CLAUSE 13.—(Penalties and legal proceedings.) (Hansard, 18 November 1948)

§ Mr. Wilfred Paling
I beg to move, in page 13, line 2, at the end, to insert: (b) shall, if the offence is under Part II of this Act and consists in the use of apparatus in contravention of a notice of the Postmaster General under section eleven of this Act, not being apparatus the use of which is likely to cause undue interference with any wireless telegraphy used for the purposes of any safety of life service or any purpose on which the safety of any person or of any vessel, aircraft or vehicle may depend, be liable on summary conviction, in the case of the first such offence, to a fine not exceeding ten pounds, and, in the case of any subsequent such offence, to a fine not exceeding fifty pounds. On Second Reading there was a great deal of criticism of what were stated to be heavy penalties. We have read the Debate and noted what has been said, and have come to the conclusion that we can well reduce them in this instance. Where there was a £100 fine, it is now £50 for the second or subsequent offence; and there is a maximum of £10 for a first offence. In the case of imprisonment, which was also included previously for this kind of offence, we have taken that out altogether, limiting the penalty to these fines.

§ Mr. Grimston
I beg to move, as an Amendment to the proposed Amendment, after the second "Act," to insert "which is in force."
The Amendment proposed by the right hon. Gentleman meets the points of criticism raised on Second Reading that the penalties for minor infringements were far too severe. There is, however, one point which arises on which I should like some explanation. There is no offence created during the time when an appeal is being made against a notice and has not yet been heard. The wording does not seem to make that quite clear. The object of this Amendment to the Amendment is to make it clear that this applies while a notice is in force. I should like to know whether this is clear in the present wording or whether it is necessary to add these further words.

§ The Attorney-General
I do not think so. I think the Amendment to the Amendment is not necessary, because under Clause 11 (7) the use of apparatus in contravention of a notice which has not yet come into operation or ceased to be in operation—"in force" are the words the hon. Gentleman has in his Amendment—would not be an offence at all. I do not think that the introduction of these words is necessary.

§ Mr. Grimston
Perhaps the learned Attorney-General will have a look at this again. In view of his explanation, I beg to ask leave to withdraw the Amendment to the proposed Amendment.

§ Mr. Grimston
I beg to move, in page 13, line 45, leave out "or apparatus."
I move this Amendment, though it may not be the correct method of bringing about what we want to achieve. It appears that on conviction a person may be deemed to commit a separate offence in respect of every day the offence continues. If that is the case, even under these revised and smaller sums, the penalties may amount to a large sum. While it is reasonable if a serious offence is being committed at a station, or something of that sort, it is absurd that this should be a continuing offence in the case of a minor matter like a domestic appliance. We therefore move to delete the words "or apparatus," in order to confine a continuing offence to more important matters connected with wireless stations, and so on.

§ The Attorney-General
The Subsection is intended to meet a technical situation to cover a possible loophole which would otherwise exist in the law and enable a person convicted once who continued to use the apparatus, in breach of the provisions of the Act, to avoid any penal liability attaching to persons who were continuing the same offence daily but with breaks in between. If a person was convicted of an offence yesterday and then commits exactly the same offence today, he can be prosecuted for today's offence although he has been convicted of the same offence yesterday. That is, I think, a fairly clear proposition.
708 If however today's offence is merely a continuation of yesterday's without any break in between, a fresh prosecution for today's offence might be met with the plea of autrefois convict. It is not the intention of the Clause as it stands, and I am sure it would not be the intention of the hon. Gentleman who put down the Amendment, that the payment of a fine, perhaps a very small fine, in respect of the first offence in connection with the user of any particular apparatus, should then entitle the user of that apparatus to go on using it in exactly the same state immune from any further prosecution for the rest of the lifetime of the apparatus.
That would manifestly be absurd. You do not buy immunity from the law; you do not buy immunity from prosecution for a continuing offence merely by paying a small fine in the first instance. Liability cannot be dispensed with in that way. If the Amendment were accepted, it would prevent the Subsection applying either in the case of an offence under Part I of the Wireless Telegraphy Act, in respect of the regulation of wireless telegraphy, or under Part II in respect of interference. The Subsection is required for both these types of offence where you have an offence, without any break in between, which is continuing after a first conviction and in connection with which it is necessary to bring subsequent proceedings.

§ Mr. Grimston
I think I understand the learned Attorney-General's point. When he speaks about a continuing offence, does he mean that actually the apparatus has to be used without intermission at all? If so, it is improbable that, in the case of a flat iron, having dealt with it one day the housewife is going to leave it switched on all through the night and on through the next day. Is any new offence involved?

§ The Attorney-General
No, I quite agree with the hon. Gentleman; it is not likely that this Subsection would apply to the flat iron. Really, this deals rather with what is industrial apparatus, or permanent plant; that kind of apparatus which is in use permanently—electric pumps, and that kind of thing—and there it might be difficult to prosecute if one did not have this provision.

§ Captain Crookshank
But could the right hon. And learned Gentleman find 709 some words to distinguish between the two?

§ The Attorney-General
I do not think it is really necessary. The flat iron, of which we have heard so much, is covered, and the prosecution can be made again and again if the use continues, and the action constitutes a breach of the Act. What we want to deal with is where the apparatus is in more or less continuous use, and there has been no break between the date on which there has been one prosecution and conviction, and the date of the commission of the subsequent offence.

§ Mr. Turton
If the flat iron is used from Sunday to Saturday, one can have seven charges; in cases where the Ministry of Food prosecutes, they normally get as many charges as possible before the court, and I think that that is an undesirable habit. Will the Attorney-General try to get this wording put right so that when one uses the flat iron from Monday to Sunday, one is said to have committed one offence, and not seven?

§ The Attorney-General
It is not the practice, at least of any Department of which I have knowledge or experience, to bring a series of cases, unless it is tried to prove that there is a systematic evasion of the law; but, if the humble housewife received seven separate summonses, I think one may safely say that the magistrates would undoubtedly order the prosecution to pay the costs.

§ Lieut.-Commander Clark Hutchison (Edinburgh, West)
Before we depart from this Clause, may I raise a question about Subsection (4)? It says that: No criminal proceedings for an offence under this Act shall be instituted in England, Wales or Northern Ireland except with the consent of the Postmaster-General. What is the position in relation to the institution of proceedings by the Postmaster-General in Scotland? I think that that point was raised by my hon. and gallant Friend the Member for Perth (Colonel Gomme-Duncan) during the Second Reading Debate, but, on that occasion, the Minister did not reply, and I see none of the Scottish Law Officers here tonight. Perhaps we could have some guidance on the position of Scotland under the Subsection.

§ The Attorney-General
The Attorney-General is going to stick to his last, which is the law of England.

§ Lieut.-Commander Hutchison
Is not the Attorney-General going to make some more adequate reply?