§ Mr. BlackburnI beg to move in page 2, line 14, after first "vehicle," to insert "to his knowledge."
§ The Deputy-ChairmanIt will be for the convenience of the Committee if this Amendment is taken together with the two which follow it:
In page 2, line 16, at end, insert:
Provided that the presence of commercial petrol in the tank of a private vehicle shall be prima facie evidence that the owner thereof and the person (if he is a different person) in charge thereof at the time knew of its presence in the tank.In page 2, leave out lines 17 to 29.
§ Mr. BlackburnI agree The point raised by this Amendment and those which follow it is the point already raised by Clause 1. So far as the Clause stands, in the absence of this Amendment, we have reached agreement on what the position is. Again I want to say that the Attorney-General has changed his mind completely since last Monday. Last Monday I interrupted him, and I will quote at full length what I said then:
What about the case where there is a reasonable doubt? If a reasonable doubt is raised by the accused, then, in accordance with every tradition of British law, he is entitled to be acquitted. Under Clause 2, if there is a reasonable doubt in favour of the accused, the man is still convicted.To that the Attorney-General replied:I do not take that view of the Clause."—[OFFICIAL REPORT, 3rd May, 1948; Vol. 450, c. 992.]1796 Here today he has admitted that that is so. Where the onus of proof is cast upon the accused, it is now shown that the same onus is cast as is cast upon a plaintiff or a defendant in a civil case.The effect of this decision is that the onus is cast upon the accused to prove that it is most probable that he is innocent and, not only that, but in the terms of this Subsection he has to prove three things. Perhaps for the word "prove" I will substitute "establish that it is most probable." He must establish:
(a) that the petrol was put into the tank without his consent or connivance:(b) that he did not afterwards discover that the petrol was commercial petrol or had no reasonably convenient opportunity after such discovery of removing the petrol from the tank; and(c) that he did not neglect to take any step which in the circumstances he might reasonably have been expected to take to prevent the petrol being in the tank.He has to prove all three things, but (c) is the most staggering of all. I am bound to say that I find it very difficult to understand what this could really mean. Surely it should be a principle that legislation should be drafted in such terms that the man in the street would be left beyond doubt as to its meaning. There is a difference from Clause 1 in this case. Clause 2 applies to absolutely every motorist in the country. We might all ourselves be in a difficult position. It might affect exalted persons like Ministers on the Government Front Bench. We will be fighting a General Election in 1950, and how easy it would be for some ill-disposed individual on the other side to pay somebody to put some red petrol into the tank of my right hon. Friend the Home Secretary! In those circumstances the Home Secretary has to prove (a), (b) and (c), and under (c) he has to provethat he did not neglect to take any step which in the circumstances he might reasonably have been expected to take to prevent the petrol being in the tank.What does that mean? Does it mean one has to lock up the tank?Take another case. A Minister of the Crown, say, leaves his key in the car, somebody takes the car, drives off and puts in red petrol. There is a prima facie case, at any rate against the owner of the car, under Clause 2, and the fact that he left his key in the car would, in my view, be sufficient to knock out any defence under Subsection (c), because he could not claim 1797
that he did not neglect to take any step which in the circumstances he might reasonably have been expected to take to prevent the petrol being in the tank.The more serious point about this matter is that there are automatic penalties. I would agree that this would not be so serious if all these cases could be dismissed under the Probation of Offenders Act, or treated as relatively trivial matters. Take another illustration—a more practical one. I have many people in my constituency whose entire livelihood depends on their having licences, individuals who go around delivering all kinds of goods in working-class areas, and who are very useful indeed. Such an individual may make an error of some kind, like the one I have indicated of leaving his key in the car, and so, maybe, he would be picked up and convicted. This is a most serious matter, because his whole livelihood would go.We then come to the second point which is much more serious—it has not been denied by the Attorney-General and manifestly cannot be denied by him—that if a judge or jury, considering the offences under Clause 2 and considering what has been said by the accused, come to the conclusion that the man might just as well be innocent as guilty—having no views on which way the probability falls, this being a 50–50 case—they are bound under this Section, as it now stands, to convict the man. I suggest that the Attorney-General should reconsider this matter, because it is utterly contrary to every principle of British law that anybody should be convicted, particularly on any serious charge, unless his guilt is established in the mind of the court beyond reasonable doubt.
The point was made by the AttorneyGeneral—and I studied his remarks very carefully—that in this particular kind of case only the accused knows where he obtained the petrol and, therefore, a burden of some kind should be put on the accused. In this Amendment that point has been entirely accepted for it says:
Provided that the presence of commercial petrol in the tank of a private vehicle shall be prima facie evidence that the owner thereof and the person (if he is a different person) in charge thereof at the time knew of its presence in the tank.What would the effect of that he? According to criminal law: 1798A prima facie case is one containing evidence which in the absence of explanation, would justify conviction.Surely that is right. Presence of the red petrol, in the absence of an explanation, would justify a conviction—but not if a satisfactory explanation is forthcoming. The fact that red petrol is found in the car is prima facie evidence, under my Amendment both against the owner and the person in charge. They give their explanation and then it is entirely for the court to make up their own minds whether or not they are satisfied beyond reasonable doubt, in the circumstances, that the accused are guilty.I cannot see what possible objection there can be to the acceptance of my Amendment. It provides the same situation as the Attorney-General advocated last Monday in the House, and I earnestly ask him to consider the matter most carefully, because this is a matter on which public opinion is forming itself. I have not the slightest doubt that if one took a plebiscite upon this narrow issue, 90 per cent. of the people in this country would vote without any question at all in favour of retaining the principle that the benefit of the doubt must always go to the accused. I was, in fact, asked a question upon this at a well-attended public meeting, and the opinion of that meeting appeared to be absolutely unanimous—and it was a meeting which, as usual in my constituency, contained a predominance of people supporting the Labour Government. I would beg the Attorney-General to reconsider this and see whether he cannot give way.
§ The Attorney-GeneralThe object behind this Amendment, as my hon. Friend the Member for King's Norton (Mr. Blackburn) indicated, has been fully discussed by the Committee in connection with previous Amendments on Clause 1. I indicated then, and I indicate again now, that I do not take the view that the garage owner or car owner have to be convicted unless they prove affirmatively and beyond doubt that the defence open to them under the Clause is proved to have been established. That is not the position under this Bill, but I agree with my hon. Friend that if the position is that, at the end of the day, the case is left evenly balanced and the court is so undecided that it is unable to make up its mind whether the defence is the more 1799 probable or whether the prosecution's case is the more probable, the onus being on the defence to establish the defences which are provided for, the court ought to convict.
That is quite true, but courts do not normally allow themselves to be left in the position where the balance is even in that way. Courts either come to a conclusion that the defendant is honest or that he is not honest. If they come to the conclusion that, on the whole, he appears to be a truthful man, they will conclude that his story is probably true. If they come to the conclusion that he is not a truthful man, they will come to the conclusion that his story is probably not true. In the latter case they will convict and in the former case they will acquit. It is not usual that courts are so weak and indecisive that they are unable to make up their minds as to whether or not the case is left in a complete balance of equilibrium. Under this Bill, if that is the position, the prosecution is established, because it is the definite intention under the Bill to put the onus of showing that due care has been taken upon the motorist, who alone can tell what care has been taken and who alone has the power to control the use of his motor vehicle and see that the proper kind of petrol is put into it.
This Amendment seeks to substitute the defence of no knowledge for the defence of reasonable care, and it is not acceptable to the Government for that reason. The practice of turning a blind eye has been very well known in practice—and it is sometimes a very useful practice—since the day of Lord Nelson, if not earlier, but this Bill is not framed so as to encourage reckless indifference on the part of motorists or garage proprietors, or to relieve motorists or garage proprietors from the very definite obligation of taking care that commercial petrol is not put into the tank of private motor vehicles. On the contrary, I must tell the Committee quite frankly, the intention and object of this Bill, in accordance with the recommendations of the Russell Vick Committee is to impose, first, on the garage proprietor, the garage hand and the motorist an obligation to take all reasonable care and secondly, if that care turns out in the result to have been unsuccessful in avoiding the acquisition of 1800 commercial petrol, to satisfy the court that all reasonable care was, in fact, taken.
That is the burden which is placed on the motorist and for that reason we are unable to accept the Amendment. I would only add, as one indication of the difficulty in which the hon. Member would place himself if this Amendment were accepted, that it might leave no defence at all to the motorist who, after discovering red petrol was in his tank—perhaps because he had been cleaning his carburettor or because the police had stopped him and pointed it out—continued to drive on his way. Under the Clause as drafted the motorist in that position is left with a defence, provided he has the petrol removed at some reasonably convenient opportunity.
§ Mr. W. S. MorrisonI am sorry we have had such a dusty answer from the Attorney-General on this matter. I rise to support the Amendment moved by the hon. Member for King's Norton (Mr. Blackburn). One thing at least has emerged from the Attorney-General's speech; it has qualified somewhat the obscurity of his contribution to our previous discussion on Clause 1. It is now clear to me that the wording of this Bill is such that if the man does not prove affirmatively the things that he is being called upon to do, he must be convicted.
