HC Deb 17 June 1971 vol 819 cc672-81
Mr. David Steel (Roxburgh, Selkirk and Peebles)

I beg to move Amendment No. 116, in page 22, line 12, after 'he', insert 'knowingly'.

Mr. Deputy Speaker

I believe that it would be convenient to discuss at the same time Amendment No. 117, in page 22, line 15, after 'he', insert 'knowingly' and No. 118, in page 22, line 20. after 'he', insert 'knowingly'.

Mr. Steel

I raised this matter in an Amendment in Committee and sought to insert the words "knowingly and wilfully". After listening to the debate I withdrew my Amendment because there was general agreement that the word "wilfully" would not be appropriate but that the word "knowingly" might be applicable.

The proposition of the Minister of State in Committee was that mens rea would be assumed in the offence as provided in the Bill at present. In other words, a person who was not patrial would be guilty of an offence if, contrary to the legislation, he entered the United Kingdom in breach of a deportation order or without leave. In the discussion which took place in Committee it was made clear that the word "knowingly" occurs in the next Clause on several occasions, and at the beginning of Clause 25 we read: any person knowingly concerned in making or carrying out arrangements for securing or facilitating the entry into the United Kingdom of anyone whom he knows or has reasonable cause for believing to be an illegal entrant shall be guilty of an offence. However, the word "knowingly" does not appear in the same context in Clause 24.

As a result of our discussion in Committee, the Minister undertook to consult the Law Offiers on this question. He has done better than that. He has brought one of them with him, and we are delighted to see the Solicitor-General gracing our deliberations.

I am sure that this marginal improvement—I accept that it would be no more than marginal—would improve the Bill, and I trust that the hon. and learned Gentleman will say that the Government accept it.

The Solicitor-General (Sir Geoffrey Howe)

I assure the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) that, as my hon. Friend undertook in Committee, his proposed modification has been carefully looked into. I am glad to be able to advise the House to accept the insertion of the word "knowingly"—[HON. MEMBERS: "Hear, hear."]—wait for it—in the first two instances, but I would advise against doing so in the third.

Mr. David Steel

Why?

The Solicitor-General

The case which was advanced by the Government in Committee against the insertion of words identifying mens rea is that since the decision in Sweet v. Parsley, the courts will scrutinise any particular case to identify exactly what it is the wording of the offence involves to determine whether or not a guilty mind is needed.

Although some discussion has been going on in the House and elsewhere about the desirability of a more general use of words plainly identifying the nature of a guilty mind, there are some circumstance where it is neither necessary nor desirable for that to be done. Consider, for example, the reference of the hon. Member for Roxburgh, Selkirk and Peebles to Clause 25, which refers to Any person knowingly concerned in making or carrying out arrangements for security or facilitating … entry. It is necessary to have the word "knowingly" there as a matter of common sense because one might otherwise find someone who sold a railway ticket being charged for facilitating entry when, in fact, he thought it was a wholly innocent transaction.

On the other hand, if one considers the formulation of different offences, one might refer to "Anybody who sits in Mr. Speaker's Chair". Here the formulation of the word "sit" implies a conscious, positive activity, and it is scarcely necessary to insert the word "knowingly".

Mr. James Callaghan (Cardiff, South-East)

He may not know it is Mr. Speaker's Chair.

The Solicitor-General

That must be taken into account in the context of the particular word, and it would depend on how the offence was formulated. One might refer to, "Any person who sits in the Chair at that end of the Chamber". If such a person were guilty of an offence, then to say "knowingly sits" would be irrelevant, so that the point which the right hon. Gentleman makes in a sense illustrates what I am saying. A lot can depend on the formulation of the offence. For example, to any person who drinks something, it is clear that his drinking is a conscious act.

If, as I suggest, the House considers it wise to make this change in subsection 1 (a) and (b), it will be necessary to remove subsection (2) from Clause 24 because the appearance of the word "knowingly" will make that provision unnecessary.

