BURGLARY

HC Deb 23 July 1968 vol 769 cc473-80

Mr. Alexander W. Lyon (York)

I beg to move Amendment No. 28, in page 5, line 2, leave out 'a term not exceeding fourteen years' and insert 'life'.

Mr. Speaker

With this Amendment we can consider Amendment No. 29, in line 4, leave out Clause 10.

Mr. Lyon

These two Amendments are linked, and the main Amendment is to delete Clause 10—Aggravated Burglary. It was with some surprise when I read the report of debates in another place and in Committee that I found this point had not been taken at any stage. The basis of the Bill is that there have been in the past far too many complicated and overlapping offences which ought to be reduced to a number of simply stated and clearly defined offences, with, perhaps, higher maximum penalties than had been the case previously for the offences from which the current offences will take their name in order that the judges can decide on the severity of the offence and apportion punishment accordingly.

As the Criminal Law Revision Committee said in its introductory paragraphs about the Bill: The present different maximum penalties date from times when maximum sentences were passed much more commonly than they are now and when Parliament was much more willing to trust the discretion of the courts in sentencing. We all know of the time when people were transported for quite simple and relatively innocuous cases of theft. Having followed that principle admirably in the presentation of this excellent Bill, we come to Clause 10 when, for some reason which the Committee does not clearly spell out, it decided that in addition to the offence of burglary an offence of aggravated burglary is needed. It says that aggravated burglary should be simple burglary coupled with the possession of some offensive weapon. Note not the use of an offensive weapon but simply its possession. If a man commits a simple burglary but has in his pocket a knife, that knife may be sufficient to convict him of the more serious offence even if he never takes it out of his pocket and the occupant of the house is unaware that he ever had the weapon on him.

This is the kind of ludicrous situation there has been in the past where some feature has been present in the commission of the offence which was peripheral to the commission and had no effect on the mind of the person against whom the offence was committed yet which somehow or other makes it a more serious offence. Surely there should be an offence of burglarysimpliciter and the court should be allowed to determine in all the circumstances what is the appropriate sentence. Burglarysimpliciter in Clause 9 should have the maximum penalty of imprisonment for life and thereafter it should be for the court to determine the sentence. It is unnecessary to put in Clause 10 with aggravating features. I am carried in this conviction because, as the Committee pointed out, burglary has hitherto carried a maximum penalty of imprisonment for life. The new offence of burglary as defined in the Bill carries a reduced maximum sentence. It would, therefore, not be inappropriate to increase the maximum sentence to imprisonment for life. If that were done, there would be no virtue in retaining the additional offence of aggravated burglary, unless it be said that somehow or other the higher penalty is a deterrent to a burglar carrying an offensive weapon.

I see my hon. Friend the Under-Secre-tary nodding. I should have thought that we had now reached the stage where we could say that burglars do not commit offences carrying in their minds the maximum penalties to determine what are the deterrent qualities of punishment. I do not want to go into the whole question of capital punishment. It may be that where there is a fixed penalty, such as there is for murder, it is a matter which a potential criminal will carry in his mind. Where there is simply a maximum penalty, and where the criminal fraternity knows as well as any member of the bar present that the maximum penalty is rarely imposed—in almost every single case the punishment imposed is less than the maximum but will vary in length according to the way in which the offence was committed—it must be inappropriate to suggest that there is some deterrent quality in fixing a higher maximum penalty in a different kind of case.

Take, for instance, a case of simple burglary committed in such a way as to terrify the occupants of a house but when no offensive weapon is carried. Any judge would regard that as a more serious offence than a case of burglary where the house was unoccupied but where the burglar was carrying a gun. The very fact that some violence had been offered or offence caused to people who were on the premises—they might have been tied up or gagged—makes it a much more serious offence in the eyes of the court than the peripheral fact that a man was carrying an offensive weapon when committing burglary on an unoccupied house. The result of Clause 10 would be that for that simple case of burglary a criminal would receive a higher offence than if he had committed the other offence, which carries in theory a higher maximum penalty. No judge looks at the maximum penalty, where the maximum is in the region of 14 years or life, to determine what the sentence should be. He simply looks at the facts. The maximum penalty of 14 years is sufficiently high in any case for most ranges of offence. It is only in the exceptional case that the maximum penalty would be used.

It is illogical and unfortunate that the Committee, which was so revolutionary in its recommendations over such a wide area, should have been so pusillanimous on this issue. It said in paragraph 80 of its Report: Although we are in general opposed to splitting up offences, we regard it as justified in this case. However, the Committee did not go on to determine why it should be "justified in this case". The Committee accepts that the arrangement would be free from the disadvantages of the present system of splitting up offences, because there would be no overlap, since simple burglary would have to be proved first and then the aggravating features added to it. The Committee finishes its findings on this matter in this way: If the possession cannot be proved, the accused can be convicted of simple burglary. I cannot see anything in the Bill which says that a person can be convicted of a lesser offence if he is charged with the more serious offence and the aggravating features are not proved to be present. If there is nothing in the Bill to say that a person can be convicted of a lesser offence, is it simply a rule of practice that a person can be dealt with in this way?

Sir J. Foster

The hon. Gentleman gave an instance of a man with an offensive weapon who put people in a house in fear. Would not that be robbery under Clause 8, because in order to steal the man puts a person in fear?

1.45 a.m.

Mr. Lyon

I was coming to that point. I agree that it would be robbery, but in order to be convicted of robbery he would have to be charged with it. In the indictment there would have to be two counts, one of burglary and one, either alternative or supplementary, of robbery, and the ingredients of the offence would have to be spelt out. Why go to the trouble? Why not simply charge the man with burglary and allow the court to take into consideration all the facts of the case? If there is violence or a threat of violence, or possession of arms or the use of arms, all this can be taken into account in deciding the appropriate sentence.

