HL Deb 13 April 1981 vol 419 cc779-96

4.11 p.m.

Second Reading debate resumed.

Lord Wigoder

My Lords, after that very sombre 25 minutes, might I revert now to the not entirely disconnected topic of the Criminal Attempts Bill. It is not entirely disconnected because, of course, among other matters, the Bill deals with the abolition of the "sus" offence, and I think that there is no doubt that it was the misunderstanding of and the misrepresentations about that offence which have contributed, at least to some extent, to the lack of goodwill between the black community and the police in recent years.

I am sure that it would be entirely inappropriate for any Member of your Lordships' House to seek to criticise the procedures of another place. But I hope that it is in order if I venture to praise them to the extent of saying that their experiment on this occasion of having a Special Standing Committee appears to have worked most admirably and has produced a fascinating volume of evidence, cross-examination and reports leading eventually to a very productive Committee stage in the other place.

The Bill deals with a number of different matters. As a result of that Committee stage, I think that there is no doubt that the law about attempts in Part I of this Bill has been substantially improved, particularly where it deals with the whole fascinating academic issue of attempting to commit something which is impossible, and whether or not that should be a criminal offence. On balance, I am inclined to agree that the Bill is now better than it was when it was first presented, in that it has reverted to the Law Commission's recommendation instead of the original Government proposal.

But although a great deal of evidence was given in another place about this issue, I hope that perhaps in your Lordships' House we shall not concentrate too much upon it, because it is, in fact, very much an academic issue. The question to what extent an offence should be impossible to commit in order that there should be an offence of attempting to commit it, is one that does not very often arise in practice. Whatever view one takes—the Law Commission's view or the original Government view—one can very easily produce a hypothetical situation which is quite absurd. But, in fact, in practice it is not a matter that troubles the courts with any regularity or, I think, a matter that is worth any very careful attention in your Lordships' House.

That deals with Clause 1(2) and (3), where those matters are set out. I note in passing that in subsection (4) there appears to be a list of offences which it is not possible to attempt the commission of—if I may end a sentence in that rather appalling way. I am a little surprised to see that manslaughter is not included among the offences. I think that it is generally agreed that there is, in fact, no such offence as attempted manslaughter, and I think that it would give rise to difficulties if manslaughter was not included as one of the matters in subsection (4).

Perhaps the more important part of Clause 1 is the definition of an "attempt" as being—with, of course, the necessary intent—doing an act. which is more than merely preparatory to the commission of the offence". The degree of proximity to the commission of the offence that is necessary to constitute an offence of attempt has always caused trouble, and I think that it is inevitable that in due course the present definition is also likely to cause trouble, although I can think of no more satisfactory way of putting it than is set out at the moment in Clause 1.

However, I want to raise one particular matter on Clause 1 and ask the noble Lord to reflect on this, because it will be referred to again in a moment or two when I deal with the second half of the Bill. If a person goes along trying shop doors with the necessary intent of stealing, the question would arise as to whether he was doing an act which was more than merely "preparatory to the commission of the offence", the offence being of attempting to enter with intent to steal. I should have thought that most judges would rule that that was, in fact, conduct which is more than merely "preparatory to the commission of the offence", and that, therefore, trying shop door handles in that way was capable of being an attempt to commit a criminal offence.

Apart from being a very common form of misbehaviour, I think that that has some relevance when we come to consider the second half of the Bill, which deals with the abolition of the offence of suspected persons and the proposed new offence in Clause 9. I welcome the abolition of the suspected persons offence in Clause 8 of the Bill. It is long overdue and its repeal has long been advocated by many of us on these Benches, and conspicuously my noble friend Lord Avebury, who will speak a little later in this debate.

In saying that, at the same time I want to make two other comments about the offence of being a suspected person under Section 4 of the Vagrancy Act. First, I do not believe that the evidence supports the myth that has been put around that that Act was being deliberately operated in a racially discriminatory way. I agree with what the noble Lord, Lord Mishcon, said on that subject. Secondly, it seems to me that there has rarely been an Act of Parliament about which more gibberish has, in fact, been talked in past times. It has been widely put about that the fault with Section 4 of the Vagrancy Act was that it allowed police officers to arrest anybody simply because they suspected that an offence might be committed, which is quite wrong; it has also been widely put about that the intent to commit an offence, which is necessary under Section 4 of the Vagrancy Act, was in some way an unusual provision of the criminal law.

I think that it is worth remembering that, in fact, under Section 4 of the Vagrancy Act it was necessary to prove that the defendant had committed at least two specific acts; in fact, in the way in which the courts have operated, no prosecution has ever been brought unless at least three specific acts had been seen by a police officer to have been committed by a defendant. It was also, of course, the fact that once those acts had been proved it was then for the court to infer whether or not there was an intent to commit a criminal offence. There was nothing in the least unusual about that. It is a perfectly common feature of almost every criminal trial that intent, in one form or another, has to be proved. The whole myth that grew up about Section 4 of the Vagrancy Act was, I think, very largely due to its extremely unfortunate and rather archaic wording. I am, therefore, delighted to find that in Clause 8 that is to be repealed and that an attempt is to be made to put in its place some other provision which might be more accurate and more easily understood.