§ The Attorney-GeneralI must beg the right hon. Gentleman to believe that I said nothing of the kind. That is directly contrary to my view and to the view of the Court of Criminal Appeal in the case I quoted. He does not have to prove that affirmatively at all; all he has to show to the satisfaction of the court is that it is reasonably probable that he did those things. That is something quite different from proof, as the right hon. Gentleman knows perfectly well.
§ 7.0 p.m.
§ Mr. MorrisonI must admit that it is a long time since I practised at the law, but certain principles in those days were so grounded into my mind that I have never forgotten them. The right hon. and learned Gentleman mentioned, when we were discussing this matter on a previous occasion, the statute which he claimed to be analogous to this Bill—the Prevention of Corruption Act, 1916—where similar provisions exist. If a man gives a sum of 1801 money to a public official—I am referring to Section 2 of the Act of 1916—it is to be assumed that the gift is to be a corrupt one unless the man can prove to the contrary. My recollection of that statute, which I have just confirmed in the Library, in the cases of Rex v. Jenkins and Rex v. Evan Jones, in 1923, in the Court of Criminal Appeal, is that it was laid down that it was proper to direct the jury that if they have any doubt as to the story told by the defendant they ought to convict. In this Bill, if we allow it to go through without the Amendment—
§ The Attorney-GeneralWhat was the date?
§ Mr. MorrisonIt was 1923.
§ The Attorney-GeneralI would draw the right hon. Gentleman's attention to the particular case of Rex v. Carr-Braint which is 1943, and the latest authority on the matter.
§ Mr. MorrisonI have not had time to look at that case, but I am perfectly certain that what I have stated was the law in 1923, and the interpretation given by the Court of Criminal Appeal to the statute which the right hon. and learned Gentleman has cited in support of his argument on the previous occasion.
Whatever were the reasons for impelling our predecessors in the Legislature to make that provision with regard to the offence of corruption, that is a very different matter from what we are now discussing. Large and considerable gifts of money do not find their way into the pockets of public officials by accident, except in some extraordinary and fantastic case of mistaken identity or something of that sort. If a man wants something from the Government and gives a large sum of money to someone who has the power to help him, there is a reasonable presumption in every ordinary man's mind that the gift is corrupt. Petrol may find its way into a tank by mistake, which cannot happen oo money finding its way into the pockets of a public official. We are considering here a different contract.
I say that the type of law that ought to be applied to it is the set of rules that has been developed with regard to the crime of receiving goods knowing them to have been stolen, in which case, as I have said before, the defendant has to prove an alternative to the prosecution, 1802 but the jury, if the defendant's case is reasonable and he offers a reasonable explanation should acquit. That should be the law in this case, which, I say, is far more on all fours with receiving stolen property than it is with the crime of corruption, which is a very isolated affair. The reason why we should distinguish this from corruption is, I repeat, the great possibility of mistake.
No one sees petrol going into his motor car. If anyone goes to a petrol pump, asks for three gallons of petrol and presents the coupons, all he knows is that there is a machine behind him, there is a sound of rushing liquid into the back of his car, the cap is put on the petrol tank, a man comes to the window and asks for the money, and the person in the car gives it to him. That is all he knows about it. It may be that red petrol has been put in the car. The matter is made a little more emphatic by the requirements of paragraph (c):
that he did not neglect"—this is what he has to prove—to take any step which in the circumstances he might reasonably have been expected to take to prevent the petrol being in the tank.Imagine what really happens. A man is motoring along. He wants some petrol and stops at a pump. He gets the petrol in the way that I have described, not witnessing the operation, and the fluid never having been in sight of his eyes, and he is then found with red petrol. It may be weeks later, or even months in the case of a jury trial, before he is up for trial.In the case of magistrates, I can well imagine some very wise magistrate—wise after the event—saying what the man ought to have done to make sure that the petrol did not get into his car. It is notoriously easy to jump back, and so difficult to put one's self in the shoes of that man in the actual circumstances of the matter at the time. At some court sitting, at a time and place remote from the actual occurrence, and knowing very little about the man's circumstances, it might be said, "Oh, yes, you ought to have pulled the hosepipe out when the petrol was going in to see whether it was red or not." Is that a reasonable thing to ask? Some people may think that it is. Or they may say that cars ought to be provided with some arrangement by which the drivers can see the petrol going through the dashboard or something of 1803 that sort. I think that it would be impossible for any court adequately to make up its mind. I say that, having regard to the fact that these cases may go to juries, and that it will be the duty of judges to direct juries as to how they should act, I do not think that it is justice that the appeal judges should direct juries to the effect that unless they are satisfied beyond doubt that the defendant has established his version of the affair, it is their duty to convict.
§ The Attorney-GeneralI am certain that the right hon. Gentleman would not wish to mislead the Committee about the legal position on this matter, and I hope that nothing that I shall say can be taken as suggesting that I took a contrary view. But one of the disadvantages, and there are many counter-balancing advantages, of being absent from the practice of the law for a considerable number of years is that perhaps one fails to keep touch with new cases as they come to be decided in the Court of Criminal Appeal. The right hon. Gentleman would not, I think, venture for one moment to go before a court of justice and quote a case apparently decided in 1923 without taking the elementary precaution of at least looking at the cases already quoted by his opponent and finding out whether his own case had been commented upon in subsequent proceedings. That is the most elementary action that the lawyer who seeks to express a view about the law permits himself to take.
If I may permit myself to say a word on the decision of the Court of Criminal Appeal in the case to which I referred in the course of discussion on Clause 1—the case of Rex v. Carr-Braint—it refers to the position which the right hon. Gentleman sought to draw to the attention of the Committee, and puts this matter beyond any possibility of doubt. It makes it perfectly clear that the direction which the right hon. Gentleman suggested was the one which a judge would have to give in a case of this kind is a direction which if given would result in the case being upset in the Court of Criminal Appeal. The court in the case of Rex v. Carr-Braint made it clear that in any case, not only cases under the Corruption Act, where either by statute or by common law some matter is presumed against an accused person unless the contrary is 1804 proved, the jury should be directed that it is for them to decide whether the contrary is proved or not, that the burden of proof required is less than that at the hands of the prosecution in proving the case beyond reasonable doubt, and that the burden may be discharged by the evidence satisfying the jury of the probability of that which the accused is called upon to establish. That is a very similar rule, as the right hon. Gentleman will agree, to that laid down in the Abramovitch case. In this Bill, in common with many other statutes from the Prevention of Corruption Act onwards, the onus is on the defendant, but he discharges that onus if he satisfies the jury that his account may probably be true.
§ Mr. W. S. MorrisonI still feel doubts in my mind from the excerpts which the right hon. Gentleman has read whether it goes as far as we want. The scales are still left weighted against the defendant in a way that should not be permitted in the case of petrol offences. I could conceive in a case of corruption that the natural circumstances of the case did import such strong evidence of motive that that was allowed, but in a matter where there are such chances of mistakes, as in regard to petrol, it should not be the principle.
§ Mr. Turner-Samuels (Gloucester)How does the right hon. Gentleman suggest that the prosecution in a case of this kind could discharge their onus?
§ Mr. MorrisonThat is perfectly easy. If a man is found with red petrol in the tank of his car, as a private motorist, that in itself is a highly suspicious circumstance. It starts off with at least the first element of the case at the disposal of the prosecution. That is the thing the man must get himself out of. It is an established prima facie case. He has to give his case against that, but the burden of proving his innocence should not be that of proving it beyond all peradventure in the case where the chances of complete ignorance are so common. If he knows nothing it is very hard to prove anything.
§ Mr. Turner-SamuelsThe point was how the prosecution was going to be able to prove in most cases this question of consent or connivance. How is it practicable for the prosecution to prove it "beyond all reasonable doubt"?
§ Mr. MorrisonThe prosecution have not got to prove it; it is for the man to do it.
§ Mr. Gammans (Hornsey)I do not know whether the Attorney-General has satisfied the Committee. He may have satisfied the lawyers but not the ordinary man who probably regards this as about the most pernicious piece of totalitarian legislation that this House has ever had before it. If the Bill goes through in this form no one is safe. May I instance my own case? I keep my car in a public garage with about 50 other cars. If anyone at the time of a General Election—or for that matter between elections—held a grudge against me, he has only to pop in half a gallon of red petrol, and I am for it. I am for it in a special sense for, like many other hon. Members, I have a business connection and would have access to red petrol. All I can do is to try and prove that I had no reasonable opportunity for removing the petrol after discovering it or did not neglect to take any steps. Does that mean every morning in my life I have to put my head into the petrol tank of my car? What exactly will I have to do in order to prove my innocence? I do not know what the Committee thinks, but I think it is an appalling state of affairs, and I sincerely hope the Amendment will be accepted.
§ Mr. BlackburnI would like to say first that I accept the point the Attorney-General made about the individual who is reckless to the extent that he does not care whether the petrol is red or white. That point did occur to me when drafting my Amendments and if it were the point dividing us now I would accept his view. But we are not discussing now the onus of proof. I hope the Committee is clear about that. That is no longer the issue. I have conceded that the onus of proof in these Amendments is cast on the accused in the proviso that the possession of red petrol creates a prima facie case not only against the person in charge of the motorcar at the time but the owner also. I honestly do not think that I ought to have had it in but I did it in order to conciliate—I might even say—appease the Attorney-General. It has now been admitted that under Section 2 as now drafted the accused is not entitled to the benefit of any reasonable doubt. He has to prove his innocence in the sense of establishing that it is most probable that 1806 he is innocent. It is not even enough for him to show that it is just as likely that he is innocent as guilty if the defendant raises a reasonable doubt but cannot show that it is a preponderance of probability then he is convicted. He has to establish a preponderance of probability of his innocence, otherwise he is going to be convicted.
