The person who manages the Bill is Mr Julian Lalor-Smith, who is the legislative manager of the Department. The architects of 315 the Bill are… It is drawn from a lot of different areas. The contributors to the Bill have been the Police, the Probation Service, the Prison Service, the judiciary… I think the drug and alcohol agencies, the licensing trade… I think the Department of Education, the Department of Health and Social Security at the time, as it was then, the Department of Local Government and the Environment… 320 There was a lot of consultation took place with officers who want to see legislation from their own area of responsibility introduced. That is how legislation should work. I have no problem with that at all. Legislation should be in the round, really. We are part of… or my Department is… We have got a criminal justice system and it should be as seamless as possible. I do not lie in bed at night and dream up new laws. It is up to other people who work at the coalface to approach the 325 Department and say they have a need for a particular issue, be it the Police, be it the judiciary, be it the Probation Service, or whatever, and then put that to the Department. We cannot move individual Bills for individual items. I think doing it on a collective basis, because most of them are not urgent, but they need to be done in a timely and a business-like sort of way and a professional way… I think there is a collectivity process that takes place and I think we have 330 honoured that. We have done that faithfully. I am quite content that my officers have done their job in this. I think they have done it well.

Q7. Mrs Cannell: So we are unclear then as to who the actual architect was, other than certain Divisions had input into what they would like to see contained. 335 Mr Earnshaw: There is no individual architect; it is drafted and drawn up by the Attorney General’s Chambers. So it is a team effort.

Q8. Mrs Cannell: But was it at the behest of the Attorney General’s Chambers, following UK 340 changes in law, or was it as a request from the Department to draft the legislation as the Department wanted?

Mr Earnshaw: Well, I do not want to dodge the bullet here. I have only been a Member of the Department since 2008. Mr Gill was there before me. He may be in a better position to answer ______8 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

345 than I am. I think the person you need to address the question to, when his turn comes, is the technical manager of the Department, Mr Lalor-Smith, who has been involved with this all the way through. He will be able to give you the details of the history of that.

Q9. Mrs Cannell: But surely you should have known that, Minister. You were responsible for 350 moving the legislation.

Mr Earnshaw: I should have known what exactly?

Mrs Cannell: You should have known who had actually initiated this piece of legislation, 355 where it has come from.

Mr Earnshaw: I think I have already explained that. It has come from a variety of sources –

Q10. Mrs Cannell: You have explained how it is made up, but you have not explained where 360 it was initiated from.

Mr Earnshaw: I think I disagree with you there, Chair. I think I have accurately explained where it has come from. It has come from a variety of sources. It has come from the Police, from the Probation Service, from the judiciary. In fact in my opening remarks, I referred to some of the 365 people who were involved with that. So I think I have answered that question very well.

The Chairman: Mr Gill.

Q11. Mr Gill: Thank you, Minister. 370 Can we step back and go back to the consultation process. I am conscious of a comment you made in your prepared statement, where you accused the House of Keys of performing a great disservice to the public by referring this Bill to the Committee. What is the purpose of consultation?

375 Mr Earnshaw: It is, as I see it, to hoover up ideas, test public reaction, make changes where appropriate, and I think we have done that and we have responded appropriately.

Q12. Mr Gill: Do you recall on Manx Radio in November 2009, you were part of a group of people discussing this Bill? You were one of them; Mr Lalor-Smith, I think, was another; Mr 380 Llewellyn Jones was one. Mr Llewellyn Jones asked you, in the light of the conversation that you had had, if you would consider withdrawing or amending the Bill. In 2009, you made the statement that you would be performing a disservice to the public – clearly a phrase that comes easily – by withdrawing or amending any of the Bill. Was that always the official position, that the Bill as it was in 2000-and-odd was always going to be the Bill that was going forward? 385 Mr Earnshaw: I can remember appearing on Manx Radio, with Mr Lalor-Smith, I think it was a Roger Watterson programme. I can remember Mr Llewellyn Jones, and was it Mr Murcott? Was he there as well?

390 Mr Gill: I cannot recall.

Mr Earnshaw: Well, you cannot recall – it is difficult to recall at this length of time, really, isn’t it, exactly what was said?

395 Mr Gill: No, we have –

Mr Earnshaw: So, you are quoting me verbatim. I cannot comment on that. I cannot remember exactly what was said to you in that conversation. It was a radio programme. There will be a record of it somewhere. 400 Q13. Mr Gill: Do you recall the response that you received in consultation from the Data Protection Officer?

Mr Earnshaw: I have read that. I cannot just remember the details right at this moment. Can 405 you remind me of that? ______9 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

[The Clerk hands a paper to the Minister.]

Q14. Mr Gill: Perhaps, for clarity, you would like to read that aloud as you read it, Minister.

410 Mr Earnshaw: Alright. It is addressed to Mr Robertshaw, and it is dated 22nd February 2011. It says:

‘Thank you for your letter dated 7th February 2011 and the opportunity to submit written evidence to the Committee on the above Bill. 415 During the original public consultation I made two comments: The first was of a general nature; the Bill was too large and complex for my Office to properly research and comment upon. The second comment was specific and related to clause 41 and in particular to clause 41(1e)(4), which states:

420 “(4) Nothing in this section requires a responsible authority to disclose any personal data (within the meaning of the Data Protection Act 2002 [c.2]).”

Q15. The Chairman: I think, actually, Minister, you have actually addressed the nub of Mr Gill’s point, there. It was the size of the Bill and why in fact your Department… and you did not 425 respond to that important comment at the time and take cognisance of it. Why would you not do that?

Mr Earnshaw: Well, once again, I have to ask the… I do not micro-manage the Department. I think you will have to put that question to Mr Lalor-Smith. I did ask… Well, I sent a note to the 430 Secretary in the House of Keys – if I could just read that out as well, (The Chairman: Indeed.) which may be helpful. I sent the note to Mr Phillips, saying:

‘As you are aware, I have been invited to give evidence to the Committee examining this Bill on Friday this week. To assist me and to assist the Committee in their work, I wish to be accompanied by the technical officer of my 435 Department, Julian Lalor-Smith, and I shall be grateful if you will indicate this is in order.’

There is a very big ‘No’ on here. I take it… Is that your handwriting, Chairman?

Q16. The Chairman: Minister, it is, yes, and I would like to question you on that particular 440 point: why is it that you feel uncomfortable sitting on your own without an officer when we are questioning you, bearing in mind that we will be questioning the officers later on? Why are you uncomfortable with that?

Mr Earnshaw: Well, I think you are giving the impression I am uncomfortable. I am not 445 uncomfortable. I am answering the questions as best I can. It is just I am a little bit limited in what I can tell you, because I am not the technician who is behind the Bill.

Q17. The Chairman: Which brings us on to a point, then, if it is that perhaps you find you need the support of an officer in this situation, how is it you expect individual Members of the 450 House to deal with all of the many, many points that lie in this huge Bill in a debate in the House? Is that not one rule for one and another rule for the others?

Mr Earnshaw: No, certainly not, because when we consulted, we made it widely available that the officers of the Department were available, as and when required, to any Member of the House 455 of Keys, or indeed Legislative Council, who wished to have a discussion about any aspect of the Bill with them. So they had exactly the same opportunity to discuss things, in as much detail as they wished, as I had.

Q18. The Chairman: Indeed, which is really why you should be comfortable sitting there on 460 your own, then, sir – would you not agree?

Mr Earnshaw: I am comfortable.

Q19. The Chairman: Fine, that is fine. 465 Can I just ask you a few more questions before we move on to part two, because time is shooting on? Would you agree or disagree with the point that the House of Commons Justice Committee, in March of last year, said that the UK does indeed influence Island legislation at the

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policy level and that the approach they have is somewhat paternalistic? Would you agree or disagree with that? 470 Mr Earnshaw: I think we have got to take a big-picture view about the relationship that we have with the justice and the legal entities in the UK. There is an awful lot of legislation in the Isle of Man where we are able… I will start that a little bit differently. The legislation in the UK… they have got a much bigger 475 task force to examine and iron out any flaws that might be in that legislation. The opportunities come to the Isle of Man to pick up that legislation and just take it forward as it is, if we feel that is the case. A lot of the hard work has been done by the UK Civil Service. That does not mean we slavishly follow that. You will have often heard me use the phrase ‘what is proportionate and what is appropriate for the Isle of Man,’ and that is the guiding light for us. If it is not considered 480 proportionate and not considered appropriate for the Isle of Man, we either would disregard it or we would try and amend it in some way. So that is how we tend to work our own legislation up. We have not as big a task force, as many employees as the UK have got, as many specialists as the UK have got in a lot of these areas, so why not piggyback, where appropriate, on that? That is what we tend to do, and it makes good sense to do it. (The Chairman: Thank you.) Because there 485 is a big cost involved.

Q20. The Chairman: How many parts of the Bill before us were sourced from the UK, England and Wales, and how many were actually sourced from local requirements?

490 Mr Earnshaw: I cannot answer that, I am afraid. You will have to put that to the technical officer.

Q21. The Chairman: Do you not think you should be able to answer that?

495 Mr Earnshaw: No, not really.

Q22. The Chairman: Why not?

Mr Earnshaw: I do not think it is part, really, of my role. It is worked up and it is put into the 500 Bill. I have got political responsibility for the Department, not the technical responsibility for the legislation. That is worked up between my professional, technical officers and Her Majesty’s Attorney General’s Chambers.

The Chairman: Thank you, Minister. Thank you very much. 505 We will go on – unless there are any other points?

Q23. Mr Gill: Can I just ask the Minister to clarify, what is political responsibility in the context you have just used?

510 Mr Earnshaw: I think moving in the House of Keys, explaining as best I can the political side of these things, how they might affect the public in the Isle of Man. So I think that is my role with this legislation.

Q24. Mr Gill: Your job is really to pick up a Bill, put your name on the back of it, whatever is 515 in it, and get it through the Keys?

Mr Earnshaw: No, I do not think so.

Q25. Mr Gill: What is it, then, before the Bill is even – ? 520 Mr Earnshaw: I am the facilitator. I think that might be the best way of describing it.

Q26. Mr Gill: You do not see your role as being responsible for the policy which is reflected in a Bill? 525 Mr Earnshaw: Yes, I am responsible. It is my Bill. It is my name that is on the back of that.

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Q27. Mr Gill: So the policies that you cannot respond to that are reflected in here… I am sorry, I was at a bit of a loss there. You seem to be suggesting that the officers draw the Bill 530 together – where it comes from, who provides it, what their needs are, they deal with that – and then, when it is drawn together, your responsibility is to move that through the Keys.

Mr Earnshaw: Yes. I am not a professional legal person.

535 Q28. Mr Gill: But there must be policy discussions in the Department. I certainly recall them. They often led to disagreements. You must have policy discussions before a Bill is drawn together.

Mr Earnshaw: Of course we have policy discussions. I am not following the line of your question here, Mr Gill, I am sorry. 540 Q29. Mr Gill: What I am questioning is to say, you seem to be giving the impression to me that your job is about getting something that the officers have drawn together and your responsibility is to get it through the Keys. That might be part of it, but you are not putting the same emphasis on how the Bill is drawn together, what political responsibility there is to ensure 545 that the policy, as reflected in this Bill for this occasion, are owned by yourself and your colleagues.

Mr Earnshaw: When the Bill is put together, when a Bill has been assembled… and you have been a Member of this House of Keys for as long as I have so you know exactly the process that 550 takes place. When a Bill is put together, it is explained to the Minister and consultation takes place with the Minister about whether the Minister is comfortable with the various clauses that are in the Bill. The actual legal detail of this, if you are expecting me to say that is my responsibility, I am not going to say it. It is not.

555 Mr Gill: I do not think… Chairman, could I just…?

The Chairman: We need to move on in a minute.

Q30. Mr Gill: Okay, let us go back to the debate, then, that you do think is your responsibility. 560 In the debate about the Bill, you indicated that there were elements that you were not wholly content with. What were these areas and why did you not try to resolve them, prior to putting the Bill – ?

Mr Earnshaw: Which debate are you talking about? 565 Q31. Mr Gill: The debate in November that led to the formation of this Committee.

Mr Earnshaw: That I was not content… I said I was not content with what? Just say that again. 570 Mr Gill: During the debate you indicated that there were elements of the Bill that you were not wholly content with.

Q32. The Chairman: I think you used the word, if I can interject, I recollect – we would have 575 to check with Hansard – but the impression you gave to the House was most definitely that it was not perfect, that it was not quite perhaps what you wanted. That is the impression you gave. Would you like to comment on that?

Mr Earnshaw: I cannot remember saying that, but I would say to pretend any piece of 580 legislation is perfect, you are living in a fool’s paradise, because we see so many pieces of legislation, as time goes by, flaws are found in them, and we have to make appropriate amendments to deal with that particular issue.

Q33. The Chairman: Minister, thank you very much. 585 We must move on now, so we will move on to part two, which is actually looking at some of the clauses that are before us in the Bill, and to begin with we would like to look at clause 11 with you, which relates to the use of children for test purposes. Who actually proposed this concept in the first place? ______12 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Earnshaw: I do not know the answer to that. If I was to guess, it would be the licensing 590 trade, but I think you will have to put that question to Mr Lalor-Smith.

Q34. The Chairman: Thank you, I will, Minister. Do you accept that this is using entrapment, which in other circumstances is classed as an offence? 595 Mr Earnshaw: No, I do not accept that.

Q35. The Chairman: You do not accept that at all? You do not consider it in any way reminiscent of entrapment? 600 Mr Earnshaw: No, I do not think so.

Q36. The Chairman: How is that, Minister?

605 Mr Earnshaw: Well, I do not know how you can pretend it is entrapment. It is a testing purpose, really. We have got to find ways… There is a public demand to discover how perhaps off-licences are selling alcohol to underage people: why does it happen, who is doing it? We have got to produce some mechanism for doing this. What was proposed was that with any youngsters who involve themselves with this, it is done with parental agreement, so it is not the Police picking 610 somebody off the street and saying, ‘Just go in there and do this, that and the other.’ There is a gateway that this legislation would provide for a youngster to be able to go in and seek to buy alcohol. It is a way, really, of finding out, discovering, who is selling alcohol to underage people.

Q37. The Chairman: Back to the point of entrapment. I am sure you appreciate that the 615 repercussions for a licensee entrapped in that situation would be considerable. Do you know what those penalties would be?

Mr Earnshaw: I do not accept the word ‘entrap’. You keep using the word ‘entrap’. You are not going to put the words in my mouth. I do not think it is entrapment. 620 Q38. The Chairman: Do you think it is right that children should be used in this way?

Mr Earnshaw: I think it is unfortunate, but I think it is a tool that is needed for the job, really, as far as the Police are concerned, to discover, for the greater good, who may be providing alcohol 625 without seeking identification at the point of sale.

The Chairman: Mr Phillips.

Q39. The Clerk: You did mention that the parents would be consenting to the use of children. 630 Is there any plan for giving either the parents or the children any reward for taking part in this process?

Mr Earnshaw: Not that I am aware of.

635 Q40. The Clerk: So the parents would not be getting any monetary or other award?

Mr Earnshaw: Not that I am aware of.

Q41. The Clerk: Or the children? 640 Mr Earnshaw: Not that I am aware of.

Q42. The Chairman: Minister, if we could turn now to clause 36, please. (Mr Earnshaw: Clause 36, alright.) This concerns the partnership between various bodies, including local 645 authorities. Not a lot to say here, just a fairly straightforward question: why did you decide to ignore the advice of the Data Protection Supervisor, where, in his submission, he wished to see the legislation explicit in its need to protect against inappropriate disclosures?

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Mr Earnshaw: I am afraid you will have to ask Mr Lalor-Smith that one. I cannot answer that 650 one off the top of my head, Chairman.

Q43. The Chairman: Thank you. We will move on to clauses 37 to 41, and these together concern themselves with search warrants. Why is this being brought forward? What do you consider the need to be in the Isle of 655 Man in relation to this matter?

Mr Earnshaw: I am not going to totally dodge the bullet here – I think this is one for the Chief Constable to answer when you come to interview him a little later this morning – but the Police need enhanced powers because the criminals’ behaviour changes – and I think that pattern has 660 been identified – so the Police need wider powers regarding this. There has been quite a bit of alarm expressed, or misinformation about this particular aspect of the Bill. I am comfortable with it because what was proposed… the Police will still need warrants in the future if this is adopted, just as they require them now. It is just they will be warrants of a different nature. They can search in a different pattern to what they have to do at the moment. It gives wider powers, more 665 flexibility, and I think it covers the transportability of various items that they might be looking for. Somebody might own several properties, so it might cover a number of properties rather than one specific property.

