§ 3.54 p.m.
§ The Secretary of State for the Home Department (Sir David Maxwell Fyfe)
I beg to move, in page 1, line 5, after "or," to insert "reasonable."
The effect of the Amendment is to insert the word "reasonable" in the phrasewithout lawful authority or reasonable excuse.Its object is to meet the criticism made during the Committee stage that, as the Bill stood, a person who, for example, had on his person an offensive weapon might not be able to secure acquittal even though he had no knowledge that the weapon was there, because the fact that the possession of the weapon was illegal under the Bill meant that he could not plead having lawful excuse.
There were various answers to this point, but I was anxious that there should be no misunderstanding or misapprehension about it, and, accordingly, I have introduced this Amendment. The insertion of the word "reasonable" meets 846 such a case as I have described and— as, I thought, was the position before— makes it clearly a matter of fact for the court to say whether or not the excuse is a reasonable one.
In that way, the Amendment gives an additional safeguard to the law-abiding citizen, without weakening the Bill. It is in line with the general object of securing a Bill which effectively deters the criminal from carrying weapons, without placing good citizens in unreasonable peril. There is a consequential Amendment to the Long Title to the Bill.
§ Mr. M. Turner-Samuels (Gloucester)
I thank the Home Secretary for meeting me in the criticism that I raised on this point during Second Reading. The word "reasonable" is now proposed to be added rather than the expression "knowingly,"but it does not seem to be very important whether one has to prove that a person knowingly had a weapon on him or had a reasonable excuse for having it. The Amendment undoubtedly meets the point, which is a matter of some importance.
The right hon. and learned Gentleman has been very reasonable and sensible about the Bill altogether. What he and everyone else in the House wants is an effective, and not an oppressive, Bill. It is important that this question has now become one of fact for the jury. There was some doubt before the Amendment, but now it is perfectly clear that it will be for the jury to decide whether a person has reasonable excuse for having the offensive weapon. If the jury are satisfied as to that, then the person will be acquitted.
There are other cases in which innocent people might have been involved in addition to the one to which the right hon. and learned Gentleman has referred. A person may be given a parcel containing an offensive weapon and he may be quite unaware of its contents; a carrier may receive a parcel with an offensive weapon without knowing what it is; or a taxi driver found with a weapon in his taxi may have no knowledge of its presence. The Amendment, therefore, is essential, and it makes the Clause more in keeping with British justice and fairness, while leaving the Bill unimpaired in its purpose. Accordingly, I give it my full support.
§ Amendment agreed to.847
§ Mr. Michael Higgs (Bromsgrove)
I beg to move, in page 1, line 14, at the end, to insert:(2) Nothing in this Act shall make it an offence for a person to have with him an offensive weapon if the only purpose for which he intends to use it as such is to defend himself or persons with him against unlawful attack.The Amendment to which the House has just agreed improves the Bill, but it has certain consequences of which we must take note. There is a line of previous statutes whereby something is prohibited unless it is done with lawful excuse, and another line of previous statutes in which things are prohibited unless they have been done with reasonable excuse. Although I prefer "reasonable excuse" in the present instance, the cases where the expression "without lawful excuse" is used are more in keeping with this present example.
"Lawful excuse" is used where it is sought to prohibit the possession of something—in particular, in the Larceny Act, the possession of an offensive weapon; whereas "reasonable excuse" is used in statutes where it is sought to provide against failure to carry out a duty such as sending a child to school, attending when summoned to serve upon a jury, or giving a proper invoice on the delivery of coal. Consequently, it may be that the deciding cases, of which there are a number, upon what is a "reasonable excuse" will be of less help to the courts in dealing with this Measure than would have been the line of cases which deal with the expression "lawful excuse."
I have never concealed my view. I would much prefer the burden of proof under this Bill to have been put where it ought to go, on the prosecution. Whatever may be one's views about that, the House has to make up its mind upon a simple question before parting with the Bill. Is it the intention of Parliament that a person who, through no other motive than that of self protection— protecting himself and perhaps his wife and children, who may be with him— carries a weapon, should be prosecuted and punished? Do we feel that the protection of oneself and family, or friends who may be with one, is a proper reason for which one should be permitted to carry a weapon?
848 In the Bill as it stands the matter is not free from doubt. On Second Reading the Attorney-General expressed the view that people should be discouraged from carrying weapons even for self-protection and the right hon. Member for South Shields (Mr. Ede) expressed the same view in Committee upstairs. Hon. Members are entitled to their view as to what is right. My view is that there are plenty of people in this country who may have good reason for carrying some means of protecting themselves.
Various illustrations were given in the course of debates on Second Reading and in Committee. The one which I think is of most general appeal is the case of the motorist or lorry driver who has to drive upon lonely roads at night. I should be firmly against it if the result of this Bill were to be that a lorry driver turned himself into a criminal if he took a heavy spanner from the tool box, and put it on the seat beside him intending to use it if someone stopped him and threatened to assault him. I would not agree that that was a proper provision for Parliament to make.
I would not agree that it would be right for Parliament to legislate so that in a district where a criminal maniac is at large—there have been such in recent times, as hon. Members know—and a father who thinks it necessary to meet his daughter coming from work in order to be with her on her walk from the bus across a common, is prohibited from taking a stick with him. I should regard it as wrong for Parliament so to legislate.
The House has to make up its mind about that. I do not know what is the interpretation of the Bill as it stands. I am not enough well informed to argue with hon. and learned Members on that, but different views have been expressed by those who know better than I do. Even the learned editors of "Justice of the Peace," a periodical which is much read and is followed in magistrates' courts, in an article on 7th March, said:Much will depend on facts, and upon the reasonableness of magistrates, if cases of this sort come before them.I suggest that it would be wrong that we should leave this important matter in that state and that much should depend upon the facts of the case and the reasonableness of magistrates. In my 849 view, the House should make up its mind, where it is quite clear that there is honourable intention—a fact which, in many cases, will have to be proved by the accused person himself—and he is carrying a weapon to protect himself and members of his family or friends with him, that he is not committing a criminal offence under the Bill.