I try to be moderate in my language but really this is a most staggering proposition to be advanced seriously in the Committee of this ancient House of Commons. I dislike the use of the word reactionary. Because so often its use bears the hallmark of the crypto-Communist or crypto-Fascist, but this is a most reactionary Clause. Our law in fact started with a principle of absolute liability. Hundreds of years ago there was absolute liability. If there had been petrol then and one had found red petrol in the tank one would have been automatically guilty. Then if a man hit another accidentally with an axe he was guilty. Now once again we are back in the old primitive community. Now the onus is on the defendant and he has to establish that it is most probable that he is innocent. I cannot understand why this view is still maintained. We have heard a good deal about the century of the common man. It is a time when over an increasing number of offences he has to satisfy a court that most probably he is innocent while in the past he had only to satisfy a court that there was a reasonable doubt.
Last night I took down from my shelves a verbatim account of the Kylsant trial and read what the Lord Chancellor had to say in that trial. I found that one of the very last remarks he made was to the effect that the overwhelming consideration with the prosecution, as with the defence and with the court, still remains that you must not convict the accused unless you are satisfied beyond reasonable doubt that he is guilty, however much you may disapprove of his conduct. Are we to abandon this protection which has been in our law for year after year? I asked the Attorney-General this question last Monday. It is in HANSARD and that is the only sanction which a humble back bencher now possesses. The facts are there to be read, if anyone cares to do so; at a time when on so many matters there is a twilight of freedom. It was 1807 admitted by the Attorney-General that all he wanted was to be satisfied that an accused person could not get away with it by giving any sort of explanation. He has now had every conceivable concession made to him and has not given way. I believe that I should go on obstinately fighting the lost battle of virtue, but I beg to ask leave to withdraw the Amendment.
§ Mr. R. S. HudsonI think we have got some little way forward in this discussion as a result of the last speech made by the Attorney-General, because we have now got him to admit that he is inflicting savage penalties because he disapproves of the actions of the persons concerned. He is altering the onus of proof because he disapproves in a particular way of the action of a particular person in regard to petrol. There is very little difference between that attitude and the attitude taken up by the Nazis when they set up people's courts. They set up these courts because they disapproved of the actions of the people brought before them, and later in the regime it was assumed that the person brought before the court was guilty, and it was up to him to prove his innocence. It is exactly the same principle as that contained in this Clause. Every word the Attorney-General has said has justified up to the hilt the accusations we made on Second Reading, and we shall certainly vote in favour of the Amendment.
§ Mr. H. StraussI apologise to the Attorney-General for not having been here at all stages of this discussion, but I think that the point I am raising has not been dealt with by him or by anyone else. I can understand the state of the law which would result if these carefully drawn Amendments were accepted. I wish the Attorney-General to explain to me what are the intentions of the Government, if they insist on the words which they now have. In the proviso the person charged has to prove three things cumulatively. I think that I understand paragraphs (a) and (c), but I hope, as the Attorney-General has alluded to paragraph (b) as though it were of some advantage to the defendant, that he will explain what is its intention. One of the things the defendant has to prove under (b) is 1808
that he did not afterwards discover that the petrol was commercial petrol—and then the strange words—or had no reasonably convenient opportunity after such discovery of removing the petrol from the tank;Does that mean that all methods of removing petrol from the tank are legitimate, or is there some particular thing that the person should do with the petrol? Should he choose a moment to pour it out when no one is looking? There is no statement in the Bill saying what an innocent man should do if he discovers the wrong petrol in his tank. I am sure that the Attorney-General had something in his mind as to what the right thing is for the person to do in such circumstances, because he must have had something in his mind when he drafted paragraph (b). At first sight, it would appear that if a man found a convenient opportunity and got rid of the petrol, he would be acting most suspiciously and giving an indication that he was not an honest man.
§ The Attorney-GeneralThat would again be a matter for the court to decide when such a case came before them. Paragraph (b) is intended to provide for the case of a motorist who subsequently discovers that his tank, without his knowledge, had been filled up with red petrol. He might discover that in cleaning out the carburettor, or because he has been stopped by the police and has had it pointed out to him. He may find himself in the middle of Bodmin Moors, or in the Highlands of Scotland, scores of miles from the nearest garage with no spare white petrol. Is he to leave his car abandoned in the moors, or in the wilds of Scotland, and walk home? We think it is reasonable that he should be allowed to drive his car in spite of the fact that there is red petrol in it, and that he should remove the petrol when he gets to a garage or when, as the courts may decide, he gets a "reasonably convenient opportunity." We should all rejoice, if he had an opportunity to exhaust all the petrol in his tank.
§ Mr. H. StraussWhat is he to do with the petrol when he has removed it?
§ The Attorney-GeneralThe Bill does not impose any obligation on the motorist in regard to what he should do with the red petrol after it has been removed from his car, but if the hon. and learned Member would like any private advice on the 1809 matter I should be glad to discuss it with him. In the circumstances, I think it unnecessary to explore the matter any further as the Bill does not provide for that matter.
§ Mr. Orr-Ewing (Weston-super-Mare)Is it to be a sufficient defence for a person who is stopped by the police and found to have red petrol in his tank to say: "I am sorry, but I was trying to find a reasonable opportunity to get rid of the petrol"? Is it sufficient defence for him to say that there was a garage five or ten miles further on he was hoping to reach in order to get rid of the petrol, but that he was prevented from doing it because he was stopped?
§ The Attorney-GeneralCertainly, if the court believed the story. If the court accepted the story as being probably true, although not necessarily true, it would provide an adequate defence. I can relieve any anxieties which may exist on that. My hon. Friend the Member for King's Norton (Mr. Blackburn) made an eloquent but almost entirely irrelevant speech, dealing with the case where guilty knowledge is an essential ingredient of the offence. I have endeavoured to point out that that is not the case under this Bill. In this case, as in many similar cases, the prosecution cannot hope to prove or disprove whether a motorist has taken reasonable care in a particular case to avoid commission of an offence in circumstances envisaged in this Bill.
7.30 p.m.
For that reason, an entirely independent committee, presided over by a distinguished lawyer to whose political affiliations my hon. Friend has referred, a man with great criminal experience, recommended that, consistently with our legal practice for more than half a century, this conduct should be made an offence in which guilty knowledge was not an essential ingredient to be proved by the prosecution. It has been common practice for a very long time indeed in cases where particular matters which may be raised by the defence are peculiarly within the knowledge and within the control of the defendant, to put upon the defendant the onus of proving his case. If that is really totalitarian, as some hon. Members on the other side of the Committee have suggested, all I can say is that it is a form of totalitarianism of 1810 which hon. Members opposite have been far more often guilty than have Members on this side. In statute after statute in the last half century you can see provisions of that kind.
§ Mr. BlackburnI am not at all disagreeing with my right hon. and learned Friend in his attack upon the party opposite. I merely wish to put it to him that there is not one single instance in the whole of the statutes in which the benefit of a reasonable doubt is not given to the accused and in which an automatic penalty results upon conviction.
§ The Attorney-GeneralI agree with my hon. Friend that there are very few cases in which there is an automatic penalty. If he is coupling the two things together, I should think he is quite possibly right. My researches would not enable me to say so with certainty, but it is quite possibly true. That it has been common practice for a very long time, in scores of statutes, to throw the onus on the defendant in regard to matters which are peculiarly within his knowledge and control, admits of no possibility of doubt. In this case, as in those cases, the defendant does not have to establish his innocence, as my hon. Friend repeatedly sought to persuade the Committee. On the contrary; all that he has to do in order to be entitled to an acquittal at the hands of a court is to persuade the court that in regard to those matters which are peculiarly within his knowledge and control and which in their very nature cannot be within the knowledge or under the control of the prosecution, his account of the matter is probably likely to be true.
I pass to another point. What steps the defendant ought reasonably to have taken in order to avoid the commission of an offence under the Bill is a matter essentially for the court to decide. For many hundreds of years many matters have had to be decided by our courts by reference to the criterion, "what is reasonable?" Nobody is better fitted to decide what is reasonable in the circumstances of a particular case than the court which investigates what the circumstances are. That test of reasonableness, that standard which exists both as part of our common law and under innumerable statutes, is one which has been administered by the courts without any kind of difficulty. For my part, and I think I can speak for most 1811 Members on this side of the Committee and I hope for many on the opposite side, these are matters eminently fitted to be entrusted to the common sense of the 12 men on the Clapham omnibus, as they have been entrusted for hundreds of year in our legal history.