Q44. The Chairman: But then in that situation, surely the Police will be aware of that at the 670 beginning of the search and would issue warrants naming both or all properties.

Mr Earnshaw: Maybe, I do not know. That is one, really, that the Chief Constable will have to answer, from an operational point of view.

675 Q45. The Chairman: Minister, would you accept the point that you are not particularly au fait with a lot of this detail? This is the detail that you brought before the House and expected the Members to be au fait with.

Mr Earnshaw: I am sufficiently au fait with what is going on. I have not boned up in the same 680 way for this interview today as I had when I brought the Bill to the House of Keys. I had read through this Bill thoroughly on a number of occasions, so I have not revisited that, because we have the technical officer available for you to interview today.

Q46. The Chairman: Okay, what is your view then, on multi-entry and multi-premises search 685 warrants?

Mr Earnshaw: I am relaxed and I am supportive of the Police. They need the tools for the job, and if it helps reduce crime and helps with the prevention of crime, I am supportive of that.

690 The Chairman: Right, thank you, Minister. Can we then move on to clauses 42 and 43 and you will know, obviously, that this relates to powers of seizure.

Mr Earnshaw: Just one second, while I get the right page. 695 Q47. The Chairman: I have not got a great deal to ask you – or I have not; my colleagues may have. I just want to ask, simply, are you content that the property owner’s interests are properly safeguarded within these new powers of seizure?

700 Mr Earnshaw: Yes, as far as I recall, we went into this thoroughly at the time, to ensure that that was the case. Once again, it gives the Police greater flexibility. I think it was the time that they could take away property and hold it, such as computers and computer information. It may take them a little bit of time to examine something, so they cannot examine that on a person’s premises. So that is what I recall about those clauses, Mr Chairman. 705 The Chairman: Mr Phillips.

Q48. The Clerk: What protection will be given under the Bill to seize property which may be legally privileged? You will remember there is a problem sometimes which arises when ______14 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

710 particularly matters held on a computer may be partly legally privileged and partly not. What protection does the Bill give for that?

Mr Earnshaw: As far as I recall, there is protection in that, there is a gateway, but I think that is a question that you really need to put to Mr Lalor-Smith for the technical answer on that one, Mr 715 Phillips.

Q49. The Clerk: Once property has been seized, what guarantee is there that it will be returned promptly? What remedies will a person have if the Police or other authorities are slow to ensure that it is not needed for their investigations? 720 Mr Earnshaw: Again, I think you will have to refer that one to Mr Lalor-Smith.

The Clerk: Okay, thank you.

725 The Chairman: Perhaps we should move on, then, to clause 52. This relates to the detention of children over 10 and under 14 –10 to 13.

Mr Earnshaw: Yes, this is clause 52, right.

730 Q50. The Chairman: What accommodation will be used to detain children between the ages of 10 and 13, Minister?

Mr Earnshaw: I would imagine they would be held at the police station. Quite how the Police would hold them at the police station I do not know – 735 Q51. The Chairman: So you have not asked that question then?

Mr Earnshaw: That is something you can take up with the Chief Constable. They would be held appropriately. 740 Q52. The Chairman: But you have not discussed this with him then, obviously.

Mr Earnshaw: I have not discussed that aspect with him.

745 Q53. The Chairman: Do you not think it would have been appropriate to do so, as Minister?

Mr Earnshaw: No, not necessarily.

The Chairman: Okay, thank you. 750 I am going to ask you to jump back slightly to clause 48.

Mr Earnshaw: Moving back there, I will answer that by saying it is not my job to micro- manage these things. It is an operational aspect and I think the information that we provided to the Committee explains a lot about that clause, because it allows children under the age of 18 to be 755 detained where a serious arrestable crime has been committed. So I think the Chief Constable will probably give you the answer that it depends on the appropriateness of what has taken place.

Q54. The Chairman: So if you had been asked that question in the House at the time, had we got that far, you would not have been able to answer. 760 Mr Earnshaw: I could have consulted with Mr Lalor-Smith in the House of Keys to provide that answer to anybody who asked the question.

Q55. The Chairman: And do you not think there would be an expression of public interest in 765 an issue of how we detain 10-13-year-olds?

Mr Earnshaw: Yes, I think there could be; but I would ask, at the consultation process, did you ask the question then?

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770 Q56. The Chairman: Did I ask the question then? (Mr Earnshaw: Yes.) The appropriate place for me to ask that sort of question, sir, is in the House.

Mr Earnshaw: Well, it could be, but it could be in a variety of forms.

775 Q57. The Chairman: Minister, do you not think you are getting a little bit confused between the value of a consultation and the value of a parliamentary process?

Mr Earnshaw: No, I do not think I am confused at all, thank you, Chairman.

780 Q58. The Chairman: Thank you, Minister. Clause 48, if you would be so kind. (Mr Earnshaw: Clause 48.) Clause 48 is concerned with permitting an officer of at least the rank of chief inspector to conduct a detainee review by phone. Could I ask you, Minister, what your understanding of the current safeguards is and how they work? 785 Mr Earnshaw: My understanding of the current safeguards are – and it is rather cumbersome at the moment – that a senior officer has to actually see somebody on site. From a duty rota point of view, that is not always a practical situation. You may have a senior officer on the Island one night, on a Wednesday night in the winter. The senior officer is based in Ramsey, so for the senior 790 officer to keep going from Ramsey to Douglas to view somebody in the police cells is a labour- intensive process. This was designed to try and relax that, if it had been adopted, to bring things into a more practical aspect.

The Chairman: Thank you, Minister. 795 Q59. Mrs Cannell: Mr Chairman, if I could. Could I just ask you, Minister, how many chief inspectors do we have, currently?

Mr Earnshaw: Chief inspectors: I think we have two. 800 Q60. Mrs Cannell: We only have two?

Mr Earnshaw: As far as I am aware.

805 Q61. Mrs Cannell: Okay. So clause 48 then will only permit an officer of at least the rank of chief inspector to conduct a detainee review by telephone, as opposed to calling to him? Is it only a chief inspector who is allowed at the moment or is obliged to check on a detainee to make sure he or she is okay?

810 Mr Earnshaw: ‘… to allow for an officer at least of rank of chief inspector to conduct a review of detention before charge by telephone. The only situation where this provision would be used…’

I am sorry to recite this. You have had this information, anyway. 815 ‘The only situation where this provision would be used is where it is not reasonably practicable for the review officer to be present at the police station where the person is held and the delay would be prejudicial to the investigation or to the detained person’s rights.’

820 Q62. Mrs Cannell: My question really is, if you believe that there are only two officers of the rank of chief inspector –

Mr Earnshaw: Well, I am not sure who is in what particular rank. I think it is two.

825 Q63. Mrs Cannell: You think it is two. (Mr Earnshaw: Yes.) But you do have other inspectors, don’t you, in the Police Force?

Mr Earnshaw: We do have other inspectors.

830 Q64. Mrs Cannell: How many inspectors do you have?

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Mr Earnshaw: I do not know off the top of my head. I think it is about six, seven, eight, something like that, the number of inspectors.

835 Q65. Mrs Cannell: So it is a fairly good number. So this responsibility –

Mr Earnshaw: Well, you say it is a fairly good number, but do not forget that we have got to cover 24/7, 365 days a year. So you have not got eight inspectors at your disposal at any particular time. That is not the case. So there is a rota basis worked. You will be familiar with the Police 840 process yourself, Mrs Cannell. For every one officer that we have, who is working at a particular time, you have got to have six, seven or eight officers employed in total to cover the rota system.

Q66. Mrs Cannell: I am not disputing how the rota system works or expressing a knowledge of it. I am merely suggesting to you that possibly the provisions under clause 48… What we are 845 suggesting there is that it is a cost-cutting exercise that is being proposed in clause 48, and possibly what might be more beneficial is if the Department were to consider not only the rank of chief inspector but possibly the rank of inspector also to be obliged to be checking on a detainee, it might lessen the burden on the two chief inspectors.

850 Mr Earnshaw: May do.

Q67. Mrs Cannell: That is all I am suggesting. Would you agree with that?

Mr Earnshaw: It is something that could be considered. 855 Mrs Cannell: Okay. Thank you.

Q68. The Chairman: Minister, why do you think those safeguards were put in place in the first place to have such a senior officer be required to conduct a detainee interview at that 860 particular stage?

Mr Earnshaw: Okay, I think we can answer that, because these… The law would be put in place regarding this pre having the neighbourhood policing teams around the Isle of Man, I think perhaps in a different climate. I think we have got information here telling us in the Isle of Man… 865 I was reading it yesterday. The first probation officer in the Isle of Man was appointed in 1964. That is nothing to do with it, but I just throw that in as an illustration of how things have grown over the years. Presumably there was a much lesser problem in the Isle of Man in 1964 than there is now, and it would be exactly the same way with the Police. The ratio there has grown, the Force has increased as time has gone by because the amount of crime that has been taking place in the 870 Isle of Man has grown.

The Chairman: Okay, I think we will move on.

Mr Earnshaw: I think that answers that. 875 The Chairman: Thank you. Clause 60, Minister, if you would, please.

Mr Earnshaw: Clause… What was that one? 880 The Chairman: Clause 60.

Mr Earnshaw: Sixty?

885 The Chairman : Codes of practice.

Mr Earnshaw: Let me just find out where that is. Have I got that highlighted? Was that on your…? Fifty nine, sixty. It was not mentioned in your brief, that one, that I got from Mr Phillips. Oh, yes, I beg your pardon, there it is. Let me just find that one. Page 52. Right. 890 Q69. The Chairman: It is really for clarification, Minister. Where would you expect to see, on the Isle of Man, searches take place prior to arrest? ______17 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Earnshaw: Where would I expect searches to take place prior to arrest? I do not think you can define a particular place. It just depends on the circumstances of where the crime may have 895 been committed.

The Chairman: Assuming there was a crime.

Mr Earnshaw: Assuming there was a crime, or there was suspicion that a crime was about to 900 be committed.

Q70. The Chairman: Obviously the Committee will be discussing this with the Chief Constable later, but I was just searching out your understanding of this particular element, where you thought that searches might occur, as the Minister, before arrest took place. 905 Mr Earnshaw: Well, I –

The Chairman: Can you envisage any situation… Did you discuss this?

910 Mr Earnshaw: Yes, I discussed that. There has been a lot to discuss on this Bill. As you said at the outset, (The Chairman: Indeed.) it is a large Bill and it has been worked up over a considerable period of time. The whole thrust behind this, as appropriate and as needs, is to increase the powers that the Police have to enforce the law.

915 The Chairman: Okay, thank you, Minister. Can we go on to clause 66 then, please.

Mr Earnshaw: Clause 66.

920 The Chairman: It is as regards spot penalties.

Mr Earnshaw: Oh, yes.

Q71. The Chairman: Just searching out your opinion on those: are you not concerned that 925 spot penalties might change the relationship between our Police Force and the general public?

Mr Earnshaw: I think the spot penalties… I do not think you pay your cash over to a police constable when he issues a spot penalty. It is just the same as getting a fixed penalty on your car. It is something that you are given for a specific offence, and this is low levels of crime, and the idea 930 is to modernise the process that we have. That is the thrust behind that. To me, it seemed to make good sense. You may have another view on that.

Q72. The Chairman: No, I was looking really at how you were interpreting how the public might respond to it, what thoughts you had had on the matter. 935 Mr Earnshaw: Well, if you have not committed a crime you are not going to get a fixed penalty. If you have committed a low-level crime and it is considered appropriate to give you a fixed penalty, that is what you are going to get. There is a mechanism there for anybody who is unhappy about the fixed penalty to contest it, if needs be, in a court. 940 Q73. The Chairman: And how do you think somebody would feel if presented with a spot penalty that they felt was unfair or unjust, and how they would then feel about having to defend themselves in a court?

945 Mr Earnshaw: Possibly the same way as somebody who gets a fixed penalty for a parking affair, if you have forgotten to put your disc up. Much the same way, if it was issued unfairly.

Q74. The Chairman: You feel that parking fines and spot penalties are almost identical in terms of the mind of the general public? 950 Mr Earnshaw: No, I do not think that, but I think that is how they are done, that is how they are issued.

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The Chairman: Thank you, Minister. 955 Can we then turn finally to clauses… Unless you have anything?

Mrs Cannell: No, I am happy to ask some questions on clause 67.

Q75. The Chairman: Fine. So we will turn then, Minister, to clauses 67 and 68, which have 960 regard to ASBOs, and my first question would be: do you think it is sensible to energetically pursue this type of imposition at a time when evidence elsewhere is that they are not working as intended or hoped; and more specifically in this clause, are you content that ASBOs should apply within a family setting or a domestic setting?

965 Mr Earnshaw: Well, once again you come back to the old cliché about appropriateness and proportionality. ASBOs are not used very much in the Isle of Man. They have been widely used in the UK but I do not think they have been enforced and all the information I have is that the situation has collapsed in the UK. So I think we have been mindful of that in the Isle of Man and its use for anti-social behaviour 970 is… Other ways are found, if possible, to deal with it. We do not really want to criminalise people unless we have to. I am aware the Police, with younger people in particular, issue what are known as ABC, which is a behaviour contract. It is like a yellow card, really. That behavioural contract is worked out between the neighbourhood policing team and whoever the… usually a young person with these things, whoever it is. They are expected to adhere to that, and if they do adhere to it, 975 that is the end of the matter and they are not criminalised. If they do not, things are cranked up a little bit and it may involve them in more serious affairs, but anti-social behaviour orders are not heavily used in the Isle of Man at the moment.

The Chairman: Thank you, Minister. 980 Mr Gill and then Mrs Cannell.

Q76. Mr Gill: Thank you. Minister, in your lengthy prepared statement, you said that predication of the Bill was based on other legislation in other jurisdictions that had been successful. How do you reconcile that with 985 promoting ASBOs in this clause with the comment that you just said, that in the other jurisdiction… I cannot remember the exact words you used, but it has basically failed and imploded? It has failed – that is the experience in the UK you described – and now you are promoting it in the Isle of Man.

990 Mr Earnshaw: Well, I think you will have to put that to the professionals, the Chief Constable. Not ducking anything here, but they are the people who… Well, the Chief Constable is at the coalface regarding this. Just because it is in the Bill does not necessarily mean it is going to be widely used. It is available as an aspect of the law.

995 Q77. Mr Gill: Does there not seem a discrepancy between a failed policy in the United Kingdom that you described and promoting it in the Isle of Man?

Mr Earnshaw: Well, I have got to say that since… Things have moved on with ASBOs in the UK in recent times and that is since this Bill was put together. 1000 Q78. Mr Gill: In what way?

Mr Earnshaw: I think they have taken a fresh look at the ASBO situation in the UK, to find out if they can… and I do think that they are probably going to mirror a lot of what we do in the 1005 Isle of Man. I think in the UK, an ASBO has been viewed as a badge of honour in some areas and there have been so many of them, the police have just not been able to control what goes on there in the UK. But once again, I am not a professional. I think you should ask the professionals, put that question to the professionals.

1010 Q79. Mrs Cannell: But Minister, clause 67 gives you the power to apply an ASBO on people who live in the same house. Does that not cross the boundary between civil and criminal law? It is one thing applying the use of an anti-social behaviour order on a group of anti-social, badly behaved people; but to actually apply it on somebody within the same household, a family…

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1015 Mr Earnshaw: Well, I think that is one for the Chief Constable, Mrs Cannell, with all due respect. He is the practitioner, not me.

Q80. Mrs Cannell: Are you aware that the new Home Secretary, Theresa May, announced a while ago that there was going to be a whole review of the anti-social behaviour orders? 1020 Mr Earnshaw: Yes, I have just referred to that.

Q81. Mrs Cannell: Yes, and have, as a consequence, restricted their use. Also, the Deputy Prime Minister, Neg Cligg… Nick Clegg has announced – (Mr Earnshaw: 1025 ‘Neg Cligg’?!) Nick Clegg has announced that there is going to be a Civil Liberties Repeal Bill. So possibly, anti-social behaviour orders, as we currently know them, may well be withdrawn –

Mr Earnshaw: That may well be the case.