On the other hand, subsection (1)(c), which says having lawfully entered the United Kingdom without leave by virtue of section 8(1) above takes us back to the provisions dealing with the entrant seaman who overstays his time here because he is required to leave when his boat leaves. On analysis, it seems plain that he must, entering under those circumstances, know when he is required to leave, and that it would not be right to include the word "knowingly" in those circumstances because to do so could give rise to practical difficulties. Indeed, the inclusion of the word could give rise to more difficulties than its non-appearance.

I apreciate the general way in which one might approach these matters, perhaps thinking that once the principle is accepted of spelling out the nature of the guilty mind, the same should be done everywhere, but that often means its becoming more difficult to formulate the state of mind than by leaving it to be implied by the activity which is being proscribed. It is on that basis that we do not take the view that the drafting would be improved by inserting "knowingly" in subsection (1)(c).

Mr. Peter Archer

The hon. and learned Gentleman will, of course, be aware of many examples of people remaining behind unknowingly. For example, the seaman's watch could be slow, so making him miss his ship.

The Solicitor-General

That is exactly right, and the House may feel that merely to assert "My watch was five minutes slow. I am therefore not guilty of remaining beyond the required time" would not and should not be a good defence.

One can visualise all sorts of excuses that could be advanced, without the need to consider extreme cases. But what if the seaman was unconscious because he had just had his appendix removed and was under deep narcosis therapy? [Interruption.] The right hon. Member for Cardiff, South-East (Mr. Callaghan), who is extremely knowledgeable about the ports of South Wales, made a sotto voce suggestion, which, in fairness to him, I will not repeat.

An infinite number of excuses could be advanced, and it would create great difficulties of formulation if the word "knowingly" were inserted in subsection (1)(c). Even if one were to have some different formulation, such as "without reasonable excuse", that would give rise to great difficulties of interpretation. The better proposition is to adopt what I would call the Sweet v. Parsley view. The defence could be, say, "In the circumstances of this case, unconscious as he was and lying in a hospital ward, it cannot be established that he remained here within the provisions of Clause 24(1)(c)"

We have looked at this matter carefully, and it is not easy to decide in any particular case where the balance should lie. I hope that hon. Members appreciate the care of our consideration by the two-thirds' extent of our virtue and acknowledge that we are not hanging on to the final third out of some sense of amour propre but because, following an examination of all the difficulties involved, this is the best course to take.

Mr. Peter Archer

I do not suggest that we are discussing a matter of vital principle or that my hon. Friend's wish to take a firm stand on it. However, I am puzzled in that, though I have not considered the issue as deeply as the Solicitor-General, it seems difficult to comprehend the plight of someone who might be remaining in this country because he is under anaesthetic in hospital or in the midst of being extracted from a road accident. "Remaining" does not entail any state of mind. I should not have thought that any defence based upon that kind of semantic approach would have stood much chance of success.

5.0 p.m.

I appreciate the difficulty which the hon. and learned Gentleman has posed, that if the prosecution had the additional burden of proving that the offence was committed knowingly—that is to say, of negating a possible defence that the offence was committed unintentionally—this would be a burden which would probably be too heavy reasonably to expect the prosecution to discharge. Would it be possible to do this in reverse, as the hon. and learned Gentleman suggested? Could we not place the burden of establishing an excuse on the defence? If someone said to a court, "This was quite unintentional. I did not realise that my watch was slow and I was panic-stricken when I discovered that my ship had left ", and he had the burden of saying this in defence, would he have a conviction recorded against him in those circumstances? If he says it convincingly enough, the court would no doubt believe it and he will be acquitted; if he does not say it convincingly enough, then no doubt he will be convicted. Is there anything terribly worrying about that?