If that is the right conclusion and the House is prepared to make up its mind, I ask it to accept this Amendment, or perhaps better words could be found when the Bill goes to another place. Such an Amendment would do no harm at all, but would be a very proper provision for the House to make.
§ Mr. Ronald Bell (Bucks, South)
I beg to second the Amendment.
I do not wish to add very much to what my hon. Friend the Member for Bromsgrove (Mr. Higgs) has so ably said on this subject. I am, as he is, in some doubt as to whether the Bill as it stands does include self-defence as a "reasonable excuse" or not. It seems to be a matter which would fall to be construed by the court, in the individual view of those composing it, as to what constituted reasonable conduct. When we are proposing a Bill of this kind—a rather striking and unusual Measure, as was said on Second Reading, and possibly justified by the exceptional circumstances of the crime wave which is said to exist—I think we ought to be quite clear. Parliament should lay down what is forbidden and what is permitted.
In my opinion, self-defence should be excepted from the purview of this Bill. I got the impression on Second Reading, perhaps wrongly, that on the whole it was the view of the Government that self-defence would be exempted from the application of the Bill, but it is not clear in the language used that that is so. While I agree with the opinion expressed by the Attorney-General and the right hon. Member for South Shields (Mr. Ede) that it is not desirable, in a country where the police are not armed, that there should be any general practice of carrying weapons, or indeed, of reliance on self-defence, because society ought to undertake the defence of its law-abiding members, nevertheless one has to remember that there are many places where 850 society cannot get, or cannot get there in time.
On those occasions a man has to defend himself and those whom he is escorting. It is not very much consolation that society will come forward a great deal later, pick up the bits, and punish the violent offender. Even in a country like Great Britain, with its rather dense population, there are places and occasions where self-defence and precautions for self-defence are necessary and right A Bill of this kind, which is for the prevention of crime, ought not to strike at people doing nothing but taking reasonable precautions for the defence of themselves and those whom it is their natural duty to protect.
§ Mr. Sydney Silverman (Nelson and Colne)
It seems to me that the Amendment is either unnecessary or too wide.
I sympathise to a great extent with the spirit in which the hon. Member for Bromsgrove (Mr. Higgs) approaches the Bill, as expressed in his speech on Second Reading. I confess that I had considerable doubts whether it was worth while to change the incidence of proof in criminal offences in this one isolated manner as a contribution towards dealing with the wave of violent crime. The House decided to accept the Bill. It gave it a Second Reading, and considered it carefully in Committee, and we have to accept it, because that is the will of the House.
What does the hon. Member now propose? He proposes that it shall not be an offence, notwithstanding anything else in the Bill, for a man to carry an offensive weapon only for the purpose of self-defence. That, of course, depends on what he is expected to prove in order to be covered by the defence that would be available to him if this Amendment were agreed to. Is it enough for him to say, "I carried an offensive weapon, but I did it only because I feared attack, and to defend myself if I were attacked"? Is it enough for him to say that on oath, and, if he does say it on oath, will that give him the protection of this Amendment and be an answer to the charge?
I am sure that the hon. Member would agree that, if that were so, to accept the Amendment would be to defeat the whole purpose of the Bill, because anybody can say it. I imagine, therefore, that the hon. 851 Member does not mean that at all, but that he means that the man should not merely allege in his evidence that that was his sole purpose, but that he should prove such circumstances as would make it reasonable for the court to hold that that was indeed his sole purpose.
If that is what the hon. Gentleman intends, I suggest to him that his Amendment is unnecessary, because, having once agreed that "reasonable excuse" shall be an answer to the charge, I should find it inconceivable that any court would hold that a man who proved to its satisfaction that he was carrying an offensive weapon only for that purpose in circumstances in which it might be reasonable to suppose that this really was true, was not advancing conclusively sufficient "reasonable excuse" to satisfy the Amendment which has been moved.
Therefore, it seems to me that, on one interpretation, the Amendment would destroy the Bill altogether, and, on the other interpretation, it is not necessary. I share to the full the dislike of putting the onus of defence on an accused person instead of on the prosecution, but there must be some limit. If, in an ordered and decent society, a man is found walking, shall we say, in Piccadilly Circus, with a loaded revolver in his pocket, I do not think it is a very unreasonable thing that the State should ask him to satisfy an impartial judicial authority that he had "reasonable excuse" for doing so.
If a boy of 17 has a catapult in his pocket, and nails and screws of a certain length, weight and sharpness, I do not think it is unreasonable that he should be asked to show that no mischief was intended. If the Bill goes no further than that, I think we might tolerate this trespass on an ancient and honourable principle.
§ 4.15 p.m.
§ Sir D. Maxwell Fyfe
It might be helpful to the House if I indicated the view of the Government at this stage. May I begin by saying that I am in complete agreement with what has just been said by the hon. Member for Nelson and Colne (Mr. S. Silverman), and that I want to develop the same line and apply it to certain practical points of the administration of the law, rather than deal with the legalistic aspect of the matter.
852 The point which was made by the hon. Members who moved and seconded the Amendment on the fact that it would not, in proper circumstances and with a proper weapon, be a defence, is one that I have never heard argued in all the proceedings on this Bill, and I have been here all the time. Even under the Bill as it previously stood, when the words were "lawful excuse" and the hon. Member for Pontypool (Mr West) was doubtful about their effect, I should have thought it was something beyond discussion that self-defence, with all the reservations I have indicated was clearly a normal matter in our law.