That leaves me to consider for one moment the provisions of Clause 9—the offence which is proposed of interference with a motor vehicle. I do not go along with the noble Lord, Lord Mishcon, in his argument that some such provision may not be necessary. All of us in the criminal courts know that in fact much criminal misbehaviour takes place in relation to motor vehicles, and indeed also in relation to shopping bags on London Transport, where that type of offence is particularly prevalent, which is not caught under the existing law. I can well understand that there is a case for replacing Clause 8—that is, the repeal of the suspected persons law—by some new form of offence to deal with what is a widespread form of criminal misbehaviour, particularly in the London area.

The problem that arises is that one cannot in the ordinary way deal with motor vehicles in particular under the existing criminal law because of the fact that somebody who is interfering with a motor vehicle may, as the noble Lord, Lord Belstead, pointed out, be committing any one of three quite separate offences. Whether Clause 9 is an entirely happy resolution of this problem is a matter that I should like to raise at a later stage on Committee. I content myself with pointing out at the moment that as it stands anybody could be convicted under Clause 9 who had tampered with one motor-car door handle if it was shown that he had the necessary intent to commit one of the three offences set out in Clause 9(2), whereas of course under the existing law of suspected persons he would in fact have had to be shown to have tampered with no less than three motor-car door handles. There is, therefore, a sense in which the proposed new offence is rather more stringent in its terms than the existing offence of suspected person which it is in fact now proposed to repeal.

The other observation I want to make, which takes me back to where I began, is this. If I am right in saying that a person who tampers with shop door handles is committing the offence of attempting to enter with intent to steal, would it not fit more easily into the scope of this Bill if Clause 9 were redesigned so that it became an attempt to enter the motor-car with intent to commit one of the offences set out in Clause 9(2)? It seems to me that that would deal with the form of misbehaviour that it is desired to deal with without giving rise to the argument that all the Government are doing is to abolish "suspected persons" on the one hand and replace it by something more or less identical on the other hand. Those are limited aspects about a small number of the points that arise on this interesting and worthwhile Bill. We on these Benches will certainly support the Second Reading today, and hope to pursue these comparatively minor points when the Bill reaches its Committee stage.

4.24 p.m.

Baroness Macleod of Borve

My Lords, this Bill is short, but it is very important. I am grateful to my noble friend for explaining it so succinctly, but so adequately. Those of us who have had the privilege, though at times and often it is an onerous one, of judging cases before us in the magistrates' courts will welcome this Bill so long as when it is applied in the future it is proved to go far enough. I think that only time will tell. The problem of judging whether a defendant when seen to be loitering was waiting for the next bus or for his girlfriend, or was waiting for the opportunity to snatch a handbag, has always been a difficult one.

Likewise, if someone is seen going round motor vehicles in a cinema car park, it may be difficult to prove that he intended to steal a car when he says he is interested only to see the gearbox, or the numbers of miles on the mileometer. In so many cases it is so much better if witnesses could be called by the police and by the defence. It would help the magistrates' courts enormously to have third parties to give evidence. The police are thought in some quarters to possibly be conniving together to get a conviction.

Clause 9, as my noble friend has said, is important in that it goes a long way to protect the public and to reassure them that a police officer may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of interfering with a motor vehicle, or theft of a vehicle, or theft of anything in the vehicle, or taking and driving away. Conduct of this kind will always continue, whatever the law. The theft of, or from, cars is, I know, considered to be petty crime, but the loss to the owner can be considerable and sometimes disastrous.

I query, as I think the noble Lord, Lord Mishcon, did, whether it is only this particular Clause 9 which will be triable summarily, or whether it will be triable either way. I have a feeling that it is only to be tried summarily, and I wonder whether that is the Government's final word on this subject. This morning I spoke to the Magistrates' Association, and they told me that they support this Bill as amended. I hope it has a speedy passage through your Lordships' House.

4.27 p.m.

Lord Pitt of Hampstead

My Lords, as one of the Members of your Lordships' House who in December 1978 tried to get Section 4 of the 1824 Act repealed on the basis of a Bill introduced by the noble Lord, Lord Avebury, I want to welcome this Bill in so far as Clause 8 is concerned. I do not think that there is any need for anybody to dilate on the difficulties and dangers that existed in this particular section; this law which made it possible for people to be convicted and even go to prison without having committed any offence. That was the danger of "sus". In effect, it was possible under the law for somebody to be convicted and imprisoned without ever having actually committed an offence. Therefore, I am glad that that is to be out of the way.

I must confess that like my noble friend Lord Mishcon I am worried about Clause 9. The original Clause 9 was very bad. It was merely replacing sus by another section in terms only of the limited scope of the Bill. In fact, in some respects, as was pointed out by the noble Lord, Lord Wigoder, it was worse because you only needed to touch one door handle and you were had. The amended Clause 9, the one before us, is better than the one the Government originally introduced. On the other hand, it is still not tight enough.