§ Mr. GageThe Attorney-General has not really dealt with the point presented by the hon. Member for King's Norton (Mr. Blackburn). The point is not the way in which the defendant shall discharge the onus of proof which is put upon him, when he is accused of having red petrol in the tank of his car. The hon. Gentleman's point is that if, at the end of the day, the court is equally balanced, after hearing the explanation by the defendant, and if it is undecided, it must convict, according to the Bill. That is wrong. If the court is balanced in that way it must be in doubt, and that doubt
§ should belong to the defendant. That is the point upon which the Bill is a departure from our legal practice and that is the departure to which the hon. Member for King's Norton called attention. The point has not been answered by the right hon. and learned Gentleman. It is quite different from the point in the Abramovitch case. I hope that the hon. Gentleman is not going to withdraw the Amendment, but that he will press it.
§ Mr. BlackburnI beg to ask leave to withdraw the Amendment.
§ The Temporary Chairman (Colonel Ropner)Is it the pleasure of the Committee that the Amendment be withdrawn?
§ Question put, "That those words be there inserted."
§ The Committee divided: Ayes, 88; Noes, 182.
1813| Division No. 140.] | AYES | [7.37 p.m |
| Amory, D Heathcoat | Hinchingbrooke, Viscount | Odey, G. W |
| Austin, H. Lewis | Hollis, M. C. | O'Neill, Rt. Hon Sir H |
| Baldwin, A. E. | Holmes, Sir J, Stanley (Harwich) | Orr-Ewing, I. L. |
| Bossom, A. C | Howard, Hon. A. | Peto, Brig. C. H. M. |
| Bowen, R. | Hudson, Rt. Hon. R. S. (Southport) | Pickthorn, K |
| Boyd-Carpenter, J. A. | Hutchison, Lt.-Cm. Clark (E'b'rgh, W.) | Ponsonby, Col. C. E. |
| Bromley-Davenport, Lt.-Col. W | Jeffreys, General Sir G. | Poole, O. B. S. (Oswestry) |
| Buchan-Hepburn, P. G. T. | Joynson-Hicks, Hon. L. W | Prescott, Stanley |
| Butcher, H. W. | Lambert, Hon. G. | Raikes, H. V. |
| Byers, Frank | Lancaster, Col. C. G. | Rayner, Brig, R. |
| Carson, E. | Langford-Holt, J. | Reid, Rt. Hon. J. S. C. (Hillhead) |
| Challen, C. | Legge-Bourke, Maj. E. A. H | Robinson, Roland |
| Channon, H. | Lipson, D. L. | Sanderson, Sir F. |
| Conant, Maj. R. J. E. | Lloyd, Selwyn (Wirral) | Shepherd, W. S. (Bucklow) |
| Corbett, Lieut.-Cot. U. (Ludlow) | Low, A. R. W. | Smithers, Sir W. |
| Crookshank, Capt. Rt. Hon. H. F. C | Lucas-Tooth, Sir H. | Strauss, H. G. (English Universities) |
| Crosthwaite-Eyre, Col. O. E. | MacAndrew, Col. Sir C. | Sutcliffe, H. |
| Crowder, Capt. John E. | MacDonald, Sir M. (Inverness) | Thomas, J. P. L. (Hereford) |
| Davidson, Viscountess | Mackeson, Brig. H. R. | Thornton-Kemsley, C. N. |
| De la Bère, R. | Maclay, Hon. J. S. | Thorp, Brigadier R. A. F |
| Dodds-Parker, A. D. | Maclean, F. H. R. (Lancaster) | Turton, R. H. |
| Drewe, C. | Maitland, Comdr. J. W. | Vane, W. M. F. |
| Dugdale, Maj. Sir T. (Richmond) | Manningham-Buller, R. E. | Walker-Smith, D. |
| Duthie, W. S. | Marlowe, A. A. H. | Wheatley, Colonel M. J. (Dorset, E.) |
| Foster, J. G. (Northwich) | Marsden, Capt. A. | White, J. B. (Canterbury) |
| Gage, C. | Marshall, D. (Bodmin) | Willoughby de Eresby, Lord |
| Gammans, L. D. | Maude, J. C. | Winterton, Rt. Hon. Earl |
| Gomme-Duncan, Col. A | Mellor, Sir J. | |
| Granville, E. (Eye) | Moore, Lt.-Col. Sir T. | TELLERS FOR THE AYES: |
| Grimston, R. V. | Morrison, Maj. J. G. (Salisbury) | Mr. Studholme and |
| Hare, Hon. J. H. (Woodbridge) | Morrison, Rt. Hon. W. S. (Cirencester) | Major Ramsay. |
| NOES | ||
| Adams, Richard (Balham) | Barton, C. | Brown, T. J. (Ince) |
| Adams, W. T. (Hammersmith, South) | Battley, J. R. | Burke, W. A. |
| Allen, A. C. (Bosworth) | Bechervaise, A. E. | Castle, Mrs. B. A. |
| Allen, Scholefield (Crewe) | Benson, G. | Chamberlain, R. A |
| Alpass, J. H. | Berry, H. | Champion, A. J. |
| Attewell, H. C. | Beswick, F. | Cluse, W. S. |
| Attlee, Rt. Hon. C. R. | Binns, J. | Cobb, F. A. |
| Awbery, S. S. | Blyton, W. R. | Cocks, F. S. |
| Ayles, W. H. | Bowles, F. G. (Nuneaton) | Coldrick, W. |
| Ayrton Gould, Mrs. B. | Braddock, T. (Mitcham) | Comyns, Dr. L. |
| Bacon, Miss A. | Brook, D. (Halifax) | Corbet, Mrs. F. K. (Camb'well, N. W.) |
| Barnes, Rt. Hon. A. J. | Brooks, T. J. (Rothwell) | Corlett, Dr. J. |
| Barstow, P. G. | Brown, George (Belper) | Crossman, R. H. S. |
| Daggar, G. | Jay, D. P. T. | Sharp, Granville |
| Daines, P. | Jeger, G. (Winchester) | Shawcross, Rt. Hn. Sir H. (St. Helens) |
| Dalton, Rt. Hon. H. | Jenkins, R. H. | Silverman, J. (Erdington) |
| Davies, Edward (Burslem) | Jones, D. T. (Hartlepool) | Simmons, C. J. |
| Davies, S. O. (Merthyr) | Jones, Elwyn (Plaistow) | Skeffington-Lodge, T. C. |
| Deer, G. | Jones, J. H. (Bolton) | Skinnard, F. W. |
| de Freitas, Geoffrey | Key, C. W. | Smith, C. (Colchester) |
| Diamond, J. | King, E. M. | Smith, Ellis (Stoke) |
| Dodds, N. N | Kinghorn, Sqn.-Ldr. E | Snow, J. W. |
| Dumpleton, C. W | Kinley, J. | Solley, L. J. |
| Durbin, E. F. M | Lawson, Rt. Hon. J. J. | Soskice, Sir Frank |
| Dye, S. | Lee, F. (Hulme) | Sparks, J. A. |
| Eccles, D. M. | Lewis, A. W. J. (Upton) | Stamford, W. |
| Ede, Rt. Hon. J. C. | Lipton, Lt.-Col. M. | Stross, Dr. B. |
| Edwards, N. (Caerphilly) | Longden, F. | Stubbs, A. E. |
| Evans, Albert (Islington, W.) | McAdam, W. | Swingler, S. |
| Evans, John (Ogmore) | McGhee, H. G | Sylvester, G. O. |
| Evans, S. N. (Wednesbury) | McLeavy, F. | Symonds, A. L. |
| Fairhurst, F. | Mallalieu, E. L. (Brigg) | Taylor, H. B. (Mansfield) |
| Farthing, W. J. | Mallalieu, J. P. W. (Huddersfield) | Taylor, Dr. S. (Barnet) |
| Fletcher, E. G. M. (Islington, E.) | Mitchison, G. R. | Thomas, George (Cardiff) |
| Follick, M. | Monslow, W. | Thorneycroft, Harry (Clayton) |
| Foot, M. M. | Morrison, Rt. Hon. H. (Lewisham E.) | Thurtle, Ernest |
| Forman, J. C. | Moyle, A. | Tiffany, S. |
| Gaitskell, Rt. Hon. H. T. N | Nichol, Mrs. M E. (Bradford, N.) | Titterington, M. F. |
| Ganley, Mrs. C. S | Oliver, G. H. | Tolley, L. |
| Gibbins, J. | Paling, Will T. (Dewsbury) | Turner-Samuels, M. |
| Gilzean, A. | Pargiter, G. A. | Ungoed-Thomas, L. |
| Glanville, J. E. (Consett) | Parkin, B. T. | Vernon, Maj. W. F. |
| Gordon-Walker, P. C. | Paton, Mrs. F. (Rushcliffe) | Viant, S. P. |
| Grey, C. F. | Paton, J. (Norwich) | Walkden, E. |
| Griffiths, Rt. Hon. J. (Llanelly) | Pearson, A. | Wallace, G. D. (Chislehurst) |
| Guy, W. H. | Peart, T. F. | Weitzman, D. |
| Haire, John E. (Wycombe) | Perrins, W. | Wells, P. L. (Faversham) |
| Harrison, J. | Popplewell, E. | Wells, W. T. (Walsall) |
| Hastings, Dr. Somerville | Porter, E. (Warrington) | Wheatley, Rt. Hn. J. T. (Edinb'gh, E.) |
| Henderson, Rt. Hn. A. (Kingswinford) | Porter, G. (Leeds) | White, C. F. (Derbyshire, W.) |
| Hicks, G. | Pritt, D. N. | White, H. (Derbyshire, N. E.) |
| Holmes, H. E. (Hemsworth) | Proctor, W. T. | Whiteley, Rt. Hon. W. |
| House, G. | Pryde, D. J. | Wigg, George |
| Hoy, J. | Pursey, Cmdr. H | Willey, F. T. (Sunderland) |
| Hubbard, T. | Reeves, J. | Williams, D. J. (Neath) |
| Hudson, J. H. (Ealing, W.) | Reid, T. (Swindon) | Williams, J. L. (Kelvingrove) |
| Hughes, Hector (Aberdeen, N.) | Rhodes, H. | Williams, R. W. (Wigan) |
| Hughes, H. D. (W'lverh'pton, W.) | Ridealgh, Mrs. M. | Wise, Major F. J. |
| Hynd, J. B. (Attercliffe) | Robens, A. | Woodburn, A. |
| Irvine, A. J. (Liverpool) | Roberts, Goronwy (Caernarvonshire) | Young, Sir R. (Newton) |
| Irving, W. J. (Tottenham, N.) | Ross, William (Kilmarnock) | |
| Isaacs, Rt. Hon G. A | Royle, C. | TELLERS FOR THE NOES: |
| Janner, B | Sargood, R. | Mr. Joseph Henderson and |
| Mr. Hannan. |
§ The Temporary ChairmanThe next Amendment I propose to call is that in page 2, line 22, to leave out from the beginning, to "and," in line 25.