To take the practical case of the spanner: it is in the third category of our offensive weapons because it is not one that is made or adapted for the purpose of causing injury to a person. Therefore it would be necessary for the prosecution to prove intention, as stated in the Bill. As far as the attack which is envisaged in this Amendment is concerned, I have not so far seen the force of that argument deployed to the House.
I feel that the answer goes beyond that. As has been indicated, the substitution of the word "reasonable" leaves it as a question of fact for the court to decide, and, again—I cannot emphasise it too much—with all the reservations that are contained in the doctrine of self-defence. I do not want it to go out from the House that self-defence is something that can justify retaliation or anything of that kind. With all the reservations about self-defence, I cannot believe that anyone could argue, and nobody has so far argued, that the words "reasonable excuse" would not cover self-defence in the proper circumstances. But, of course, it is right to say that any court, looking at the matter, would have to weigh the circumstances carefully.
What I want to make clear is that the Government do not wish to lend themselves to the support of the proposition that it is right or necessary for the ordinary citizen to arm himself in self-defence. The preservation of the Queen's peace is the function of the police, and I believe that it would be a great pity if anything were done explicitly by statute to condone actions which imply the inability of the forces of law and order to maintain the Queen's peace.
853 It goes further than that, from the practical point of view. May I give two examples? To write into the Bill a specific sanction for the carrying of weapons for self-defence would give carte blanche to such undesirable elements as rival race gangs to arm themselves with weapons allegedly on the grounds that they were expecting to be attacked by other gangs. I do not think it would be desirable that the discretion of the court should be fettered.
Let me take another example, which we have seen in our political lifetime. We have seen Fascist-Communist hostilities in parts of London. We have had to legislate in that respect by general consent. Where we have two rival factions, are they to be allowed to arm themselves, or to be given even the colour of permission to arm themselves, under the pretext of self-defence, and to bring about pitched battles in the streets? That would be most undesirable.
We have dealt with the substance of the point by substituting the words "reasonable excuse" for those in the Bill. We have given the ordinary person, who in difficult circumstances is driven into this position, a complete method of showing that he has acted rightly, and we have not gone past that. I have tried to argue the matter on broad grounds, because they are important.
On other grounds, from the point of view of interpretation, I call attention to the fact that the Clause, although intended to be a protection for the law-abiding citizen, might have a restrictive effect because the introduction of a partial interpretation would cause difficulties for the court when considering the question of "reasonable excuse." It might well oblige the court to have regard to the subsection. There is a real danger that this drafting might be given such a wide interpretation as to cause the difficulties I have mentioned.
I have tried to meet in the Bill, as far as I can, the legitimate fears of the ordinary individual. I have carefully studied all suggestions put to me. The Amendment would make a dangerous change and I think it is unnecessary. I ask my hon. Friends not to press it.
§ Mr. Ede (South Shields)
The House will be well advised to accept the advice of the right hon. and learned Gentleman the Home Secretary and my hon. Friend 854 the Member for Nelson and Colne (Mr. S. Silverman). I have had some experience of dealing with racecourse gangs. They always set out, each of them, with the most peaceful intentions. They believe in the famous phrase:Thrice is he arm'd that hath his quarrel just.They hold to that belief until they see someone else who holds the same opinion. Then at once they complete the quotation:But six times he who gets his blow in fust.Then before the magistrates' court, if one has people on both sides, the astonishing thing is that neither side started it if one believes both of them. This is a problem which has already arisen in the courts. They sometimes also have an experience which I had when I was filling the office now held by the right hon. and learned Gentleman. In the East End of London when the police, by a manoeuvre, have prevented two gangs from clashing when they have got near one another, the gangs have united in throwing their stones and other weapons at the police.
§ Mr. S. Silverman
I do not know whether my right hon. Friend appreciates the enormous and far-reaching bearing of his present argument upon the whole rearmament policy?
§ Mr. Ede
That I will develop on another occasion, when I shall not meet with the wrath of Mr. Speaker for doing it and when it will not be perhaps quite so congenial to my hon. Friend.
It is most necessary that a Bill of this kind should be passed and that we should not hamper its administration by fanciful Amendments which we are advised by competent lawyers on both sides of the House—and heaven forbid that I should be more impressed by the one more than the other—would hinder the administration of the Measure. I agree with the quotation from the "Justice of the Peace." This is one of the cases where we must rely on the good sense of those who will administer the law. I have no doubt that if the hon. Member for Bromsgrove (Mr. Higgs) appeared to defend a client of his in the spirit of his Amendment he would find that the magistrates would be at least as discriminating in their assessment of argument as is this House.
§ Mr. Higgs
I have no doubt that, were I to appear to defend a man in circumstances such as those described, I should find the bench at least as discriminating as the right hon. Gentleman himself. Our discussion has cleared the air. It has cleared my mind on this subject. There is no question of any intention to prohibit in proper cases proper people with proper weapons seeking to protect themselves when they are put in jeopardy.
I chanced to open my mail in the post office the other day at the same time as the hon. Lady the Member for Aberdeen, South (Lady Tweedsmuir). She picked up a letter from the Scottish Republican Army which I am sure would have satisfied any court that she ought to be armed if she ever went to Greenock. In the circumstances, I beg to ask leave to withdraw the Amendment.
§ Mr. James Carmichael (Glasgow, Bridgeton)
Before the Amendment is withdrawn, I should like an explanation on one point. The Home Secretary said that a spanner was in the third category. I can find nothing in the Bill about any categories of weapons. I should like some guidance on that matter before we go further.
§ Sir D. Maxwell Fyfe
I do not know, Mr. Speaker, whether you would allow me, quite irregularly, to answer the point?
§ Mr. Speaker
I think that we had better keep to our usual procedure, otherwise there is no telling where we should end. I shall have to put the Question, because there was an objection to the Amendment being withdrawn.
§ Amendment negatived.
§ Sir D. Maxwell Fyfe
I beg to move, in page 1, line 20, to leave out "reason," and to insert "reasonable cause."