1030 Mrs Cannell: – and an alternative method come forward.

Mr Earnshaw: That may well be the case.

Q82. Mrs Cannell: So if we are trying to update legislation, we are not doing terribly well on 1035 this one, are we?

Mr Earnshaw: I think this Bill was assembled up to now in 2009 so we still had a Labour government in place then. Things have moved on and once again we are back to modernising the practices. Nothing stays still all the time, and I think we are all aware of that. We have got to 1040 respond to changing circumstances and we are cognisant of what takes place in the UK but we want to make sure that what we do is tailored for the Isle of Man.

Q83. The Chairman: Minister, are you saying here that we are just following the Labour policies in the UK or adopting – 1045 Mr Earnshaw: No, no, no. I am just saying –

Q84. The Chairman: I got that impression. I think the Hansard will possibly show that that is what you are suggesting. 1050 Mr Earnshaw: Well, you have just referred to Nick Clegg, who is a member of the government now – he is the deputy leader of the government. So there is a change of attitude in the UK regarding these ASBOs and we will examine what they have got to say about that in due course. What I am saying is this was assembled in an earlier time. 1055 Q85. The Chairman: In answer to Mrs Cannell’s comment on ASBOs in a domestic situation, you asked that the matter be referred to the Chief Constable. Do you not think that there is a political dimension to this which you are answerable for, rather than just simply passing it to the Chief Constable? Surely the Chief Constable should rely on political input on issues of this nature. 1060 Mr Earnshaw: I think there is a political dimension –

Q86. The Chairman: So what is your opinion of ASBOs in a domestic environment, then?

1065 Mr Earnshaw: I am supportive of the Police: if they need the tools to do the job –

Q87. The Chairman: No, Minister, that is not what I asked. I asked you what your political opinion is about ASBOs in a domestic environment; not what the Chief Constable considers to be technically appropriate. 1070 Mr Earnshaw: I do not know how I can possibly answer that, ‘what is my political opinion?’ It just depends on the circumstances that are taking place in that household, where an ASBO might be issued.

1075 Q88. The Chairman: So you are absolutely ambivalent about it. ______20 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Earnshaw: We are looking at hypothetical situations, so I am sorry if I am not answering your question very well, but –

Q89. The Chairman: Minister, you are bringing something into law here – or you wish to 1080 bring it into law – which has a political dimension. I am just trying to establish from you what your political opinion about this is, not what the Chief Constable may or may not consider appropriate.

Mr Earnshaw: My political opinion is that I want to give the Police what I consider to be 1085 appropriate tools to do the job.

Q90. The Chairman: So, in other words, you are defaulting to the Chief Constable, rather than offering a ministerial opinion.

1090 Mr Earnshaw: No, I do not think that. I am taking advice from the Chief Constable, where appropriate. It is a partnership. I have got political responsibility for the Isle of Man Constabulary. I work with the Chief Constable and with his team, and he works with ours.

The Chairman: Minister, it is now ten past eleven. 1095 Mrs Cannell: Chairman, can I just finish off from what you were trying to establish?

The Chairman: Indeed.

1100 Q91. Mrs Cannell: Whilst accepting the role that you have, Minister, and the fact that politicians cannot really interfere in policing matters as such, nevertheless, in putting together a piece of legislation like this, surely you would have had a policy discussion about why there was a need for his type of ASBO to be applied on a family in a domestic situation and what examples there were put to you at the time of the policy discussion that led you to believe that this was a 1105 requirement that it was in fact needed. It would be good if you could share that with the Committee.

Mr Earnshaw: The discussions will have taken place at officer level with my officers, which were led by Mr Lalor-Smith and the police officers at the time. So that is how the legislation has 1110 been worked up.

Q92. Mrs Cannell: So you were not part of the policy development of this.

Mr Earnshaw: I do not sit there with the officers, working up these issues. 1115 Mrs Cannell: That is all I have to say, thank you.

Q93. Mr Gill: Sorry, just on need then, you do not think it is a requirement of the mover of the Bill or a political Member to ask a question of officers in the Department, or police officers, to 1120 prove the need? You just take that at face value that if it is given to you as a need, you accept that?

Mr Earnshaw: No, I do not take that at all, but I think where I am concerned, I will ask questions. Where I am not concerned, I will not feel the need and I have asked questions –

1125 Q94. Mr Gill: So how many of these officers advised you that an ASBO in a domestic environment would be necessary?

Mr Earnshaw: I cannot remember at this distance in time.

1130 Q95. Mr Gill: Was that question asked?

Mr Earnshaw: No doubt it is discussed amongst a wide variety of other things. I have gone through this Bill carefully with Mr Lalor-Smith and with the Deputy Chief Constable on a number of occasions. 1135

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Q96. Mr Gill: I recall, Minister, you said on one occasion in the Keys that you wanted to give the Police what they needed and wanted. Could you describe the difference between a need and a want?

1140 Mr Earnshaw: I think that they dovetail with each other. They flow into one, really, Mr Gill.

Q97. Mr Gill: So what the Police want you accept as a need?

Mr Earnshaw: No, not necessarily. 1145 Q98. Mr Gill: What distinction would you draw between the two?

Mr Earnshaw: I am afraid I am not that scientific.

1150 The Chairman: Thank you, Mr Gill. Any more questions from Members?

Mrs Cannell: No, thank you.

1155 The Chairman: Mr Phillips, have you any final…? Minister, we are most grateful for your time, this morning. We have been talking now for an hour and a quarter. On behalf of the Committee, thank you very much indeed for your time.

Mr Earnshaw: Thank you, Chairman. 1160 The Chairman: We will adjourn for just a few minutes, if we may, and we will sit down again at twenty past, if that is okay. Thank you very much.

The Committee adjourned at 11.13 a.m. and resumed its sitting at 11.18 a.m. when Mr Greenhow and Mr Lalor-Smith were called.

EVIDENCE OF MR W GREENHOW AND MR J LALOR-SMITH

Q99. The Chairman: Ladies and gentlemen, thank you. Now on to the second part of this morning. We welcome Mr Greenhow and Mr Lalor-Smith. 1165 Thank you very much for your attendance. As you will no doubt be aware, it is impossible to deal with all the matters arising from this Bill in one session. Today, therefore, we are concerned only with that section of the Bill which deals with police powers and a few ancillary matters. Before beginning our questions, which are in two parts – architectural and the source of the Bill and later on, looking at particular clauses – 1170 before we begin questions, is there any small statement you want to make, in addition to the one that the Minister has already made? Do you wish to add anything to that?

Mr Lalor-Smith: Only in relation to clarification on the amount of clauses which Mrs Cannell mentioned. There were 115 clauses in the original Bill, prior to this current Bill: 49 of those were 1175 taken forward before the election and 66 were withdrawn. They were then included within the existing Bill of, I think it is, 78 clauses. Just to provide clarification on that, and also to provide clarification that, after the Manx Radio interview and consolidation exercise, at a meeting with the Department, it was agreed to actually withdraw a number of clauses, including, for example, the one on hatred, swords, late-night establishments and conditional cautions, so note was taken of the 1180 public and political view on the Bill.

Q100. The Chairman: In that case, could we look at, perhaps, where cognisance was not taken and here I particularly refer you to the matter of the enormity of the Bill and the determination of the Data Protection Supervisor to express concern in that regard. Did you feel 1185 that you did not consider his comments and concerns worthy of further consideration?

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Mr Lalor-Smith: We had in the region of 90 submissions to us. Obviously, they take various forms, where some were extensive and some were very limited. One officer within Government making such a comment obviously would be considered, but it is one comment and the 1190 Department, as Mr Earnshaw has quite clearly made clear to you… we believe that there was a precedent in relation to taking forward such Criminal Justice Bills and that there were no concerns raised previously and that was one person raising that concern. So the Department felt that this was the way that we take forward legislation in the Isle of Man. Obviously, we realise now that there are concerns in the House of Keys. It is perhaps regretful that they were not expressed a bit 1195 earlier on and then perhaps that might have been a higher profile issue for the Department to consider. But, as I say, this is something we have done for two decades and therefore it was what we had already always done.

Q101. The Chairman: Indeed. Thank you for that. 1200 Taking your point on to Mr Greenhow then, are you inclined, do you think, to take forward the feeling today that these Bills are just too large to manage on the floor of the House, and are you, in your new role – and congratulations – (Mr Greenhow: Thank you.) likely to attempt to influence senior officers in various Departments as to how they might approach volumes of legislation in the future, Mr Greenhow? 1205 Mr Greenhow: Certainly, Chairman. Firstly, I would like to endorse what Julian has just said, that the Department has taken previous Bills of this magnitude and complexity forward previously, but taking also on board the comment that was made that in future, and also waiting for the outcome of this Committee, I think it will be useful to see the recommendations that come forward 1210 from there. Certainly in my new role, I think it is something that Departments now have obviously all got to look at and be cognisant of, that the Keys and the legislative process is obviously concerned about the scale and magnitude of Bills that will now come forward.

Q102. The Chairman: Thank you very much indeed for that. 1215 Going on to a further point, I understand that regular meetings take place between officials in the Ministry of Justice and their counterparts here in the Isle of Man, and that generally no permanent record is kept of these meetings and that action points are agreed between officers. Do you accept this to be the case, and were there any elements of this Bill discussed in those meetings, to your knowledge and recollection? 1220 Mr Greenhow: If you are referring to work of the Chief Secretary’s Office, I am not aware –

Q103. The Chairman: Well, in this case, it is a strange thing, because I am covering both the overarching Isle of Man situation and here also the fact that you were at the Department of Home 1225 Affairs at the time. Do you recollect any discussions that went on on an unofficial basis between yourself at the time and the UK about the advisability of bringing elements of this Bill forward?

Mr Greenhow: Not that I am aware of, Chairman.

1230 The Chairman: Thank you very much for that.

Q104. Mr Gill: Could I just clarify, Mr Greenhow, are you aware of any meetings held in the manner that the Chairman has described between any of the officers of the Constabulary or of the Home Affairs Department? 1235 Mr Greenhow: I am not aware of any, Mr Gill. That is not to say they did not happen, but certainly they were not brought to my attention.

Q105. The Chairman: Thank you very much. 1240 On 2nd March 2008, the Secretary of State for Justice informed the Commons that pieces of legislation already introduced by the UK government were considered for extension to the Isle of Man, including matters directly relating to the criminal justice issues. Do you know what those issues were?

1245 Mr Greenhow: No, I do not. Off the top of my head, sorry, no.

The Chairman: Okay, thank you. ______23 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mrs Cannell: If I might, Mr Chairman –

1250 The Chairman: Indeed.

Q106. Mrs Cannell: It would be very helpful for the Committee if perhaps you could look back at that time – March 2008 – to see if you can in fact find something to help clarify. That would be very helpful for us, please. 1255 Mr Greenhow: Could the Clerk provide me with that statement, please, after the session? Thank you.

Q107. The Chairman: Do you share the view of the Commons Select Justice Committee that 1260 the UK does indeed influence Island legislation?

Mr Greenhow: Certainly, we would look at legislation that the UK is developing. I do not know whether the Minister made a statement or not. We would look at some of the legislation that the UK may be developing. I have no reason to accept that they influence our legislation, because 1265 it goes through our own legislative process.

Q108. Mrs Cannell: If I could just follow on from that, there is a strange issue with the Isle of Man… well, a strange situation, in that yes, we can choose to adopt their legislation. We can also choose to put together our own homegrown legislation. I think what we are looking for is where 1270 does the responsibility lie. In terms of criminal justice legislation, do the UK give us the legislation and say, ‘We are doing this – would you like to take a look?’ or do we say, ‘Oh, look, they are looking at this – shall we take a look?’ Where does the invitation lie? Do the UK say to us, ‘We are doing this. Have a look and consider it.’?

1275 Mr Greenhow: Certainly the latter, I would say.

Mrs Cannell: The other way around?

Mr Greenhow: From my role within Home Affairs, that was certainly – 1280 Mrs Cannell: The other way around?

Mr Greenhow: The other way round, yes.

1285 Q109. The Chairman: On a Manx Radio programme on 8th November 2009, Mr Lalor-Smith said, ‘We need to take forward some urgent measures.’ I do not know whether you recall that, sir, but was this because you felt under pressure from various sources to do so or was this evidence based from the Isle of Man’s perspective?

1290 Mr Lalor-Smith: Evidence based from the Isle of Man’s perspective. Part of the process that we go through is… What actually happened to this legislation is, because the majority of it goes back an awful long time – back to 2005 – a working group was established in the Department with representation from the Police, Probation, Prison, General Registry and the centre with the approval of the Department and that was established as a result of an early public consultation on 1295 some principles in law which had been raised by the various agencies or politicians. We had gathered together, over a number of years, issues of concern. That committee met on a number of occasions and also consulted with the High Bailiff and various other people. From that committee, recommendations were put forward for changes to the legislation – from an operational standpoint and from the other issues that had been raised previously – to the Department. We then agreed that 1300 drafting instructions could be prepared and issued to the Attorney General’s Chambers, and then we went out to consultation again with the approval of the Department and there was full discussion at that stage with the Department. In fact, Mr Gill, you probably would remember, in October of that year, you were actually present at a meeting and that we discussed… I think I have got your comments somewhere on that 1305 particular piece of legislation. I do not know if it is helpful, but if I go through the history a little bit, I think it probably is helpful. Then, of course, we get to just before the Election and a decision is made to withdraw some of those clauses from the Bill – a considerable number of them – because there was a worry by Mr ______24 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Shimmin, who was the Minister at the time, that we were not going to get them through, because 1310 of the bulk of them rather than anything else. Then, after the Election, those issues were taken up yet again by another working party who looked at them under Mr Quayle, and then they were taken forward and approved by Mr Quayle for a Bill. Then we had a reshuffle and then the current Minister, Mr Earnshaw: again, we had a… and I could go through the number of meetings if you want me to, but I do not want to waste your time, I know you are short of time – 1315 The Chairman: We have got a lot to go through.

Mr Lalor-Smith: – where all of those issues were again discussed in detail. Does that answer your question? 1320 Q110. The Chairman: Yes. If you give an example of where you saw there was a significant degree of urgency in a particular set of clauses.

Mr Lalor-Smith: Yes. For example, the codes of practice that the Police operate under. 1325 Currently, the Department does not have the vires to actually take forward codes that will cover the broad breadth of everything that the Police do, so what we wanted to do within this piece of legislation was to provide for that. Until we can do that, there are bits of the codes of practice that the Police are required to operate under in every area and therefore there is not the degree of protection that there is in the UK from codes of practice, because we will use the same codes of 1330 practice because they have been used for a number of years now and they work.

The Chairman: Thank you. Mr Gill.

Q111. Mr Gill: Could you tell us which other jurisdictions, apart from the United Kingdom, 1335 you looked at practice and other legislation?

Mr Lalor-Smith: Generally, the process starts by not actually looking necessarily at legislation at all. The process starts by looking at problems that we are experiencing in the Isle of Man, or where the Police, Probation and Prison are finding it difficult to operate in their operational 1340 environment, and from that, we come up with an issue that needs to be dealt with, and then we would get Department approval to look at that matter, and then, when we go to the Attorney General’s Chambers, if there is suitable legislation that covers that matter in the UK, of course that will be looked at, to see whether or not we can adapt that for our purposes.

1345 Q112. Mr Gill: So there are no other jurisdictions you look to, apart from the UK.

Mr Lalor-Smith: Generally, it would be UK legislation. I think there are some issues that we have dealt with – well, it is English, England and Wales – where we have looked at Scottish legislation in relation to licensing. 1350 Q113. The Chairman: Just coming back to the issue of urgency and the matter of not having vires, are we perhaps embarrassed here somewhat that we have certain codes of conduct or practice in place that are actually not covered by law at the present time? Is that where we find ourselves now, in practical operational terms, here on the Isle of Man? 1355 Mr Lalor-Smith: It is not a matter of embarrassment; it is a matter of ensuring that we keep our law up to date, to make sure that members of the public here are equally protected as they would be in other jurisdictions. We want to keep our law up to date.

1360 Q114. Mrs Cannell: Mr Chairman, can I just ask… Given that some of the measures contained within the legislation were regarded by you as urgent, why did it take five years before presenting them to the Keys?