§ Mr. Manningham-BullerOn a point of Order. May I ask you, Colonel Ropner, whether you are not selecting the Amendment in line 18, to leave out "prove," and insert:
satisfy the Court that it might reasonably be true"?I know that in its wording the Amendment appears to be the same as an Amendment which we have already discussed during our consideration of Clause 1. In fact, this Amendment affects very different categories of people. Clause 1 relates to offences by retailers of motor spirit. Clause 2 applies to offences by private motorists. The arguments adduced in support of the Amendment in Clause r referred to garage proprietors. No arguments were adduced 1814 in regard to private motorists. In those circumstances, I do not know whether it would be in Order for me to ask you, Colonel Ropner, to reconsider your decision, because the point is materially different? Alternatively, if you will not permit a discussion on the Amendment, which might be short in view of the discussion we had previously, and which would be designed to obtain an explanatory and clear statement from the Attorney-General, I would ask if you would at least permit us to express our views on this Amendment by voting in the Lobby?
§ The Temporary ChairmanThe Amendment to which the hon. and learned Member refers has not been selected by the Chair, but if he would like me to put it formally in order to give him an opportunity to divide the Committee upon it, I am prepared to do so.
§ Mr. Manningham-BullerI beg to move, in page 2, line 18, to leave out "prove," and to insert:
satisfy the Court that it might reasonably be true.
§ Question put, "That the word 'prove' stand part of the Clause."
§ The Committee divided: Ayes, 189; Noes, 93.
1817| Division No 141.] | AYES | [7 46 p.m. |
| Adams, Richard (Balham) | Gaitskell, Rt. Hon. H. T N | Perrins, W. |
| Adams, W T. (Hammersmith, South) | Ganley, Mrs. C. S | Porter, E. (Warrington) |
| Allen, A. C. (Bosworth) | Gibbins, J. | Porter, G. (Leeds) |
| Allen, Scholefield (Crewe) | Gibson, C. W. | Proctor, W. T. |
| Alpass, J. H. | Gilzean, A. | Pryde, D. J. |
| Attewell, H. C. | Glanville, J. E. (Consett) | Pursey, Cmdr. H |
| Attlee, Rt. Hon. C. R | Gordon-Walker, P. C | Reeves, J. |
| Awbery, S. S. | Grey, C. F. | Reid, T. (Swindon) |
| Ayles, W. H. | Griffiths, Rt. Hon. J. (Llanelly) | Rhodes, H. |
| Ayrton Gould, Mrs. B | Guy, W. H. | Ridealgh, Mrs M. |
| Bacon, Miss A. | Haire, John E. (Wycombe) | Robens, A. |
| Barnes, Rt. Hon. A. J | Hall, Rt. Hon. Glenvil | Roberts, Goronwy (Caernarvonshire) |
| Barstow, P. G | Hannan, W. (Maryhill) | Ross, William (Kilmarnock) |
| Barton, C. | Harrison, J. | Royle, C. |
| Battley, J. R. | Hastings, Dr. Somerville | Sargood, R. |
| Bechervaise, A. E | Henderson, Rt. Hn. A. (Kingswinford) | Sharp, Granville |
| Benson, G. | Henderson, Joseph (Ardwick) | Shawcross, Rt. Hn. Sir H. (St. Helens) |
| Berry, H. | Hicks, G. | Silkin, Rt. Hon. L. |
| Beswick, F | Holman, P. | Silverman, J. (Erdington) |
| Binns, J. | Holmes, H. E. (Hemsworth) | Skeffington-Lodge, T. C |
| Blackburn, A. R. | House, G. | Skinnard, F. W. |
| Blyton, W. R. | Hoy, J. | Smith, C. (Colchester) |
| Bowles, F. G. (Nuneaton) | Hudson, J. H. (Ealing, W.) | Smith, Ellis (Stoke) |
| Braddock, T. (Mitcham) | Hughes, Hector (Aberdeen, N.) | Snow, J. W. |
| Brook, D. (Halifax) | Hughes, H. D. (W'lverh'pton, W.) | Solley, L. J. |
| Brooks, T. J. (Rothwell) | Hynd, J. B. (Attercliffe) | Soskice, Sir Frank |
| Brown, George (Belper) | Irvine, A. J. (Liverpool) | Sparks, J. A. |
| Brown, T. J. (Ince) | Irving, W. J. (Tottenham, N.) | Stamford, W. |
| Callaghan, James | Isaacs, Rt. Hon G. A. | Stross, Dr. B. |
| Castle, Mrs. B. A. | Janner, B. | Stubbs, A. E. |
| Chamberlain, R. A. | Jay, D. P. T. | Swingler, S. |
| Champion, A. J. | Jeger, G. (Winchester) | Symonds, A. L. |
| Cluse, W. S. | Jenkins, R. H. | Taylor, H. B. (Mansfield) |
| Cobb, F. A. | Jones, D. T. (Hartlepool) | Taylor, Dr. S. (Barnet) |
| Cocks, F. S. | Jones, Elwyn (Plaistow) | Thomas, Ivor (Keighley) |
| Coldrick, W. | Jones, J. H. (Bolton) | Thomas, George (Cardiff) |
| Collindridge, F | Key, C. W. | Thorneycroft, Harry (Clayton) |
| Comyns, Dr. L. | Kinghorn, Sqn.-Ldr. E. | Thurtle, Ernest |
| Corbet, Mrs. F. K. (Camb'well, N. W.) | Kinley, J. | Tiffany, S. |
| Corlett, Dr. J. | Lawson, Rt. Hon. J. J | Titterington, M. F |
| Crawley, A. | Lee, F. (Hulme) | Tolley, L. |
| Crossman, R. H. S | Lewis, A. W. J. (Upton) | Turner-Samuels, M |
| Daggar, G. | Lipton, Lt.-Col. M. | Ungoed-Thomas, L. |
| Daines, P. | Longden, F. | Vernon, Mai. W. F |
| Dalton, Rt. Hon. H. | McAdam, W. | Viant, S. P. |
| Davies, Edward (Burslem) | McEntee, V. La T | Wallace, G. D. (Chislehurst) |
| Davies, S. O. (Merthyr) | McGhee, H. G. | Weitzman, D. |
| Deer, G. | McLeavy, F. | Wells, W. T. (Walsall) |
| de Freitas, Geoffrey | Mallalieu, E. L. (Brigg) | Wheatley, Rt. Hn. J. T. (Edinb'gh, E.) |
| Diamond, J. | Mallalieu, J. P. W. (Huddersfield) | White, C. F. (Derbyshire, W.) |
| Dodds, N. N. | Mitchison, G. R. | White, H. (Derbyshire, N. E.) |
| Dumpleton, C. W | Monslow, W. | Whiteley, Rt. Hon. W. |
| Durbin, E. F. M. | Morrison, Rt. Hon. H. (Lewisham E.) | Wigg, George |
| Ede, Rt. Hon. J. C. | Moyle, A. | Willey, F. T. (Sunderland) |
| Edwards, N. (Caerphilly) | Nichol, Mrs. M. E. (Bradford, N.) | Williams, D. J. (Neath) |
| Evans, Albert (Islington, W.) | Noel-Baker, Capt. F. E. (Brentford) | Williams, J. L. (Kelvingrove) |
| Evans, John (Ogmore) | Oliver, G. H. | Williams, R. W. (Wigan) |
| Evans, S. N. (Wednesbury) | Paling, Will T. (Dewsbury) | Williams, Rt. Hon. T. (Don Valley) |
| Ewart, R. | Pargiter, G A | Wise, Major F. J. |
| Fairhurst, F. | Parkin, B. T. | Woodburn, A. |
| Farthing, W. J. | Paton, Mrs. F. (Rushcliffe) | Young, Sir R. (Newton) |
| Fletcher, E. G. M (Islington, E.) | Paton, J. (Norwich) | |
| Follick, M. | Pearson, A. | TELLERS FOR THE AYES: |
| Foot, M. M | Peart, T. F | Mr. Simmons and. |
| Mr. Popplewell. | ||
| NOES | ||
| Amory, D. Heathcoat | Braithwaite, Lt.-Comdr. J. G | Conant, Maj. R. J. E |
| Baldwin, A. E. | Buchan-Hepburn, P. G. T | Cooper-Key, E. M. |
| Beamish, Maj. T. V. H | Butcher, H. W. | Corbett, Lieut.-Col. U. (Ludlow) |
| Bossom, A. C. | Byers, Frank | Crookshank, Capt. Rt. Hon. H. F. C |
| Bowen, R. | Carson, E. | Crosthwaite-Eyre, Col. O. E. |
| Boyd-Carpenter, J. A. | Challen, C | Davidson, Viscountess |
| De la Bère, R. | Lipson, D. L. | Prescott, Stanley |
| Dodds-Parker, A. U | Lloyd, Selwyn (Wirral) | Price-White, Lt-.Col. D |
| Drewe, C. | Low, A. R. W. | Raikes, H. V. |
| Dugdale, Maj. Sir T. (Richmond) | Lucas-Tooth, Sir H. | Rayner, Brig. R. |
| Duthie, W. S. | Lyttelton, Rt. Hon. O. | Reid, Rt. Hon. J. S. C. (Hillhead) |
| Foster, J. G. (Northwich) | MacAndrew, Col. Sir C. | Robinson, Roland |
| Gage, C. | MacDonald, Sir M. (Inverness) | Sanderson, Sir F. |
| Gammans, L. D. | Mackeson, Brig. H. R. | Shepherd, W. S. (Bucklow) |
| George, Lady M. Lloyd (Anglesey) | Maclay, Hon. J. S. | Smithers, Sir W. |
| Gomme-Duncan, Col. A. | Maclean, F. H. R. (Lancaster) | Stanley, Rt. Hon. O. |
| Granville, E. (Eye) | Maitland, Comdr. J. W | Strauss, H. G. (English Universities) |
| Grimston, R, V. | Manningham-Buller, R E | Sutcliffe, H. |
| Hare, Hon. J. H. (Woodbridge) | Marsden, Capt. A. | Thomas, J. P. L. (Hereford) |
| Herbert, Sir A. P. | Marshall, D. (Bodmin) | Thornton-Kemsley, C. N. |
| Hinchingbrooke, Viscount | Maude, J. C. | Thorp, Brigadier R. A. F |
| Hollis, M. C. | Mellor, Sir J. | Turton, R. H. |
| Holmes, Sir J. Stanley (Harwich) | Moore, Lt.-Col. Sir T. | Vane, W. M. F. |
| Howard, Hon. A. | Morrison, Maj. J. G. (Salisbury) | Walker-Smith, D. |