There was considerable discussion during the earlier stages of the Bill whether the words "reason to believe" imported the objective test—that is, a belief founded on reasonable grounds which had to be objectively established —or the subjective test. I have always believed—I hope, on reasonable grounds —that it imported an objective test; but, as the objective which we are all pursuing is the same. I was very anxious that there should be no doubts in the minds of anyone in the House.
856 4.30 p.m.
The hon. and learned Member for Gloucester (Mr. Turner-Samuels) and the hon. Member for Pontypool (Mr. West) both stated that they felt very strongly on this point and wanted the words "reasonable cause" introduced; and that is why I am prepared to do it. However, in fairness to those who have been concerned with the preparation of the Bill, I want to say that I am not asking the House to make the alteration because I think there can be a distinction between the two expressions. Hon. Gentlemen will appreciate why I am saying this. The expression that we used in the Bill appears in other statutes, for example in Section 68 of the Criminal Justice Act, 1948, and I should not like anything I say to throw doubt on the view—which I hold strongly—that the objective test applies to these words.
I have gone through the long list of statutes in which there are variations in the words. I wish to make it quite clear that there is no desire in the Bill to have anything but an objective test of the constable's action. The object of the Amendment is to allay the apprehension that was expressed in the Committee. I hope that the hon. Gentlemen who are concerned will appreciate the position. I want to preserve the objective test even when the other words are used, and not do anything to the contrary. With that reservation, I move the Amendment feeling that there is not only no reasonable doubt but agreement on the words to be used.
§ Mr. Turner-Samuels
Again, I thank the Home Secretary, this time for having inserted the words "reasonable cause" instead of using only the single word "reason." I do not want to get into a legal controversy about the matter, but I believe this to be a very necessary and substantial Amendment. It makes the Clause very much clearer and safer, and the amended form has the sanction of practice and precedent.
I observe what the Home Secretary has said about the Act to which he referred, but it is not necessary at this point to enter into a discussion on that. In my view, the phrase "reason to believe" was not satisfactory. It sounds very much to me like the opening gambit of a police constable who is interviewing a suspected person. I am in the habit of reading 857 proofs in which reference is made to the words "I have reason to believe…" made by a police constable to a person he has questioned. No doubt that is a phrase which helps inquiry, but it has little or no evidentiary value in itself. "Reasonable cause" is a phrase found in the very highest authorities; it is essential language which imports that the facts in issue will have to satisfy a jury and that a jury will have to decide them.
Even more important in this context is that it postulates that a police constable must take reasonable care that an innocent person is not unjustifiably exposed to arrest at the instance of a police constable himself without a warrant. In the context of this Bill, that appears to be a very vital matter. Moreover, it is important to note that that is our normal practice in criminal matters. As the Clause stood there was a real risk of a departure from that very salutory rule. By the Amendment the risk has been reduced to a minimum. In the case of a person wrongly but honestly arrested under the Bill by a policeman without a warrant, had the Bill remained as it was, the person arrested would have had no right of action. The proposed Amendment will safeguard that right of action, and it is, therefore, very important.
As the Bill stood, a police constable could have arrested anyone merely on the information of an informer and, assuming that he did it honestly, there would have been no right of action at all and the police constable would have been protected. That would have been a very serious situation to bring about. As a result of the Amendment, a police constable will have to satisfy the jury that he had reasonable cause for making the arrest. The Amendment puts a barrier of proper care and reasonable justification between the citizen and arrest without warrant, and that is a very important provision to include in the Bill. I commend the Amendment to the House.
§ Mr. Granville West (Pontypool)
I should like to express my thanks to the right hon. and learned Gentleman for the consideration which he has given to the points of view which have been put forward. I wish I could have been in the House when he was good enough to accept the first Amendment on the Order Paper to thank him for the consideration which he gave to it, but, un- 858 fortunately, I was engaged in a Select Committee upstairs.
I am far from saying that his view on the objective test is not in the words originally put on the Order Paper. It has been said that lawyers always legislate for litigation. The point about which I was concerned was that there was no authority which governed the words originally inserted to establish the objective test. I know the right hon. and learned Gentleman supported the statement made by a noble Lord in another place, which was obiter and was a minority view—
§ Mr. West
Yes. There was a minority view and the view expressed was obiter. Thus, I felt, in relation to these words, that it might be necessary at some time or another for another case to go to the House of Lords in order for it to be decided whether the words gave the objective test.
Being a lawyer, and trying to disprove the allegation made against lawyers that we legislate for litigation, I was anxious to ensure that some words were incorporated in the Bill which would make it beyond all doubt that the objective test was intended here. The words now accepted by the right hon. and learned Gentleman have been decided by the courts as providing the objective test, and I am very grateful to him for the consideration which he has given to this matter.
§ Mr. S. Silverman
As the minority opinion in the case of Liversidge and Anderson has been cited with approval so often in the House, perhaps I may venture to be a minority on this occasion. But for that case, I would have agreed with every word the right hon. and learned Gentleman said. In the early days of the war, when the Emergency Powers (Defence) Act was unanimously accepted by the House of Commons. Regulations under it were published within a few weeks which occasioned a tempest and a fury of opposition all over the country, and notably in the House of Commons.
The then hon. Gentleman who was a leading spokesman for the Liberal Party 859 in those days, Mr. Dingle Foot, prayed against the Regulations and made out so powerful a case against them that they were wholly withdrawn, reconsidered by a high powered committee and re-introduced, and in their amended form they were unanimously accepted by the House. What caused the excitement? Mr. Dingle Foot said that those Regulations had to be rejected out of hand, and he quoted eloquently and ironically the poster which could be seen all over the country at that time which said:Freedom is in peril. Defend it with all your might.We defended it with all our might, and the Regulations were withdrawn and amended.