Mr Lalor-Smith: Well again, I can go through the – 1365 Q115. Mrs Cannell: I appreciate what you have said, that the working party was put together in 2005, a Bill did come forward in 2006, and I have to say at the time it was highly controversial when it was going through its readings in the House of Keys, because I remember it well and there

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was a lot of concern raised by Members as to the provisions that the Bill was going to contain. (Mr 1370 Lalor-Smith: Yes.) Having said that, of course, 66 of those clauses were withdrawn from the 2006 Bill and 78 clauses are before the Committee at present. Again, what you are saying is that in this latest legislation there are new provisions within there. The most urgent are the codes of practice for the Police. 1375 Mr Lalor-Smith: I did not say that was the most urgent. It is one. I was asked an example and that was one example.

Mrs Cannell: Well, you certainly held that as a priority. 1380 Mr Lalor-Smith: I had to pick one.

Q116. Mrs Cannell: Well, whichever one it was that you chose – you chose this one – but whichever one it was, why has it taken…? If it is urgent, why was it not consolidated into its own 1385 piece of legislation, its own Bill, and then come forward to the House of Keys, so that it would have had an easier passage, and certainly would have been easier understood by Members?

Mr Lalor-Smith: Obviously we have not got the time here, but I could go through each element of the Bill, and give you a description about why that particular issue is also urgent and 1390 needed. Obviously, we do not have the time here to do that.

Q117. Mrs Cannell: Nevertheless, you did say, on Manx Radio on 8th November 2009:

‘We need to take forward some urgent measures.’ 1395 That is what you said during the radio programme (Mr Lalor-Smith: Indeed.) and that is the one I am drawing upon. The Chairman has invited you to cite, as an example, a priority for the Department and you have said the codes of practice for the Police. It is a simple question, really. If it is urgent, if it is a priority, that particular section or element of the Bill, why did you not insist 1400 on it being put together as one single Bill, a smaller Bill that would come forward as the 2006 Bill did? That was Police Powers and Procedures, wasn’t it, the 2006 Bill?

Mr Lalor-Smith: No, 1990. The Police Powers and Procedures Bill. In answer to your question – 1405 Q118. Mrs Cannell: What was the name of the 2006 Bill, may I ask?

Mr Lalor-Smith: The Criminal Justice, Police and Courts Bill.

1410 Q119. Mrs Cannell: Yes, but it mostly contained more powers for the Police, didn’t it, the 2006 Bill?

Mr Lalor-Smith: There were a lot of elements in relation to the courts there and the Prison as well. It was a similar Bill, it was across the board again. 1415 Q120. Mrs Cannell: It was not as big, though?

Mr Lalor-Smith: It was to start with.

1420 Q121. Mrs Cannell: Yes, but it was not when it was presented –

Mr Lalor-Smith: It was smaller in the end.

Mrs Cannell: – to the Department, but when it came before the House, it contained 49 clauses, 1425 about half the size of the Bill that is currently before this Committee. And it did not get a smooth passage, there was quite some debate on it. There was quite some concern raised about the elements contained within it. All I am saying is that, in 2006, I would have thought the Department learned a hard lesson, in terms of bringing together such a powerful piece of legislation that impacted not only on criminal ______26 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

1430 law, but also on civil law and that perhaps, in view of that, they would have, rather than consolidate, continued to consolidate over a period of five or six years, those powers which were needed and regarded as being needed by the Department and other Divisions, that they would have learned their lesson and started to break it down and bring it forward in reasonably-sized Bills. Is it not unreasonable for me to consider that this could have been split into six separate pieces of 1435 legislation?

Mr Lalor-Smith: It certainly could have been split into six pieces of legislation. At the time though, as I have explained previously, the original Bill was much larger than this. It was almost twice the size of the one we are actually taking forward that is subject to this Committee now. It 1440 was considered that the Bill was not huge and was of a similar size of Bills that we had taken forward before, and this was the quickest and best way to take it through. When the debate was taking place on the 49 or so clauses, I do not ever remember the issue being raised about the size of that piece of legislation.

1445 The Chairman: Thank you. Mr Gill.

Q122. Mr Gill: Thank you, Mr Lalor-Smith. Can I just go back to your observation that the Department, presumably the Minister, chose to ignore the comment of the Data Protection Supervisor, that it was too complex. 1450 Mr Lalor-Smith: I did not say that the Minister chose to ignore that. What I said was that the Department would have had a summary of the consultation document, and you can imagine that there were a huge amount of issues raised. I cannot remember, off the record, whether that particular matter was actually brought to the Minister’s attention. It was one officer expressing a 1455 view and I think we have to see it on that basis.

Q123. Mr Gill: Who made the decision that it was appropriate to ignore that view of one officer?

1460 Mr Lalor-Smith: I think to say it was ignored is unfair.

Q124. Mr Gill: It was considered –

Mr Lalor-Smith: It was considered, yes. 1465 Mr Gill: – and then ignored. (Mrs Cannell: Disregarded.) Disregarded. Would you accept that?

Mr Lalor-Smith: I think the fact was that the Department’s view was that the Bill was not of 1470 an unreasonable size and there had been plenty of time – and let us face it – there had been three consultation exercises on the majority of the provisions of this Bill. So there had actually been a huge amount of opportunity to comment on these issues previously. In fact the data protection adviser would have had two opportunities, at least, to have consulted on these –

1475 Q125. Mr Gill: Who made that decision, is what I am trying to clarify?

Mr Lalor-Smith: I would not want to mislead the Committee here and I would want to write and let you know exactly how that particular issue was considered.

1480 Q126. Mr Gill: Just for clarity, you say that was on the basis it was one officer made the point: I think, did Simcocks’ advocates and the Law Society not voice similar concerns?

Mr Lalor-Smith: I cannot remember off hand.

1485 Q127. Mr Gill: Well, maybe you could include that in your evidence, please.

Q128. The Chairman: Well, time is shooting on, so perhaps we can go on, gentlemen, to part two, which really is going through various clauses and if we could possibly start with, inevitably, clause 11 please, which is the one, as you know, relates to the use of children for test purchasing 1490 of age-restricted products. Is this already happening? Is this already in place now? ______27 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Lalor-Smith: They will do test purchasing, but with no-one under the age of 18, obviously, because it would be illegal. So, potentially, I think the OFT do do some test purchasing, I think perhaps for fireworks. But certainly at the moment, you cannot do it with someone who is under the age of 18. 1495 Q129. The Clerk: This is with – sorry to break in, Chairman – people who look under 18, but in fact are not.

Mr Lalor-Smith: Absolutely, yes, but in effect the retailer is not committing an offence, 1500 because it is someone actually that is over 18.

Q130. The Clerk: So the purpose of the change in the law is to make sure the retailer does commit an offence, so that you can prosecute him.

1505 Mr Lalor-Smith: In effect, that could be the end. That could be possibly what might happen, yes. I should again make it clear on this one that the licensing industry are fully supportive of this particular clause.

Q131. The Chairman: Thank you. 1510 What safeguards will be in place for children used in this scenario, should it arise, should it get onto the statute book?

Mr Lalor-Smith: You will see from the legislation, there is a code of practice which would be firmed up to ensure that children are protected, the parents gave consent and obviously, they 1515 would be volunteers.

Q132. The Chairman: Will the House have the opportunity to see that code of practice? Is it available to us now? Could the Committee consider it?

1520 Mr Lalor-Smith: No, the code of practice has not been drafted at this stage.

Q133. The Chairman: Might I put it to you that it would be helpful if the Committee could see a code of practice, because that might very well influence the Committee’s view on this matter? 1525 Q134. Mrs Cannell: Mr Chairman, if I could just interject there, would it not be more beneficial to actually draft regulations, as opposed to a code of practice? A code is just a code, it is not enforceable in law, but secondary legislation would be, wouldn’t it?

1530 Mr Lalor-Smith: That is obviously a suggestion that could be considered.

Q135. The Chairman: Will the code of practice, as envisaged, would it be mandatory?

Mr Lalor-Smith: The code of practice is not – (Mrs Cannell: No, it is not.) It would not be 1535 statutory, would it, so it is just the Department has a power to make a code of practice, but then the operation by the OFT and the Isle of Man Constabulary, they would be required to comply with that code of practice.

Q136. The Chairman: What do you think the risks are to children who are exposed to this sort 1540 of scheme?

Mr Lalor-Smith: I think the risk would be very limited. First of all, they would be volunteers, their parents would have approved that they should do this and today children probably grow up too quickly, to be honest, and they are quite worldly, so very unlikely there would be any damage 1545 to children.

Q137. The Chairman: The Minister took offence to my use of the word ‘entrapment’; would you like to make your comment on the use of that word?

1550 Mr Lalor-Smith: I do not see how it could be entrapment when you are using someone who is purchasing something illegally, as far as the retailer is concerned, and therefore the retailer and ______28 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

their staff, there should be a process in place to make sure that they are identified. In fact, the licensing industry has been very honourable and proactive in this, in that they now have a scheme where, actually, if someone is, or looks, appears to be under the age of 25 they require 1555 identification. So, I would be hopeful that, actually, if retailers are operating flexibly under that scheme, that if someone under the age of 18 does go in there, they are very unlikely to actually get served.

The Chairman: Thank you. Mr Phillips. 1560 Q138. The Clerk: The Minister has confirmed that nobody will be getting any rewards for taking part in this, not the children, nor their parents. How would the children be selected for taking part in this scheme?

1565 Mr Lalor-Smith: We have not really gone into that detail, but I would suspect it would probably be undertaken by the OFT, maybe by advertising for children who want to take part. They might do it through schools, I do not know, we have not looked into that great a detail yet, as to exactly how they would be recruited.

1570 Q139. The Clerk: Would the children be used in their local area or would they be, as it were, taken to somewhere not near where they live?

Mr Lalor-Smith: Funnily enough, in my notes, I made a note, obviously, to make sure they are not identified, it would be sensible if they came from another area of the Island. 1575 Q140. Mrs Cannell: Sorry, Mr Chairman, if I could just clarify… What sort of age is the Department looking at – age of children – for these test purposes?

Mr Lalor-Smith: It may be to make sure that they actually look young, rather than potentially 1580 younger, but under the age of 18. So 16, 17, I suppose. You certainly would not want to go too young.

Q141. Mrs Cannell: Quite, but it is quite open ended. The clause is quite open ended. (Mr Lalor-Smith: Indeed.) So you could, in fact, select a child who is just 10 or 12, couldn’t you? 1585 Mr Lalor-Smith: I would say that the code of practice will have to set that out.

Mrs Cannell: Or regulations.

1590 Mr Lalor-Smith: Or regulations would have to set out the limit to the lower age group that could be used for this purpose.

Q142. Mrs Cannell: Regulations would, in fact, be more beneficial, because then they would have to be laid before Tynwald and therefore approved by Tynwald, whereas a code of practice 1595 does not come before Tynwald.

Mr Lalor-Smith: Absolutely.

Q143. The Clerk: But you could, in fact, put the minimum age in the Bill, couldn’t you? 1600 Mr Lalor-Smith: Yes, you could put a minimum age in the Bill.

The Chairman: If we can turn to clause 36, which is crime and disorder strategies, and in particular here paragraph 1B(3)(f), where it says: 1605 ‘the sharing of information between responsible authorities;’

In this regard here… and perhaps you might… Have you got the Data Protection – 1610 The Clerk: It has gone to the Minister, I think.

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Q144. The Chairman: There is comment by the Data Protection Supervisor in the consultation process that he would have wished to see the word ‘permits’ instead of ‘requires’. I 1615 just wonder why it was that you decided to disregard this advice. I think that letter is still on the table; I am not sure.

Mr Lalor-Smith: I remember the bit that you mean.

1620 The Chairman: Good, thank you.

Mr Lalor-Smith: As everyone is explaining, this is a very large Bill and I think, in order to answer that question, I would rather provide it to you in writing afterwards because I want to check exactly what happened in relation to that matter. 1625 Q145. The Chairman: Thank you very much, that is fine. If we move on now to clauses 37 to 41, which is search warrants, as you know, what evidence was produced to the Department that established the need for legislation in this area?

1630 Mr Lalor-Smith: I think probably the detail of this answer may be better coming from the Chief Constable, because obviously he has more… (The Chairman: Fine.) but I am more than happy to give a broad overlook.

The Chairman: From a departmental point of view. 1635 Mr Lalor-Smith: Yes, from the departmental point of view, case law in the UK as things move forward, sometimes affects the impact of current provision and therefore makes it different from the way the Police can continue to operate. Therefore, it can make it more restrictive and therefore sometimes you need to provide additional capacity in the law to actually provide for that change in 1640 case law. That is part of the element that was provided to us, that there was a greater need and of course there are developments in technology and computers and getting information off computers and the difficulties and all those kind of areas, life moves on and things develop and therefore that is part of the evidence that was provided to us.

1645 Q146. The Chairman: My next question is, again, one you might wish to refer to the Chief Constable and I would be content with that, but I would like to ask it anyway from the point of view of your feelings about it. Why should an inspector be permitted to issue a warrant?

Mr Lalor-Smith: In relation to? 1650 The Chairman: Search warrants.

Mr Lalor-Smith: Search warrants. I am not aware that an inspector can issue a…

1655 The Chairman: Within the context of this.

The Clerk: Do you mean to issue a fresh permission under a general warrant? (The Chairman: Yes, yes.) Rather than the warrant itself? I think it is to extend what would be a general warrant if you know what I mean. 1660 Mr Lalor-Smith: Is this about where the Police have got a warrant used by a court and they are empowered to revisit premises? Yes, and therefore in that case a senior officer actually has to authorise before they go back to the premises.

1665 The Clerk: It is not a fresh warrant; it is a fresh submission.

Mr Lalor-Smith: Right. So what in effect is provided by the court is approval to revisit premises. What this is is an additional check to ensure that a senior officer checks and provides an authorisation that they can do it, so that, I suppose, you have not got more junior officers going in 1670 without that approval. So it is an extra check and balance, in effect.

Q147. The Chairman: Thank you.

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The Law Society responded in a most robust fashion on the possibility of repeated searches of premises and unlimited amount of times without check. They use strong words. They call them: 1675 ‘Draconian and unacceptable in a civilised society, a charter for abuse of power.’

Were you concerned by the strength of their opinion?

1680 Mr Lalor-Smith: I think that obviously we consider what the Law Society say and it is very important that we take into account their views because they represent advocates in the Isle of Man, but it is also very important that the Isle of Man is provided, the Police are provided, with the tools to operate, and sometimes that has to be more important than perhaps the concerns of the Society. These particular provisions, though, make it clear that we do not follow UK law, but we 1685 do look at it and where there are provisions in the UK and there are powers that we consider are required in the Isle of Man, then on this particular occasion that model was used. So I presume the Law Society in the UK, or equivalent… the equivalent is in law there now.

The Chairman: Thank you. 1690 Mr Gill.

Q148. Mr Gill: In the Department’s dealings with the Law Society, is it typical that they would use as strong language as the Chairman has just read out?

1695 Mr Lalor-Smith: The Law Society, I have to say, are much more effective in responding to legislative consultation exercises in the last couple of years than they were previously. On this particular occasion, we were very pleased to get a response. We have not always got responses in the past, or if we have, they have been very late. So I think our relationship with the Law Society is actually a very good one and especially now 1700 Jane Rourke is the Chief Executive there. We work very closely together. Whether the language is as strong as that, yes I suppose I would have to look back over the years to see what they have said in previous correspondence. I cannot reflect that.

Q149. Mr Gill: Who decided to ignore their concerns? Or disregard them? 1705 Mr Lalor-Smith: You keep using the words ‘disregard’ and ‘ignoring concerns’. They are not ignored or disregarded; they are considered and then a decision made by the Department as to what is the overriding need.

1710 Q150. Mr Gill: Who made that decision?

Mr Lalor-Smith: Those issues would have been brought to the attention of the Department, when we went through the consultation exercise.

1715 Mr Gill: Sorry. Could you just…?

Mr Lalor-Smith: We had a meeting in response to the consultation exercise to look at the responses we had received and they were put in a document and in that document there were changes suggested to law as a result of the consultation exercise and indeed, I have expressed that 1720 there are a number of clauses that were withdrawn from the Bill, so that comment would go along the clause and there would be a recommendation and the Department would either approve or not that recommendation.