As there are sufficient legal brains in this House, what I should like to suggest is that if in fact your Lordships decide that we must have Clause 9—and I share Lord Mishcon's view that it is not necessary for us to have Clause 9—then we must try and see to what extent we can tighten it, so that you do not just get out of Clause 9 the problems that we used to get out of this suspected persons law. Therefore, I hope that the Government—and, also, all sections of your Lordships' House—will bend their minds towards tightening Clause 9, so that anybody convicted under it will be satisfied that they committed an offence and would take their punishment. The real problem with sus was that many people convicted of it felt they were unjustly dealt with. That was the most important undermining danger of the sus law. I still feel that Clause 9 as drafted will allow for a certain amount of that and I therefore hope your Lordships will try so to tighten the clause that that situation will not arise.

I also share the view of the noble Lord, Lord Mishcon, that, if at the end of the day the clause remains, the question then will be whether the offence should be triable by jury, and that too we shall have to explore in Committee. The accused should not have the feeling of having been badly done by, and if he is convicted by 12 of his peers, that may overcome the problem. Therefore the question whether it should be a summary offence or one triable by jury will have to be considered carefully in Committee.

Part I of the Bill deals with an extension of the law of attempt. It was inevitable that once we had removed the sus law, the law of attempt would need to be carefully codified, and that is what Part I sets out to do. I do not feel competent to join in the arguments that have taken place about "impossible attempt"—I am not a lawyer, just an ordinary simple layman—and my worry is about the question of conspiracy. Having decided to extend attempt to attempting the impossible, we have proceeded to say that one can conspire to do the impossible.

There has been a general feeling that the law of conspiracy is abused in any case; people feel that if there is no other way of getting at them—at an individual or a few people—they are charged with conspiring. I think conspiracy must remain for most offences, but I am not altogether happy—I do not know the views of the rest of the House on this—that a person may be guilty of conspiracy to commit an offence, even though the facts are such that the commission of the offence is impossible". I would find it difficult to support that and I hope that that provision will be looked at carefully in Committee. I must be honest and say that if all we can do is vote against the clause, I shall certainly vote against it. I am unhappy about an extension of the crime of conspiracy in the way that is proposed in the Bill. Having said that, I welcome the Bill, which is an important measure. I hope that in Committee your Lordships will tidy it up so that there are no mistaken consequences as a result of its passage.

4.34 p.m.

Lord Avebury

My Lords, I find myself in the unusual but highly agreeable position of agreeing with most of the remarks of the noble Lord, Lord Belstead, and I share with him the welcome that has been given to the repeal of "sus" in particular, and I shall follow him by starting with a discussion of Clause 8, and go backwards through the Bill. In welcoming the abolition of sus, I suggest that it would have been sensible if your Lordships had taken the opportunity which was provided by the Suspected Persons (Abolition) Bill which I introduced in December 1978 of taking some action then, even though it would have left a gap in the law in that Part I of this measure, which deals with attempt, had to wait until the Law Commission had completed its work.

If we had gone ahead and abolished sus when we had the opportunity of doing so two years' ago, that might have speeded up the work of the Law Commission and of the deliberations of the Select Committee in another place, and certainly it would have concentrated the minds of the Home Office on producing legislation to deal with whatever gap existed in the criminal law if sus had been repealed and not replaced by anything else. In my view, it would not have been a serious gap. Certainly the effect of not having provisions for dealing with impossible attempts of certain kinds would not have been critical, as is proved by the fact that law enforcement was not gravely undermined by Houghton v. Smith, which I believe was decided well over seven years ago; it is referred to in a 1974 document, although I have not looked up the actual date of the case.

Looking at Clause I, one is bound to have doubts about the interpretation of the phrase "more than merely preparatory", and all we as non-lawyers can say about that is that the phrase was recommended by the Law Commission as having been carefully examined by the distinguished minds of the legal profession. On that I tend to agree with the noble Lord, Lord Pitt of Hampstead—namely, that it is not for us as laymen to enter into such technical provisions of the Bill—and that we can only say that something of that kind is necessary and we hope the courts will be able to interpret the phrase as the lawyers tell us they will.

Looking at it from a commonsense point of view, if one takes the impossible offence which is immediately related to that of sus—where somebody reaches into some sort of receptacle (a handbag or shopping basket perhaps) and there is not in the receptacle any object which he would have liked to steal, but he does not know that—then obviously an act can be more than merely preparatory to the intention of taking something. He put his hand into the receptacle only because he thought the shopper had somethings in there of value which he wanted to take. If one looks at a simple case like that, one can see that it is fairly clear what would have been meant in those circumstances by "more than merely preparatory". But whether it would be equally easy to construe that phrase under other and more complicated examples is not for me to say. I only hope it will not be difficult for the courts.