What was it all about? It was about Regulation 18B which, in its original form, gave the Home Secretary certain powers of arbitrary arrest provided he was satisfied about certain things. Virtually, the whole House said that that was not good enough because if all he had to do was to be satisfied, then the grounds on which he was satisfied were his own affair and were subject to no review, no challenge and no question by anyone.
The House would not have it, and, to their credit, the Government of the day would not have it, and they took it back to amend it. What amendment did they make? They took away the word "satisfied," to which so much objection had been raised on such rational grounds, and substituted the very words of this Amendment so that the new Regulation 18B, of which we all approved, read:If the Minister has reasonable cause to believe.We thought we had won, that we had changed the position and that we had taken away from the Home Secretary powers so arbitrary that even in war-time a British House of Commons was unwilling to entrust them to an Executive. All the great lawyers of the day, both in the House of Commons and in the House of Lords, united to persuade us that if we only changed the word "satisfied" for the words "reasonable cause to believe," then anyone interned under the Regulation would be able to say to the Home Secretary, "What was your reasonable cause? What were the 860 facts? What have you got against me?" We retired believing that we had effected that purpose.
What happened in the case of Liversidge and Anderson? A man was detained under Regulation 18B, and he said to the Home Secretary, "I have done nothing wrong and intended to do nothing wrong, and, so far as I know, nobody had any cause whatever, reasonable or otherwise, to believe that I was the kind of person who ought to be detained under this Regulation. Tell me what was your reasonable cause and what were the facts on which you acted."
The Home Secretary said, "I will not tell you; I am the person to decide. I decide for myself whether my cause is reasonable," and he filed an affidavit and testified on oath that he had "reasonable cause to believe." Therefore, if he were right, all that the House of Commons had succeeded in doing by its great and victorious revolt was to change the formula in the Home Secretary's affidavit. Whereas before, if he were challenged by a writ of habeas corpus, he would say, by his affidavit, "I am satisfied," as a result of the successful revolt of the House of Commons, the Home Secretary would instead file an affidavit in which he swore that he had "reasonable cause to believe."
That interpretation was upheld in the Divisional Court, in the Court of Appeal, and ultimately by a majority in the House of Lords, with the distinguished and honourable exception of Lord Atkin. It is not for me to say whether the House of Lords were right or wrong. Presumably they were right, and it is because they were right that I am not happy about the Amendment which we are asked to accept.
The House of Lords said it was quite right, and that what they were doing was to say of decided cases extending back a very long way, that a policeman who, for instance, effected an arrest without a warrant, might be excused if he showed to a court that he had reasonable cause to believe certain things, and that that meant that he must tell the court the facts and that on those facts the court must decide whether, in law, they amounted to reasonable cause. It seems to me that by that decision the 861 House of Lords reversed the whote position and met in advance the argument offered to us this afternoon.
§ Sir D. Maxwell Fyfe
As I understand that decision, and as all my hon. and learned Friends who have discussed it in the courts understand it, it is this. The House of Lords did not throw any doubt on cases of wrongful imprisonment, but they said that under Regulation 18B the Home Secretary was in such a remarkable and peculiar position that in that case, and that case only, the test became a subjective test. I think the hon. Gentleman will find I am right, because I have had to consider it so often.
§ Mr. Silverman
I am quite sure the right hon. and learned Gentleman is right. What the House of Lords did was to say that the words "reasonable cause" meant one thing under Regulation 18B and a totally different thing in the other line of cases. How they reached such a remarkable conclusion, only they themselves know. Is there any real assurance concerning which of the two totally conflicting meanings will apply under this Bill?
I know that the right hon. and learned Gentleman means to do the right thing. I heard his speech and I know that his intention was to satisfy all reasonable doubts, but what he says in the House of Commons is one thing and is not evidence when it comes to the Court of Criminal Appeal or to the Divisional Court. I do not know whether anything can be done to meet the point, in view of the feeling of the House of Commons in the matter to which I have referred, but I feel far from satisfied that the Amendment really effects the purpose which everyone wishes.
§ Mr. Silverman
I can only hope that my hon. Friend is right. I would remind him that the House of Commons, when it rejected the first draft of Regulation 18B and accepted the altered draft, did 862 so on the express assurance of the Government, supported by all the lawyers who were consulted, that the words "reasonable cause to believe" meant exactly the same thing in whatever Act or connection they appear; though it is true that the House of Lords decided otherwise and made an exception in the one particular case of the Home Secretary.
I am pointing out that was an interpretation of the law which gave an exactly opposite significance to what the House of Commons had intended, and that is the difficulty in which I find myself this afternoon.
§ Amendment agreed to.
§ Further Amendment made: In page 1, line 22, leave out "reason," and insert "reasonable cause."—[Sir D. Maxwell Fyfe.]
§ Mr. R. Bell
I beg to move, in page 2, line 5, after the first "or," to insert "subsequently."
This Amendment is proposed for the sake of clarity. Subsection (4) uses the words:…made or adapted for use for causing injury….The reason this Amendment is proposed is that the word "adapted" has two different meanings. It may be used in the participal sense or in the adjectival sense. It is not entirely clear, either in the Bill or in the recorded decisions of the meaning of the word, which would be applied in this case. There is no doubt, I think, that the intention is it should be used in the participal sense, where a weapon is expressly made, or after having been made, has been adapted for use for causing injury to the person. The purpose of this Amendment is to make that clear.
I have looked at some of the decisions on the meaning of the word "adapted" and they vary considerably. In the Landlord and Tenant (War Damage) Act. 1939, where the expression is:adapted for use as two or more suitable dwellingsone would naturally think that meant had been adapted. But the courts have held that it means reasonably suitable and the same interpretation has been applied under the Trade Marks Act.
