§ 5.0 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Elystan Morgan)
I beg to move.That the Chairman do now report to the House.that the Committee recommend that the Theft Bill [Lords] be read a Second time.This Bill deals with what is perhaps the most complicated and difficult part of the criminal law. It results from the Criminal Law Revision Committee's Eighth Report on Theft and Related Offences, which was published in 1966. The Bill not merely makes amendments to the present law, but it also contains a complete restatement and modernisation of the law on the relevant offences. It amends and repeals well over 100 Statutes, ranging from the first Statute of Westminster of 1275 to Acts passed as recently as last year. Included amongst those are the 1436 two principal Acts which deal with larceny and cognate offences, namely, the Larceny Acts of 1861 and 1916. It is a most significant contribution to the Government's aim of creating a comprehensive criminal code which will in due course embody the whole criminal law and procedure.
The Committee will, I am sure wish to join me in paying tribute to the great skill and assiduity of the Criminal Law Revision Committee. This body consists of a number of distinguished lawyers under the Chairmanship of Sir Frederic Sellers, who was until recently a Lord Justice of Appeal. I am sure that the Committee would wish me to say how delighted we are to see Sir Frederic with us this afternoon. Since it was established in 1959 by the then Home Secretary, Lord Butler, the Committee has placed lawyers and the public generally in its debt by 1437 producing nine valuable Reports with draft Bills annexed, eight of which have already passed into law. The Report of this Committee, which originates in a reference made to the Committee by Lord Butler, is the fruit of seven years' work and has been much the biggest task which they have completed so far. Despite other exacting duties, the Committee have unsparingly given of their time and energy to this task and we are most grateful to them for their efforts.
The Criminal Law Revision Committee's mandate on this occasion wasto consider with a view to providing a simpler and more effective system of law, what alterations in the criminal law are desirable with reference to larceny and kindred offences and to such other acts involving fraud or dishonesty as, in the opinion of the Committee, could conveniently be dealt with in legislation giving effect to the Committee's recommendations on the law of larceny".The Committee found that the existing law on all the most important offences was so defective that they had to revert to first principles—to decide what were the essential elements of the offences and to revise the law on that foundation.
The Bill before us is in essence the draft Bill which the Criminal Law Revision Committee annexed to its Report with certain amendments made by the Government, and also changes made to it in another place. I should mention, in particular, that the Government have added to the Committee's draft Bill a clause—Clause 10—to meet a suggestion by the Committee that there should be legislation to deal with the removal of articles on show from places open to the public. A substantial change which was made in another place was to revise Clause 15 of the Bill as introduced there—Clause 12 of the Committee's draft Bill—dealing with criminal deception. Part of the ground covered by that Clause is included in what is now Clause 14, and part of it has been replaced by a new Clause 15 which deals with obtaining pecuniary advantage by deception. I shall come to those Clauses later.
The Bill deals with highly technical issues, many of which we shall no doubt have occasion to consider in Standing Committee. I should have to lean heavily on the good will and patience of the Committee if I sought to describe the contents of the Bill exhaustively, and I think that I can best serve this Commit- 1438 tee by summarising briefly the main Clauses and explaining the thinking and policy behind them.
Clauses 1 to 6 deal with the new offence of theft, which will replace the existing offences of larceny, embezzlement and fraudulent conversion.
The principal defects in the existing law of larceny are its difficulty and complexity, which have given rise to a great many judicial decisions, and its failure to deal with some kinds of dishonesty which certainly ought to be punishable. Lord Goddard, in a judgment in 1958 referred to by the Committee in its report, after alluding to the law of larceny as "a law which is exceedingly technical and which has been the subject of a great many decisions" quoted a statement by Mr. Rupert Cross, Vinerian Professor of English Law at Oxford, that some of the decided cases on the retention of property innocently come byemphasise the utter unreality of the present law of stealing…and are a public scandal both because the courts are reluctantly compelled to allow dishonesty to go unpunished and because of the serious waste of judicial time involved in the discussion of futile legal subtleties".The Committee considered it quite remarkable that the law should still be in a state in which so many cases, most of them involving the simplest of facts, should have produced so much difference of judicial opinion and controversy among legal writers.
The defects in the law of larceny arise mainly from its being regarded as essentially a violation of the owner's right of possession and not of his rights of ownership. Originally the offence depended on a "taking" of the property. Although the notion of taking was extended judicially and by Statute to certain cases of obtaining possession without a taking in the ordinary sense, and to certain cases of appropriation by a person in actual possession, the offence still does not cover many kinds of misappropriation which are in substance indistinguishable from stealing.
A typical example is that a taking amounts to stealing only if the taker is acting fraudulently at the time of taking and intends to deprive the owner permanently of the property. An innocent acquisition followed by a dishonest 1439 decision to keep or dispose of property is, generally speaking, not larceny. So a person who obtains property as a result of a mistake on the part of the owner of which that person is unaware is not guilty of larceny if he dishonestly sells or keeps the property when he discovers the mistake.
