CLAUSE 2.—(Surrender of gold and foreign currency.) (Hansard, 4 December 1946)

§ Colonel Crosthwaite-Eyre
I beg to move, in page 3, line 16, to leave out Subsection (6).
In two places in this Bill there are, from a practical point of view, identical Subsections which make it a presumption of guilt until the person accused of an offence establishes his innocence. They are in Clause 2 (6) and Clause 4 (6). In the second case, the Chancellor of the Exchequer has already put down an Amendment proposing that this Committee should delete that Subsection. This Amendment, therefore, can be taken as consequential to the one put down by the Chancellor, and I hope we shall have no difficulty in persuading the Government to accept it. After the last Amendment, which was very technical, I think this one is simple. It is a matter which is fundamental to British law as I understand it, not as a lawyer but purely as a civilian. It has been fundamental to British law over a great many centuries that a man is innocent in the face of the law until he is proved guilty.
Under this Bill the Government wish to take powers to say that a person shall be guilty unless he can prove himself innocent. I think all of us would admit that when the Government try to enforce the terms of Clause 2, when they try to ensure that gold and foreign currency are in fact surrendered to authorised dealers, they will find it a very difficult job. I have no doubt that their first reaction to this was, "Very well, let's put it on to the individual to prove that he has not contravened our regulations. That will be much simpler for us." That is totally opposed to everything in our way of life 382 which, irrespective of the side of the House upon which we sit, has been common ground over the centuries. I hope for that reason, if for none other, that the Government will accept this Amendment. I do not think it is any more difficult to try to prove the offence under Clause 4 than it is under Clause 2. If the Chancellor can accept the position in Clause 4, why not accept it in Clause 2?
Finally, I think hon. Members opposite must come to some understanding of the way in which they propose this legislation. The fact is that if legislation is to succeed it can only succeed if it is accepted by the country as a whole. It is no use hon. Members opposite thinking that this sort of Clause, under which guilt is to be presumed, can be as effective as governing by the public will. Hon. Members opposite should realise that they would get on much faster and there would be a much wider acceptance of these Measures if only they tried to govern by the consent of the country instead of imposing regulations of tills nature which transgress the fundamental principles of British law.

§ Mr. Solley
I am sorry to put reasons before the Committee to show that this would be a most undesirable Amendment. The hon. and gallant Member for New Forest and Christchurch (Colonel Crosthwaite-Eyre) spoke about the fundamental principle of the criminal law that in general it was for the prosecution to prove beyond all reasonable doubt the guilt of a defendant. No person who knows anything about the administration of the criminal law would quarrel with that general statement. What the hon. and gallant Member did not say was that there were quite a large number of exceptions to that general rule. They are exceptions which the Legislature has introduced specifically in the interests of the public so that in such cases defendants would not be acquitted when they ought to have been found guilty. For example, under the licensing laws, the Defence Regulations and certain provisions, I believe, of the Public Health Acts, there are a number of offences where the onus is on the defendant to prove that certain things did or did not happen.
If we apply that test to Subsection (6) we find that the Clause is aimed at creating the offence of failing to surrender gold or foreign currency contrary to certain provisions. It is essential that the 383 surrender should be made to an authorised dealer. Only a few moments ago we heard that the authorised dealers are quite numerous. They include the leading banks and bullion dealers, and so on. If this Subsection were left out of Clause 2 it would be for the prosecution to prove, one, for example, that the defendant did not go to the Bank of England; two, that he did not go to Barclay's Bank; three, that he did not go to Lloyd's Bank, and so on. One can imagine the infinite trouble and time which would be involved in proving that negative. In practice it could not possibly be proved. As a corollary to that statement, no person who had deliberately infringed the requirements of this Clause could be brought to justice. Therefore, I submit that if there be a case when the general rule as to the burden of proof ought to be abrogated, this is such a case. The Government would be perfectly justified in refusing to accept this Amendment.

