Clause 1.—(CARRYING FIREARMS WITH INTENT TO COMMIT A SERIOUS OFFENCE.) (Hansard, 12 May 1965)

§ Sir F. Soskice
I beg to move Amendment No. 1, in page 1, line 5, after 633 "firearm", to insert "or imitation firearm".
The Government are indebted to hon. Members opposite for bringing this issue to notice. Clause 1 is designed to be a Clause of severe application. In it we are seeking to make it possible to repress this kind of behaviour. It was pointed out in argument in Committee that the sort of persons who may commit offences under the Clause may carry with them a firearm or something which looks very much like a firearm but which is an imitation firearm.
We introduce later in the Bill, if the House permits, a definition of what we mean by an imitation firearm. It means something which looks exactly like a real weapon, but which is incapable of performing the functions of a real weapon, namely, the propelling of bullets or some other material through a barrel.
It seems to the Government that it is right to deal with the case and to introduce it in this Clause in which the thug or gunman, with a view to terrifying innocent citizens, carries with him something which looks exactly like a gun, which he uses as if it were a gun and with which he menaces or intends to menace innocent people, when, in point of fact, it is an imitation gun.
The Government are grateful to hon. Members opposite for bringing the point to their notice, and I ask the House to accept the Amendment so as to make it an offence, even though the weapon in question is not a real firearm but looks like one and can be used, or is likely to be used, by a miscreant for the purpose of threatening or striking terror into other persons.

§ Mr. William Roots (Kensington, South)
Considering the horrifying nature of some of the topics we have discussed on the Bill, it is surprising how many pleasantries have managed to pass to and fro during our consideration of it.
I am grateful to the Home Secretary for acknowledging that we on this side first emphasised the considerable alarm and harmful effects which can be induced by an imitation firearm. As he said, as soon as we raised the matter, he and his hon. Friends became convinced that this was an essential Amendment if we were 634 to achieve the full object of the Clause, and I hope that the House will accept it.

§ Sir F. Soskice
I beg to move Amendment No. 2 in page 1, line 6, after "commit" to insert: while he has it with him". I think that it would be for the convenience of the House, Mr. Deputy-Speaker, if you were to allow Amendments Nos. 4 and 5 to be discussed at the same time. Amendment No. 4 deals with the same point as Amendment No. 2, and Amendment No. 5 is simply consequential.

Mr. Deputy-Speaker
Yes, if the House so pleases.

§ Sir F. Soskice
There was a good deal of discussion in Committee about whether the Government had got the right words in line 5 of Clause 1, any person who has with him a firearm". Considerable doubt was expressed about whether the phrase "has with him" was sufficiently precise in this context, and I undertook to give careful thought to it. I said that I thought that it was probably the best form of words for the purpose we had in mind, and, after further thought, I am still of that view. However, on reconsideration of the wording, it seems to us that it would be right to insert in line 6, after the word "commit", the words while he has it with him". We want to make the Clause not only one of rigid application but one which does not apply in circumstances where we do not intend it to apply. A man might have it in mind to commit an indictable offence which was utterly irrelevant to the carrying of a weapon. For instance, a man might be walking along the street with the fixed intention in his mind of committing a fraudulent bankruptcy. It is rather unreasonable to say that he should be liable to a penalty of up to 10 years' imprisonment because, while he walks about with that settled intent, he also has in his pocket a revolver. We do not really want to include that person. It was suggested by one hon. Member that there should, as it were, be some connection introduced between the possession of the weapon and the quality and nature of the offence.
635 9.15 p.m.
By inserting the words while he has it with him we bring about the result that the offence can only be one in relation to which one might wish to have with one a weapon while committing it. The Clause will be related to robbery and a wide category of offences in relation to which one might equally have the desire and intention, whilst committing the offence, to have with one a weapon. By introducing these words, we limit the effect of the Clause by making it apply to the sort of offence, and only to the sort of offence, to the committing of which possession of a weapon has some relevancy.
Amendment No. 4 produces the result of throwing upon a person who is proved to have the intention to commit an indictable offence, and at that time also to have a weapon with him, the onus of showing that he proposed to discard it before he embarked on the actual commission of the offence. Once a person is walking along with a foul and ugly purpose in his mind and he is found to have with him physically a weapon, he must satisfy any court before which he comes that he did not mean, when he carried out his purpose of committing the offence, to have that weapon with him whilst he did so. He has to show that it really was his intention to throw it away or otherwise discard it before the actual commission of the offence.
The reason that we think it right to put the onus on that person is that, if the onus remained with the prosecution to show not merely that he intended to commit a robbery and that he possessed a pistol, but also that he proposed to use it or have it with him at the time of the commission of the offence, a whole number of people might escape. One would not know what time he proposed to commit the robbery; it might be three days later. It would be difficult for the prosecution to prove with the requisite degree of certainty to satisfy a criminal court that he intended to possess the weapon up to and including the time of the commission of the offence.
One must carefully balance provisions of this sort to see that one does not trespass on the proper domain of civil liberty. We feel convinced that we have not. If 636 one is dealing with a person who is going along the street and can be shown by extraneous circumstances obviously to be bent upon carrying out the commission of an indictable offence, and if that person is shown also at that time to have a weapon with him, it is not asking too much of him to say, "If your defence is that you meant to discard the weapon before committing the offence, prove it". It should not be on the prosecution to do so. That is the reasonable way of going about it.
This is not oppressive. Nevertheless, it makes the Clause effective in cases in which otherwise, without that change, it might often have failed of its purpose and people who were thoroughly guilty might escape conviction merely upon a technicality. I hope that the House will agree with the Amendments. Amendment No. 5 is purely consequential on the others.

§ Mr. Roots
I am sure that the House will have been moved by the interest which the right hon. and learned Gentleman has taken in the interests of fraudulent bankrupts wandering about the streets with revolvers. However, from this side of the House I welcome his recognition of what a number of us felt to be—from the HANSARD report of the Committee proceedings it seems that I actually voiced the feeling—the importance of having at any rate some connection between the firearm which was on the person and the crime which he was contemplating committing.
While I am grateful for the right hon. and learned Gentleman's recognition and his efforts to try to meet the position, I should be less than honest if I did not say that I think that the original drafting which we were supporting, the wording, may have been available in the course or furtherance of committing an offence was, perhaps, slightly more effective and to the point than the drafting which the Home Secretary has now adopted.
Be that as it may, these Amendments go most of the way and perhaps all the way, but not very neatly, to achieve the result which we were anxious to achieve, and I hope that the House will now feel 637 that it is adequately achieved and will be prepared to accept the Amendment.

§ Sir F. Soskice
I beg to move Amendment No. 3, in page 1, line 6, after "offence", to insert: or to resist arrest or to prevent the arrest of another". This Amendment, also, deals with a proposal which was made by hon. Members opposite in the course of our debates in Committee. Its purpose is to complete the ambit of Clause 1(1). At the moment, the Clause is applicable when the intent is to commit an indictable offence. It was pointed out in discussion that to make the scheme logically complete we ought also to include the intent to resist arrest, or to prevent the arrest of another, which may or may not be indictable and probably would not be. We thought that that might not be covered by the words, intent to commit an indictable offence", which is why we suggest the Amendment.

§ Mr. Roots
From this side of the House I need only say that the right hon. and learned Gentleman has stated quite correctly what we feel would be an improvement and I am grateful to him for accepting it and I hope that the House will do likewise.