LARCENY BILL. (Hansard, 10 June 1901)

§ MR. CALDWELL (Lanarkshire, Mid)
said that this Bill was by no means a large Bill on paper, but it contained very important changes in the law of England, particularly in regard to larceny. The Bill had arisen out of recent prosecutions of solicitors in England for misappropriations of money, and there was always a danger that when a change of the law was made on account of a specific grievance it might injuriously affect other cases which were not intended to fall under the change in the law. Last year there was a great rush to pass a Bill on this subject. The late Attorney General brought it in, and all that it proposed to do was to leave out the words "in writing" from a section in the existing Larceny Act. That would have affected the proof of the charge rather than the constitution of the crime. He had taken upon himself to move the rejection of the Bill, and the present Attorney General eventually withdrew it. In introducing the present Bill, the hon. and learned Gentleman condemned last year's Bill in the most violent terms, because, as he himself had shown, that Bill, instead of improving the law, made bad law worse. That showed the importance of not rushing Bills through the House at the end of a session, but of having them carefully considered. He did not object to a particular form of amending the law, and preventing crime in every possible way, but the amendment should be so carried out as to fulfil the purpose of the change in the law, without involving matters and crimes not intended to be dealt with. In England it was the essence of larceny or theft that there should be a wrongous taking of an article. There were other cases which were of the nature of theft, but these had been dealt with by the Legislature by statutory enactment, as, for instance, the case of clerks and servants who had been entrusted with the property of their masters, and who 1542 had appropriated it. Then there were the cases of bankers, solicitors, factors, and agents who were entrusted with property or money to be applied to a particular purpose, but who did not so apply it. That was made criminal by statutory enactment. Further, there was the case of carriers, and also the case of bailees, the appropriation of the goods entrusted to whom was not larceny by the common law of England, and it had to be made a civil offence by statutory enactment.
The object of this Bill was apparently to make a new definition altogether of crime, and to sweep into the net everything that was of the nature of a criminal offence. In that respect there was a great deal to be said in favour of the Bill. It left to the judge and jury to determine, after hearing the whole case, how far there had been fraudulent conversion of the money. That altered a little the phraseology of the Larceny Act of 1861, and they might reasonably allow a sweeping in of everything in the nature of criminal offence. He himself did not see any particular reason for Sub-section b of Clause 1. for it dealt with a different category of cases from those dealt with under Sections 75 and 76 of the. Larceny Act of 1861. He would like to know the effect of the Bill on cases where money had been found, and on that other class of cases to which he had already referred, namely, clerks and servants. He thought, from the definition given in the first clause, that it would apply to clerks and servants who were now dealt with under the existing Larceny Act. They would then have this anomaly, that there would be two procedures for the same offence. The same thing applied to bailees. Further, would the Bill sweep away existing enactments against carriers and bring them all under this Bill? He suggested that it would have been better to have made all these cases fall under the class of theft and made them part of the common law. By doing so they would get rid of a great many technicalities in procedure. When they made new statutory crimes the door was open to any amount of interpretation by the judges.
He thought the Attorney General would do well to re-consider the matter 1543 between now and the Committee stage as to whether it would not be advisable to follow the recommendation of the Legal Commission of 1878. He did not see why under Sub-section 2 of Clause 1 any exception should be made in regard to trustees or mortgagees. It should be left to the judge and jury to say whether there had been fraudulent misapplication of the money by the trustee or mortgagee, and if there had been fraudulent misapplication why should they be protected? Then why was the proviso in the earlier Act in regard to lien excluded from the present measure? and why also was the clause in the Commissioners' Report of 1878, to the effect that where the subject-matter resolved itself into a matter of accounting the Act was not to apply—why was that proviso not introduced into the present Bill, when they went out of their way to introduce the proviso as regards trustees and mortgagees? At the same time, he did not propose to oppose the Second Reading. He quite recognised that a change in the law was necessary, and that there were anomalies in England that should be removed. At present the criminal law only applied to certain specified persons, and he quite approved of its being extended to, for instance, auctioneers who sold property and did not account for the money. In all such cases the principle was right, but he thought that the Attorney General was hardly carrying out the object he had in view by setting up new statutory crimes.

§ MR. WARR (Liverpool, E. Toxteth)
said that the Bill was a vast improvement on the Bill of last session. It was simple, comprehensive, and intelligible. He associated himself with what the hon. Gentleman opposite had said with regard to Sub-section 2. No doubt what he had said would receive consideration from the Attorney General. There was a section in the Larceny Act dealing with misappropriation by trustees, but under that section it was necessary first to get the fiat of the Attorney General, and secondly the certificate of a judge of a civil court, in case the offence had come to light in the course of civil proceedings. There was no objection to these safeguards as regarded frauds under wills and settle- 1544 ments, but he was not so sure that there would not be a good deal of objection to them in dealing with frauds by trustees arising out of commercial transactions. He would put a case to the Attorney General. The course of business between banker and customer in business centres with which he was acquainted, though it might not apply to London, was that after an advance had been made by the banker upon the security of produce pledged with him by the customer, it was entrusted by the banker to an agent whether the customer himself or someone else, for sale on the bank's account upon the written terms that the proceeds were to be paid to the banker as and when received. The agent was thus constituted a trustee, and the provisions of the Bill applicable would apply to such a transaction. If there was misappropriation of proceeds the banker could take no criminal proceedings without the fiat of the Attorney General, and in certain cases without the consent of the judge who tried the civil action. Before these consents had been obtained the customer might have left the country. That was an illustration of the kind of case which indicated that the Bill might by amendments be perhaps made more useful. He hoped the matter would be very carefully considered, but he himself was inclined at present to think that the sub-section might well be omitted altogether.