Similarly a finder of lost property who intends to return the property to the owner is not guilty of larceny if he afterwards changes his mind and dishonestly sells or keeps the property. Again, larceny by finding is committed only where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps. In a case in 1848, Regina versus Thurborn, reported in 1 Denison 387, the Court for Crown Cases Reserved held that where the finder does not believe this—that is, that he could find the owner by making reasonable efforts—he is not guilty of larceny even if he intends at the time to keep the thing found whether or not the owner is subsequently made known to him, and even if he disposes of the thing found after the owner has been made known to him.
The law is further complicated by there being many statutory offences of larceny which are inconveniently divided between various Acts. While the Larceny Act, 1861, achieved some measure of consolidation, it did not succeed in reducing the existing enactments to an orderly system. That Act was partly replaced by the Larceny Act, 1916, but there are many provisions in both Acts which are completely subsumed in other provisions in the same Act and even in the same Section. Furthermore, many of the provisions are obsolete or unnecessary.
The main simplifications of the law of theft which the Bill will achieve are as follows. Firstly, embezzlement disappears as a separate offence. The distinction between embezzlement and larceny is an artificial one which the Committee thought should be abolished. It depends, for example, on whether money is misappropriated by a cashier before he puts it into the till, in which case it is embezzlement, or after it has gone into the till, when it is regarded as in the employer's possession, 1440 and the offence is larceny. Clearly the law ought not to depend upon such delicate subtleties or to draw nice distinctions of that kind.
The offence of fraudulent conversion will also disappear. That offence depends on misappropriation of property by a person who has possession of property on behalf of somebody else, but as in the case of embezzlement, the existence of a separate offence leads to complications and anomalies. Embezzlement is committed by a clerk or servant. If the offender is not a clerk or servant, but in some other fiduciary relation to the person defrauded, his offence at present would constitute fraudulent conversion.
These offences are now encompassed by a single offence of theft which is defined in Clause 1 of the Bill. That Clause provides that a person will be guilty of theft if hedishonestly appropriates property belonging to another with the intention of permanently depriving the other of it".Clauses 2 to 5 of the Bill partially define expressions used in the basic definition, mainly to cater for certain special cases, and Clause 6 provides for a general maximum penalty of 10 years' imprisonment.
In the Bill as introduced in another place the Government included, as well as the definition Clauses 2 to 5 now included, a Clause partially defining the expressionwith the intention of permanently depriving the other of it".For reasons set out in paragraph 58 of its Report, the Criminal Law Revision Committee had considered whether such a Clause was necessary in order to cover certain exceptional cases which, despite the fact that the offender may not literally intend to deprive the owner permanently, currently amount to larceny. However, it did not favour this because of the difficulty of devising a provision which would cover what was required without being extremely elaborate, and because it thought that the courts would, in any event, continue to regard these cases as theft. The Government thought, on the whole, that the balance was the other way, since we want the Bill to be as complete a statement of the law as is practicable, but an Amendment deleting the Clause we drafted was carried against the Government in another place. 1441 In the Government's view there remain advantages in having a partial definition, and we are considering what proposals on this point we should bring forward at the Committee stage.
The most important element in the new offence of theft is the dishonest appropriation of another's property. The Criminal Law Revision Committee thought it right in principle that appropriation, and not taking, should be the essential element in the offence. The law would thus concentrate on what the accused dishonestly achieved or attempted to achieve and not, as under the present law, on the means which he used in order to do so. The Clause thus avoids the need for numerous offences to cover illegal acts which are essentially similar in character.
The effect of the new definition is as if fraudulent conversion were widened to include the whole of larceny and embezzlement by leaving out the requirement in fraudulent conversion that the offender should already be in possession of the property. As a result, dishonest appropriation by a person already in possession, as in the case I have mentioned of property obtained as a result of a mistake or lost property, will become theft; and theft will also include some kinds of conduct which may not be criminal under the present law. An example is dishonest appropriation by a parent of things taken and brought home by a child under the age of criminal responsibility.
In the definition the word "dishonestly" is very important, since it is a vital element in the offence. This word, which is partially defined in Clause 2, replaces the requirement in the definition of stealing in Section 1 of the Larceny Act, 1916, that the finder should take the propertyfraudulently and without a claim of right made in good faith".The main effect of the definition in Clause 2 is to preserve the present rule of law that a "claim of right made in good faith" is inconsistent with theft and that a finder of property can be guilty of stealing only if he believes that the owner can be discovered by taking reasonable steps to that end.
The offence will apply to any kind of property, but under Clause 4 of the Bill 1442 land and things forming part of land, wild creatures and, things growing wild, will be capable of being stolen only in defined circumstances. The Criminal Law Revision Committee considered whether wild creatures and things growing wild should be capable of being stolen, but as explained in their Report these things give rise to special problems. The Committee's view, which the Government support, was that, generally speaking, a wild animal or plant should be capable of being stolen only if it is taken for a commercial purpose, and that is the effect of the relevant provisions of Clause 4.
The maximum penalty for theft under Clause 6 of the Bill will be 10 years' imprisonment. It replaces the present varying maximum penalties for larceny, embezzlement and fraudulent conversion which range from six months' imprisonment for stealing a dog to imprisonment for life for such offences as larceny of a personal packet or will, or larceny by clerk or servant.