| Hudson, Rt. Hon, R. S. (Southport) | Morrison, Rt. Hon. W. S. (Cirencester) | Webbe, Sir H. (Abbey) |
| Hutchison, Lt.-Cm. Clark (E'b'rgh, W.) | Odey, G. W. | Wheatley, Colonel M. J. (Dorset, E.) |
| Jeffreys, General Sir G. | O'Neill, Rt. Hon. Sir H | White, J. B. (Canterbury) |
| Joynson-Hicks, Hon. L. W | Orr-Ewing, I. L. | Willoughby de Eresby, Lord |
| Lambert, Hon. G. | Peto, Brig. C. H. M. | Winterton, Rt. Hon. Earl |
| Lancaster, Col. C. G. | Pickthorn, K. | |
| Langford-Holt, J. | Ponsonby, Col. C. E. | TELLERS FOR THE NOES: |
| Legge-Bourke, Maj. E. A. H. | Poole, O. B. S (Oswestry) | Mr. Studholme and |
| Major Ramsay. |
§ Mr. Boyd-CarpenterI beg to move in page 2, line 22, to leave out from beginning, to "and" in line 25.
The effect of this Amendment is to remove one of the three things which a person found with commercial petrol in the tank of his vehicle has to prove in order to establish his innocence. In the first place, it does seem that this is a trifle unnecessary. If a person who is found with this dangerous fluid in the tank of his vehicle is able to establish things which lie has to establish in paragraphs (a) and (c) it would seem that he is entitled to be acquitted. But leaving that point, which I think is self-evident, as it stands, I should be grateful if the Attorney-General would clarify the effect and intention of paragraph (b).
I am not clear what is conveyed by the words "reasonably convenient." Is the matter governed by the simple opportunity to get rid of the petrol? That is to say, in its simplest terms, is it a case of whether or not a motorist's petrol tank has a plug in the bottom which can be pulled out, and the tank thereby emptied? Or does "reasonably convenient" govern the circumstances in which the motorist may find himself? How does it apply, for example, to someone who, having got this ominously coloured fluid into the tank of his vehicle, discovers that state of affairs when he is in the middle of the Yorkshire moors? Is he entitled to say, "It is not reasonably convenient from the point of view of my journey for me to get rid of the petrol now"? That is the first point on which I should be grateful 1818 if the Attorney-General would direct his remarks. Does "reasonably convenient" relate solely to the mere opportunity of getting rid of the petrol, or does it also take into account the reasonable convenience of the motorist who is proceeding on, his journey?
I should also be grateful if the Attorney-General would indicate what, in his view, is the duty of what I may term the average reasonable motorist who discovers red petrol in the tank of his vehicle Is it his duty, immediately, and by every conceivable means, to get rid of it? Or is he entitled to proceed to the nearest petrol station? Has he, when he gets rid of it in this way, to seek out some enforcement officer, or police officer, in order to draw his attention to the matter? Or is he supposed to get rid of the contaminating fluid by having it poured out under the nearest hedge? At the moment it is not clear what is the duty which it is sought by this Subsection to impose upon the motorist; and it will be appreciated that this is of some importance to the people concerned. After all, it is one of the three things which, as the Clause now stands, they have to establish in order to establish a defence.
8.0 p.m.
I am sure that most hon. Members would welcome the learned Attorney-General's guidance upon what exactly the Government have in mind regarding the duty to be imposed upon the motorist by the Subsection. I put the case, therefore, on these three points: first, a clarification of "reasonably convenient," which I 1819 think the Attorney-General already apprehends; secondly, what is the duty imposed by the Subsection; and thirdly, why it is necessary to have this Subsection in view of the comprehensive provisions of paragraphs (a) and (c). It is in the hope that satisfactory answers to all these points may be forthcoming, that I beg to move.
§ The Attorney-GeneralI had sought at an earlier stage in our discussions to indicate the purpose of paragraph (b). It is to provide for the case where a motorist, not knowing that red petrol had been put into his tank in the first instance, subsequently discovers it, either because his attention is drawn to the fact by the police, or while attending to his motor car he discovers that the petrol in his tank is not white as it should have been. In that case, unless some provision is made in this Bill, it might be suggested that the motorist would become guilty of an offence because he would no longer be able to say that he had no knowledge that the petrol in his tank was red petrol.
One has to provide for the kind of case where, after the petrol had been put into the tank, a person may be in the wilds of Scotland or in the middle of the Yorkshire moors, when suddenly it is brought to his notice that, contrary to the law and contrary to what he had up to that moment supposed, the petrol in his tank is red petrol. We have sought to deal with that kind of situation by providing that when he discovers that the petrol in his tank is red petrol, he should take steps to have it removed when he reasonably can. What is a reasonably convenient opportunity, as I said when we were discussing this matter before, is a matter for the court to decide. I would myself interpret these words as meaning—and I have no doubt about this matter—that "reasonably" in this context means reasonable in all the circumstances, including the journey which the motorist is on, the time available, and whether he has money in his pocket to pay for a fresh supply of petrol at the next garage, and all the circumstances which may be presented to the court, if indeed the matter comes to the court at all.
No duty is cast upon the motorist in this Bill to inform the police if he has discovered red petrol in his tank, but I think he would be well advised, if he is a law-abiding citizen who desires to assist in the administration of the law and the 1820 suppression of the black market, to inform the police of what has happened and to give them every assistance in discovering how it was that red petrol came to be put into his tank.
I was also asked by the hon. Member for Kingston-on-Thames (Mr. Boyd-Carpenter) what the motorist should do with the petrol found in his tank, whether he should pour it out into a hedge. The Bill does not contain any provision as to what should be done after the petrol has been removed from the tank. The only offence created by this Bill is the offence of having red petrol in the tank or in a pump as the case may be. The motorist who found red petrol in the tank of his private vehicle would consider whether he had other and legitimate uses for such petrol. He might conceivably add it to his stock for use in his petrol lighters, or he might put it in his motor mower, or, what I should say was the more likely course, he could exchange it at the next garage for the type of petrol it was legitimate for him to use.
§ Mr. Manningham-BullerI am sure the whole Committee is grateful to the right hon. and learned Gentleman for his explanation of the reason for the inclusion in this Measure of these four lines; but I find the grounds for their inclusion to be not entirely convincing, and I hope that I may be able to carry him with me. I do not want to spend much time on the defect in this Bill that it does not provide any guide as to what the motorist should do if he found red petrol in his tank. I do not suggest, as the right hon. and learned Gentleman has suggested, that red petrol should go to form a black market for fuel for petrol lighters or motor mowers.