863 I found that the Oxford English Dictionary gives the adjectival meaning which, strangely enough, is very much older and better established than the purely participal meaning. The first reference is in 1610, whereas it is not until another 200 years later that the Oxford English Dictionary finds its first quotation in the sense of, "has been adapted."
I submit that it is desirable to make clear beyond any question of doubt which meaning is to be applied. It is of importance, because if the meaning "suitable" be accepted as the interpretation by the courts then weapons undoubtedly intended by Parliament to be in the third category will be found in the first; that is to say, weapons which could be used in two different ways which are not specially designed for causing bodily injury, but which are suitable for it would be included in the first category.
§ Mr. Higgs
I beg to second the Amendment.
There are two things which it is of importance to say. First, this is not merely a question of drafting. Depending on which meaning the courts attach to the word "adapted" the burden of proof is moved one way or the other in respect of a person carrying a weapon which, if not primarily intended to injure people, is adapted in the sense of being suitable for that purpose. In a case of that sort, where the House has clearly expressed its intention of making the prosecution prove the intention, it would shift the burden of proof so that a defendant might be in the position of having to prove his own innocence, which is obviously something which the House does not intend.
If hon. Members think that it is stretching the use of a word to suggest that the courts might take the word "adapted" as meaning "suitable," I would refer them to the published definitions of the courts. I find that in different circumstances different interpretations have been adopted. The result is exactly fifty-fifty. In half the cases the courts use one meaning, and in the other half they use another. I hope, therefore, that the Amendment will be accepted.
§ Sir D. Maxwell Fyfe
There are two points to be considered. First, are the 864 words in the Bill in any way doubtful or equivocal? Secondly, does the Amendment help? On the first point, the answer to both the hon. Member for Buckinghamshire, South (Mr. R. Bell) and the hon. Member for Bromsgrove (Mr. Higgs) is that the quotations which they have advanced in support of their argument do not apply to statutes where the word "adapted" is used in contradistinction to such a word as "made." When we have, "made or adapted" we must have "adapted" interpreted in the sense of some active change made.
I have considered this very carefully, because it was brought to my notice in the early stages of the Bill, and I think that the context is a complete answer. But when one comes to the second point— and I am not merely juggling with words —I think that "subsequently" would introduce an element of doubt, because it is an adverb of time, and it would be by no means clear what the adaptation would have to be shown as being "subsequent to."
I should like to give an example to hon. Members. Suppose someone had a bit of driftwood or a fallen branch into which a razor blade had been inserted. The insertion of the blade is no doubt an adaptation, but an adaptation subsequent to what? Is it subsequent to the finding of the wood, the picking up of the wood or the determination to use the wood as a weapon? One really is not helped by the word. I think that "made or adapted" implies the second sense of adapted, which is the sense we want; but the Bill has still to go through another place and be examined there. The best that I can do—and I hope that the House will believe that this is said in all fairness—is to say that I shall bring the latest views expressed here personally to the attention of my noble Friend the Lord Chancellor and see whether we can find a better word.
The search for words had to cover the three categories which we wanted to establish, namely, the first category of the revolver or stiletto, the second category of the razor blade fitted into a piece of wood, and the third category of the prima facie innocent thing which could be used for a weapon, and about which the onus of proof was to remain with the prosecution. The definition in the Bill 865 was arrived at by great thought—not confined, I am happy to admit, to myself and my own Department. But I am always prepared to look at the matter again. I give an undertaking that we shall look at it again. We think that the words in the Bill are the best, but we shall consider whether we can find something even better. I assure the House that in my view and that of right hon. Gentlemen who were good enough to help me in this matter the sense of "adapted" is clear. It should not give rise to any doubt and I ask my hon. Friends not to press their Amendment.
§ Mr. Turner-Samuels
First, I should like to ask the Home Secretary to accept that I do not mean in any way to depart from the discussions which we had on the Bill the other day. The hon. Member for Buckinghamshire, South (Mr. R. Bell) and the hon. Member for Bromsgrove (Mr. Higgs) are now seeking to establish what I tried to establish by an Amendment during the Committee stage. The only difference between us is that they are using the single word "subsequently," whereas I used the triple expression "which has been." I agree with the Home Secretary that the use of the word "subsequently" is quite inadvisable.
First of all, the word is vague and it might be taken even to refer to something that actually happened after the day of arrest. At all events, it is so flexible that it is quite unacceptable. The Home Secretary might consider whether the words which I suggested in Committee— "which has been"—are not more suitable. I have myself still some doubts about this matter as it stands. I understand that a committee which considered the Bill also had some doubts about it and the mover and seconder of the Amendment have also expressed doubts. In my experience, I have found that where even one person expresses doubt about something then, if that person is intelligent, it is worth looking into the matter, because others might also have a similar view.
The fact that we have now introduced the phrase "reasonable cause" does provide some safeguard as it means that the circumstances and even the kind of weapon will now be factors to be taken into consideration; and if these showed that there is a reasonable excuse for an individual being in possession of a 866 weapon, whatever its form or adaptation, that would be sufficient. That, however, does not absolve the Home Secretary if he leaves the Bill with a terminology which is not quite as clear or sufficient as it ought to be. My own etymological researches regarding the word "adapted" had results exactly identical with those of the hon. Member for Buckinghamshire, South and the hon. Member for Bromsgrove. The word "adapted" has undoubtedly a two-fold meaning, and it is left in this Bill in its context with a twofold meaning. The proper thing to do, therefore, is to give the expression used in this Clause the single meaning which it is intended to bear. I certainly feel that the matter should be looked at again by the Home Secretary.
§ Mr. Ede
I hope that the House will accept the promise of the Home Secretary that he will have this matter carefully examined, and, if necessary, have an Amendment made in another place. The hon. Member for Buckinghamshire, South (Mr. R. Bell) and the hon. Member for Bromsgrove (Mr. Higgs) think that the Home Secretary is wrong. The right hon. and learned Gentleman himself thinks he is right, and my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) thinks that all three of them are wrong.