Q151. Mr Gill: Who chaired that meeting? 1725 Mr Lalor-Smith: That meeting was… well, the Minister would have been at that meeting and the Members, the politicians of the Department.

Q152. Mr Gill: At a political level, then? 1730 Mr Lalor-Smith: Yes, it was, yes.

The Chairman: Mrs Cannell. ______31 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Q153. Mrs Cannell: Yes, Chairman, if I could just step back a little bit. We are talking about a 1735 working party that worked up this legislation, yes?

Mr Lalor-Smith: Yes.

Q154. Mrs Cannell: That had cross-divisional representation upon it. Is it not prudent, or 1740 would it not have been prudent to have invited somebody from the Isle of Man Law Society as well? You did, in fact, have somebody from the judiciary, didn’t you?

Mr Lalor-Smith: Not somebody from the judiciary actually on the working party. We had someone at officer level from there. 1745 Q155. Mrs Cannell: You called the High Bailiff, didn’t you?

Mr Lalor-Smith: No.

1750 Q156. Mrs Cannell: The Minister said the former High Bailiff was also on that working party?

Mr Lalor-Smith: No. He attended a meeting. He was invited to a meeting of the working party to express his views on the proposals. 1755 Q157. Mrs Cannell: Were the Isle of Man Law Society invited?

Mr Lalor-Smith: I do not think they were, no.

1760 Q158. Mrs Cannell: In hindsight, do you think, perhaps, it would have been prudent to have invited them, given that they used such strong language against the provisions contained within the Bill, clauses 37 to 41?

Mr Lalor-Smith: There is a bit of confusion there, because the working party, when we met 1765 with the High Bailiff, that was prior to the Election, that working party. The working party that was re-formed after the Election did not invite anyone in to actually see them at that stage. We simply did a public consultation exercise, which the Law Society were part of.

Q159. Mrs Cannell: In your consultation exercise, you had input from the Isle of Man Law 1770 Society on this last occasion, did you not?

Mr Lalor-Smith: Yes, indeed.

Q160. Mrs Cannell: We have a copy of that. They have submitted a copy of that and they did 1775 express very strong concern with regard to these particular clauses. Given that, would it not have been prudent at that stage to have invited the Isle of Man Law Society in –

Mr Lalor-Smith: Certainly, that was not –

1780 Mrs Cannell: – to discuss with them further why they were so strongly concerned about these provisions.

Mr Lalor-Smith: That was not the decision that was taken at the time.

1785 Q161. Mrs Cannell: Would it have been prudent to have done so, then?

Mr Lalor-Smith: I think –

Mrs Cannell: When Government goes out… There is a code on public consultation, 1790 obviously, but again it is a code, so you can either choose to go with it or ignore it, or practise it in whatever way you think. The code is non-enforceable, and I –

Mr Lalor-Smith: We do have to comply with the code. We are required.

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1795 Q162. Mrs Cannell: You are expected to comply, (Mr Lalor-Smith: Yes, we are.) but you are given a flexibility on when you can respond and how you can respond. All you are told is that you have to respond. You have to collect all the consultation submissions, you have to put them together, put together an overview and then submit that overview back to the public and say, ‘This is what we think of what you think,’ but there is a process in there, of consultation, where if you 1800 get very strong, very good responses, very thoughtful responses to a piece of legislation, possibly you ought to be inviting those – especially an organisation representing advocacy in the Isle of Man – in to meet face to face, to discuss directly their particular concerns to see whether or not they have a relevant point.

1805 Mr Lalor-Smith: Certainly when we were asked by –

Mrs Cannell: You did not do that, though, did you?

Mr Lalor-Smith: No, we did not do that, but where we were asked by individuals who 1810 consulted with us, if they could meet with us, then, of course, we did allow them to come and see us and have a discussion. So we did do that when we were requested that.

Q163. The Chairman: Mr Greenhow, did you have…?

1815 Mr Greenhow: Just to say in hindsight, Mrs Cannell, in answer to your question, I think, where we have had those elements, as Julian quite rightly says, we offer that to Members of Tynwald. If Members of Tynwald wish to come in and talk to us about any concerns they have with the Bill, then we do so, and that is the point that Julian was making at the end. It is not something I suppose we do, that we look through it and then approach those 1820 individuals again if there are strong views represented, so in hindsight, yes, maybe we should have invited the Law Society in.

Q164. The Chairman: Thank you very much. We must move on. Time is getting the better of us. 1825 Clause 42, gentlemen, power of seizure. Quite simply, do the proposed new powers essentially allow the Police to collect up everything in sight?

Mr Lalor-Smith: That is quite a question! Obviously, this is a complicated part of the law. I think that you are referring to particular elements that they might seize that they should return. Is 1830 that your concern? I am just trying to find my note here.

The Chairman: Let me ask you a second question to help you answer the first one.

Mr Lalor-Smith: Thank you. 1835 Q165. The Chairman: Once property has been seized, what guarantee is there that it will be returned promptly, if it is not within the terms or concern of the Police investigation?

Mr Lalor-Smith: There is a requirement to return information, for example, if it is legally 1840 privileged, they must return that.

Q166. The Chairman: Within?

Mr Lalor-Smith: Well, immediately, if it is identified as being on a legal privilege basis. I 1845 suppose the protection in there is that if some property has been seized, that there is an ability by the person who has had their property seized to actually apply for it to be returned immediately.

Q167. The Chairman: Can you talk about that process?

1850 Mr Lalor-Smith: I think that I would rather, either defer to the Chief Constable on that matter, or actually put that in writing to you. It is a very complex matter and as you see from the Bill, that element is quite extensive.

The Chairman: Okay. Well, as we must. Sorry, Mr Phillips. 1855 ______33 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Q168. The Clerk: Could I just interject to make sure… I will be writing to Mr Lalor-Smith, but just to make sure that he knows that, one of the principal concerns is not just that privileged material is returned promptly, which, of course it would be, but how it is treated and looked at by the Police; what Chinese walls or what other protections are there to ensure it is not misused and 1860 everyone can see that it is not misused.

Mr Lalor-Smith: That is very helpful, thank you.

Q169. The Chairman: We move on to clause 44, powers of arrest. 1865 In your latest submission to this Committee, you suggest that a seemingly influential campaigner made a wholly misleading submission, claiming that the Bill sought to give new arrest powers to the Police. Do you stand by that quite strong statement?

Mr Lalor-Smith: Yes. 1870 Q170. The Chairman: You do. How then do you reconcile your highly dismissive remarks with the comments of the Law Society in their submission, where they express concern that wider powers have been provided, insofar as the requirement for reasonable belief has been removed?

1875 Mr Lalor-Smith: My understanding of this provision is that what it does in relation to an arrest is it makes the policeman look at various issues that he must comply with before making an arrest. Currently, that is not the situation, so in effect this is a Human Rights issue, really. This is making sure that the legislation is more Human Rights compliant, that an officer must consider the various matters before he makes an arrest. I think the way this is phrased as ‘arrest without warrant’ is 1880 actually quite misleading and I can understand why there would be concern from the way that is put, and that is only because it is law, basically, and that is the way it is phrased. What it actually does is it provides more protection for members of the public before arrest is made.

Q171. The Chairman: Thank you. 1885 The Law Society also go on to say that the clause also prevents persons wrongfully arrested from challenging their arrest, as they could not ascertain until after a trial whether or not they had been lawfully arrested. Do you wish to refute this?

Mr Lalor-Smith: I would have to comment in writing on that and look at that matter. 1890 Q172. The Chairman: Would you be kind enough to do so?

Mr Lalor-Smith: Sure.

1895 The Chairman: Thank you so much.

Mr Lalor-Smith: Am I going to get most of these in a letter?

The Clerk: Yes. 1900 Mr Lalor-Smith: I am, brilliant. Thank you very much.

The Chairman: Thank you very much. So, onto clause 44. 1905 The Clerk: Oh, there is just one thing.

The Chairman: I beg your pardon.

1910 Q173. The Clerk: I do not know whether you want to explore this now, under powers of arrest, but in clause 29, there is a power of arrest which is in the vicinity of any licensed premises, people who are guilty of disorderly behaviour etc, and notice has been taken by several commentators about the vagueness of the ‘in the vicinity of any licensed premises’. One example was used, as you will probably remember, of someone who might be living next door to a pub, in 1915 his own garden, who would be subject to this power of arrest. Would you like to comment on that?

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Mr Lalor-Smith: That would be a public place. The court and the judiciary would decide whether or not the appropriateness and what the vicinity of licensed premises was. Quite honestly, someone’s garden would be absolutely ridiculous. 1920 Q174. The Clerk: But if the judiciary were to decide, how can the people, the constable or anybody else, actually exercising the power be able to know whether they are lawfully arresting somebody? There is no definition for them to use. They have to wait until it is going to be tried in court. Is that what you are saying? 1925 Mr Lalor-Smith: I have to say the issue of someone’s private garden had not occurred to me, to be absolutely honest about it, but we are happy to look at that issue for you.

Q175. Mr Gill: Had the issue of ‘in the vicinity’ been debated and considered in the 1930 Department?

Mr Lalor-Smith: You mean, how far that would go? (Mr Gill: Yes.) There is not… it would be very difficult to put a measurement on it, I suppose. The view was taken that the courts would decide whether or not… what extent the vicinity of a premises – 1935 Q176. Mr Gill: So it was put into with the Bill without an understanding or acceptance of what it meant? That will flow in due course.

Mr Lalor-Smith: I think that is a little unfair. 1940 Q177. Mr Gill: Well, no. Why is it unfair?

Mr Lalor-Smith: I think the view was taken that ‘in the vicinity’ is basically just outside the premises. Most of the problems that occur… the purpose of this legislation is to try to do deal with 1945 the concerns of members of the public who live around the premises and have an awful time, because of the disturbance and noise outside the premises and we must remember that the purpose of this is to allow the courts to ban someone from licensed premises as a result of their behaviour in the vicinity of licensed premises.

1950 Q178. Mrs Cannell: Nevertheless, the courts need clear guidelines by the laws that we make, in order to issue the appropriate sentences, and the Police also need to know what a vicinity is and where it is, to know whether or not he can make an arrest or not of someone within the vicinity of a licensed premises.

1955 Mr Lalor-Smith: I think you have a good point.

Q179. Mrs Cannell: So it needs better clarification, does it not?

Mr Lalor-Smith: I think that is a fair point. 1960 Q180. The Chairman: In that case, we will move on to clause 48, use of telephone links for the review of detention. Your comments, Mr Lalor-Smith, from your latest submission to the Committee suggest that budget cuts are the reason for this change. There must be a good reason why a senior officer was 1965 required to conduct this type of interview or review in the first place. What do you understand those to be?

Mr Lalor-Smith: The situation, I understand, in the UK is that certainly a more junior officer in the UK, as is provided for this, can actually undertake this. We are really trying to fall in line 1970 with that and provide it to be easier for operational purposes for the Isle of Man Constabulary.

Q181. The Chairman: But here we are trying to look at the legitimate interests and concerns of the detainee, as to why a senior officer was involved in the first place. Does this process not damage or reduce their protection, that of the detainee, I mean? 1975 Mr Lalor-Smith: Certainly, the view of the Department at the time was that, no, it does not.

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Q182. The Chairman: It was at the time.

1980 Mr Lalor-Smith: And is now, sorry. We obviously have not reconsidered this matter and, of course it is not right for us to do so whilst a Committee is considering all these issues.

The Chairman: Thank you very much. Any questions on that one? 1985 Q183. Mrs Cannell: Just moving to say that the way I read clause 48 at the moment is that the chief inspector would make a telephone call, if he was stationed in Ramsey, to Douglas to say, basically, his detainee ‘blah de blah, still detained, is he well, has he eaten, has he asked for an advocate, what’s the score?’ So, he would actually be make making a telephone call to another 1990 police officer or the sergeant on duty at Douglas, where the detainee was held, to check on his wellbeing, rather than to visually look at him to see if he was okay himself. Is that the change?

Mr Lalor-Smith: That is my understanding, but you may want to clarify that with the Chief Constable, exactly how that would operate. 1995 Mrs Cannell: Okay.

Q184. The Chairman: Thank you very much. On to clause 50. We are trying to charge through as quickly as we can. Clause 50, extension of 2000 detention time for drug dealers – just for guidance, really, on this one – an extension to 192 hours is a long time without charge. Why is this still needed if clause 53 came into law, clause 53 being the application of X-rays and ultrasounds to establish whether a drug dealer was effectively carrying drugs?

2005 Mr Lalor-Smith: You mean why you would have both?

The Chairman: Yes, why have both?

Mr Lalor-Smith: Because there has to be consent given in relation to having an X-ray, so the 2010 person does not have to. Therefore, in order to ensure that, if someone has the drugs within them, there is a long enough period for that – without being too awful – to come out of their body.

Q185. The Chairman: So what are you saying? That the person can refuse to be X-rayed or ultra-scanned (Mr Lalor-Smith: Yes.) and therefore the 192 hours would apply, or possibly apply? 2015 Mr Lalor-Smith: Yes. You could use both, but obviously if you X-ray someone… and again this is more of an operational thing, really, but if you see something inside them, then you are likely to want to hold them for that period of time to make sure that it comes out of them.

2020 The Chairman: I understand. Thank you very much indeed. Clause 52.

Mr Gill: Could I – ?

2025 The Chairman: Yes, indeed, go ahead.

Q186. Mr Gill: Could we move on to clause 52 and go back to the Minister’s view. It was interesting that it was not deemed a politically necessary piece of information to know what accommodation will be used to detain children between the ages of 10 and 13. Will you tell us 2030 what the answer to that is?

Mr Lalor-Smith: I should imagine that they would initially be held in a police cell, but I think, really, that is a question for the Chief Constable as to exactly how that would operate and what accommodation would be used to hold them and for what period etc. 2035 Q187. Mrs Cannell: Again, should there not be a requirement for regulations governing this, given the sensitivity of the fact that you would be detaining children from the ages of 10 to 13?

______36 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Mr Lalor-Smith: The answer to that is we do have a secure care home, which holds 2040 individuals under the age of 17. So, it may well be that they would be detained there and of course that is a suitable facility for holding young people.

Q188. Mrs Cannell: It has limited capacity, though?

2045 Mr Lalor-Smith: I do not think it has ever been full, has it?

Mrs Cannell: It has. It has.

Mr Lalor-Smith: I think it would have capacity for this. 2050 Q189. The Chairman: Thank you. Can we move on to clause 53, which is the X-rays and ultrasounds. The case made for this requirement is understood, but would you like to take the opportunity to respond to the Department of Health’s concerns, as submitted in their letter to us, if you would like to perhaps 2055 just have a quick scan of the letter again, if you cannot recollect it.

[The Clerk hands a paper to Mr Lalor-Smith.]

The Chairman: Perhaps as it is just a short letter, you would be kind enough to read it out?

Mr Lalor-Smith: ‘The concerns at Noble’s Hospital stem from the changes which would give the Police the power to take actions which 2060 a Doctor or Nurse could not agree to as part of their Code of Conduct. Some of the actions would/could interfere with a patient’s care or protection whilst in our care i.e. the taking of x-rays for drug identification may be contraindicated, as may be the taking of DNA samples. It is unethical for doctors and nurses to allow such practices, their duty is to protect the patient. This would then cause conflict between the practitioner and the Police.’

2065 My understanding is that we were going to hold meetings with the Health Service in relation to this matter.

Q190. The Chairman: In the near future?

2070 Mr Lalor-Smith: Again, if you would not mind, if I could check what meetings actually took place, what discussions took place on this matter.

Q191. The Chairman: Thank you very much. And you will come back to us on that?

2075 Mr Lalor-Smith: Yes, absolutely.

Q192. The Chairman: Clause 56, the taking of intimate samples. Taking into account the absolute importance that must be attached to the security, control and accounting for, and the accuracy of, the process of taking intimate samples, do you have any concerns that this can be 2080 satisfactorily delivered in the field? By that I mean outwith or outside the police station.

Mr Lalor-Smith: It is done elsewhere, but again this is probably a matter you want to raise with the Chief Constable, because he could tell you exactly how this operates.