§ Mr. C. Williams
My name is on the Order Paper in connection with this Amendment which I believe is of considerable importance. The importance of it lies in the words: … It shall be presumed, until the contrary is shown. … The hon. Member for Thurrock (Mr. Solley) has enlightened the Committee again, as he so often does, as to what the Government ought to do in this matter. He must know, as I think almost every ordinary person knows, that we have a fundamental dislike for assuming that a man is guilty until he is proved guilty. He was kind enough to say that this was different and that it was one of the exceptions in the national interest. He said that there are a number of exceptions, and this is where my objection lies. Here, we are bringing in more objections and more exceptions and making it more common for the ordinary man to be assumed guilty unless he can be proved innocent. That is our fundamental difference with hon. Gentlemen opposite. The second point which he raised in defence of the Government was when he referred to the Defence Regulations. I do not know how the Government will like his defence, though I should think that they may not like it very much. For what did we fight the war except to get rid of the sort of things that happened under the Defence Regula- 384 tions? That was his argument and I say quite frankly that nothing makes rue go further in my conviction that this Amendment is right.
As my hon. and gallant Friend the Member for the New Forest and Christ-church (Colonel Crosthwaite-Eyre) said, it is a curious thing that here is an Amendment which would cut out the presumption of guilt, so far as this particular detail is concerned, and yet, when we come to a later Clause in the Bill, we find an Amendment put down by the Government, who have obviously seen the folly of putting this Subsection in at all, to cut out such presumption of guilt. That being the case, in spite of the rather provocative speeches which we have had from the back benches opposite, I believe that, with good will on the part of the Front Bench opposite and ourselves, the Government will be able to accept this Amendment. I gather from the speech to which we have just listened that, very shortly, we on these benches may be called upon to go into the Lobby and support hon. Members opposite on an Amendment which is almost identical to this one. That being so, and realising that there is practically no difference between the later Amendment and this one, surely the Financial Secretary will be able to say that the Government accept this Amendment as a matter of principle. The principle involved is precisely the same as the principle involved in the later Amendment.

§ Mr. Glenvil Hall
The object of this Clause is to lay on the individual the obligation to offer to an authorised dealer gold or foreign currency that is, in certain conditions, in his possession. The Subsection to which this Amendment refers does one simple thing; it lays upon the individual who has in his possession either gold or foreign currency, the obligation to show that he has, in fact, complied with the law and offered such gold or foreign currency to an authorised dealer. Unless this Subsection is retained, it will, as my hon. Friend the Member for Thurrock (Mr. Solley) said, be difficult—some might even say impossible—for the authorities to prove beyond any doubt that a man had, in fact, offered gold or foreign currency to an authorised dealer. There are many banks, and those banks have hundreds of branches. All we are doing here is to insist that, when the point is put to the 385 individual concerned; he should indicate when and where he offered the gold or foreign currency in his possession to an authorised dealer.
There is nothing wrong in that; nor can it be said, because that is laid down in the Bill, that we are actually assuming a particular individual to be guilty before the case against him has been proved. We are not assuming anything; we are merely asking him whether he has complied with the law. It will be perfectly simple for him to say, "Yes I have; I went to a certain branch of Barclays Bank on such and such a day and, because it was not the sort of currency they wanted, they refused to take it." He will then have complied with the law, and the whole matter will be finished. Therefore, we think that what we are putting into this Subsection is very reasonable and necessary in order to help the authorities to discover wrongdoers, and to discover them quickly.
It is true that on Clause 4, with which I cannot deal now, my right hon. Friend the Chancellor of the Exchequer has put down an Amendment to delete this provision. We will deal with that when we come to it, but, in that case, for reasons which will be given in due time, the position is not the same, and, therefore, we shall not insist on that particular Subsection being retained in the Bill. Meanwhile, however, we are dealing with Clause 2 and, for the reasons which I have given, I hope that the Committee will accept the explanation and not insist on this Amendment.