§ Mr. Turner-Samuels
No, I did not say that. Perhaps that is a facetious misinterpretation on the part of my right hon. Friend. What I said was that I agreed with the purpose of the Amendment, but I did not think that the word used by the mover and seconder was the right one.
§ Mr. Ede
That is precisely what I have said. My hon. and learned Friend is beginning to impute motives to the hon. Member for Buckinghamshire, South and the hon. Member for Bromsgrove. That is clearly out of order, because on this occasion their motives are right but their action is wrong. Then my hon. and learned Friend the Member for Gloucester wound up this short discussion by saying that we must leave this matter to the intelligence. But how am I to assess the intelligence of four people with my well-known predilection, because of our close association in political matters, for the high intelligence of my hon. and learned Friend? Obviously, this is an effort on 867 his part to get me to side with him on that ground.
The Home Secretary has been perfectly fair. Where matters can be cleared up in this Bill and words can be given the plainest possible meaning, we all obviously want the utmost consideration given to that point. I hope that his hon. Friends will accept the Home Secretary's assurance and that this expression will be considered in another place.
§ Mr. Bell
I am very grateful to my right hon. and learned Friend the Home Secretary for giving his assurance that the matter will be considered. I hope that when he is passing consideration of it on to the Lord Chancellor he will also draw attention to the meaning of "constructed or adapted," which has been established in relation to vehicles. I hope, also, of course, that he will convey to his noble Friend the favourable view of the hon. and learned Member for Gloucester (MT. Turner-Samuels) of the intelligence of the mover and seconder of the Amendment. In the circumstances, and in view of my right hon. and learned Friend's assurance, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Amendment made: In line 2, after "or," insert "reasonable."—[Sir D. Maxwell Fyfe.]
§ Motion made, and Question proposed, "That the Bill he now read the Third time."
§ 5.11 p.m.
§ Captain J. A. L. Duncan (South Angus)
After the past discussion by such a galaxy of lawyers perhaps I may be forgiven for saying a few words on the Third Reading of this Bill. I have never been very happy about the Bill, perhaps because of my Liberal ancestry. I am satisfied that this Bill in some form is necessary, but I am wondering whether it need necessarily be permanent.
During the war, when I was the Member for North Kensington, a social worker came to me one day and said, "Do you realise that you are breeding a future generation of hooligans. Unless you do something about the education of the 868 London children who have been evacuated, you will have hooligans after the war." She told me, what I subsequently found out to be correct, that there were 70 children in a class in the mornings, that in the afternoon another 70 came in, so that the teacher was trying to look after 140 children in a day. For the rest of the time the children were, broadly speaking, completely out of control, because most of their fathers were away in the Forces fighting and their mothers were working in munitions factories.
That was in 1943. In 1953 these children are 17, 18 and 19, and we have the crime wave. That social worker at Kensington was right. There is a crime wave, and I have no reason to disagree with the figures given by my right hon. and learned Friend. I am led to understand that there is another crime wave among the younger children of 11 and 12—the younger brothers who are copying their elders.
Is there any reason why this Bill should be made permanent? These crime waves will not last for ever. They are the product of the war. Should we not put some time limit on this Bill, as was suggested on Second Reading? I am sorry that it was not possible to put down an Amendment to this effect, but as this Bill has to go to another place I appeal to my right hon. and learned Friend to consider very carefully whether he would not be prepared to advocate this Bill lasting for, say, five years to cover the junior crime wave, if I may put it in that way. We have every reason to expect that this crime wave, like others in the past, will pass away. This Bill, which is unusual, which gives the authorities special powers and which lays the onus of proof on the accused is not in the general interests of the British people, who have the traditional rights of freedom. That is my first point, that there should be some time limit on this Bill.
Secondly, I think that those responsible for this Bill had in mind the general problem of the cosh boys. This Bill goes further than dealing with that problem, and as a country Member I wish to make a request to my right hon. and learned Friend. I may be wrong, but as I understand the Bill it might apply to a whole lot of offences committed in the countryside which have nothing whatever to do with cosh boys. Let me give two instances.
869 Suppose a gang of poachers armed with sten guns, or what you like, enters a glen, with the intention of committing an offence. They are, without lawful authority, carrying offensive weapons in a public place. I should have thought that a constable could arrest them to prevent the commission of the offence. This may be a way of dealing with deer poaching, but I would much rather have a deer poaching Bill, which we are hoping to get before the end of this Session, rather than dealing with deer poaching by a sidewind in a Bill intended to apply to cosh boys.
I should have thought that an Amendment to restrict subsection (3)—
§ Captain Duncan
What is in the Bill at the moment goes too far. What I am trying to do is to get something taken out of the Bill.
§ Captain Duncan
It should be possible to deal with this Bill on the basis of human beings only instead of extending it, as it is now extended, to animals as well.
Let me give one other instance. A farmer, urged on by the Ministry of Agriculture or the Secretary of State for Scotland, sows a field of oats alongside a road; rabbits start to eat the oats and the farmer goes out with a gun, perhaps an airgun, to shoot rabbits along a public road. He proceeds along the road with a reasonable excuse, but it is an offence to shoot from the road, so he would not have lawful authority; he would have an offensive weapon with him, and if he fired a shot he would be guilty of an offence, because it is illegal to fire a shot from a public road. That goes far beyond what I believe to be the intention of the Bill.
I ask the Government carefully to consider the implications of the Bill from the point of view of the countryman, with a view to making certain that it does not go far beyond its real intention, which is to deal solely with the cosh boy.
§ 5.19 p.m.