As for the argument concerning factually impossible offences and the disagreement between the Law Commission and Home Office, I would not presume to enter that discussion. I agree with my noble friend Lord Wigoder in that it is a matter of great fascination, as he found it, looking through the proceedings in another place, in particular looking at the examples that were adduced by the Law Commission of the impossible offence. I particularly liked the story of the umbrella taker, of Mister (I suppose he was "Mister" and not a Member of your Lordships' House) Baron Bramwell, who took an umbrella from a stand intending to steal it, but it turned out to be his own umbrella. I am not sure whether Mr. Bramwell was convicted; that is not clear from the Law Commission's document. Then there was the example of the bigamist who went through a ceremony of marriage mistakenly believing that his first wife was still alive or in any event was still his wife. A series of examples of impossible offences is provided and, as I understand it, the Bill is saying that if a person intends to do any of those things, he is committing an offence. I do not know whether in fact there will be prosecutions arising from the difficulties that the Home Office have had in trying to distinguish between the absolutely impossible offence and those offences of another character. But it seems to me a little odd that while those acts if completed did not constitute a criminal offence, an attempt to commit them would result in proceedings.

That is the situation we have got into as the result of the Home Office's difficulty, as I understand it, of proceeding along the lines that it first intended. But perhaps that cannot be helped, and one must hope that discretion will be exercised by the DPP in not producing the absurd situation of prosecuting people for attempting to do something which if it were completed, would not in itself be an offence.

I rather agreed with the noble Lord, Lord Mishcon, when he said that he wished that an opportunity had been taken, if it had been possible, for the other offences in the 1824 Act to be dealt with at the same time. I shall not pursue that point because I believe it is to be discussed by a later speaker, but it appears to me that it would be possible for your Lordships to incorporate provisions to deal with the other parts of the 1824 Act, if it were thought expedient to do so and we had information on which to base action.

Finally, I come to the vexed questions of a car door or window—the interference with a motor vehicle. The question here is: What is the person intending to do? We are creating a specific offence which requires the court to establish not only that interference with the motor vehicle took place, but that the person intended to do certain things. I agree with my noble friend that possibly we have made convictions easier to secure by requiring that only one attempt to interfere with a motor vehicle should be brought in evidence, and I am not very happy about that provision. I agree with the noble Lord, Lord Mishcon, that some of the magistrates who looked at it said that it was not necessary at all. The particular magistrate whom the noble Lord, Lord Mishcon, quoted expressed the opinion that cases involving motor-cars might have amounted to between 10 per cent. and 30 per cent. of all the sus charges in England and Wales, making between 254 and 849 cases in total. As I said when we discussed sus on a previous occasion, many of those incidents could have been dealt with under other provisions of the law, such as going equipped for theft, which is sometimes an alternative charge to sus.

In order to be perfectly fair I would say that on the other side of the argument evidence was given to the special Standing Committee by Sir Philip Knights, the Chief Constable of the West Midlands, that in his area 61 out of a total of 82 offences of sus related to motor vehicles. So one is forced to agree with my noble friend Lord Wigoder that we need a provision in the law which deals with the problem of the interference with motor vehicles, even if it is not exactly in the form that the Bill has it. In conclusion, I would say that almost any price is worth paying to get rid of the offence of sus. I should certainly be happy to have Clause 9 as it stands if it means getting the Bill on to the statute book as soon as possible.

4.44 p.m.

Lord Gifford

My Lords, I apologise for the fact that I was not able to be present for the start of the debate and to hear the introduction given by the noble Lord, Lord Belstead. Like the noble Lord, Lord Avebury, I wholeheartedly endorse and applaud the repeal of the "sus" law. But in considering the nature of the offences that are proposed to be put in its place I feel that we must be very clear about what was the reason for the widespread agitation over, and call for the repeal of, that law which has grown up over the last decade. I considered that the noble Lord, Lord Wigoder, was absolutely correct in his analysis of the law. It is not true to say that people could be lawfully arrested under the sus law merely for behaving suspiciously. There had to be evidence of a number of guilty acts in order for a conviction to be obtained. The difficulty was, and the reason for the agitation was, that the law was being abused, that prosecutions were being brought by police officers on an alleged basis of true fact which turned out to be totally false. There is really overwhelming evidence that that was being done and, what is more, being done in a racially disciminatory way.

I say to the noble Lord, Lord Wigoder, and indeed to my noble friend Lord Mishcon, in answer to his intervention on the Statement on Brixton, that they must read about what is going on, because otherwise you legislate in a state of appalling ignorance—

Lord Mishcon

My Lords, I intervene only because my name has been mentioned. I hope that, like my noble friend Lord Gifford, I not only read and study, but that I go into the courts; and I would not at all agree with his interpretaton of my remarks, unless he agrees that that interpretation is as the Select Committee found and as his honourable friends in another place have said: that the police have not generally been found to be guilty of racial bias; and I shall not from these Benches say that they have been.

Lord Gifford

My Lords, I know that when I make these assertions they are no doubt attacked because I am believed not to be reliable in my assessments or observations. That is why when this matter was debated in this House on the Bill of the noble Lord, Lord Avebury, I took great pains to go to the sources on which I made that particular statement. I do not want to weary the House with a repetition—the matter is reported in Hansard of 14th December 1978—but I would say that the sources were organisations of the highest repute dealing with race relations: the Runnymede Trust, the Catholic Commission for Racial Justice, and a report put forward by a number of black community leaders of the highest responsibility—all to the same end. Therefore in considering what this Bill in fact does we must take account of the opportunities for abuse.

