HC Deb 23 July 1968 vol 769 cc482-9
Sir Eric Errington (Aldershot)

I beg to move Amendment No. 6, in page 7, line 42, after "advantage", insert: or the possession or control of any property belonging to another". One notes with interest in regard to this matter that the idea of law reform legislation is to produce simplicity. Whether or not I could do that, I should indicate that the reason for the Amendment is to deal with the situation which arises in connection with hire-purchase transactions.

The case of Reginav. F. W. Garlick in 1958 established clearly, according to Mr. Justice Havers' judgment, that a hire-purchase agreement which was entered into by a false representation was not incurring a debt or liability obtaining credit. That was subsequently confirmed in the 1966 case of Reginav. Inman.

The question of hire purchase was referred to at c. 70 of the OFFICIAL REPORT of the Standing Committee but it was not pursued. The effect of my Amendment is to deal with the case of a person who by deception is able to obtain the use of property, which I do not think is covered by either Clause 15 or Clause 16. I do no know whether it is necessary for me to emphasise the importance of this matter from the point of view of ensuring that the securing of property by deception under hire purchase is a matter of considerable moment in these days when a great many transactions take place by hire purchase. Even simple hire of property may be affected by the Amendment.

Without my Amendment, Clause 16 provides only for the three types of special transaction dealt with in paragraphs (a), (b) and (c) of subsection (2), so that without the Amendment the matter is not covered by the Clause. I understand that there have been discussions between the Home Office advisers and that it was not considered appropriate to add another paragraph to subsection (2) to deal specifically with hire purchase. It follows that as the Bill stands, one is thrown back to subsections (1) and (2) of Clause 15, but even that does not cover the position because of the words with the intention of permanently depriving the other of it in subsection (1).

It might be argued that in the frequent cases concerning motor cars, there would be the protection of Clause 12. That deals only with motor vehicles, which are by no means the only form of property which might be used and possession of which had been obtained under a hire-purchase contract. The complications of establishing "without lawful authority" under a hire-purchase agreement would be formidable.

The full legal point should be clearly dealt with in an important matter of this kind. It is dealt with by my Amendment, which covers the case of a person who obtains property by a hire-purchase document which has been made possible by deception and then, under threat of prosecution, says that he will return it, having had the use of it for a period.

In a hire-purchase transaction, Clause 15 would not provide secure means of prosecuting somebody who could establish that what he did was not intended permanently to deprive of its goods a hire-purchase company which is the owner of the property.

With regard to Clause 6(1), that provides that when a person appropriates property without meaning that the owner shall permanently lose it, he is regarded as having the intention of depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's right. But this suggests that the disposal should be without regard to the other's rights, and I think it might easily be said by anybody charged with an offence of this kind, his disposal at the end of the period when he was using the property, was that he intended to have regard to the rights contained in the hire-purchase agreement. Even if his position did come under Clause 15 there would be an anomalous position in regard to the punishment which, under Clause 15, is a maximum of 10 years, while under Clause 16 it would be five years. Surely there should not be such a difference of five years if we are dealing on the one hand with a bank overdraft and on the other the use of property which was obtained by deception under a hire-purchase agreement.

I believe that the method of my Amendment is the best way of dealing with this potential loophole in the law. It suffices for me to say that I think there is that potential loophole which ought to be dealt with in not allowing people by deception to obtain the use of property which at the end of a period of time they propose to return. If the Government consider this case is covered, I should be glad to know how it is suggested that it is covered, and if it is not covered I am confident that it should be, either by my Amendment or otherwise.

Mr. Elystan Morgan

This Amendment is both undesirable and misplaced in Clause 16. That Clause is concerned with deception which led to the obtaining of pecuniary advantage as defined in subsection (2) without obtaining the property, but dishonestly obtaining property by deception is dealt with in Clause 15. The Amendment confuses completely the pattern of offences under the Bill by adding to Clause 16 a further offence of dishonestly obtaining possession or control of property belonging to another punishable with five years' imprisonment instead of the 10 years' provided by Clause 15 and without the ingredient in Clause 15 of the intention permanently to deprive the owner of the property. In short, if the Amendment were carried the Bill would contain two separate offences in Clauses 15 and 16 of dishonestly obtaining property by deception, one requiring the intention permanently to deprive the owner, and the other, albeit with a lesser penalty, without requiring such intention.

In earlier debates the House has decided that the Bill should not extend theft to dishonest borrowing or create a new offence of dishonest borrowing.

Sir E. Errington

This is not borrowing. I would like to emphasise that. Even though the House did decide that dishonest borrowing should not come within the Bill, this Amendment has nothing to do with borrowing.

Mr. Morgan

The hon. Gentleman did not have the advantage of being a Member of the Committee when this matter was discussed very fully. When challenged, if that is the appropriate term for such a well-ordered, co-operative Committee, hon. and learned Gentlemen on the other side said that what they meant in each case by what they would wish to see categorised as unlawful borrowing was any borrowing in respect of which the consent of the owner had not been obtained. It would be indefensible to create a general offence of obtaining that temporary possession of property by deception when it is not to be criminal simply to take the property without the owner's consent for a temporary purpose. If that Amendment were accepted it would be a criminal offence, assuming dishonesty, to trick someone into lending something.

2.15 a.m.

The Amendment is understood to have been proposed because of fears that the Bill as drafted may not adequately cover hire or hire purchase agreements obtained by deception. The hon. Member referred to this. The Government consider, however, that the Bill adequately covers any conduct by a person obtaining such an agreement which could be criminal. If when the agreement is obtained, deception is used with a dishonest intention permanently to deprive the owner of the property, there will be an offence of dishonestly obtaining the property under Clause 15 (1) or an attempt to commit such an offence.