§ Mr. Marlowe (Brighton)
I do not think that the explanation given by the Financial Secretary is very convincing. It is perfectly true that there are recognised exceptions to the general principle, but it is also true that there is a general principle. The only ground on which the hon. Gentleman has attempted to justify the retention of this Subsection is the same as that put forward by the hon. Member for Thurrock (Mr. Solley)— the difficulty of establishing guilt in a certain type of case. In my submission, that is not a satisfactory answer. The mere fact that it may be necessary to prove a certain number of negatives is not an objection at all. As the Financial Secretary well knows, it happens in dozens of cases. Take, for instance, cases 386 of false pretences, where a man has pretended a number of different things, A, B, and c. The prosecution has to prove a negative; if the man says that a certain state of affairs existed, the prosecution has to prove that it did not. That is a process well known to the law and does not present any great difficulty, particularly in cases such as we are discussing today, where records are kept and where there should be no difficulty whatever of using the ordinary channels of evidence to establish that a man has not complied with the obligation of offering for sale those things which he is required to do under this Clause.
There is a very firm principle in this matter. The onus of establishing his innocence should not be thrown upon the accused person. Although, in some cases, it is possible to make out a reasonable ground for exception of that principle, the burden of establishing that there is such a case rests upon those who propose it. Unless the hon. Gentleman can make out a good case for this, one is not justified in infringing the general principle. I say that he has not really satisfied the Committee on this point; he has not made out a case. Although, as I say, there are well known exceptions—I cannot, offhand, think of one which relates to property in this way, except in relation to certain assumptions which are made in relation to stolen goods—it seems a little hard that a person who is in possession of gold or foreign currency should, for example, be assumed to be a person in the same category as a receiver of stolen goods. There may be other exceptions in relation to property, but they are certainly very few. I ask the Committee to say that the Financial Secretary has not established his case, and that, if he fails to establish it, we ought not to do away with the general principle in matters of this kind.

§ Mr. Pritt (Hammersmith, North)
I would like to put a question to the hon. and learned Member for Brighton (Mr. Marlowe). In his time, he must have replied to prosecutions. I wonder how many witnesses he would have the responsibility of telling the Treasury to call in order to prove the case against somebody who was alleged not to have offered to an authorised dealer some currency which he held? If this Amendment were accepted, he would have to tell the prosecution to call a witness from each 387 branch of every authorised dealer in the country.

§ Mr. John Foster (Northwich)
I wish to support the Amendment on the grounds, as the hon. Member for Thurrock (Mr. Solley) put it, of public interest. It may be in the public interest that guilty men should be punished and, from one point of view, it would be very convenient for everybody accused of a crime to have to go into the box and put up an affirmative case. But in this country, there has always been the overriding principle that people accused of crimes should have the case proved against them and should be assumed to be innocent until proved guilty. This particular course does exist in regard to certain rather unimportant matters, where the accusation really consists of what might be called a civil offence. The reason this kind of subsection is particularly objectionable is that it affects what is known as the onus on the prosecution of proving a guilty mind. The ordinary rule in a prosecution is that the accused must be proved, not only to have done the acts which are complained of, but to have done them with a guilty mind. When the onus is put on the defence, it is not enough for the defendant to say: "I did not intend to do anything wrong."

§ Mr. Bowles (Nuneaton)
Suppose a butcher sells bad meat. He is guilty, is he not, without any question, whether he knows it is bad or not?

§ Mr. Foster
That is exactly the point I am trying to make. The hon. Gentleman opposite has made it even better. Imagine a man who is given an envelope, the contents of which he does not know. When the police, or somebody else, find the envelope in his house they open it and find 10,000 dollars in it. That man may have been told by the friend who gave it to him, "This is my will. I want you to keep it, and not to show it to anybody." The friend may be a crook, who says to himself, "Jones is an honest man. I will get him to keep this 10,000 dollars. Nobody will ever suspect, and if there is any risk he will run it." He is like the butcher who has sold bad meat; he has 10,000 dollars in his possession and, according to the hon. Member for Nuneaton (Mr. Bowles), he has committed an offence. That is exactly what I was 388 trying to say. Like the butcher who has bad meat, he has 10,000 dollars in his possession and has not delivered them up or offered to sell them to an authorised dealer.