Clause 7 defines the offence of robbery. Robbery is at present dealt with in Section 23 of the Larceny Act, 1916, but it is not defined there. The definition of this offence at the moment rests on Common Law.
The essence of the offence of robbery is stealing by using force against the victim or putting him in fear, but the present law is not entirely certain. Because of the decision of the House of Lords in the case of Smith versus Desmond, 1965 Appeal Cases, 960, the property must have been in the "immediate personal care and protection" of the victim although the robbery need not be actually from his person or in his presence. The Clause was drafted for the Committee before this decision and has approximately the same effect. It will not be necessary for the person on whom force is used, or who is put in fear, to be the person from whom the property was stolen. The Clause simply requires that force should have been used or threatened in order to steal but it limits it to force used or threatened immediately before or at the time of the stealing. The Committee mentioned that they would not regard mere snatching of property, such as a handbag, from an unresisting owner as using force for the purpose of the definition though it might be so if the owner resisted.
1443 The maximum penalty for robbery and assault with intent to rob is to be life imprisonment, which replaces the present maximum penalties of 14 years for simple robbery and life imprisonment where any of a number of aggravating features are present, such as being armed with an offensive weapon. The new provision will simplify the law and remove some of the anomalies; for the aggravating features, as the Committee mentioned in paragraph 66 of its Report, are very technical and not exhaustive. At present, for instance, while the slightest personal violence is enough to attract the penalty of life imprisonment, to rob a person by threatening to kill him on the spot is only simple robbery. The present maximum penalty for assault with intent to rob is five years, but it is life imprisonment if any of the aggravating features I have mentioned is present.
Clauses 8 and 9 deal with burglary and aggravated burglary which replace the complicated breaking and entering offences in Sections 24 to 27 of the Larceny Act, 1916. Clause 8(1) provides that a person will be guilty of burglary (a) if he enters a building or part of a building as a trespasser with the intention of committing certain serious offences in it, or (b), if after having entered the building or part of it as a trespasser he steals or attempts to steal anything in the building or part of it or inflicts or attempts to inflict on any person in it any grievous bodiy harm. Thus, the offences of burglary in paragraph (a) turn upon the intention of the offender when he enters as a trespasser, whilst those in paragraph (b) are dependent on what he actually does having entered as a trespasser irrespective of his intention on entering.
This Clause differs slightly from the corresponding provision in the Criminal Law Revision Committtee's draft Bill. It was amended in another place to meet the criticism that it was unnecessary for paragraph (a) to apply to such an offence as rape, which carries a heavier penalty, namely, life imprisonment, than burglary. The list of offences to which paragraph (b) applies was also changed because it was considered wrong to restrict the provision, as the Criminal Law Revision Committee had proposed, to unlawful damage caused by fire or explosion. The paragraph now applies to any kind of unlawful damage.
1444 Clause 8 again makes a great simplification of the law. The corresponding Sections of the Larceny Act, 1916, Sections 24 to 27, are, as the Criminal Law Revision Committee pointed out, unduly complicated. For instance, they draw distinctions between places of worship, dwellinghouses and other places. The variety of offences is bewildering, and some of them apply to some kinds of buildings and not to others.
The offence also depends in some cases on the breaking and entering being in the night. Even the concept of breaking is unsatisfactory. It applies, for example, merely to turning a door handle or gaining admission by a false pretence, and a breaking can be difficult to prove. In the new Clause there is no distinction between night and day or between different kinds of buildings. The entire concept of breaking disappears and its place is taken by the concept of entering as a trespasser.
Aggravated burglary in Clause 9 will consist of burglary when in possession of a firearm, imitation firearm, weapon of offence, or explosive.
There are at present widely different penalties for burglary and the various breaking and entering offences. These will be replaced by a maximum penalty of 14 years' imprisonment for burglary and imprisonment for life for aggravated burglary.
I should now like to turn to Clause 10, which gives effect to the Criminal Law Revision Committee's suggestion, in paragraph 57 of its Report, that it should be an offence to remove a work of art or similar object from a museum, art gallery or similar place without authority, even if there is not intention of permanently depriving the owner of it. The type of mischief at which this Clause is aimed is the temporary taking of rare or precious articles which were made vulnerable by being put on view to the public. In the Committee's view this was one of the exceptions which ought to be made to the general principle in the Bill, as under the present law, that temporary deprivation of property should not be stealing or constitute any other offence.
The Criminal Law Revision Committee gave examples in its Report of such objects being taken. A striking instance was the removal of the Goya portrait of the Duke of Wellington from the National 1445 Gallery. In that case the person who took it was acquitted of stealing the picture on the grounds that he had no intention of permanently depriving the Gallery of it, but convicted of stealing the frame, which he said he had destroyed.
Objects such as these are at risk of being taken away in circumstances which fall short of theft, because they are displayed to the public and the public has access to them. Further, although the taking may not be intended to be permanent the taker may put in jeopardy something which is of great value, or irreplaceable. For example, a picture which is a priceless masterpiece may be injured by being stored in rough conditions.