§ THE ATTORNEY GENERAL (Sir ROBERT FINLAY,) Inverness Burghs
said that everyone would agree with what had been said by the hon. Member for Mid Lanark, that the subject was one of very great importance. The Report of the Commission which the hon. Gentleman quoted proposed to remodel the law of theft, but he would point out to the hon. Gentleman that that would involve a very extensive and difficult enterprise. Without undertaking an enterprise so ambitious, they were content to remove the blots upon that portion of the law which dealt with the offence of misappropriation by persons entrusted with property by others. Sections 75 and 76 of the Act of 1861 were open to very serious objections. No reason could be given for the necessity for directions in writing, particularly in the case of misappropriation by solicitors, with whom 1545 it often rested to say whether directions should be given in writing or not. That provision was one which often prevented justice being done. Again, no good reason could be given for the state of the law which declared that only agents by profession should be amenable to the provisions of the sections. The hon. Member for Mid Lanark referred to the fact that the Bill contained a proviso that any person receiving property for another might be guilty of a misdemeanour if he fraudulently misapplied that property. He quite agreed that the keynote of the whole Bill was to be found in the word "fraudulent." But he would further point out that the mere fact that property belonged to another person would not bring it within the words, "received any property for or on account of any other person." The effect of the Bill would be to bring agents to receive as well as agents to pay within the scope of the criminal law if guilty of fraud in respect of property they had received. The hon. Member pointed out that a question might arise if a defendant had been guilty of conduct which rendered him liable to prosecution under other provisions of the criminal law. But that was dealt with in the Interpretation Act of 1899, Section 33 providing that, where an act constituted an offence under one or more Acts or under common law, the offender should be liable to be prosecuted under either or all of the Acts or at common law so long as he was not punished twice for the same offence. Various other criticisms were made by the hon. Gentleman, the importance of which he recognised, and which no doubt would form the subject of consideration in Committee. He was much struck with what the hon. Gentleman had said as to the omission of the proviso with regard to the disposal of property under any lien or charge. He would point out to the hon. Gentleman that that proviso was absolutely unnecessary. It was contained in Section 75 of the Larceny Act of 1861, but it was not wanted there, and still less would it be wanted in the present Bill, under which no man would be liable unless he acted fraudulently. The hon. Gentleman and also his hon. friend referred to the provision exempting trustees and mortgagees from the operation of the Bill. The House ought to know that that provision was taken from 1546 the analogous section of the Act of 1861. With regard to mortgagees it was originally inserted on the ground that as the mortgagee was the owner of the property it would be hard, if a dispute arose between him and the mortgagor, that the latter should be at liberty to take criminal proceedings. Certainly more mature consideration would be required before they undertook to enlarge the criminal law further in that direction, but no doubt the clause would receive consideration in Committee. With regard to the cases to which his hon. friend more particularly referred, any trustee under an instrument in writing who fraudulently misapplied property was liable to prosecution under the law as it stood. His hon. friend said that certain conditions had to be complied with by the prosecutor, but they were not at all onerous. If civil proceedings were entered on, it was very proper that the certificate of the judge should be obtained that the case was one suitable for criminal prosecution, and if it were suitable there would be no difficulty about obtaining a certificate. The other condition was that the fiat of the Attorney General should be obtained for a prosecution. He did not think that any difficulty or delay would be occasioned by that condition, while the necessity of obtaining the fiat of the law officers was some security against improper claims being put forward. No doubt the whole subject deserved and would receive full consideration in Committee. It should always be remembered that there was danger of the criminal law being applied, or rather misapplied, for the purpose of enforcing a civil liability, and care should be taken that in preventing the escape of rogues, honest men were not laid open to vexatious charges. He desired to express his appreciation of the spirit in which the Bill had been received, and he could assure hon. Members that every suggestion in Committee would receive the fullest consideration.

§ MR. ASQUITH (Fifeshire, E.)
said he did not quite understand what the Attorney General had said with reference to trustees.

§ SIR ROBERT FINLAY
said that trustees were specially provided for in 1547 the third section of the Larceny Act of 1861, with which the Bill was intended to be read. That Act provided for the prosecution of any fraudulent trustee, but it was considered proper to introduce precautions, because after all the trustee was the legal owner of the property, and it was desirable that he should not be exposed to improper claims without some precaution.

§ MR. ASQUITH
said that was quite satisfactory.

§ MR. CALDWELL
said he hoped the Attorney General would allow some time, say three weeks, to elapse in order that the matter might be properly considered.

§ SIR ROBERT FINLAY
said that having regard to the state of the session he thought three weeks rather too long. That might imperil the Bill, but at any rate some time would be allowed.