§ Mr. Bowles
The hon. Gentleman is a much better lawyer than I am, and I think he will find there is special legislation to deal with a butcher who sells bad meat, but not in the case he has just mentioned.

§ Mr. Foster
If there is special legislation I do not see the relevance of the hon. Gentleman's intervention.

§ Mr. Bowles
That is what is being done here—special legislation.

§ Mr. Foster
As I understand it—and I understand the hon. Member for Nuneaton supports me—the intention of the Government here is to legislate, specially for people who have 10,000 dollars in their possession, however innocently, because they are then presumed not to have offered it to an authorised dealer. The prosecution then come along and say, "This man has had 10,000 dollars in his possession. He is presumed not to have offered it to an authorised dealer." If he goes into the box and tries to say that he did offer it to an authorised dealer, that is a good reason but it is not permissible, because when the presumption is put on the defence it eliminates the defence of mens rea; it makes it impossible for the defendant to say, "It is quite true. I actually did the acts," or "did not do the acts of which there is complaint, but I did not have a guilty mind. I had no idea there was 10,000 dollars in that envelope." It does seem to me that the effect of this Subsection is very reprehensible when it has the effect of depriving a man of a possible defence. He can go into the box or not, as he may choose. The object of the Government ought to be achieved in another way. I think it is impossible to imagine how the Government can really mean that a man who has no guilty mind, and who is quite innocent of any guilty intent, should none the less be convicted because the presumption is put on him when he has no defence to it.

Mr. Ecclcs
I have one question in regard to Subsection (4). Under that Subsection nobody is allowed to sell gold at a premium. I understand that by Clause 35 the Crown is bound by this Bill. I would recall to the Chancellor's memory —which I have no doubt is very vivid— that he and I were in a black market in gold, which was authorised by the Treasury, in the Middle East. Am I not right in thinking that under this scrupulously drawn Clause it will not now be possible for the Treasury to sell gold at a premium in the Middle East? That would be a very unfortunate occurrence. I would like to ask whether my interpretation is correct or not.

§ Mr. Glenvil Hall
In so far as one can answer a query of that kind, which is a little unusual—I will not say hypothetical, though it might well be that— I would say, surely the Government would deal through an authorised dealer, namely the Bank of England. Therefore, what they did would be quite lawful.

§ Mr. Assheton
There is one small point I would like to ask the Chancellor. It is a very simple one, and not at all technical. Under this Clause the holders of gold coin and bullion have to surrender them. May I ask the Chancellor whether gold coin covers gold coin which is not current; that is to say, those who have gold coins in coin collections? Are they subject to this Clause?

§ Mr. Dalton
The question is put without specific notice, of which I do not complain. My impression is that it is old coins which the right hon. Gentleman has in mind, numismatic collections. My quick answer, without consultation, is that they are not affected by the Clause. But I will verify this, and let the right hon. Gentleman know with certainty at a later stage. I am pretty sure they are excluded.

§ Mr. Assheton
Suppose that is not, in fact, the case. Will the right hon. Gentleman put it right?

§ Mr. Dalton
We do not want to include them.

§ Lieut.-Colonel Dower (Penrith and Cockermouth)
The Chancellor said he would inform my right hon. Friend. There are other hon. Members who are interested in this matter. Will he in- 390 form the other hon. Members of the Committee?

§ Mr. Dalton
Perhaps the easiest way to leave it would be this. If I find I am wrong on this I will publicly say so at a convenient moment in the Committee. If, on the other hand, as I think is the case, I find I am right, perhaps hon. Members would not expect me to say anything further on the matter.