This Clause, which has created difficulties in drafting, underwent a number of sea changes in another place, and as the Government spokesman indicated before the Bill left there, we are not yet satisfied that we have got it entirely right, although I believe that it is now in such a state as substantially to meet the criticisms which were made of the first version. The Clause provides that where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or any part of any article displayed or kept for display to the public in the building or its grounds shall be guilty of an offence. "Collection" is defined to exclude collections made for the purpose of effecting sales or other commercial dealings, the object being to exclude, for example, collections of articles for sale in shops and for sale in commercial galleries, and collections in exhibitions for advertising purposes where the articles displayed are specimens of articles for sale. The Clause makes it clear that the taking must have been done without lawful authority. The offence will carry a maximum penalty of five years' imprisonment, which is the penalty suggested by the Criminal Law Revision Committee.
Clause 11, which is also concerned with temporary deprivation, replaces the present offences of taking and driving away a motor vehicle without authority under the Road Traffic Act, 1960, and taking and using a vessel under the Vessels Protection Act, 1967. The new Clause will apply to conveyances generally, except 1446 pedal cycles, and there is a lesser offence applying to them. The taking and abandoning of bicycles can cause hardship and inconvenience and has become a serious nuisance in some places.
In this Clause there is one change from the Criminal Law Revision Committee's proposals to which I should draw attention. The Committee proposed that the offence of taking away a pedal cycle should be punishable with three months' imprisonment or a fine of £100 or both. This seemed to the Government to be too severe, and the Bill provides for a maximum penalty of a £50 fine without liability to imprisonment.
Clauses 14 and 15 are major provisions. In the Criminal Law Revision Committee's draft Bill there was a single clause creating offences of criminal deception, but after changes had been made to that Clause in Committee in another place the Government decided to replace it by two Clauses, Clause 14, which is concerned with obtaining property by deception, and Clause 15, which is concerned with obtaining pecuniary advantage by deception. These two Clauses implement, in a somewhat different way in some respects, the proposals of the Criminal Law Revision Committee that new offences of criminal deception should replace a number of existing offences concerned with obtaining by false pretences or other deception or with practising deception in order to obtain something. They should greatly simplify the law and remove certain doubts and difficulties.
The offence in Clause 14 corresponds to that in Clause 12(1) of the Criminal Law Revision Committee's draft Bill. Under the Clause it will be an offence dishonestly to obtain property belonging to another with the intention of permanently depriving the other of it. An important extension of the law is made by the definition of "deception" which replaces the words "false pretences" in the Larceny Act, 1916. Because of this definition the new offence will be committed not only where there is a false pretence as to an existing fact but also where there is a false pretence about an intention. The courts have interpreted the present offence of obtaining by false pretences as applying only to a pretence about an existing fact. For example, it was held in the case of Dent (1955) 2QB.590 that a man who worked as a pest destructor was not 1447 guilty of obtaining money by false pretences wheat he obtained it under contracts to destroy pests when he had no intention of carrying out those contracts.
Because of the decision of the House of Lords in the case of Fisher v. Raven in 1964 this type of conduct does not at present amount to the offence of obtaining credit by fraud under Section 13 of the Debtors Act, 1869. Had the accused instead obtained his money for some useless product which he sold to householders as a pest destroying elixir, but which he knew to be useless, he would have been guilty of obtaining money by false pretences because the pretence would have been as to a fact. This kind of anomaly is removed by the definition of deception in subsection (3). The criminal law is thus brought into line with civil law where a statement of intention has the same effect, as a representation, as a statement of fact. Lord Justice Bowen's dictum in Edgington v. Fitzmaurice, 29ChD459 at 483, thatthe state of a man's mind is as much a fact as the state of his digestionwill, if this Bill becomes law, henceforth be effective in the field of criminal law as welt. The maximum penalty for the offence under this Clause will be 10 years' imprisonment, which is the same as the penalty for theft.
Clause 15 incorporates the substance of subsection (2) of the Criminal Law Revision Committee's draft Clause 12 on criminal deception which dealt with obtaining credit by deception, and replaces the former subsection (3) of that clause. Subsection (3) in the Committee's draft created a general offence of dishonesty, with a view to gain, inducing a person by any deception to do or refrain from doing any act and provided for a maximum penalty of two years' imprisonment. The provision was criticised on the grounds that it was too general and ought more specifically to deal with particular kinds of criminal deception. There was, however, general agreement that there would be a serious gap in the Bill if the subsection were simply deleted, and that the Bill ought specifically to make criminal certain types of conduct such as the fraudulent obtaining of services. In the light of those views the Government considered afresh 1448 what form those provisions of the Bill should take.
They reached the conclusion that the best course would be to replace subsections (2) and (3) of the Criminal Law Revision Committee's draft clause by this new Clause which makes it an offence, punishable by a maximum penalty of five years' imprisonment, by any deception dishonestly to obtain for oneself or another any pecuniary advantage. Paragraphs (a) to (c) of subsection (2) of the Clause set out certain specific types of pecuniary advantage which the Clause covers. Under paragraph (a), for instance, a person commits an offence under the Clause 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 may become liable. This paragraph incorporates the present offence of obtaining credit by fraud. It also covers the obtaining of services by deception in order to avoid payment and generally using deception to evade meeting some financial obligation.