Obviously it is not the existence of a sus law which causes injustices of the kind that I have mentioned; it is the existence of prejudice that is the cause; and my attack on Clause 9, like that of other noble Lords, is that it is an invitation to abuse. The same evidence, or even less evidence, is required to form the basis of a case under Clause 9 of an act of interfering with a motor vehicle—less evidence than was needed for sus.

I do not stop at Clause 9. I am also seriously worried about the new definition of "attempt" in Clause 1. It seems to me that there could be put before a court the same evidence, or less evidence, than was necessary for sus in order to found a conviction for attempt. It would need only one officer to say, "I saw him reach towards the handbag", and that would be evidence of an attempt. It would not be necessary to produce the owner of the handbag, or any independent witness at all. The only improvement is that that offence—though not the offence under Clause 9—is triable by jury.

Lord Avebury

My Lords, will the noble Lord agree that the purpose of the words that I was trying to understand, more than being merely preparatory, does in fact exclude the person who reaches out towards a receptacle but does not put his hand into it?

Lord Gifford

My Lords, I hope so, and I look forward with interest to the answer to that question that will be given either today or at Committee stage when we come to consider this. But certainly the legal studies into this provision that I have been informed about give me cause for concern that one could have the need for the same campaign against the new attempt provisions as has been mounted against the "sus" law.

My own answer to the question, "Do you not need some offences such as are provided in Clause 1 and Clause 9 for attempts of this kind?", is: "No, they are not needed because a police officer should be able to watch and wait". If he sees someone trying a car door he can watch, and if in fact the person trying the car door breaks it and drives the car away, he can be arrested for taking and driving away. If he reaches in, having broken a window, and takes something from inside, he can be arrested for theft. These offences which rely on proof of only some very insignificant preparatory or initial act are very dangerous and open to abuse. We can come back to the details of these offences in Committee, and for the short remainder of my speech I wish to turn to something completely different.

The sus law is not the only provision of the Vagrancy Act 1824 which has attracted criticism and calls for repeal. There are other provisions, too, which ought to go. They are currently being considered by a Select Committee on Home Affairs in another place, and the reports that I have read in the press are that the considerations of that Select Committee will be complete in time for an amendment of this Bill to be considered in your Lordships' House.

The particular sections that I have in mind are three provisions of the Vagrancy Act. The first makes it an offence for a person to wander abroad and to beg or gather alms. Such a person shall be deemed "an idle and disorderly person". The second makes it an offence, to wander abroad and lodge in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, and not give a good account of yourself". Those people are deemed to be rogues and vagabonds; and, of course, are also liable to a prison sentence. The third provision makes it an offence, to be found in any dwelling-house or any enclosed yard, garden or area for any unlawful purpose", and such people are also deemed to be "rogues and vagabonds". These offences are brought into use, not in all areas but in some areas, for dealing with homeless people, down-and-outs, and those who beg. The offences and the way of dealing with them smack of a pre-Victorian era. We really should not be putting into prison, as we do in many parts of the country, people whose offence is to sleep out in the open, or to beg, or to go into enclosed premises for an unlawful purpose—a definition which has all the same problems of the sus offence and has been criticised by, among others, the Bar Council for that very reason.

I hope that we can make a clean sweep before this Bill leaves your Lordships' House. There are plenty of offences in the criminal law to deal with the unsavoury aspects of begging, if there is a breach of the peace, or if there is pestering, or dishonesty or false pretences, and I hope that we can bring to an end these awful cases of people being sent to prison because they are down-and-out, because they have no roof over their head or no money. They really should go, and I hope that in his reply the noble Lord, Lord Belstead, can give us some indication that the timetable makes this possible having regard to the great speed and urgency with which the Select Committee in another place is considering this matter.

4.55 p.m.

Baroness Phillips

My Lords, I sometimes wonder when I listen to discussions on a Bill of this kind whether some of your Lordships live in the same world as I do. I certainly do not feel that they live in the same city as I do, or sit in courts of the same type as those in which I sit. I should first of all like to congratulate the Government on introducing a Bill which is among very few of its kind (a kind among which I always saw the much disliked, certainly on the part of the noble Lord, Lord Avebury, "sus" Act)—that is, one of crime prevention. We have enough laws which deal with people who commit an offence, but we have very few laws which give the police powers to prevent a crime being committed. The noble Lord, Lord Mishcon, said, I think, that there were only 3,000 offences recorded of trying the door handles of cars.

Lord Mishcon

My Lords, I am sorry to interrupt, but it is only so that my noble friend can continue the argument factually correct. What I said was that the Home Secretary had said in another place that one of the reasons for getting rid of "sus" was that in 1979 less than 3,000 charges were brought in the United Kingdom under the sus law. I then went on to say that only a proportion of that number could be motor vehicle cases.