2085 Q193. The Chairman: Did you have discussions along these lines before it was encapsulated in the – ?

Mr Lalor-Smith: In the detail was simply that we were assured that this takes place elsewhere and therefore could quite equally be accommodated in the Isle of Man. 2090 Q194. The Chairman: Thank you. Clause 60, section 75 (a)(i): I think we had better turn to that, if we can find it. Anybody who gets to the page before I do perhaps… Here we are: page 129. It is again for clarification here to understand what should we read into searching a person without first arresting him or her. Do we 2095 understand this as a normal practice, or very rare, or does it happen now, is it allowed now? This is just for clarification.

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Mr Lalor-Smith: My understanding is it has happened for a long time. Again, this may be a question for the Chief Constable. 2100 Q195. The Chairman: We will have to hold that one over then, to be fair. My colleague reminds me that there was no mention of this in the explanatory notes that we received as Members. It just was not there.

2105 Mr Lalor-Smith: No idea why not. It should be. (Laughter)

Q196. The Chairman: Clause 61, section 76 of the Police Powers and Procedures Act: this clause was not identified in a unique sense in your submission to the Committee, as it refers to consequential amendments. If you are unable to explain the significance of these today, would you 2110 be kind enough to write to the Committee outlining the impact of these changes? I do not think this is something we could necessarily deal with now, but if we can just log that with you and ask you to consider the clause. Is there any further advice or guidance you think that the House should enjoy with that regard? So moving on to clause 66 and we are nearly there. On the matter of spot penalties, clause 66. 2115 Do you have any concerns about what might constitute behaviour likely to cause harassment, alarm and distress? Could you expand your thinking when you consider the use of these words?

Mr Lalor-Smith: The actual offences where a penalty notice can be issued are set out. So, I think if anyone commits that offence, that would fit into that. So there is a list of offences whereby 2120 a penalty notice can be issued. We did actually reduce, as a result of the consultation exercise, that list of offences, because I understand that criminal damage was in there and it was felt that should be removed, because a person who had suffered criminal damage to their vehicle, for example, might not be very happy that a fixed penalty had been issued, because they might want to have redress to court. 2125 So we did consider what offences it would be appropriate to take forward on that, but what effect it has, it allows a person to not end up in the criminal justice system and be dealt with for lower types of penalties.

Q197. The Chairman: Thank you. 2130 Clause 67, ASBOs. Do we have, in your experience, a materially different experience from England and Wales in the use of ASBOs and if so, how?

Mr Lalor-Smith: I think we do. They are not used nearly as frequently, because you have… and I cannot remember the name of the orders they used prior to this, in which they have a 2135 behaviour contract or something. Anyway, they have a relation. The Police work very closely with individuals, where they basically agree almost a contract, so we do not often get to the anti-social behaviour order, and it is only when that has failed and an individual’s behaviour is very unacceptable that you get to that. I think that is probably partly why there have been so few in the Isle of Man, but where they 2140 have had them, they have been quite effective, whereas in the UK, it is a different ballgame, I think.

The Chairman: Mr Gill?

2145 Q198. Mrs Cannell: Mr Chairman, through you, do you think it is appropriate to apply an ASBO on the same family, on people living in the same household? (Mr Lalor-Smith: Well – ) That is something that does not apply in the United Kingdom, does it?

Mr Lalor-Smith: I do not know, actually. I would have to check that out, whether or not this is 2150 one of those places where we actually decided there was something we wanted to do in the Isle of Man that was not in the UK. What this is all about is domestic violence and what it is trying to do is to control an individual that is involved as a perpetrator of violence in some fashion, by putting controls on them. It might be they are just simply sent on an anger management course as part of their ASBO, so that is what this was about. It was about trying to deal with that issue and perhaps 2155 still keeping the family together.

Q199. The Chairman: There was a case very recently, very recently in the UK, where a judge ruled, as I understand it – and correct me if you think I am wrong – that shouting within a ______38 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

domestic environment constituted abuse. I just wonder whether you think that perhaps in the light 2160 of that sort of judgment, we are going too far with this proposal of allocating ASBOs, potentially within a domestic environment?

Mr Lalor-Smith: The lead up to an ASBO… There has to be a lot of evidence provided to a court, before an ASBO would be put on anyone. There would be a lot of professionals involved in 2165 firming that up, before you even got to the court process. So I would hope that shouting at your wife would not be considered as domestic violence.

Mrs Cannell: Or vice versa.

2170 Mr Lalor-Smith: Yes, quite. Absolutely.

Q200. Mr Gill: Subject to the clarity you can provide, if we work on the assumption that this, an ASBO in a domestic environment, is a Manx provision, that it is not in the UK, who made the decision that that was appropriate? 2175 Mr Lalor-Smith: This went through the process that I described previously, so it would have been agreed by the Department – at political level, yes.

The Chairman: Thank you very… Time shoots on. It is now twenty past. Thank you so very 2180 much for your time.

Mr Gill: I have a question for Mr Greenhow.

The Chairman: I beg your pardon, Mr Gill. I do apologise. 2185 Q201. Mr Gill: Mr Greenhow, could I ask you as former Chief Executive and now Chief Secretary, in terms of the Home Affairs Department, who is responsible for policy?

Mr Greenhow: The Department is responsible for policy. 2190 Q202. Mr Gill: So would the Police have their own set of policies that would be parallel, or different, or in tandem with the Department?

Mr Greenhow: Each of the Divisions will have their own operational policies which they will 2195 follow and adhere to. You are aware in law that the Chief Constable polices the Island and has the authority to do such in law, so that there can be no political influence on that. Overall direction, through the policing plan, comes from the Department.

Q203. Mr Gill: If there was a policy decision about, say, lowering drink-drive limits, the 2200 Police would have their own view on that: would they feed that through the Department, or would they make that view independently known?

Mr Greenhow: As it is an operational issue, they could make it independently known, because it is outwith, possibly, the Department’s role in determining that policy. 2205 The Chairman: Thank you very much indeed, again, we appreciate your time.

Procedural

Mrs Cannell: Mr Chairman, if I might…

The Chairman: Indeed. Yes. 2210 Mrs Cannell: At this point I would like to excuse myself from proceedings as I feel it is inappropriate to stay and cross-examine the Chief Constable whilst my son is a probationary police officer. So if you were to please excuse me. Thank you.

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Mrs Cannell left the Committee at 12.21 p.m., when Mr Langdon was called.

The Chairman: And then there were two – sorry, three. (Laughter and interjections)

EVIDENCE OF MR M LANGDON, CHIEF CONSTABLE

2215 The Chairman: Chief Constable, I would like to thank you for your attendance here today. As you will be aware, the Criminal Justice (Miscellaneous Provisions) Bill before us is considered, in political terms, to be over large. We have therefore broken it down into what we consider to be more manageable sections and today we would like to go through the following with you, if time permits, because we understand you are happy to stay until quarter past one. 2220 The Chief Constable (Mr Langdon): I can stay longer, sir.

Q204. The Chairman: Thank you very much. So, part 18 which is amendments to the Criminal Justice Act 1996, crime and disorder 2225 strategies; part 19, amendments to Policing Powers and Procedures Act 1998; part 21, amendments to the Public Order Act 1998; elements of part 22, amendments to the Criminal Justice Act 2001 and here we refer to clauses 66, 67 and 68; and finally clause 11 of part 7, which is the test purchasing for age-restricted products. I should also say that, in our questions, we have taken note of the document from the 2230 Department of Home Affairs entitled Submission to a Committee of the House of Keys established on 23rd November 2010 in respect of the Bill in question, in which you are shown as the sole source for all the clauses that we will be looking at today, with the following exceptions. The exceptions are clause 11, which is again the test purchasing, age-restricted products, which you share as a source with a number of other contributors. Clause 36 is another exception, Crime and 2235 Disorder Strategy, on which you share a Department of Home Affairs submission with them. Finally clauses 67 and 68, ASBOs to be used in domestic environment, which again you share with the Department of Home Affairs. That is the background from the point of view of our questions. It is satisfying to note that you have been able to announce, on the Isle of Man Constabulary 2240 website, that the latest crime statistics show the Isle of Man’s crime rate as having fallen to levels last witnessed in 1981 and that your detection rate is significantly higher than that achieved in England and Wales, for which you should be congratulated. To what extent, therefore, are the changes proposed in parts of the Bill we are discussing today brought about by urgent need here, and how much simply as a result of a desire or requirement to 2245 keep in step with other jurisdictions? Would you perhaps like to make a comment on them?

The Chief Constable: Thank you for the congratulations in term of figures, sir, and you will note that, for this recorded year, they have reduced even further and the detection rate is even higher, so it gives additional emphasis to your question. 2250 Some of those issues actually are relating to what I would describe as ‘gaps in current legislation’ – the ability to deal with issues that are not properly covered by existing legislation. The emergence of serious and organised criminality is obviously as a consequence of greater professionalism of the organisation, and the better the intelligence and the better the information that the Police receive, the more responsibility we have to act and some of the cases that we were 2255 getting involved in are becoming increasingly complex. I give an example, that the Police Powers and Procedures Act is broadly based on the UK’s Police and Criminal Evidence Act, which came in 1984. So you are actually talking about operational legislation that is, in effect, over 25 years old. That is the basis of it. For example, the use of the internet in terms of paedophilia, the use by sex offenders of the internet, the electric 2260 transmission of documentation by financial transactions, electronic banking, the cross- jurisdictional issues that are involved in drug trafficking in financial transactions, simply, in my view, are not sufficiently addressed by virtue of the age of some the legislation and the powers. Clearly, experience of officers, stated cases in the courts, areas exploited by the courts, I believe that much of the proposed legislation actually seeks to cover those gaps. 2265 Q205. The Chairman: Thank you very much.

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So we can go straight, perhaps, into the clauses. Starting with the famous clause 11, which is the test purchasing of age restricted products. You are shown as the joint source of this clause, but who actually was the originator? Is this 2270 something you feel strongly about or something that I think it was the Department felt should come forward, Chief Constable?

The Chief Constable: I do not think the issue is about whether I feel strongly about test purchasing; the issue is whether I feel strongly about the availability of best evidence. I believe, in 2275 my view, that it is a parliamentary responsibility to provide the ability to provide best evidence. What I would say is look from the other end of the telescope and highlight how the Police would discover the evidence required if it had not got test purchasing, and invariably, for example, if you take a simple measure of a 16-year-old purchasing drink, likely that person has already had drink: we would have to rely on that person as the evidential source, and in my view that could be 2280 potentially very unreliable, in terms of the person that supplied the alcohol. We would be relying on somebody that had potentially committed an offence themselves, we would be relying on their recollection of the circumstance, and I believe that by using a test-purchase regime that is specifically targeted and used proportionately, legally and necessary with the most appropriate safeguards in place is a far better way of securing evidence against an individual than a more ad 2285 hoc way.

Q206. The Chairman: Thank you. Are you concerned, Chief Constable, about the possibility that, if this was enacted and came into proportionate use, as you say, that there might well be a tendency for those trying to seek 2290 alcohol to start purchasing it more through irresponsible adults?

The Chief Constable: I think in terms of the consumption and supply to juveniles that that is a significant route that is taken, particularly in relation to off-licence premises. I hope you do not mind me using this as an opportunity to congratulate the licensing trade in the way in which they 2295 do regulate. I do think that is very important, in terms of the fact that there is a real prospect of success on the Isle of Man, in terms of people adhering to regulation that is not the case in the United Kingdom. In some places, some aspects of regulation are practically unenforceable by the licensing trade. In the Isle of Man it is a very successful environment. I think the real issue is, potentially, if you are looking at alcohol, probably some of the clubs on 2300 some occasions do get extremely busy and I think that the key point for me would be that the power that, if it was granted, would be under massive scrutiny, the application would be under massive scrutiny, the codes of practice would be… well, we have already heard some evidence about some considerations of the codes of practice. The codes of practice would be meticulous and in deploying a power, you have to be proportionate and you have to recognise that you are under 2305 judicial and public scrutiny and I could give many examples of where there are wide-ranging powers in relation to the Police, that they are applied proportionately and if you wish me to give you an example, I can do.

Q207. The Chairman: We would love to hear it, but, of course, time is of an essence, so thank 2310 you, that is fine. Perhaps, if you would permit us to move on to clause 36, which is the Crime and Disorder Strategy. Would you spend a few minutes outlining your hopes and ambitions concerning the formation of partnerships throughout the Island, what you used as your model for this initiative and what outcomes you have recognised from the models that you have identified elsewhere, in 2315 terms of what your hopes and aspirations for the Isle of Man are? Would you like to make some –

The Chief Constable: The strategy of the Isle of Man Constabulary in relation to community safety that links in very clearly with the Minister’s policing plan is effectively to be proactive to the information web, to engage with communities and be accountable to communities at a local 2320 level and adopt a problem-solving approach, to provide dignity, fairness and respect to the people that we serve, but also to work in partnership and achieve this in partnership. That involves the recognition that everybody in the public sector, certainly, and many in the private sector have a duty and a responsibility to prevent crime and to keep communities safe. It may be the case that that responsibility is not recognised as much as it should or could be in certain quarters. 2325 Q208. The Chairman: Thank you very much.

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If we can then move on to clauses 37 to 41, and that is all matters relating to search warrants. (The Chief Constable: Yes.) How often are you finding that your Force has been disadvantaged by not having the facilities these clauses would permit? 2330 The Chief Constable: Significantly, in the small number of what I would describe as special procedure warrants, which are usually the most expansive and usually the ones that are the most intrusive into people’s business. The Clerk has alluded to legal privilege material, the significant vast amounts of material that 2335 people hold, the significant connection between one element of detail in a massive proportion of documentation, the elements of computerisation, the use of electronic transfer… As I said, the legislation for all intents is born from 1984, so the fact that the procedures allow for police officers as the authorising officer… We are not all computer experts. Sometimes, for example, some of the connections may revolve around revenue issues. We are not experts in terms of revenue issues, 2340 and the lack of the ability to stipulate people who are authorised to enter premises and conduct searches, in my view, is significantly lacking, and if we are trying to achieve best evidence and we are trying to look after the rights of the persons whose property it is, then surely they are entitled to have people on their premises who know what they are doing and are enabled to make better judgements both on behalf of them and on behalf of the prosecuting agencies. 2345 The fact that, for example, in a drugs warrant, you get an address for a drugs warrant, search the premises and, for example, find a bunch of keys that the person concerned says belongs to his garage which is three streets down, it is a significant barrier, by having to apply for a separate search warrant to offer that. It just seems to me eminent common sense that if the information that has been validated through an intelligence process is that a person concerned is supplying heroin 2350 to young people and they are at their premises – because that is a very regular thing… Validate that information: we do as many checks on information that we can. If we execute the search warrant and find out they have got a garage two streets away, well, it strikes me that we have already been through a judicial procedure in relation to the reason for the search. We have already gone through a judicial procedure in relation to the parameters of information. We have subjected 2355 ourselves to scrutiny at a significant level. We are scrutinised by the public and it seems to me obvious common sense that you should be able to extend that power of search, based on the information, to premises that you suddenly know are occupied and owned by the person who has been the subject of the initial application. That is especially clear in terms of the safeguard of the inspector. So the inspector will, effectively, give the authority based upon the existing warrant and 2360 what has been told from the existing warrant, and I think that is significantly lacking. The codes of practice that I think your Clerk alluded to, in terms of legal privilege, are a significant one. People are entitled to the highest safeguards in respect of their personal information and the legislation allows for the codes of practice. The Clerk asked a significant question in terms of what we currently do. We will employ an advocate who is neutral or we 2365 believe to be neutral from the circumstances, and take that advocate or have that advocate available. If there is any issue about legal privilege that comes up as a consequence of that, the material will be separated and the advocate, the neutral advocate will make a judgement on that about whether it is a legal privilege. If it is legal privilege, then that is the end of it. So there are safeguards in place. 2370 Q209. The Clerk: Sorry, could I just ask…? I am sure you are doing everything that you can do to protect legal privilege, clearly, (The Chief Constable: Yes.) but the fact is that once you do seize material, you have to read it and it will be in the hands of the Police. I just wanted to make sure I have understood the Chinese walls, as it were, that there will be officers who will have quite 2375 innocently read material as part of another wider sort of bag of material as it were, and it is only when they are put on notice that they give it to an advocate who might then advise them, so that they have to return it.