Paragraphs (b) and (c) of the subsection deal with a number of types of conduct which fall within the former subsection (3) of the Criminal Law Revision Committee's draft clause. They are thought to cover all the principal types of things done by deception which do not or may not result in an obtaining of property or involve an attempt to obtain it. Thus, paragraph (b) covers obtaining by deception overdrafts, insurance policies and annuity contracts, including obtaining them on more favourable terms than would have been the case if the deception had not been indulged in, and paragraph (c) covers obtaining by deception an opportunity to earn remuneration or greater remuneration in an office or employment and obtaining by deception an opportunity to win money by betting. In the case to which paragraph (c) applies the money may not be obtained as a result of the deception but by the work or on account of the successful bet.
As a result of the changes made by these Clauses the relevant repeals in the Schedules to the Bill are being closely examined to see whether any changes are necessary in them, and it may be that we shall have changes to the repeal Schedules to suggest at the Committee stage.
1449 Another important provision is Clause 20 which deals with blackmail. This Clause replaces a group of offences of demanding property with menaces and similar conduct under Sections 29 to 31 of the Larceny Act, 1916. Under it a person will be guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces. A demand with menaces is unwarranted for the purposes of the Clause unless the person making it believes that he has reasonable grounds for making the demand and that the use of menaces is a proper means of reinforcing the demand.
The existing law which this offence is designed to replace is obscure in some respects and very complicated, and the Committee had to go back to first principles to decide on the essential nature of the offence. The most difficult issue was whether the test of the illegality of the demand and the menaces should be subjective or objective. The view which the Committee took was that the right course would be to make the test subjective, namely, whether the person concerned honestly believed that he had a right to make the demand and to use menaces to reinforce it. Dishonesty is the essence of the offence of blackmail, and it seemed wrong to the Committee that a person should be guilty of an offence in cases where he honestly believed his conduct to be justified. This seemed to the Government to be right in principle and satisfactory in practice. Indeed, to have adopted an objective test would have in-loved many difficulties.
Blackmail will carry a maximum of 14 years' imprisonment. The corresponding offences in Sections 29 to 31 of the Larceny Act, 1916, carry penalties of life imprisonment, five years', and two years'. In our view a maximum of 14 years,' as suggested by the Committee, is appropriate for the worst cases.
I now refer briefly to Clause 21, which replaces the existing offence of receiving stolen property by a new offence of handling stolen goods. This will catch not only the receiver, as the term is generally understood, but also those who have lesser roles in the enterprise. For example, it will catch the intermediary who puts a thief into touch with a buyer, or a man who moves stolen goods from one place to another. The Bill thus carries forward 1450 the extension of the offence of receiving, made by Section 4(7) of the Criminal Law Act, 1967, and the latter is repealed by the Bill. The maximum penalty for the offence will be 14 years' imprisonment, as at present. This penalty is, in the Government's view, fully justified, because without receivers there would be many fewer thieves and a handler may often be instrumental in encouraging serious crime or even in arranging it.
Clause 24 is a very useful provision which I am sure that the police will find of value. It provides that it is an offence for anyone to have with him when not at his place of abode any article for use in the course of or in connection with any burglary, theft, or cheat, the offence under Clause 14. The offence is not confined to housebreaking implements but will also apply, for example, to false number plates and articles carried for the purpose of deception such as false references and uniforms.
Clause 27 replaces the law about restitution of stolen goods. It provides a summary procedure by which the criminal courts will be able to make orders for the restoration of stolen goods, which includes goods obtained by a cheat or blackmail, or goods which in various ways represent the stolen goods. Whether the person is entitled to recover the goods will, however, depend on the civil law. The conviction of the offender will not affect the title to the goods and it is made clear by subsection (4) of the Clause—a provision inserted in another place—that the summary power is to be exercised only where the facts about ownership are clear from the original proceedings.
Finally, I should mention Clause 29, which is an important Clause because it provides for husbands and wives to be liable, as if they were not married, for offences under the Bill by one spouse against the other's property. The other, mainly consequential, changes which the Clause makes in the position of husbands and wives are that it enables them to prosecute each other as if they were not married, and makes it clear that husbands and wives are competent but not compellable witnesses in such prosecutions and in prosecutions instituted against a spouse by a third party for an offence against the other spouse or his or her property.
At present husbands and wives living together cannot steal from one another 1451 unless the offender is "leaving or deserting or about to leave or desert" the wronged party. Of course, we do not want the criminal courts to have to be concerned with petty disputes between husbands and wives. At present, however, one spouse can systematically make away with the other's property, including property held on trust, and it seems to the Government that conduct of this nature ought to be made criminal. We do not think that there are likely to be frequent prosecutions under the Clause because there is not likely to be much advantage to be gained from them, specially while spouses are living together. We have, however, added a safeguard which is not in the Criminal Law Revision Committee's draft Bill, to guard against a risk of trivial prosecutions, by requiring the consent of the Director of Public Prosecutions for a prosecution for stealing or unlawful damage to the other spouse's property, which must be obtained before proceedings can be brought.