§ Mr. James Carmichael (Glasgow, Bridgeton)
It is not often in a debate that a Scottish Member who is a layman follows another Scottish Member who is also a layman. This debate has been conducted largely by legal experts, but they do not seem to be very clear themselves about the meaning of the Bill. If I asked hon. and learned Members individually to to draft this Bill, I believe they would all produce entirely different Bills. I am not happy about the Bill and, as far as I can gather from the proceedings during the Second Reading and Committee stages, many hon. and learned Members are also quite unhappy about it.
The first thing that disturbs me is the placing of the onus on the individual who is charged or arrested by the policeman. I have watched with very great care the keenness of hon. Members opposite on every stage of this Bill, but the Amendments which have been presented today have really made no alteration to it. When the right hon. and learned Gentleman was discussing the difference between "reason" and "reasonable cause," he said that he accepted "reasonable cause" because hon. Members desired it, but in his own mind he was satisfied that "reason" was just as strong.
I fear that by introducing a Measure of this kind we are altering the procedure formerly adopted in the courts and placing the entire onus on the person arrested. I am surprised that such a Measure should have been brought forward. It assumes that we are in the midst of a great crime wave, but from the conduct of the judges in Scotland I am satisfied that the law there is strong enough to handle the situation and that there is no need for this sort of Measure.
Violence in Scotland has been considerably reduced over the years. [HON. MEMBERS: "NO."] I hoped that hon. Members would challenge that statement, because I can produce the figures from the Report on Prisons in Scotland, 1951. I shall now do so.
I hope that the hon. Gentleman will not produce this Report, because it will be out of order on the Third Reading of this Bill.
§ Mr. Carmichael
If I am against the Bill being given a Third Reading, I am 871 surely entitled to explain why I am doing so. We are told there has been an increase in crime, and I want to disprove that statement. The Report shows that the number of violent crimes in Scotland in 1951 was 459; in 1950 it was 517; in 1938 it was 684, and in 1913 it was 1,257. Those figures are all I need quote. The law as it stands in Scotland today is quite capable of dealing with the gangster and the thug. I do not want it to be assumed for one minute that I am defending them, but I can see the difficulty in which a decent civilian might be placed.
The next point to which I wish to refer is in regard to offensive weapons. The Home Secretary has indicated that there are certain categories of offensive weapons. They are not specified in the Bill. If I have learned anything since I have been in this House, it is to be concerned not so much with the speeches made by hon. Members in explaining a Bill but with what is actually in the Bill. I should like to give an example of what I mean in this case. A person who has been a gangster and has been arrested and punished may have come out of prison having learned the error of his ways. He may then go to a place of assembly and he may happen to have in his possession a safety razor blade in a nice little container, specially made by the manufacturers. If trouble arises in that public place of assembly and he is arrested he has an offensive weapon in his possession.
We have no right to differentiate between one person and another in this matter, because I could think of an ordinary, peaceful citizen in some public assembly who might have precisely that kind of weapon in his possession. I would go further and say that I could mention hon. and right hon. Members here now who are in possession of similar weapons, which they use to sharpen their pencils. If I am any judge of the right hon. and learned Gentleman the Home Secretary, he possesses one himself. I have seen him sharpening his pencil from time to time. If he were found in a place of public assembly and, because there was trouble, he was arrested with other persons in the crowd and he was found to be in possession of that pencil-sharpener, I am quite 872 satisfied that it would be easy for him to get out of that difficulty.
Why should the law be such that one person possessing an offensive weapon should go scot-free and another person— because he has committed some crime in the past—be punished? This matter of an offensive weapon is dangerous primarily because responsibility is placed upon the accused. I should not mind a person being tried for possessing an offensive weapon if the Crown had to make out a case.
I am unhappy about this Measure. I know that it will go through the House, because we are trying to appease public opinion, but the crime wave is going down and it is doing so because of the social improvement of the people. That is the way to tackle this problem—not by framing Measures about which all the lawyers disagree. If I could get anybody to support me in the Lobby I should vote against this Bill, but I know that everybody will say, "Well, we have done something to ease the crime wave in this country of ours."
I do not like it. Lord Carmont, in the High Court of Glasgow, has given very severe punishment to these offenders. That is one way out. My hon. Friend the Member for Coatbridge and Airdrie (Mrs. Mann) has told me that she will always carry a weapon in case somebody attacks her. Into what kind of a state are we getting when, in order to protect ourselves against the gangsters, we adopt the methods of the gangsters?
§ Mrs. Jean Mann (Coatbridge and Airdrie)
I could very easily take off my shoe and club anyone—including the hon. Member—who interferes with me.
§ Mr. Carmichael
In the first place, there will be no danger of my interfering with the hon. Lady. But the point she has raised has a bearing on this problem. A shoe which is used to assault anyone is an offensive weapon
This might arise in the case of men going on strike. In such circumstances tension rises. I remember the general strike in Glasgow, when hundreds of people were arrested and, without any serious trial, were pushed into prison. Now a striker can be arrested if, by any chance, he has an article that can be adapted as a weapon. We have heard today how 873 difficult it is to explain this question of adaptation. A striker can now be charged not merely with being in a group of people who are acting unlawfully, but with being in possession of an offensive weapon, and almost any kind of article can be regarded as such.
During the Committee stage an hon. Member said he went out at night with his golf club—his driver; probably that is the only time he can use it effectively. But that could be an offensive weapon. It would be satisfactory if the Crown had to prove that it was an offensive weapon, but the law will be that the person in possession of it has to prove that it is not an offensive weapon. If the Home Secretary wishes to intervene I shall be glad to give way.
§ Sir D. Maxwell Fyfe
I am glad the hon. Gentleman invited me to intervene. In the case of a golf club, that is something which is prima facie innocent. In that case onus remains on the prosecution, and they have to prove that it is being carried for the purpose of causing injury to somebody else. That is the third category. The first category is where the weapon is made for the purpose of causing injury; the second category is where it is adapted for use to cause injury; and the third category is where the prosecution have to show that it is being carried with that intent. A golf club comes into the third category.