The fact that reference is made to robbery strengthens the case, because whereas before we had robberysimpliciter, robbery with violence or robbery with aggravation we now have the single crime of robbery, for the obvious and simple reason that if there is a maximum sentence of life imprisonment one can deal with any aggravation that is caused by an appropriate sentence. Why not do that with burglary? Instead of having burglary and burglary with aggravation why not burglary with a maximum sentence of life imprisonment? Any aggravation can be dealt with within the particular offence. I believe that the Committee has been illogical on this, simply because there was a suggestion of using firearms. Everybody accepts that that is a particularly aggravating feature of any crime, but this is not likely to lessen the use of firearms. It simply adds a complication that need not be there.

Sir P. Rawlinson

I offer the Minister support, if it is needed, in maintaining the position as it is. I hope that he will ignore the blandishments of his hon. Friend the Member for York (Mr. Alexander W. Lyon). In the Bill there are theft, stealing, robbery, burglary and aggravated burglary, and it is right that there should be the extra offence of aggravated burglary. I am not so confident as the hon. Gentleman about the ignorance of those who engage in the full-time practice of crime. It is right that there should be the distinction between aggravated burglary by the burglar who is armed, and burglary by the cat thief who breaks through a window, takes something and goes. Where a person goes to a house with a firearm, explosives, or whatever it may be, we should spell out in the Bill that that is an aggravated offence, and should carry an extra penalty. Therefore, I hope that the Minister will not accept the Amendments but will retain the offence of aggravated burglary.

Mr. Edward Lyons (Bradford, East)

I support my hon. Friend the Member for York (Mr. Alexander W. Lyon) in the interests of further simplifying the law, to reduce the burden on judges and recorders in explaining the law to jurors and to reduce the burden on jurors, making the law simpler for them to understand and thus making it easier for them to arrive at sensible verdicts.

Under Clause 10 one must explain to a jury what burglary is, and go on to explain aggravated burglary, telling them that if they do not find aggravated burglary they can bring in a lesser verdict of burglary. All of that is unnecessary. There is no reason why there should not be one charge of burglary, with the court having discretion as to the proper sentence.

If a man goes into a house which is unoccupied with the intention of com- mitting burglary and has in his pocket a knife which he habitually carries, he may be charged with aggravated burglary and is eligible for life imprisonment. On the other hand, supposing he goes empty-handed into a house where he knows that there is a woman upstairs, and that woman hears him moving about, she will be terrified. It may affect her for life. But he is not guilty of robbery because, unless he intends to frighten the woman, to draw himself to her attention, there can be no offence of robbery. If he goes into a house determined to commit a burglary, not caring whether the house is occupied or not, he is simply guilty of that burglary and is eligible for a lesser sentence. Yet most people would consider that the second offence was far more serious than the first. We are creating artificial divisions in Clauses 9 and 10 which are quite unnecessary, making the law unnecessarily complex. I therefore feel that the Amendment is worthy of support.

Sir J. Foster

The important point here is that it is for the jury to decide whether the criminal is armed or not and not for the judge. There may be a disputed question of fact as to whether it was an aggravated burglary and it is wrong for the judge to have to make up his mind as to a question of fact. It would seem unfair that a simple burglar should get imprisonment for life even if the woman upstairs whom he did not know was there was frightened.

Mr. Elystan Morgan

I am grateful to hon. and learned Members opposite for their comments and the ease with which they have been able to transcend party loyalties and attitudes in dealing with the Bill.

The approach of the Committee in preparing the draft Bill was to reduce the number of different offences with their varying penalties. This has been done particularly in the case of theft, a single offence with a ten-year penalty now replacing a complex of existing offences and penalties. But the Committee did not think it right to make such a simplification of the offences covered by Clauses 9 and 10, and the Government agree.

The offences of burglary and aggravated burglary in these Clauses replace a complicated group of offences of breaking in and out of buildings under Sections 24 to 27 of the Larceny Act, 1916, for which the maximum penalties range from seven years to life. Fourteen years is the present general maximum penalty under Section 26 of the 1916 Act for breaking and entering a building other than a place of divine worship or dwelling house and committing an arrestable offence in it.

In the Committee's view, expressed in paragraph 74, fourteen years is the right maximum for ordinary burglary but for aggravated burglary, which could be a very frightening offence which might lead to loss of life, a maximum of life imprisonment was necessary. While the Committee was in general opposed to the splitting up of offences—a view expressed in paragraph 80—it considered that it was justified in this case.

My hon. Friend the Member for York (Mr. Alexander W. Lyon) made the point that there might be difficulties about what might turn out to be a simple burglary if a person was charged with an offence under Clause 10 and with no other offence. The power to convict of simple burglary a person charged with aggravated burglary is contained in Section 6 of the Criminal Law Act, 1967. It is a general provision applying to all cases where the lesser offence is included in the greater. In addition, I should have thought that the very use of the word "aggravated" made it clear that there was such a power.

The Government see no reason to depart from the Committee's conclusion in this connection. Ordinary burglary could easily include some quite minor offences; for example, trespassing in a building with intent to steal but without stealing, or entering as a trespasser with intent to do some minor malicious damage. I maintain that a maximum penalty of life imprisonment would be wholly disproportionate for this sort of conduct. Moreover, the Criminal Law Revision Committee did not think that a sentence of more than 14 years' imprisonment would ever be appropriate, even in the worst cases, for ordinary burglary".

Mr. Speaker

Does the hon. Member wish to divide the House?

Mr. Alexander W. Lyon

No, Mr. Speaker. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.