The Solicitor-General

We are here discussing the inter-position of the word "knowingly". I take it that the hon. and learned Gentleman is persuaded of the unwisdom of "knowingly" in that particular place. We have looked at the alternative possibility, but in the light of what he and the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) have said, we will look at it again. But the hon. and learned Gentleman appreciates that there are practical difficulties in the particular circumstances of that case. I can give no undertaking to accept the suggestion, but certainly we will look at it, having dealt with the particular "knowingly" with which we were anxious to deal.

Mr. David Steel

The Solicitor-General referred to the two-thirds Government virtue. It would be grudging not to accept this. If two-thirds of my Amendments had been accepted, I should be delighted and the Bill would have been greatly improved.

In view of the very interesting explanation given by the hon. and learned Gentleman about whether it is or is not proper to insert the word, I wonder whether one could not improve on my drafting of the Amendment and whether the "knowingly" in Clause 24(1)(a) should not come after "United Kingdom", because "entering" is a positive act, just as "sitting" is. It may be preferable to word it: … if contrary to this Act he enters the United Kingdom knowingly in breach of a deportation order …". If the Solicitor-General shares the view that my Amendment is capable of improvement in that way, I should accept his advice and seek leave to withdraw it at this stage, as he is to tighten up subsection (b) in another place. I think that it is capable of improvement in the light of his explanation.

Amendment agreed to.

Further Amendment made: No. 117, in page 22, line 15, after "he", insert "knowingly".—[Mr. Sharples.]

Mr. Sharples

I beg to move Amendment No. 63, in page 22, line 23, after "under", insert "Schedule 2 to".

Mr. Deputy Speaker

With this Amendment we can discuss Amendment No. 64, in page 22, line 28, after 'under', insert 'Schedule 2 or 3 to'.

Amendment No. 98, in page 22, line 29, at end insert: ' being a restriction imposed upon him pending a decision whether or not he be given leave to enter the United Kingdom or pursuant to the making against him of a deportation order.' and Amendment No. 65, in page 22, line 31, after 'under', insert 'Schedule 2 or 3 to '.

Mr. Sharples

These Amendments are intended to make more specific the definition of certain offences under Clause 24(1). When we were discussing this matter in Standing Committee, the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) suggested to me that the wording of Clause 24(1)(e) was very much wider than the situation to which it was intended to apply. He said it might be thought to refer—although I made it quite clear that it did not—to the offence of failing to register with the police.

The Amendments are intended to clarify the position and to narrow the definition to make it clear that it refers only to offences under Schedule 2 or Schedule 3. This meets the point raised by the hon. and learned Gentleman.

I have looked carefully at Amendment No. 98. If the hon. and learned Gentleman looks carefully at the Bill as now amended, he will see that if we accept the first three Amendments the situation—I hope he will agree—which Amendment No. 98 seeks to cover is already covered by the Amendments I am proposing.

Amendment No. 68 meets a point raised in Committee by the hon. and learned Member for Dulwich (Mr. S. C. Silkin). He suggested that in Clause 26(1)(a) the words making it an offence to refuse or fail … to furnish or produce any information in his possession, or any documents … should be qualified by words such as "without reasonable excuse, and in Committee I undertook to consider that suggestion. I have now had the opportunity to do so and have decided to accept his proposal.

Mr. Peter Archer

It would be ungracious of us not to welcome the Amendments. But I wonder whether we should be suitably grateful to the Government for having accepted our suggestion or whether they should be grateful to us for having tightened what was a certain slipshod drafting. The Clause was loosely drafted originally. The offences were defined too widely. In Committee the hon. Gentleman undertook to look at the matter, and we are suitably grateful for this result.