It is inevitable that I will have omitted to refer to some provisions of the Bill which are of special interest to some hon. Members but I have sought to draw attention to all the major changes that it makes in the law. Hon. Members will have had an opportunity of reading the Committee's very detailed Report, which elaborates many of the matters with which I have dealt briefly. Of course, most lawyers will have their own views about how the law of theft and related offences ought to be framed, and no doubt alternative ways could be found of drafting much that is in the Bill. But I am sure that there will be general agreement that the Criminal Law Revision Committee have given us a clear and workable scheme—which reflects the deep thought and industrious researches which they have contributed to this task. I commend the Bill to the Committee as a valuable Measure which achieves its object of improving and simplifying the criminal law.
§ 5.45 p.m.
§ Sir Peter Rawlinson (Epsom)
The Committee is grateful to the Under-Secretary for explaining the Bill so fully. He made a long speech, but might easily have made a much longer one on such a highly complex subject and on a Bill with so many Clauses. He will forgive 1452 me if I say that I think that on this Bill, although it does repeal The Laws in Wales Act, 1542, there was in his speech not so much of the poetry of his fatherland as of the typescript of his office—inevitably, because of the subject with which he had to deal. But we are very grateful to him for explaining to us all the important provisions of the Bill.
I join with him right at the beginning to acknowledge on behalf of my hon. Friends our deep sense of gratitude to Sir Frederic Sellers and to all the Members of the Committee for the really pioneering and remarkable work which was done in producing these proposals to Parliament. I am glad to think that, as in the case of the Civil Evidence Bill, this was an idea which dated from Lord Butler's day, and that we can therefore all meet together in this reform of the law, it having been instituted in a Conservative Administration and now brought before us by a Labour Administration.
It always seems to me to be very important that we should, even the very few of us here in this Room, bring to these matters purely independent judgment. I have no doubt that when we come to the Committee stage there will be a divergence of opinion on this side of the Committee, as is already foreshadowed, as between my hon. Friends and myself, and I am sure that it is important that everybody should be able to contribute and to give his views on this subject. From my experience as a Minister, when legislation is being prepared it does not often happen that the principles are decided upon and everybody agrees that they are good, the drafting is done and is approved, the Committees and sub-committees of the Cabinet and the Government sit and agree that it is excellent, it is then proposed to the House of Commons, and from the benches on one side or the other there does not arise a Member who looks at the Bill and says, "This will not do". And the Minister then looks at it again and realises that it just will not do. I consider it very important that in matters of law reform we should have people who will look at it and ask if it will do, not as lawyers but in their rôle almost as jury men, in order to decide whether or not it is practicable and sensible. This is the importance of the legislative process.
1453 The Under-Secretary's noble Friend the Lord Chancellor rather fell into a trap in another place when a number of Amendments were tabled and he reacted as though this was almost lèse majesté; then, in the end, there were nearly 35 Amendments tabled by the Government themselves. But there is no doubt in my mind that the Bill has been much improved by the process in another place. There was a disagreement among lawyers, and this is the positive rôle in legislation because it is obviously of the very greatest importance that we should get this right, and there are differences of opinion among certain lawyers about certain parts of the Bill. Nobody will underestimate the great wealth of experience and distinction among the lawyers who sat on the Committee, but there is always room for differences and it is by hammering these out that we shall, I hope, reach the best solution.
As I understand it, following the debates in another place, the Under-Secretary and his friends in the Government are at present considering certain parts of the Bill. First of all, as he told us here this afternoon, they are considering what, if anything, they are going to do with regard to what I call the original Clause 6. I understand that this is still under consideration and we will wait to see what the Government propose at the Committee stage.
The second matter which I understand they are considering is concerned with the removal of the picture from the gallery—the "Goya Clause", as it has been called. I would tell the hon. Gentleman that the National Gallery, for instance, wants to be assured that where pictures are on loan to it from an individual it is protected by this Clause. So in any consideration of the Goya Clause I hope they will bear this in mind, and I am content that they will consult with the galleries to make sure that they are reassured that the law sufficiently covers them.
Thirdly, in the major matter of Clause 20, the blackmail Clause, I understand that the hon. Gentleman's noble Friend the Minister of State is going to consult with the Lord Chief Justice about this and his views on the difference between the objective and the subjective position, and doubtless he will be advising us of that at the Committee stage.
1454 As regards other matters to be considered, I see that they will be looking also at Clauses 5 and 8 concerning burglary and Clause 14 concerning criminal deception. I cannot help but remark in passing that for "aggravated burglary", which is burglary when a man is armed with a firearm, the penalty is life imprisonment, and the same man, if, in the course of the burglary, he shot and killed somebody and thus committed murder would also be subject to life imprisonment. That is an echo of a debate which seems to have taken place a long time ago, but it is interesting to note that the penalties for aggravated burglary and for murder are the same.
I agree with the Under-Secretary that this is the most important Bill dealing with the criminal law which has been before Parliament in recent times, and that the more glamorous issues, in Parliamentary terms, which seem to be capital punishment, homosexuality, abortion, and some other matters, do not have anything like the complexity of what we are asked to deal with here. What is so refreshing is to see the bold approach which has been made by the Committee and which the Government have accepted, and the abolition of all the technical distinctions between larceny, embezzlement and fraudulent conversion. The substitution of theft is something which I am sure everyone in the Committee and elsewhere in the House will welcome.