It is true that there might, in some cases, be difficulty in proving that the deceptions was used with an intention permanently to deprive the owner but the difficulty would be no greater than under the existing law of false pretences, where an intention permanently to deprive has to be shown. It would often be evident from the conduct of the person obtaining the property that his intention was permanently to deprive the owner of it, for example if he sold it or abandoned it in circumstances when it was unlikely to be returned to the owner.

Similarly, the Amendment is unnecessary to deal with cases in the hire purchase field where a pecuniary advantage is obtained by deception. Under Clause 16(2,a) a pecuniary advantage is to be regarded as obtained for a person in any case where any debt or charge for which he makes himself liable or is or may become liable (including one not legally enforceable) is reduced or in whole or in part evaded or deferred ". Accordingly, it would be an offence under the Clause to use a dishonest deception to obtain property on hire or hire purchase on more favourable terms than would have been the case but for the deception.

It has been pressed by the hon. Member that the Bill should make criminal the dishonest obtaining of a hire or hire purchase contract by deception even if this does not result in a reduction or evasion of charges or in the hirer making away with the property. In the Government's view, this would be wrong.

The Bill as introduced in another place contained a provision which was then Clause 12(3) of the Criminal Law Revision Committee's draft Bill, which would have made it an offence to obtain any contract by dishonest deception. This, however, was removed and replaced by the present Clause 16 after criticism that such conduct should in general be left to the civil law. It would indeed be contrary to the present scheme of the Bill to single out hire or hire purchase contracts for such exceptional treatment.

Sir E. Errington

Before the Undersecretary sits down. Is it, then, the Government's view that Clause 15, in addition to Clause 6, creates an offence which would deal with the case of someone who, by deception, obtains a hire purchase contract and uses the subject of the contract?

Mr. Morgan

If a person uses that hire purchase contract as a subterfuge for gaining possession of the property, Clause 15(2) says: For purposes of this section a person is to be treated as obtaining property if he obtains ownership, possession or control of it … Clearly, if he disposed of it by dumping it, selling it or trying to sell it, there would be an offence of the theft as defined in Clause 1. I do not think that Clause 6 comes into this situation. There might be a few cases in which it would be claimed that he had borrowed it under such an agreement, but either there would be a taking, a theft, under Clause 1, or no such offence would have been committed, in which case there would be for the finance company only the civil remedies.

Sir E. Errington

Although I will not divide the House, I will not withdraw the Amendment.

Amendment negatived.

Sir P. Rawlinson

I beg to move Amendment No. 24, in page 8, line 13, after "employment", insert: or to obtain the services of another person". Subsection (2)(c) deals with a false reference enabling a person … to earn remuneration or greater remuneration in an office or employment … ". Should we not state the obverse; in other words, cover the position if, by a false reference, a person obtains the services of another person? I merely pose the question. Perhaps this issue is already covered by the Bill.

The Solicitor General

The Amendment is similar in effect to that of a new Clause which the hon. and learned Member for Northwich (Sir J. Foster) moved in Committee and which was designed to make the dishonest obtaining of valuable services an offence. After arguments against that proposal were adduced, that new Clause was withdrawn.

During the debate in Committee on that new Clause the hon. and learned Member for Solihull (Mr. Grieve) referred to a possible case of a person who helped a man with his work—for example, accounting—without payment but in return for training, before discovering that the employer was not what he held himself out to be. In such a case there would be no evasion of a payment due, since what would have been offered would be the obtaining of a professional qualification which would not have been obtained in the circumstances.

I undertook to look into the question of whether this would be a pecuniary advantage within the meaning of the Clause, and probably the hon. and learned Member for Solihull had this case mainly in mind when he tabled the Amendment which the right hon. and learned Member for Epsom (Sir P. Rawlinson) has moved.

The Government's view is that the dishonest obtaining is adequately covered by the Bill. Where actual property—for example, a meal in a restaurant—is obtained, there will be an offence under Clause 15. Where the deception is used to get work done without an obtaining of property there will, generally speaking, be an offence under Clause 16(2)(a). Under that subsection a person will commit an offence if, by deception, he dishonestly evades or defers, or enables another to evade or defer, in whole or in part, any debt or charge for which he makes himself liable or is or may become liable, or where the deception results in the debt or charge being reduced. This provision will cover the dishonest obtaining of services by deception where the object is to evade, defer or reduce the charge that should be paid, and appears to cover those types of fraudulent obtaining of services that should be criminal.

The case to which the hon. and learned Member for Solihull referred in Committee would not be covered by Clause 16 because there is no question of payment being evaded or deferred or a charge being reduced. But there is no reason to think that such a case would be other than rare, if not entirely hypothetical, and we do not think that it is necessary to extend the Bill to cover it.

But if this case is to be covered, so, too, presumably should other types of obtaining non-pecuniary advantage by deception, and this would be to extend the boundaries of the criminal law well beyond what has been criminal in the existing law. Indeed, if passed, the Amendment would have the effect that anyone who was persuaded by deception to accept or remain in a job with a false promise of better prospects of any kind would come within the scope of the Clause. There is no reason to believe that there is any substantial mischief with which the Clause fails to deal and it would be most undesirable to extend it in the manner proposed. As I say, I am glad to have had the opportunity of dealing further with the point that was raised. I recommend that this Amendment should be resisted.

Sir P. Rawlinson

I beg to ask leave to withdraw the Amendment.

Amendment, by leave withdrawn.

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