Baroness Phillips

My Lords, I am much obliged to my noble friend. In a way, that strengthens my point, because if there were only 3,000 cases at one given time—and I know that the noble Baroness who sits opposite is also a magistrate—you get the feeling that half of those came up in your court. Anybody who sits in the magistrates' courts in central London has to deal with those who attempt to commit offences. I travel on the underground, and this sort of offence has become increasingly apparent. I have had at least five people, personal friends, who have had their handbags snatched by this same type of offender. They act in threes. They jostle persons moving along the tunnels between one platform and another; and they must loiter on the platform in the first place, before they in fact commit the offence. I know your Lordships will say that this is not covered by this Bill; but, equally, these people loiter outside Westminster Abbey when the tourists are there—not with the intention of going into the Abbey and saying a few prayers, but hopefully so that they can relieve a few people of their wallets or their bags while they are lining up to go in.

My Lords, I am not inventing this. This is actually happening every day of the week; and these cases come into the central London courts and are dealt with very clearly under this particular Act. So it would be quite disastrous if one were to remove from the statute book the possibility of dealing with these people. In other words, it is to prevent the crime being committed, which must be right. My noble friend Lord Mishcon I think deplored that these offences would not be triable by indictment if necessary. As a magistrate, I would say that we want more offences dealt with summarily, not less; because, surely, the higher courts have their time, money and energy taken up all too often with offences which could be dealt with adequately by three magistrates.

I was very glad that the noble Baroness on the opposite Bench said that the Magistrates' Association agreed with this Bill, because I thought it would be rather unfortunate if this very august body, which represents the major opinion of magistrates, was not to be mentioned in this connection. The Lay Magistracy, I must confess to my noble friend on the Front Bench, I have never actually heard of, but I imagine it would be a smaller body than the one of which I have the privilege to be a member.

The noble Lord, Lord Avebury, and the noble Lord, Lord Gifford, both made the suggestion that it was not possible to attempt to commit an impossible offence. I am wondering whether, if three people were to hang about in a bank long enough with the intention of trying to get through a bulletproof screen, which in the end proves to be impossible, they would not be lingering there with an intent to do the impossible. In other words, I do not think it is quite as unreal as certain of your Lordships have suggested. In court, when someone has been charged with taking a handbag, I have heard counsel plead, "He did not get anything from it". It is a common plea. In effect, because the victim was inconsiderate enough not to have anything in the handbag, it is suggested that the person who attempted to snatch it should be let off.

On one occasion I remember interrupting learned counsel. This is a dangerous operation for a lay magistrate. I pointed out that the bench considered any attempt on a person to be a very serious offence. The horror of someone lurching at you to snatch your handbag is something you do not easily forget. We are living in a very lawless city, I am sorry to say. Whereas some time ago, perhaps five years ago, one could read in the papers of what happened, one now hears from friends and relatives of handbags snatched, wallets snatched, cars stolen. How many noble Lords would leave any valuables visible in their cars when parked in central London? It is common knowledge that when one gets out of one's car one locks the valuables in the boot; otherwise they will not be there when one returns.

We are dealing with an offence constantly being committed. I am glad that the Government, in yielding in some degree to the kind of campaign which has gone on, have introduced a Bill which I hope will deal with what I should like to emphasise concerns crime prevention. That, surely, is what most of us want. We want crime to be prevented and not necessarily to have to deal with the offender after it has been committed.

Baroness Wootton of Abinger

My Lords, may I add a few words to associate myself with my noble friend Lord Gifford. I should have thought that the law of attempts was quite sufficient to deal with attempts to steal motor-cars, to steal property from motor-cars and to drive motor-cars away, just as much as it is available to deal with crimes of attempts to steal or to murder. For that reason, it seems to me that we are still picking out a particular class of action and a particular kind of object to which these provisions are to attach. This is quite unreasonable. We should allow it to be covered by the general law of attempt.

5.3 p.m.

Lord Belstead

My Lords, I should express my gratitude to all noble Lords who have taken part in this Second Reading debate for providing not only a stimulating debate but also for giving me some guidance as to the lines of thought that your Lordships intend to pursue perhaps at later stages of the Bill on a subject which I realise is sensitive and has highly technical features. I assure your Lordships that I have listened with great interest to the speeches which have been made. I will not repeat the arguments for repealing the suspected person offence of the 1824 Act in this Bill. I think that every speech made on this Second Reading has said that noble Lords feel that it is right to do this. The only thing that I would say in passing is that I join with the noble Lord, Lord Mishcon, in not agreeing with Lord Gifford's assessment that there was racial motivation in bringing charges under the "sus" offence. I should have thought that paragraph 33 of the report of the Select Committee of another place put the matter fairly and I would not want to depart from what the Select Committee said in that paragraph.

I was grateful also to the noble Lord, Lord Mishcon, for his recognition, no doubt with regret, that this Bill probably does not provide a proper opportunity to consider the future of other Vagrancy Act offences. I say that because the Select Committee on Home Affairs in another place has now decided to conduct an inquiry into such offences and indeed, officials of my right honourable friend's department are giving evidence to that committee this afternoon. I can give an assurance to the noble Lord, Lord Gifford, on this point that the Government will give careful consideration to the Select Committee's report; but we do not intend to add to the Bill in this respect before and when it may pass through this House.