The Bill does a great deal to tidy up the law, but I want to give some notice of matters which I should like to have discussed at an appropriate time and which I am sure will be answered when we come to the Committee stage. They are matters which have been canvassed before, but I think it is important that we should be satisfied by argument that we have got these right.
I think we would want to examine with great care—and this may be a matter of difference between my hon. Friends and myself—the necessity for the word "permanently"—whether the principle of "permanently deprived" should be in the Bill, because a temporary deprivation can be as serious in certain circumstances as a permanent one. That is something which I am sure we shall want to debate at a later stage.
With regard to the theft of services—employment services, accommodation, 1455 travel in a train or bus—are we sure that the Bill deals with this sufficiently?
Thirdly, I have already received representations, as perhaps other hon. Members have, concerning this problem of the theft not so much of wild animals as of plants, the person who steals from his neighbour—the daffodils, or the azaleas or the mushrooms—not for any commercial purpose but purely for his own use. The Under-Secretary, if it were a daffodil, would want to wear it in his lapel, I suppose. Are we satisfied that the present provisions are sufficient to cover such offences?
The deception offences are matters of difficulty. I should like to be satisfied that what can be called generally "cheque frauds" are provided for in the new Clauses 15 and 16.
I welcome the introduction of the principle of the handling of stolen goods taking the place of receiving. The awful burden which was imposed upon judges, chairman and recorders in having to direct a jury about receiving will be lightened. I think this will make it much more clear and easier for juries to understand.
I now come to a matter which has been dealt with very considerably elsewhere, and that is the absence from this Bill of anything relating to forgery. Forgery must be an integral part of criminal fraud. This Bill deals with criminal fraud, and there must be an overlapping, in which case there may be inconsistency. I appreciate that the Criminal Law Revision Committee was certainly given no brief or request to deal with the matter of forgery, but forgery is a most important part of criminal fraud and this omission seems to me to represent a difficulty. As the Government are seeking to create a comprehensive criminal code, are we being sensible in dealing with this piecemeal? At the moment there is much discussion about the definition of "intent to defraud". Is forgery a subject which is being considered by the Criminal Law Revision Committee or by the Law Commission?
If so—and I know that this will not meet with any favour on the benches opposite—would it not be sensible to delay or postpone the Bill for a time 1456 in order to make sure that we have one comprehensive Measure? I appreciate the fact that the Government have a programme and that such programmes are very sacred. I appreciate the fact that if the work is not completed in the Session the Bill is lost, but I think that one of the great criticisms properly levelled against us in Parliament is about this piecemeal legislation. If we have this very commendable aim of a comprehensive criminal code, is it not more sensible to wait till forgery, if it is to be reported upon, has been reported upon, and to put everything together into one comprehensive Bill? I think these separate pieces of legislation have been one of the vices of our law making in the past, and I wonder if even at this stage it would not be sensible to wait. I ask the Solicitor-General, if he is going to wind up, to tell us what is the general attitude as regards forgery and if we are likely to have any report.
I am going to be a third of the time taken by the Under-Secretary because I have none of his responsibilities. All I am going to say in conclusion is that I think this is a well drafted and a clear Bill and that it brings striking improvements to the criminal law. There are matters which I propose to investigate at the Committee stage, but so far as the principle of the Bill is concerned—and this is a Second Reading debate—I approve the provisions of this Bill. I confess that as regards certain parts of the Bill I am uncertain as to whether they are sufficient for their purpose, but I am glad that we have had this proposal brought before us and I invite my hon. Friends to give this Bill a Second Reading.
§ 6.0 p.m.
§ Mr. Mark Carlisle (Runcorn)
Like my right hon. and learned Friend, I certainly welcome this Bill. I suppose that as a lawyer one ought to express some form of sympathy for those who are not lawyers and who have to listen to lawyers talking about criminal law, but this is a Bill of major importance and it may in fact at this stage be of interest not only to lawyers. It is a Bill which so changes the criminal law of this country that it is likely to have major effects on many people not connected with the legal profession. Indeed, it seems to me 1457 that this major Bill is one that is likely to do more good to the country as a whole than certain of the other major Bills which this Government bring forward.
The field covered by the Bill is enormous. I believe it will mean rewriting some pages of Archbold which is the bible of the criminal lawyer; and it covers practically the whole field of all types of crime against property, which must surely be a very large proportion of the over one million crimes committed each year in this country, which, I suppose, take up a large proportion of the time at any assize court, quarter sessions, or indeed magistrates' court in this country. When one realises that this Bill is changing the law substantially, it seems to me, on a great many matters in the whole of that area, then one realises what a major step this is in the criminal law.