I hope that it will not be thought that I am being hypercritical and looking a gift horse in the mouth if I say that we are not wholly happy with the draftsmanship regarding Amendment No. 64 and the others. This arose in an exchange in Committee when I pointed out that if the words of subsection (1)(e) were taken at their face value, it did not appear to require the power of arrest without warrant in subsection (3). The hon. Gentleman explained that it was intended to apply only where someone was awaiting a decision on whether he was to be admitted or not. The hon. Gentleman said: Paragraph (e) deals specifically with the case of a person who is awaiting a decision as to whether or not he will be admitted. He is allowed to leave the port, but is told that special restrictions are to be placed upon him while a decision is taken, rather than his being retained in custody at the point of embarkation. Those are the special kind of restrictions to which paragraph (e) refers. I then said: The hon. Gentleman has been very fair about paragraph (d), and I am most grateful to him. Does not it follow from what he has just said that the wording of paragraph (e) is obviously very much wider than the situation to which it is intended to apply? Will he include that in his consideration at the same time? Very fairly, the hon. Gentleman immediately said: Certainly, I will look at the wording of paragraph (e)"—[OFFICIAL REPORT, Standing Committee B, 25th May, 1971; c. 1228–9.] This is the result. Amendment No. 64 is the Government's attempt to meet the point.

Amendment No. 98, as the hon. Gentleman indicated, is our attempt to meet the same point. I seek only to put up the two Amendments for scrutiny, not competition. If it is not out of order, I invite any right hon. or hon. Gentleman to look at the wording of the two Amendments. One of my right hon. Friends says that I would be grossly out of order if I made such a suggestion.

The Government Amendments are legislation by reference. It means that anyone who wants to know what is forbidden under the subsection has to look at Schedule 2 and Schedule 3. One can imagine a busy official seeking to frame an indictment or a charge. He would have to do so by reference to the Schedules.

It is even more worrying than that because these offences give rise, under subsection (3), to a right of arrest without warrant, so some unhappy policeman or immigration officer has to decide, on the spur of the moment in some dark alleyway, whether the situation with which he is confronted is one in which he is entitled to arrest without warrant. He then finds that the reference he is making relates to a general specification of Schedule 2.

We have sought to spell out in words of one syllable precisely what is the offence with which we are dealing. There is no point between us other than one of pure draftsmanship. As the whole argument started on a point of draftsmanship, when we pointed out what is now accepted by the Government—a certain looseness in the original drafting—we are entitled to say that in the interests of future practitioners, future policemen, and future immigrants it might be as well to get it as clear as possible. This is why we have tabled Amendment No. 98.

If the Minister is adamant about this, we shall not divide the House on his Amendments, and I understand that we shall not have an opportunity to vote on ours. It lies in the Government's hands whether they would like to think about this again and at a later stage spell out in the subsection exactly what is the offence which is being talked about, rather than merely refer to the whole of the Schedule.

Mr. Sharples

I am persuaded at the moment that the advice that I have received from the draftsmen is correct. However, I will, of course, carefully consider what the hon. and learned Gentleman has said and, after having done so, if I come to a different conclusion I will arrange to have the necessary Amendments tabled.

Amendment agreed to.

Further amendments made: No. 64, in page 22, line 28, after 'under' insert 'Schedule 2 or 3 to'.

No. 65, in line 31, after 'under' insert 'Schedule 2 or 3 to'.—[Mr. Maudling.]

Mr. Maudling

I beg to move Amendment No. 66, in page 23, line 4, at end insert: 'other than an offence under subsection (1)(d) above '. The Amendment fulfils an undertaking given by my hon. Friend the Minister of State in Committee to reconsider a point. It arises on the power of a constable or immigration officer to arrest without warrant. The Bill as drafted gives this power for "anyone who has, or who is suspected with reasonable cause to have committed or attempted to commit an offence under this section.

Clause 24(1) specifies a number of offences. It was argued in Committee that an offence under paragraph (d)— if, without reasonable excuse, he fails to comply with any requirement imposed on him under this Act to report to a medical officer of health, or to attend, or submit to a test or examination, as required by such an officer is of a different order from the other offences and, therefore, that there should not be power to arrest without warrant in that case.

The Amendment fulfils the intention of eliminating the power of arrest without warrant in the case of offences under subsection (1)(d).

Amendment agreed to.

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