The Chief Constable: It is inevitable. I think, as you will be aware, sir, the procedure allows 2380 for the person whose premises are being searched to make disclosures. So if the Police are looking for documentation of a particular nature, it is common practice for the police officers to ask for the location of those papers, and they will invariably be handed those papers. It is good practice to actually ask the same issue regarding legal privilege: is there anything there that is of legal privilege? So it is giving the occupier the chance to highlight to police officers what they consider 2385 to be legal privilege, as well as the quite stringent safeguards. I do take your point, sir, but I would defy anybody to actually be able to recognise what was legal privilege without having seen it. (The Clerk: Absolutely, yes.) And what is absolutely ______42 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

obvious to our officers is that as soon as it is identified that there is a potential that there is legal privilege, then the safeguards kick in. 2390 Q210. The Clerk: There is also provision in the Bill to allow you to apply for a warrant by telephone. (The Chief Constable: Yes.) Would that not answer your point about the garage, that if you were in someone’s house, say, and you have discovered the keys, you could, in fact, telephone the Deemster and say, ‘Your Honour, you gave us a search warrant. There is a garage owned by 2395 the same… We have reason to believe, for the reasons we have…’ etc, and he could give you a fresh warrant. Would that not serve?

The Chief Constable: It depends what position you choose to adopt in relation to the Police state or the powers of the Police. Some people have a view it is the police state. The Police will 2400 have a view that we are proportionate and we are considerate. Obviously, I think we are on that side of the fence, but I do accept there are people with another side of the view. I would make the point that in the circumstances that I have given you in outline, we have made an application, usually to a Justice of the Peace, that outlines what the information is, who the person concerned is and what the grounds are to search the premises concerned. If the Justice 2405 of the Peace is satisfied with that explanation following scrutiny of the application, they will grant a warrant. So they grant a warrant based on those occupants. It seems to me – and I have already described that I do understand there are different perspectives – that if the person concerned has a garage that is two streets away, it is highly likely that they would use the garage to store the drugs or the stolen property concerned. So the logic of 2410 actually ringing a Deemster or a Justice of the Peace to say, ‘Look, we are going through the same application again, but this fella has got a garage’, seems to me to be sort of… It does not seem to be proportionate to what we are trying to do, and bear in mind that inspectors can already issue the authority to search people’s premises without warrant, so it has not gone through any judicial scrutiny, that when a person is arrested and that person is in custody, a police officer can make 2415 application to an inspector to search that person’s premises.

Q211. The Clerk: But we are talking about circumstances where there is insufficient evidence against someone to be arrested, otherwise you would have done so. So they are in the camp of someone who may not even be a suspect, of course, may they? They might be somebody who 2420 simply holds material that is of interest.

The Chief Constable: Well, that is right, but I go back to the point that, in my view, the Police are proportionate, that the applications are justified and they are necessary, and the proof of the pudding, in my view, must be the monitoring in terms of the number of occasions we apply for 2425 warrants and the number of occasions that those warrants are successful. If I, over a year, apply for 100 warrants and none of them are successful, then I am doing something wrong. If the proportion of successes is from around about 70% to 80%, which it is now, then I think that that demonstrates to the public that we are proportionate. I really do think that the decision that people make about whether it is a Police state or whether we are people who are acting proportionately, in my view, 2430 very much depends upon what your performance is. But we could tie ourselves up in bureaucracy forever and it is a case of whether your personal civil liberty is covered adequately enough, and in my view, providing you make an application in the first place and these people have got additional premises that you were unaware of, it is entirely right to put an additional check in from the inspector and proceed. 2435 The Chairman: Thank you. Mr Gill.

Q212. Mr Gill: In operational terms, Chief Constable, I sense the strength of your position on maintaining the legislation that is before us, but in operational terms, is the option that the Clerk 2440 described about seeking, either the telephone consent of the Deemster who signed the original warrant… Is that feasible?

The Chief Constable: Personally, I do not think it is. I think it is unnecessary. Again, I do understand that my view might be different from other members of the public. I just put myself 2445 into the Deemster’s situation. If you look at it in reality, you are in somebody’s house, and you have got evidence or information that they are a drug user and you find that they have got a bunch of keys and there is a garage key on it. So, do you expect realistically for us to stand in the middle

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of somebody’s house and say, ‘Just hang on there, while we ring a Deemster’, who, by the way, is in court – or a Justice of the Peace? It just seems to me to be impractical. 2450 Q213. The Clerk: In those circumstances you would arrest him, wouldn’t you, because if you have got evidence that he is a drug user, you would arrest him for that offence and then you could authorise the search?

2455 The Chief Constable: No, that is not the case at all, because you can receive information that somebody is, for example, supplying heroin from their home address, you can verify that they are doing as much as they can from their home address. That does not necessarily mean, when you go to do the search warrant, that the heroin has not been moved. So if you go and search the premises and there is nothing in those premises, then what grounds 2460 have you got to arrest anybody, because the warrant is based upon information and intelligence that has been assessed by the Police and by a Justice of the Peace? So, there are no grounds to arrest. The property that you are looking for is probably in the garage.

Q214. The Clerk: But you could use your mobile phone to telephone the judge and say, ‘Can 2465 we have an extension, because we have found this extra evidence which indicates these premises are of interest?’

The Chief Constable: I think that we are reaching a cul de sac with this, I just think it is… having worked in the operational arena, I just think it is absolutely impractical to start ringing a 2470 Deemster or a Justice of the Peace and start updating him on the telephone, in terms of the fact that if something is a dynamic operation, that is moving, whereby… Do not forget that, if you have just found the keys to a garage and there are three or four people in the house, you cannot detain them. They can be going round and moving the property from the garage, or they themselves can be making a telephone call to say they have found the garage, go and move the stuff. 2475 Q215. Mr Gill: Is it feasible, at the stage where you ask for the search warrant from the JP or whoever – the appropriate person– to ask for a specific premise and any other premises that might be associated to it?

2480 The Chief Constable: Well, that is the legislation we are talking about. The legislation you are talking is effectively about multiple properties.

Mr Gill: Yes, but that –

2485 The Chief Constable: There are two different types of warrants.

Mr Gill: – side steps the Inspector’s role in saying, ‘I will make a decision about the garage.’

The Chief Constable: But there are two types of warrants that you are talking about. There is a 2490 specific warrant. The specific address warrant is effectively your multi-address warrant. So the multi-address warrant… there needs to be a provision for property that you discover belongs to the person who occupies and controls, and is the subject of the information, for us to be more speedily able to address the information and take operational action, as opposed to be waiting hours.

2495 Q216. The Chairman: Chief Constable, you have made an eloquent and strong case for your wish to see this go through as it is, and I recognise that. You also, quite rightly, proposed that you are being proportionate in all circumstances. I think from a political point of view there is the fear that, on occasion, these regulations, these clauses, would allow a situation to extend beyond a comfortable position in certain circumstances. What recourse is there for somebody who feels that 2500 you have been disproportionate in your search warrants to raise the flag and say,’ No, we are not being treated fairly’?

The Chief Constable: The proposed legislation actually builds in safeguards so that the person concerned can actually go back to the judiciary on grounds that are listed in the Bill. In the broader 2505 sense, in terms of the regulation of the Police, we have a Police Complaints Procedure, which is well-publicised and used. We have a Police Advisory Group that monitors the performance of the Police. We have the Minister and the Department of Home Affairs who hold us to account and, indeed, the public holds us to account. Very often, we can be held to account through the press. It ______44 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

is not in our interests to be disproportionate and it is not in our interests to be a police state. It is in 2510 our interest to make sure that the legislation enables us to do what we need to do in a way that is ethical and in a way that protects the Police and in a way that protects the individual.

Q217. The Chairman: Thank you. You quite rightly argue that it is important that officers are accompanied in certain 2515 circumstances with specialists or whatever. Do you feel it would be helpful if, on the warrant these people were named, rather than being a sort of a non-entity?

The Chief Constable: Not necessarily, no, because it comes back to the same argument, that if you do not… Let’s say you do not trust the Police and you have a view that this is a Police state, 2520 then you are likely to have the view, ‘Well, we will name everybody and that makes it clear.’ My view is that you are saying that it authorises a constable and a forensic computer technician and a Customs and Revenue officer to go. I am fully aware that if that was the case, I would have to justify my compliance with that warrant. If, in a small jurisdiction, you start naming people, or, for example, you wanted a forensic computer investigator to come in, it may well be an expert from 2525 elsewhere. What happens if you get the warrant and that person is fogged in? What happens if there is further information comes in and you think, ‘Oh, well, somebody else has got better technical experience than that’? I think that, if we are not careful, we will put too much rigidity in at the outset and not rely upon the fact that we are proportionate and we are held to account. It is as in the point I made 2530 before: if I am constantly held to account and I am getting things wrong, I expect to be scrutinised by the public, but the fact of the matter is that the complaints about the way we operate are very few and very limited. For example, we go through a massive situation with regard to the complaints against the Police. We actually get less than 25, and most of those are about incivility, so there must be an argument to say the way that things are operating is reasonable and 2535 proportionate.

Q218. The Chairman: You touched, Chief Constable, on the issue of the powers or the position of a Customs and Excise officer. You have argued, again, in a very clear way, that you are extremely accountable. Do you see the Customs and Excise officers equally accountable within 2540 the powers that they have?

The Chief Constable: Absolutely. I think that, for myself, if the approach of the Island is actually a partnership approach that is at the financial investigation level and the structure that is delivering that is a multi-agency structure involving the Customs and Revenue, involving tax 2545 agencies and involving the Police, then there is a joint accountability there and the operational… It seems to me to be a nonsense that you have got an operational delivery capacity that consists of the operational people there, that only one of those three sets of people are actually named in a warrant.

2550 Q219. The Chairman: Thank you very much, Chief Constable. We will move on to clauses 42 and 43, which is the additional powers of seizure. A lot of this we have actually covered one way or the other this morning, so we will try and skip through this a little bit to try and get to a closure at quarter past, if we can, or before. Just bear with me for a moment. 2555 I think the particular interest here might well be computer data, in terms of seizure. Does the Police Force undertake to professionally duplicate the information before investigating the original seizure of suspect data that is suspect, that might subsequently not prove to be? Do you want me to ask that question in another way?

2560 The Chief Constable: Please. I am glad to see you did not understand it either! (Laughter)

Q220. The Chairman: I did, but I – (Laughter) (Interjection by the Clerk) It is this issue of the sensitivity of claiming data. If that data subsequently proves to be extremely important to the organisation you have recovered it from, is the Police Force, is the 2565 Department of Home Affairs, insured to protect that information? What procedures does it adopt to ensure the security and accuracy of that data retention?

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The Chief Constable: One of the purposes of the legislation, or the proposed legislation is that those stringent controls should be subject to proper powers in relation to the search, proper powers 2570 in relation to the seizure and proper powers in relation to the sift. In broad terms, say for example, you have got a filing cabinet and the filing cabinet would appear to be what the subject matter looks like, it is not necessarily the case that people file things in the right place. So it may be the case that there is material that is not relevant to what the file says on it. So the sift is effectively to take out what seems to be irrelevant information from that 2575 filing cabinet and effectively put it to one side and return it, but if you can imagine going into offices where there are hundreds and thousands of documents and sitting there going through every piece of paper, you would literally be there for two to three days. The powers here are, in the first instance, to see where the person concerned has… to see whether they want to disclose that to you; secondly, to take property or the documents away, sift them and return what is not necessary 2580 at present. That is exactly the same logic in relation to computers, that the computer is the filing cabinet: so the computer goes away, it is secured through professional people that can demonstrate that the computer has not been tampered with, that they can show precisely that officers have not switched it on, for example, or what has been done with it and they can interrogate the computer in relation to the files that appear to be relevant to the application and not others. Those safeguards 2585 will be subject to the codes of practice and would be subject to a policy in terms of what to do.

Q221. The Chairman: If there was, in the extremely unlikely event of corruption of the data, whilst in the hands of the Police, and that damaged the business from which you had taken the data in the first place, are the Police insured in those circumstances? 2590 The Chief Constable: Government is insured. We are covered under the Government insurance, in terms of our culpability. The process of civil… the process would usually undertake either complaints against the Police, which would not automatically give you a remuneration advantage. In my experience, the normal course of action is for civil litigation to be raised against 2595 the Constabulary, which would be defended on our behalf, either by the Attorney General’s, or in some cases, we would go to private practice and it would be dealt with in that way. It would be the Government insurers that were effectively and would ultimately pay the money out.

Q222. The Chairman: Obviously, the Police would be anxious to return, shall we say, 2600 innocent data to a legitimate business as fast as possible?

The Chief Constable: Absolutely, and again in the proposed legislation, that is covered. It is in detail in a thoroughly understandable way in terms of the Police’s responsibilities in being reasonable and returning things in a reasonable time. 2605 Q223. The Chairman: I am a little confused personally about how the Police would deal with cloud-computing situations where you are addressing a business whose data could be somewhere completely different and encapsulated with an awful lot of other data. I know this is an area for experts, but does it concern you being able to recover that sort of data when you have got a suspect 2610 business?

The Chief Constable: It is extremely, operationally, difficult and especially when it is cross- jurisdictional, but it is the changing world of financial crime and serious and organised crime, and I think, sir, if you do not mind me saying, you have hit the nail right on the head as to why the 2615 legislation is necessary and needs to be updated. We are in a changing world. We cannot rely upon legislation that originated from 1984.

Q224. The Chairman: Thank you very much indeed. In that case, on that point, we will move on. 2620 Clauses 44 and 45, Chief Constable. One advocacy practice, in its submission to the Committee, is of the view that, in the course of an arrest, these clauses remove the requirement for reasonable belief to be required and thus widen the power. Do you agree with this assessment?

The Chief Constable: No. 2625 The Chairman: That is that? No?

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The Chief Constable: Well, I can explain why. I do not agree with it because the arrest powers are now Human Rights compliant; the arrest powers are now looking at the individual, as opposed 2630 to the circumstances of the crime, i.e. a sentence fixed for five years; and they entitle people to challenge the reason for the arrest. They give the person who is being arrested more information than they currently get, and it also allows us not to arrest people.

Q225. The Chairman: We have no comment on clauses 46 and 47. Touching on clauses 48 2635 and 49, which was the review of the detention by phone and I think you have already heard the concerns the Committee have in that regard. Could you just make a few comments of your own, please?

The Chief Constable: I think the context of the Island is significant that one of the review 2640 criteria is for a serious arrestable offence and that has to be from a chief inspector or above. Our chief inspectors are required to cover 24 hours. Some of the reviews run out at… well, you can have a chief inspector who has worked 12 hours a day on an operational matter and then be called at four o’clock in the morning, who then has to come out and review the circumstances of a 24- hour review. It seems to me to be anomalous that a person is represented by an advocate and that 2645 the advocate is not deemed by legislation to have to come out. The advocate can speak to his or her client on the telephone, but the reviewing officer cannot. I do share the Committee’s obvious concern in relation to, is this expedient, or are they being lazy and again, obviously –

2650 The Chairman: No, those are your words!

The Chief Constable: Yes, they are but I am inferring that some people may detect from those clauses that we are being expeditious and we are compromising people’s rights and proper scrutiny of the situation, by the fact that we are using the telephone. That would not be the case. In 2655 operational perspectives, I envisage that 80% to 90% of the people concerned will be seen face-to- face by a senior police officer. The fact of the matter is that in the 10% of cases where it is, obviously, deeply inconvenient, or it will be prejudicial to another operational matter that that person is dealing with, that it will be dealt with on the telephone, but the reason why it would be dealt with on the telephone would be logged, there would be a policy decision that is recorded on 2660 the custody record, there will be a conversation with the person concerned and if the person concerned raised any issues at all about their continued detention, then I suspect that the senior officer concerned would protect him or herself by making sure that they were available. It is also important for the Committee to note that the overwhelming number of people that are confronted with an extended detention, when they are asked if they have any representations, 2665 which they do have to be asked under the current codes and those codes will continue, have no representations. So, in my experience, round about 5% of people have a representation to make about why they should not be retained in Police custody.

Q226. The Chairman: Thank you very much. 2670 We will move on. We did have questions for you on clause 50, but I think Mr Lalor-Smith satisfactorily covered those – the relationship of 192 hours and the use of X-rays and ultrasound scans. Unless there is any comment?