Most noble Lords have made reference to Clause 9 of the Bill. The noble Lord, Lord Avebury, fairly made the point that in evidence before the Select Committee, the chief constable of the West Midlands had made the point that tampering with cars in one way or another is a considerable problem. May I follow that by saying that the number of offences—and these are recorded offences, not findings of guilt—recorded by the police in 1979 (which is the latest year for which I have figures) were: thefts from vehicles, 278,349 offences and thefts of vehicles (or taking and driving away) 309,245. We are talking about an area where the police are experiencing very great trouble as far as cars are concerned—quite apart from our personal experience with our own vehicles or of stories which we may hear from other people.

The noble Lord, Lord Mishcon, suggested that the offence in Clause 9 is designed to deal with situations in which there is insufficient evidence to charge an attempt. But this is not its purpose. In some cases an individual may even have got as far as opening the door of a car or of getting inside the vehicle and such action would be sufficient to constitute an attempt provided that one is clear which offence is being attempted; but if one is not clear, then difficulties can and do arise in charging an attempt. It is in these circumstances that the new offence will be particularly useful.

Lord Mishcon

My Lords, may I intervene if only so that the argument is quite clear? If this is the point the noble Lord takes, then, with respect, would he not also be prepared to consider (not necessarily this afternoon if I have perhaps caught him by surprise) the inclusion in the law of an attempt which, if proved in regard to something which could apply to any one of these three cases, would still be an offence committed under the law. In other words, in the same way as he has in this provision one of three cases which could relate to any one, once you have proved the act had been done, could this not equally be dealt with in regard to another provision in regard to attempt? Then one would get to the stage of an attempt in the law instead of the pre-stage which Clause 9 provides for.

Lord Belstead

My Lords, of course, I will look, with my advisers, closely at what the noble Lord, Lord Mishcon, has said. I do not think that I can go further than that this afternoon but probably—and I will be ready on a subsequent occasion to try to explain why—we find difficulties with this; and one of the difficulties is the one which I have rehearsed just now. The noble Baroness, Lady Wootton, said that, looking at Clause 9, she felt that there was no need for this specific offence. Rather than rehearse again the arguments to rebut what the noble Baroness has said, I would just say that the noble Lord, Lord Wigoder, said (as I understood the noble Lord in his speech) that there are difficulties under the law as it stands at the moment in bringing a charge of attempt in a case of this kind. Therefore, may I go on and answer a point which was put by the noble Lord, Lord Pitt, in his speech. He said in essence that he would like to see what he called a tightening of Clause 9. I should like to respond to him by comparing Clause 9, as drafted, for a moment with "sus". I would suggest that one only has to glance at the definition of the respective offences to see that they differ profoundly. "Sus" talks of every suspected person or reputed thief frequenting or loitering about; and the specific offence in Clause 9 talks of interference with a motor vehicle or trailer in a public place. "Sus" is a general offence concerned with an indeterminate range of suspicious behaviour to which the noble Lord, Lord Pitt, expressed the objections which led to the proposal to repeal. The new offence, by contrast, is limited to acts of interference with motor vehicles or trailers. In the case of "sus", the suspicious acts need not be overt. They need be no more than, for example, two separate instances of loitering near shopping bags. The new offence, on the other hand, requires overt acts of interference. It would not be sufficient if a person were simply seen loitering near a vehicle, leaning against it of even peering through its windows. There has to be actual interference. For example, the individual has to try the car door handle or attempt to open the window. Moreover, the prosecution must prove that the act of interference was done with the intention of stealing the vehicle, any of its contents or taking the vehicle and driving it away without consent.

Although I am not entering the Committee stage with a closed mind to what the noble Lord may be saying then, none the less at this stage I believe that these differences are fundamental and that this new offence bears no relation at all to sus. It has been very considerably tightened from the way in which the law was framed under the former offence.

Lord Pitt of Hampstead

My Lords, I do not want to delay the House unduly. What I said was that there are certain features of this new law which will allow for the same feeling of not having been justly dealt with as existed on sus. This was my point.

Lord Belstead

My Lords, I hope that the noble Lord is not right. For the reasons that I attempted to give just now, this is a specific offence. It requires overt acts and I would have thought that this was self-evidently fair, but this is a matter which we can come back to again in Committee.

Lord Inglewood

My Lords, may I ask my noble friend one short question in the interests of clarity? If he cannot do it now will he at the Committee stage make quite clear not just the relation between "sus" and the new clause, but also between the stop, search and detain provisions in the Metropolitan Police Act and one or two other Acts in this country and the new clause? One does not want a grey area where police constables do not know what they are doing. They must have an absolutely clear picture, otherwise we shall have the same ill-will building up again.

Lord Belstead

My Lords, off the cuff, I do not think that the new offence in Clause 9 affects the other powers which my noble friend Lord Inglewood has mentioned. Certainly, I would be ready to come back with my noble friend to this matter in Committee. The noble Lords, Lord Mishcon and Lord Pitt, and my noble friend Lady Macleod suggested that consideration should be given to making the offences triable by jury. We do not consider that this is necessary. The offence is a relatively minor one, as indicated by the maximum penalties which it attracts. We believe that it would be appropriate for such cases to be determined by magistrates' courts and it is of course important to avoid burdening the crown court unnecessarily with cases which can be dealt with satisfactorily on a summary basis. If the offence were made triable either way the penalties would have to be increased to cater for conviction on indictment.