One wants to keep in mind what the main object of this Clause is. As I apprehend it, it is to protect private motorists using red petrol. If one proceeds from that, one gets the provision that, if red petrol is found in the private motorist's tank he is, prima facie, guilty of an offence. Under this Clause, there are three provisos which he has to satisfy in order to secure his acquittal on a charge. The first thing which he has to prove is that the petrol was put into the tank without his connivance, knowledge, or consent. The right hon. and learned Gentleman said that this second proviso was there to protect the motorist 1821 in one sense because, if the motorist going along the road discovered by chance that he had red petrol in his tank, the Attorney-General's argument was that if he went on with the petrol in his tank, it would not be open to him to say he did not know it was there, and he might render himself liable to conviction. That is really not so. Even though he might know the petrol was in his tank, he could avoid conviction if he satisfied the court that it was put into his tank without his knowledge.
Subsequently acquired knowledge would not affect his opportunity of establishing that matter, and I do suggest that, far from protecting the motorist, this is really putting a very difficult burden upon him. If he is to be acquitted, he has first to satisfy the court of one or other of these two things; first, that the petrol was put in without his consent or connivance, and secondly, that he did not know it was commercial petrol. If he has done that, and he has proved that he has been careful also, he is entitled to be acquitted. But something more than honesty and care are demanded in this Measure The motorist has also to prove that although the petrol was put into the tank without his knowledge, consent and connivance, he did not afterwards discover that the petrol was commercial petrol. If he fails to satisfy the court that he did not afterwards discover the petrol was commercial petrol, he will be guilty of an offence, whether or not he played any part at all in the putting of this petrol in his tank.
What is the reason for that? I would suggest that there is no possible justification for it, but that there is an alternative. Under Subsection (1, b), having proved that he did not know that petrol was put into his tank, he has then to prove either that he did not discover afterwards that it was there or that he had no reasonably convenient opportunity after discovering it to get rid of it. I do not understand why these heavy penalties should be imposed upon a man merely because he fails to satisfy a court that after it was put into his tank, he did not discover that it was commercial petrol. I fail to see why he should suffer these heavy penalties if, in the opinion of the court, not having anything to do with the putting of the petrol into the tank, he failed 1822 to take a reasonably convenient opportunity, after discovering that it was commercial petrol of removing it from his tank.
Why should this man who, ex hypothesi, has not put the petrol in, and had nothing to do with putting the petrol in, be found guilty of this serious criminal offence merely because he has failed to satisfy the court that he had no reasonably convenient opportunity for getting rid of the petrol? That is one of the conditions set out in Subsection (1, b). He has two alternatives, one of which he must satisfy. If he does not satisfy one or other of them, the defence of a private motorist under this Clause cannot succeed. Why should he be convicted because he has failed to get rid of the petrol? That seems to be unnecessary and somewhat wasteful of petrol instead of being economical. In view of the remarks made by the Attorney-General during the Second Reading Debate, I would say that no one is in any way casting a cloak upon the man misusing petrol. The omission of these three lines would in no way help the wicked motorist engaged in black market petrol activities.
§ Mr. John Paton (Norwich)Surely, it is not an offence that the man has not got rid of the petrol, but it would be an offence if, knowing that the petrol was petrol which it was illegal for him to use, he went on and continued to use it?
§ Mr. Manningham-BullerThat might be an offence, but I would draw attention to the words of this Clause which create the offence. The offence referred to at the beginning of the Clause is that having petrol of the wrong colour in the tank. Prima facie that makes one guilty of an offence. A man can prove his innocence if he satisfies the provisos. If under the first proviso one can prove to the court that one had nothing to do with the putting in of the petrol, that it was done without consent, connivance or knowledge, that is not enough. I agree that it should not be enough. There should be something more than honesty. There should be care, and care is provided for in Subsection (1, c). Assuming that a man satisfies the court of his honesty in the matter and of the care he has exercised, he will not get off under this Clause unless he goes further and satisfies the court that he did not afterwards discover that 1823 the petrol was commercial petrol or, alternatively, that he had no reasonably convenient opportunity after discovering it, for removing the petrol from the tank. My argument is that the omission of these words would in no way encourage the misuse of petrol. The man who put petrol into his tank, who consented to its use, or lacked care in seeing what was or was not put into his tank, would stand to be convicted.
§ 8.15 p.m.
§ Mr. PatonI am sorry to interrupt again. Suppose, without my consent or connivance, eight gallons of red petrol were put into my tank and I proceeded on my journey without knowledge that that had been done. Therefore, I satisfy Subsection (1, a). But after I have expended about one gallon of my eight gallons, I discover that I am running my car on illegal red petrol. Would the hon. and learned Member say I commit no offence if I proceed then to exhaust the other seven gallons of illegal red petrol?
§ Mr. Manningham-BullerI assume that the hon. Member is a law abiding motorist. I assume that for his seven or eight gallons of red petrol he has given up seven or eight coupons available for white petrol. That may happen in many cases. Morally the hon. Member would not be guilty of any offence at all. He has not acquired more petrol, whether it is coloured red or white.
§ Mr. Manningham-BullerNo, I am not. I am meeting the hon. Member's argument. I say that in the case he has put there is no moral guilt on his part.
§ Mr. Manningham-BullerWould the hon. Member allow me to continue? He ought not to be convicted of this serious criminal offence involving heavy penalties after innocently giving up the coupons. I should say that he would not properly be convicted of any criminal offence. One would assume that directly he discovered the fact that it was red petrol he would communicate that information to the police to assist in the detection of the man 1824 who had perpetrated the trick upon him; but to make him guilty of this offence is wrong.
There is a further point with which the Attorney-General did not deal. We cannot leave the question of reasonably convenient merely to the varied decisions of a number of courts without any guidance at all. The matter depends entirely on the angle from which it is considered. Is it reasonably convenient from the motorist's angle of his personal convenience, or is it a reasonably convenient opportunity for getting the petrol out of his tank? A motorist might pull up at a garage to have a few gallons of petrol put into his tank and then discover that the balance in the tank was red. A garage would provide reasonably convenient opportunity to take the petrol out. If it is looked at from that angle, obviously it is reasonably convenient. On the other hand, it might be most inconvenient to the motorist who may not have enough coupons to enable him to get sufficient new petrol to get him home. In a strict penal statute like this, the matter should not be left so vaguely. I ask the Attorney-General, bearing in mind that I suggest that his first argument was wrong, to reconsider the matter and see whether he cannot dispense with these words which are bound to cause conflict of decision.
§ Mr. Boyd-CarpenterThe Attorney-General, in response to the invitation from this side of the Committee, explained the meaning of the Subsection with his customary clarity and lucidity. In so doing, he made it clear that this Subsection adds nothing whatever to the Bill from the point of view of limiting the consumption of petrol. We are concerned here solely with petrol which has come into a motorist's tank in circumstances wholly consistent with that motorist's innocence. We are concerned, under this Subsection, only with what that motorist shall do with the petrol which he has, morally quite innocently, acquired. What the Attorney-General told us was that this motorist shall be entitled to use the petrol for purposes other than that of propelling his vehicle, and he went on to suggest purposes for which he could, apparently, use it—for his motor-mower, his cigarette lighter and so on.
The only thing, alternatively, which he suggested, and which I thought myself a perilous suggestion, was that he might 1825 exchange it for white petrol, but, whichever of these purposes for which he might legitimately use it, he consumes or uses that petrol, and, for that reason, I do not believe that this Subsection helps the Bill to any extent at all from the point of view of conserving the nation's petrol supplies. All it does is to limit the uses to which a motorist can put this petrol. That having been explained by the Attorney-General to be the purpose of this Subsection, it seems to me that he has demonstrated with great clarity the unnecessary nature of this Subsection. We are not, presumably, concerned in this Bill to do anything but prevent the misuse of the nation's petrol supply. This Clause clearly does not do that. It merely limits the use of petrol once it is acquired, and, as such, it appears to be completely unnecessary.
§ The Attorney-GeneralI am inclined to agree with the hon. and learned Member for Daventry (Mr. Manningham-Buller) that the real question here is whether a person who uses petrol, which he acquired innocently but which he subsequently discovers to be commercial petrol, should be guilty of an offence. If we do not have some such provision as this Subsection, the motorist who did not know that commercial petrol had been put in his tank in the first instance, but who discovered it immediately afterwards, would be able to use it in his vehicle, although that vehicle was a private one and not entitled to use that kind of petrol at all.
Perhaps this is rather like the kind of case that one might get in which a person suddenly discovers that somebody else's property has been left in his car. He would find himself in serious trouble with the courts if he converted that property to his own use. Similarly, if he finds himself in possession of stolen goods, although it is true he would not be guilty of the offence of receiving if he had not known at the time of receipt that they were stolen, he would, none the less, be guilty of some other offence, such as that of being in unlawful possession. On the whole, it seemed to us that it was right to have some penal provision to cover the case of a man who, although he acquired petrol innocently in the first instance, took advantage of the mistake that had been made and used that kind of petrol to which he was not entitled. 1826 I say quite frankly to the hon. and learned Gentleman that I appreciate what has been said about the matter both in his speech and in that of the hon. Member for Kingston (Mr. Boyd-Carpenter). I will discuss the matter with the Minister of Fuel and Power, and will reconsider the effect, the drafting and the necessity for this paragraph in the Bill.