The Chief Constable: Could I just say on that that, again, I think the Bill is designed to deal 2675 with the problems of the Island. The most common method of drug supply and smuggling into the Island is by body concealment, so it is highlighting an approach that we take against the current most prevalent method, and in my view it also reflects, probably inadequately in the Bill, the safety of the person who has swallowed the package. There are real safety issues involved and I think the Bill gives us more powers than we currently have to be able to deal with the health of the 2680 person.

Q227. The Chairman: Thank you for that. Clause 51, moving on, relates to setting bail in a police station. The question I have laid down here is what safeguards will apply to persons who are released on police bail, but who do not have 2685 an imminent court appearance date when they can apply to have their bail conditions varied?

The Chief Constable: Well, they can apply to the… The purpose of the police officers being allowed to grant people bail with conditions, is effectively: why does a person who is in custody ______47 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

have to wait in custody, sometimes 18 to 20 hours, to go to court to get a condition that could be 2690 imposed by a police officer – say, for example, a curfew? So in the first instance, in my view, the proposed legislation is there to expedite people unnecessarily remaining in custody. Should the person wish to alter their condition, it is still in respect of police bail and they have not been to court for the bail, then they can reapply to a custody sergeant to have that bail altered. 2695 Q228. The Clerk: Sometimes people are released on police bail and they are never charged (The Chief Constable: Yes.) and it is never brought before a court at all. How, in those circumstances, apart from going back to the Police, could somebody who thought that the condition was onerous actually appeal? Could they go to the court? 2700 The Chief Constable: Well, at the current moment, they could apply for a judicial review.

Q229. The Clerk: They would have to go to the High Court.

2705 The Chief Constable: Or they could raise an issue in terms of effectively a complaint against the Police and their situation would be reviewed. But again, if you are applying a strict ‘what is the process, what is this, what does clause 3 say, what does clause 4 say?’, in situations like that, if a member of the public comes in and says, ‘Look, I think this is entirely unreasonable’, I would say immediately, ‘Well, I will ask an inspector to review what has gone on’, and we would facilitate a 2710 change.

Q230. The Clerk: But it would always be the Police reviewing it, rather than an independent body?

2715 The Chief Constable: Or an advocate on their behalf could make representations to the Police. In my view, in terms of Police bail, i.e. where people have not been charged with an offence, the restrictions are not likely to be anywhere near as stringent as where people have been charged with an offence.

2720 Q231. The Clerk: I am just looking, because we have to cater for what the law allows, rather than what is likely to happen. It is just that it seems there is nothing in here that allows any appeal to somebody else. If someone feels that the Police have a down on them for any reason, and you know there are people like that, there is no way that they could go to the magistrates court to have it varied, unless they are actually brought by the Police to the magistrate’s court. 2725 The Chief Constable: I take your point that there is nothing that I can recollect in the Bill that actually enables somebody to have that Human Right of the appeal mechanism. I have described to you what the numbers would be of the instances that you are describing, which are extremely low, compared with those that would have been charged with an offence, and then I do not believe 2730 it would be particularly onerous to write a line that says that people will have the grounds to appeal to a magistrate’s court.

The Clerk: Okay, thank you.

2735 Q232. The Chairman: We move on to clause 52, the detention of children under the age of 14. Could you describe the conditions that would apply to such an arrest, with particular reference to the accommodation provided?

The Chief Constable: I think I need to set a context to that. Currently, young people under the 2740 age of 14 can only be detained in a police station in respect of homicide. That is clearly murder or manslaughter. There are clearly situations whereby young people of that age are accused of extremely serious offences, and regrettably that is likely to increase, as opposed to decrease, in my view. You could potentially be talking about allegations of rape, you could be talking about allegations of arson with intent to endanger life, and currently there is no provision to detain 2745 people under the age of 14 in a police station other than for an offence of murder. I appreciate that anybody being detained in a police station is a significant issue for them – it is especially a significant issue for a person under the age of 14 – but it needs to be, in my view, proportionate to the level of allegation that they are having, effectively, to defend. For example, if a young child burns a school down, then it is inappropriate, from my perspective, that they just ______48 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

2750 say, ‘Oh, we cannot have any powers to detain you: go back with you parents. Any forensic opportunities that we have got will be lost. Any investigative opportunities may be compromised by the fact that you are released.’ These are extremely serious offences, and we must not forget the victim. In a lot of these cases, irrespective of the fact that somebody might be 13, there is a victim attached to this and the 2755 victims require a thorough investigation. Just because they are 13 or 15 is severely compromising the fact that they get an investigation. In terms of safeguards, my answer to your previous question would be they would be detained at a police station and they would be detained in a cell. What we would be doing would be an extreme measure to make sure that all the circumstances, in terms of the abuse of that child’s civil 2760 liberties, about his or her comfort within the police station, will be mitigated by instructions to the custody sergeant about visits, about a social worker or an appropriate adult and an advocate being present. But I would also remind the Committee that what is seen as a punitive area – such as a caution, such as the taking of fingerprints, such as the right to have somebody informed that you are in detention, such as the right to have an advocate – are protection for the person who is 2765 detained. So in the most extreme of offences, a 13-year-old, in my view, is just as entitled to have legal protection when their future is in jeopardy as is a person who is 15 years old, and if they were taken directly home, I do not think they would get those protections.

Q233. The Clerk: So, it is proposed that, if a child is arrested for a serious offence… It could 2770 be theft, of course, couldn’t it?

The Chief Constable: No, because my reading of the Bill is that it would be specified by the Department. My view is that it would be that the Department – and I do not wish to take on board the Department’s functions… the serious arrest criteria would fall into place. It is very unlikely 2775 that theft would be included.

The Chairman: Very unlikely.

Q234. The Clerk: But we do not know. What I am saying is, it is not in the Bill. 2780 The Chief Constable: But what the Bill is saying, my reading of the Bill is, it is quite clearly saying it would be up to the Department and then before Tynwald, to actually specify what range of offence you are talking about. It would seem to me, for example, fairly obvious that arson with intent to endanger someone’s life, should be included. It would seem to me that rape should be 2785 included and it would seem to me that, for example, blackmail, kidnap, should be included. They are highly unlikely… they are not happening very often, but when they do happen, you have got a young person that you have no powers of detention and the victims are entitled for you to recover forensic evidence from them. Victims are entitled to know that they have gone through a stringent process, just as they would do if they were 15 and the detained person is equally 2790 entitled to have the rights that a 15-year-old would have afforded to them.

Q235. The Clerk: This would apply to any child from the age of 10 up to…?

The Chief Constable: Obviously, children under the age of 10 are below the age of criminal 2795 responsibility. It is just merely between 10 and 14.

Q236. The Clerk: So, looking at the worst-case scenario, we have got a 10-year-old, but your proposal would be to allow that 10-year-old to be locked up in a cell alone?

2800 The Chief Constable: What we would probably do is we would probably allow for that person to be in the police station with the continued supervision of an appropriate adult. We would be proportionate. We would act proportionately, but I cannot re-emphasise enough that it seems to me to be… If you are 13½, then you do not go through the full investigative process, and a victim, obviously of a very serious offence, does not get any justice and does not get things thorough. We 2805 can miss things that could assist the young person, and we are not getting the opportunities to do that. There surely should not be a difference between somebody who is 13½ and somebody who is 14½. What we have to do, and the point of the Committee is that if somebody is 10, the first thing we consider is they are only 10 and surely it is not right that they are in a cell. That would be the 2810 premise from which we start. The power that we have to put them in a cell would be there and we ______49 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

would have to make sure every step of the way that we had mitigated the way in which we had used that power, but if you go around setting fire to people’s houses, putting people at risk, and they are 12, then I am sorry but the facility and the power to put them in a cell, in my view, is entirely appropriate. 2815 Q237. The Chairman: Thank you very much. Can we move on to visual recordings of interviews. Just a quick comment on this one. Our understanding is that the Department of Health Affairs says that they may by order provide codes of practice. Are you not of the view that this should read must provide? 2820 The Chief Constable: I think it should be ‘must’ provide. I think it is important to highlight to the Committee the benefit of a video interview. If you get –

2825 Q238. The Chairman: I think we are content. Clause 56, samples taken elsewhere than at the police station: are you firmly of the view that this would be helpful or appropriate to the Police Service in a place the size of the Isle of Man? Do we need to do that, take samples in the field, as it were?

2830 The Chief Constable: The taking of samples has two purposes. Would it be helpful if I confined this question to a particular sample that you are concerned about and I can, perhaps, give you an explanation based upon that?

Q239. The Chairman: Well, how wide would the authority be in this clause? Would it – ? 2835 The Chief Constable: We are there talking about your intimate and non-intimate samples?

The Chairman: Well, intimate samples we are talking about.

2840 The Chief Constable: An intimate sample is obviously the more significant and serious sample that you can take off a person that is currently detained and that invariably means inside a body orifice. That can only be done with the individual person’s consent and a number of other criteria have to apply. It is a recordable offence erring towards serious and arrestable, and it is necessary in terms of pursuance of the investigation, and invariably, other than, for example, saliva, it would 2845 have to be taken by a doctor. So, the more serious samples: very, very few occasions that we would take an intimate sample from someone outside a police station. It is important for the Committee to know that these powers are only currently for people that are in police detention. So, if on the one hand you are trying to make sure that you are not universally exercising a power of arrest, very often you have to apply a power of arrest, in order 2850 that you can get the power to take the sample, because you can only take a sample inside the police station. So, what this power does, it enables you not to arrest somebody and it allows you the power to take the sample in the example you gave, sir, with the consent of the person concerned and with the doctor in their own home.

2855 The Chairman: Thank you very much. We have no comment on clause 59. I think we are content with clause 60, aren’t we? Yes. Clause 66, we will just touch on that. We have exercised –

2860 Mr Gill: Can I just –

The Chairman: By all means.

Q240. Mr Gill: Clause 65, Chief Constable, the provision to designate an area, a locality, to 2865 refuse children who appear to be under the age of 16 and not under the effective control of an adult, a person over 18: what is your view on that?

The Chief Constable: My view is that it is a last resort tactic that should and could only be used after you had exhausted all current, legitimate tactics, one that would have to be evidenced by 2870 significant public concern and one where we would have to justify that all avenues have been tried and failed. ______50 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

Again, I sense that the victim and some people that live in areas that they perceive are being blighted by inappropriate behaviour, need the utmost consideration, and again it comes back to the point that if people think that we are going to run round designated areas, sweeping kids up and 2875 taking them home every night, then that is obviously inappropriate. If we demonstrate that we have gone through every perceived and possible technique and there is no other point than to resort to this designated area, for which there will be significant controls, then I think that the public would be extremely accepting of that, if you are using it on two or three occasions on areas that you could identify a hotspot where people’s lives are being blighted. 2880 Q241. Mr Gill: So how many occasions in the last two years has this power been deployed?

The Chief Constable: Obviously, it is subjective, but I would say probably over two years you are probably talking on half a dozen occasions; but I would stress that I view that that is extremely 2885 necessary. Just because there is small number of instances where you would deploy it, I think that is extremely necessary, because what it shows is that you have tried and failed every legitimate technique and tactic that the legislation is currently giving you and you need to resort to something as extreme as that.

2890 Q242. Mr Gill: So the advice you would give to your officers when they are taking a young person back who has committed no offence, but they have been lifted off the street and taken back, and then a parent is alerted to this, saying, ‘What offence have they committed? Why are they in a police van if they have not committed an offence?’… What advice would you give to your officers to deal with that? 2895 The Chief Constable: Well, the first thing is it would dispute your premise that the designated area is there for a purpose and the designated area… It may not be the case that that one individual has been responsible for the causation factors, but the issue is that you are using a designated area because people are suffering. People are having their lives blighted and there are notices all around 2900 to say that this is a designated area. Invariably, the codes of practice would say why it is a designated area and it would be trying to appeal to people to say, ‘There are other people than yourselves.’ I would expect that most parents in that situation would want their child reasonably brought back to explain that people are suffering, and give them a worthwhile explanation as to why their 2905 child is being brought back. It is not one that we would saying, ‘Your child is guilty. You need to get control of your child.’ It would just be explaining that people’s lives are being blighted in this particular area and they need protection.

Q243. The Chairman: Thank you very much. 2910 Just two remaining questions. We have heard quite a lot about these two subjects already, so we could just perhaps refer to them, so we could have a few comments on record from you, Chief Constable, please. The first one about the use of fixed penalties. Fixed penalty notices: how do you feel about them? 2915 The Chief Constable: I think it is regrettable that coming to the end, the issue here is the criminal justice system; the criminalisation of individuals and the fact that the process is a bureaucratic process. What fixed penalty tickets enable you to do is give people an early opportunity to accept their guilt and to receive a penalty that is proportionate and commensurate 2920 with what the courts are currently doing. It just strikes me that, if the offences that are listed in the schedule, if the range of penalties for those that are in the court process are the same, or broadly the same, as what the fixed penalty is for, then it is an expeditious way to deal with things. It is also good for the victim that they get speedy justice and it is also good for the person that gets the fixed penalty ticket, in terms that it 2925 has been finalised. I cannot see the point in some people going through a long process to get fined £100, when they could have dealt with it on the same day.

Q244. The Chairman: That is very clear, thank you. Clauses 67 and 68 ASBOs in a domestic setting: would you, finally this afternoon, offer your 2930 comments on that, in the light of the discussion that has gone on so far?

______51 KCJB BILL COMMITTEE, FRIDAY, 1ST APRIL 2011

The Chief Constable: On average, a woman will be assaulted 34 times, before she reports it to the Police. On average –

2935 Q245. The Chairman: Is that Isle of Man?

The Chief Constable: It is an average that I would say would apply equally in the Isle of Man. It is domestic violence and if you said, for example, ‘Well, in the Isle of Man, it is different’, it could be. What I am saying is, I think the point I am making is that research shows that one in 34 2940 occasions that are assaulted… You might dispute that and obviously, people can dispute it, but I think the point is that very few people actually report it on the first occasion, so it is systemic violence in the home. People do not report domestic violence, because invariably their financial circumstances are linked to the partner; they are in a private setting, whereby there are no witnesses; there is no opportunity to gather evidence and some of these people actually feel like 2945 prisoners, and they, in my view, need the protection of something that they can go back to an authority with and say, ‘Please deal with this.’

Q246. The Chairman: In the light of the strength of your opinion on that one, what comment would you like to offer us with regard to the negative publicity ASBOs are getting in the UK and 2950 the withdrawal from them?

The Chief Constable: I think the sheer volume… I think the aspiration in the UK of ASBOs was too great. I think they were seen as a panacea to deal with a wide extent of issues. On the Isle of Man, you probably will not be getting anywhere near 10 ASBOs in any one year, and that again 2955 is a similar argument, as I was explaining to Mr Gill, in relation to the dispersal, that if you have got a power that is effectively meant to deal with something at the end, it is a power that you use when other tactics have failed. So, in my view, in the UK it was used as a tactic too early, but if you are talking about single figure Anti-Social Behaviour Orders and single figure ASBO injunctions, then it becomes manageable and it becomes reflective about just how important that 2960 issue is to particular individuals.

The Chairman: Thank you. You want to make a final point?

2965 Q247. Mr Gill: Yes, please. My final point, Chief Constable, is, since your understandable desire is to make the role of policing as effective and as evidence based as you possibly can, in your relationship with the Department, clearly you would want to have as many powers for future use to cover all eventualities. Would that be a fair presumption? 2970 The Chief Constable: No, what I would seek to do is have powers that were proportionate, justified and necessary, to identify prevailing circumstances.

Q248. Mr Gill: What if the next Chief Constable is not as like-minded as you, and bearing in 2975 mind the Minister’s inability to make a distinction between a need and a want and it became a want-driven Constabulary, rather than needs and evidence-based? How would that manage itself?

The Chief Constable: I presume that the selection process for the Isle of Man selects people that the Isle of Man wants and that has the values of the Isle of Man. There is a selection process 2980 and my experience of that process is that the process concentrates very clearly on what the needs and what the benefits are, what the context of the Isle of Man is and what the values of the people are. It would be highly surprising for me for an appointment to be made that were contrary to those values.

2985 The Chairman: On that point, Chief Constable, we will close today’s session and thank you enormously for all your time.

The Chief Constable: Thank you.

2990 The Chairman: And your patience as well.

The Committee sat in private at 1.22 p.m. ______52 KCJB