May I come back to Part I of the Bill? The noble Lord, Lord Pitt, expressed himself as being dissatisfied with Clause 5. The only point at this stage that I should like to make on Clause 5 is that of course it corresponds to a recommendation that was made by the Law Commission and it corresponds to a draft clause which was put into their draft Bill by the Law Commission. Again, I shall certainly look, with advice in the Home Office, at what the noble Lord has said at this stage. Perhaps the noble Lord, for his part, would care to glance again at the Law Commission's report before we reach the next stage of the Bill.

The noble Lord, Lord Wigoder, suggested that manslaughter should be added to Clause 1(4) to prevent there being an offence of attempted manslaughter. I am advised that, under present law, there does not appear to be any offence of attempted manslaughter. The defences of provocation and diminished responsibility which apply to reduce murder to manslaughter do not apply to attempted murder. The other kind of manslaughter, killing by gross negligence, cannot be attempted.

So far as the more general point which the noble Lord made about the parallel between our vehicle interference offence in Clause 9 and burglary is concerned, I am afraid that the noble Lord rather left me and those who advised me behind in this considerable part of his speech. May I look in the Official Report at what the noble Lord said? I shall attempt to be ready to reply to the point when we reach the next stage of the Bill.

The Government were criticised by the noble Lord, Lord Mishcon, and one of his noble friends for lack of consultation with the Law Commission. Your Lordships will be aware that there have been complaints about the length of time that elapses before action is taken on reports—and not least reports by the Law Commission. On this occasion perhaps your Lordships will acquit the Government of having acted with any discourtesy because we have introduced legislation in record time after the Law Commission's report. The report was published only in June of last year and the Government introduced the Bill in another place in December. I understand that the Home Office arranged a meeting with the Commission on 16th September at which the main differences of policy were discussed. Principally because of the rapid pace of events, consultation thereafter was perhaps not as thorough as it should have been.

Lord Mishcon

My Lords, the noble Lord, the Minister, has been very gracious in the last remarks that he made. My criticism, with respect, was not in regard to the consultations that took place on the differences. I acknowledge those and the necessity for speed. My surprise—expressed also in another place and in the evidence that was adduced before the Select Committee—was that the draft Bill was not even sent to the Law Commission so that they could have given their advice on it. The result of that was a complete waste of time, as it emerged, because the Law Commission, in the evidence that they gave before the Select Committee, were able to show that the draftsmanship was extremely bad—I do not mean that offensively—and did not and could not achieve the object that the Home Office sought. I merely ask for an assurance on a positive basis that in future at least the Law Commission, when they have made recommendations, will be consulted on a Bill which is supposed to deal with them.

Lord Belstead

My Lords, I certainly give an assurance that we will endeavour to consult in a more practical manner in the future. I should like to assure the noble Lord and your Lordships that no discourtesy to the Commissioners was intended. It is right for me to put on the record that when we found that the drafting of the offence (which the noble Lord referred to as being virtually impossible) raised great difficulties, the way in which the Government felt it was necessary to turn was towards the recommendations which had been made by the Law Commission. Of course almost the entire Bill which is before your Lordships' House today is based almost verbatim upon the recommendations of the Law Commission.

I realise that I speak not as a lawyer and I may be wrong but I was a little surprised to hear the noble Lord, Lord Gifford, referring to the provisions in Clause 1(1) regarding the doing of an act which is more than preparatory as being highly contentious. Indeed, the noble Lord was very trenchant in the words that he used. He said he thought it would be a matter for division for the future and a campaign. Maybe I am approaching this in too simple a manner. My understanding has always been—ever since I started reading the papers on this Bill—that there is no intention in Clause 1(1) to make any change of substance in the position under the present common law. Not only here do we—almost verbatim once again—follow the recommendations of the Law Commission, but I assure the noble Lord that we did not intend to do anything which was going to be violently contentious.

Lord Gifford

My Lords, I would accept that Clause 1(1) merely restates the existing law. But it is Clause 1(2) which introduces a new element. It was the dangers of that to which I was calling attention. That provision, and the implications of it, we will have to look at more in Committee.

Lord Belstead

My Lords, I do apologise to the noble Lord. I was under the impression that he was referring to Clause 1(1). Of course, exactly the same argument applies to Clause 1(2), in that the Bill is following exactly word for word the recommendations which have been made there also by the Law Commission. May I again thank your Lordships for the speeches made today. I realise we have differed on points, but, if I may say so, it has been extremely helpful for the Government to have an indication of the line noble Lords feel they should take on this Bill. From the Government's point of view, we have had a most useful debate, and I repeat the assurance that I gave in opening the debate; that we shall look very carefully at what your Lordships have said.

On Question, Bill read 2a, and committed to a Committee of the Whole House.