§ Mr. Manningham-BullerI am grateful to the right hon. and learned Gentleman for what he has said, but that rather places us in a difficulty. Presumably, we shall have no other opportunity in this House of considering the altered wording. Though I welcome his assurance that he will reconsider the matter, I suggest that probably the most satisfactory way of dealing with it would be to leave out these three lines now and insert something else, if that is required—because it may not be required in this part of the Bill—in another place. I feel that that would be the right course to pursue, and that this Bill would be tidier and more effective if we left out paragraph (b), and left the matter with the right hon. and learned Gentleman, when he has had an opportunity of consulting the Minister of Fuel and Power, to move something else into the Bill. Therefore, while I appreciate his intentions, I think we must express our view that these three lines should not be included.
§ The Attorney-GeneralI hope the hon. and learned Gentleman will be content to accept my assurance that I will consult with the Minister of Fuel and Power at the earliest opportunity. He will appreciate that, in the circumstances in which I am placed at the moment, I have no opportunity of consulting with anybody, and I do not feel able to agree to the deletion of these lines, because it raises issues of policy of some little difficulty. I have appreciated the points which the hon. and learned Gentleman has made, and I can, at least, promise him that I shall consider the matter, not without some sympathy for the views which he has expressed.
§ Mr. Manningham-BullerI appreciate the offer of the learned Attorney-General and also his difficulties. All the same, I think these three lines ought to come out of this Bill. I accept his assurance, but accepting his assurance will not stop him 1827 putting them back if he can think of nothing better. I think something better than that should be put in, and that we must express that view.
§ Question put, "That the words proposed be left out stand part of the Clause."
§ The Committee divided: Ayes, 191; Noes, 91.
1829§ The ChairmanIt might be convenient if the next three Amendments on the Order Paper were discussed together.
§ Mr. Manningham-BullerI beg to move, in page 2, line 31, to leave out from "he," to "shall." in line 33.
I agree that it would be convenient to discuss also the two Amendments which follow in line 33, leave out "each"; and in line 33, at end insert:
and if the commercial petrol so acquired is put into a private motor vehicle, the owner of the vehicle or the person in charge thereof at the time it was put in shall be guilty of an offence.These are drafting Amendments. They relate to the responsibility of the employer where petrol is put into the tank of his motor car by someone who, for instance, wants to take the car and use it for his own purposes. As the first four lines of Subsection (2) at present read, immediately petrol is acquired by the user of a private motor vehicle—by anyone who is not the owner—the owner or the person in charge of that vehicle becomes guilty of an offence. It is extraordinary that the Attorney-General could be found guilty of a prima facie criminal offence if someone, without his knowledge, buys petrol for use in his car. The right hon. and learned Gentleman would then have to bring himself within the walls of the proviso. This is a drafting Amendment and if our proposal is accepted the Clause will read as follows:If any person acquires any commercial petrol for use in a private motor vehicle, he shall be guilty of an offence and if the commercial petrol so acquired is put into a private 1830 motor vehicle, the owner of the vehicle or the person in charge thereof at the time it was put in shall be guilty of an offence.This would not materially alter the purpose of the Clause but would provide for the case where, for instance, someone who knew of my habit to leave my car in a particular place wanted to take it during my absence, bought some red petrol and did not put it into the vehicle. Under the Amendment the Prima facie liability of the owner of the car would arise from the moment the petrol was put into his vehicle. If the purchase was made with his consent or connivance, even though the petrol was not put into his car, presumably he would be liable to be charged with aiding or abetting the commission of an offence.
§ The Attorney-GeneralI am not certain that there is not something more than drafting in these Amendments. If they are merely drafting they do not make any improvement on the present Clause. They are defective in that they leave open whether it is the owner or the person in charge who commits the offence contemplated by the Clause. The intention of the Clause as drafted is that if an owner allows someone else to have charge of his motor car, and that other person commits an offence, the owner shall be liable also unless he shows, not only that he did not know the offence was committed, but that he had taken reasonable steps to prevent it.
If I allow my car to be used by some other person I must take care to see to it that it is not made the means of breaking the law. Unless I can persuade the 1831 court that it is reasonably probable that I knew nothing about the matter and that I had taken reasonable precautions, for instance, that I had inquired from the borrower before lending him my car what coupons he had and where he had got his petrol, I would be guilty of an offence under this Clause. That is part of the scheme as recommended by the Russell Vick Committee in order to ensure that those motor vehicles which can so easily be made the subject of breaches of the law are watched and the utmost care taken to ensure that such breaches do not take place.
§ Mr. Boyd-CarpenterI do not think the Attorney-General has faced up to the point put by my hon. and learned Friend the Member for Daventry (Mr. Manningham-Buller). Assume for one moment that someone acquires commercial petrol first, and then approaches the learned Attorney-General and asks him for the loan of his car. That is a possible contingency which is covered by this Clause as it stands. What justification is there for putting on the learned Attorney-General the necessity to establish a defence. That is our Amendment. Once the petrol gets into the tank we accept the proposition that the owner is called upon to explain the matter, but as this Clause stands it covers the earlier stage of the simple acquisition of petrol for use in a private motor vehicle. That seems to go unnecessarily far. I do not think a large number of cases will arise under it, but it is conceivable that some may arise and it seems quite unjust that the owner of a motor car, who knows absolutely nothing about the matter should be called upon to put up a defence.
I call in aid the speech of the Attorney-General on Second Reading. His point was—and I will not quote the particular paragraph at length—that where someone was in a position of particular advantage of knowing the facts it was right to put the onus on him. That principle does not cover the case of the owner of a car where someone else acquires the petrol with the intent to use it subsequently in that motor car. I hope that the right hon. and learned Gentleman will look at this again. On the face of it that is quite unjust and from the point of view of enforcement quite impossible.
§ Mr. J. S. C. ReidI am puzzled as to what the Subsection applies. It cannot apply to a servant, because as I understand the Bill if a chauffeur acquires petrol it is put to the charge of the owner and and owner is responsible. This is solely limited to the person who is not a servant and gets the loan of a car. As the Clause stands, it is anyone in the wide world. It does not matter whether he has anything to do with the car. If any person acquires commercial petrol for use in my motor car I am liable to be summoned under this Clause. I may not know anything about it, and I may not know the man, but if he says that he got the petrol to put into my car I am guilty of an offence. The Attorney-General might very well argue that in that case I would be able to establish my defence. Perhaps I should, but why should I be prosecuted at all and required to establish a defence?
If what the Attorney-General means is that if any person in charge of a motor vehicle acquires commercial petrol for use in that vehicle then certain things may happen. That would be an extension of the Government's theory which I raised on Clause 2, but this is wider than that. It covers a person who has not yet had my permission to use my car. That cannot be intended, and, therefore, I ask the Attorney-General two questions. First of all, is this intended to be limited to a person who has permission to use a particular vehicle; and, secondly, is it limited to that person who acquired the petrol after he has acquired the permission to use the car? It is very unlikely that when a man asks the owner for permission to use his car he will say to the owner, "I have some red petrol which I am going to use in your car." The Attorney-General will remember the complete code in this Bill for catching the accessories, those who aid and abet or counsel and procure. What is the intention? If we knew the intention we would be in a better position to criticise the drafting, but to say that an owner is deemed to be guilty of an offence committed by a man he never heard of merely because that man says, "I intend to put that petrol into Mr. A. 's car" is drafting which ought not to pass this Committee. I hope the Attorney-General will tell us what is the intention, and if the intention is narrower, that he will produce the necessary words to amend the Clause. When he does that we 1833 will see whether it is in accord with the principles which the Committee have approved.
§ 8.45 P.m.
§ Mr. Turner-SamuelsI hope the Attorney-General will not listen to the case which has been put forward by the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) for it is absolutely a fallacious case. Suppose, he says, there is an owner of a car which someone is going to borrow and after the borrowing he acquires certain petrol. That may very well be so, but until the matter is investigated the true position cannot be ascertained. If after investigation it is found that the petrol was acquired afterwards and that the owner was perfectly innocent about the matter then paragraph (a) comes in, and that would be a perfect defence to that charge.
§ The Attorney-GeneralIt is fairly clear from the wording of the Clause that this is not possibly going to apply to the acquisition of commercial petrol made in advance of some transfer of a car by an owner to a borrower. If the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) will look at the language he will see that the offence relates to the acquisition of commercial petrol by a person who at the time of the acquisition is in charge of the car. It is that person as well as the owner who may be guilty of an offence, and the intention—
§ Mr. J. S. C. ReidHe and any other person in charge.
§ The Attorney-GeneralI see the point and I will consider that Clause. I am sure the right hon. and learned Gentleman the Member for Hillhead (Mr. J. S. C. Reid) will accept my assurance that the Clause will certainly be considered in the light of what he has said.
§ Mr. Manningham-BullerI am obliged to the right hon. and learned Gentleman. It is an error in drafting and I do not think there is any alteration of substance in the opinions held on either side of the Committee. In view of the assurance by the Attorney-General I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.