The great thing about the Bill and why I personally welcome it is that the whole principle behind it is to try to simplify criminal law and to cut through existing technicalities. I have always been perturbed by the fact that, while I believe it is right that we should always be jealous to ensure that innocent people are acquitted, the very complications of the criminal law often lead to guilty people being acquitted on technicalities. To the extent that this Bill does away with those technicalities and reduces the chance of guilty people being acquitted as a result of technicalities it is of advantage to everyone in this country. I do not believe that anybody who has practised in the criminal courts could deny that many times if one has been bringing a prosecution one has failed in that people have got off not really on the merits of their argument but because one could not actually prove, say, the breaking in in the case of house breaking or prove intent at the actual moment someone took goods into his possession although on the merits of the case the person was clearly guilty of criminal conduct. It seems to me that as a result of this Bill life at the criminal Bar will certainly be easier; and I believe it is going to be easier for counsel and solicitors to prepare indictments, easier for judges to sum up and much easier for juries to understand the issues they have to decide. I am not suggesting that one should legis- 1458 late merely to make one's professional life easier but it seems to me that one is likely to achieve the ends of justice more easily as a result of doing those things.
To comment briefly on the abolition of technicalities by different parts of the Bill, as my right hon. and learned Friend has said, on theft one has got away from the technicality of having to prove intention to deprive at the time of taking. That seems to me to be one of those technicalities which have very little moral justification, and with great respect to the noble and learned Viscount, Lord Dilhorne, I must say I find myself entirely in agreement with my right hon. and learned Friend in saying I believe that the words "permanently deprive" should remain in this Bill.
§ Sir P. Rawlinson
I was anticipating that my hon. Friend and I might have some argument on that. I am not so sure about it. I believe there is a lot to be said on the other side.
§ Mr. Carlisle
I apologise for finding myself in disagreement. May I say very shortly why? It seems to me that the aim of criminal law must be to lay down a standard with which it is necessary that people should comply for the good of society as a whole. I cannot really believe that if one borrows—or one may think of it as borrowing—somebody else's lawn mower intending to take it back, although one really knows in one's heart that, if one had asked, say, the hon. Gentleman the Member for Rochdale (Mr McCann) he would not have lent it, one may be perhaps morally somewhat guilty; but I do not really believe that one has committed the type of action which should be brought up before a criminal court. If a man borrows something knowing that he has no right to take it and intends to return it and not to deprive the owner of it permanently he should not be guilty of the crime of theft. Under the old law, having genuinely borrowed a lawn mower intending, to return it and then changed one's mind after two days, one was still not guilty of an offence, even if one kept the lawn mower permanently. But once that element is removed there is the danger that, without the need to prove a permanent intention to deprive, one may have a proliferation of small prosecutions without doing any good as a whole.
1459 One point which concerns me and where I find myself in a certain disagreement with my right hon. and learned Friend is about the picking of wild flowers. I am not sure that that should be an offence at all. As I understand it, that is an offence if it is done with a commercial object. I would ask the Solicitor-General to consider this point. Suppose my wife or someone else's wife goes and picks wild flowers for the purpose of putting them in a bowl to place on display in the local flower show at which there is a cup for the best table display. Have those flowers been taken for a commercial object or not, if the aim is to win the cup? The Under-Secretary rapidly shakes his head. He may be right. It is possibly arguable. It might be said that if there was also a money prize she had a commercial object at the moment she took the flowers; but I do not really feel that the taking of mushrooms or wild flowers should be a criminal offence.
§ Mr. Carlisle
That proves my point further.
As for robbery. I think it is a throughly sensible simplification of the law in that it is still robbery if someone hits a night watchman on the way to steal something in another part of the works. But why remove the provision that it was robbery if the assault was occasioned immediately after the stealing? Because previously, robbery with violence covered an offence either before, at the time of, or immediately afterwards. I understand that if I steal something and hit a person so that I may get away I am probably no longer guilty of that offence, whereas previously I would have been. I would ask whether this is a sensible change. Undoubtedly, all the biggest technicalities have been removed on this single offence and I believe that it was in relation to charges of house breaking and proof of breaking and entering that technical defences were raised more often and more regularly than on any others. For that reason I welcome that change.
I believe that in the simplification of sentence which would come about the Committee has taken a sensible line, and I hope the House will do so, in leaving it to the courts and trusting the courts 1460 to decide what should be the penalty within a given maximum, rather than trying to lay down, as the criminal law did before, different specific maxima for different types of offences or different gravities of the same offence—so much for robbery and so much more for robbery with violence. Surely, we should trust the courts to decide on robbery and to decide how grave the offence was and what punishment should be imposed.
I do not want to say anything more on the details of the Bill because we can discuss all those at the time of the Committee stage of the Bill, but one Clause which concerns me slightly is Clause 24, dealing with possession of house breaking implements. I cannot really decide whether it means nothing or everything. It may be correctly drafted, but at first reading one gets the impression that by removing the defence which previously existed of having reasonable or lawful excuse a person who is perfectly innocently in possession of, say, a jemmy, and who may have it with him for an innocent purpose, may be in danger of conviction.
The only other point I want to make relates not to the criminal law but to that part of the Bill which seems to me to go slightly wider and into the field of penal reform. I, for one, am delighted that the Government have removed the penalty of three months which was proposed in one Clause. We have often argued that short sentences on the whole are not to be encouraged. We must be consistent, and if we do not want to see short sentences imposed we should not pass Acts of Parliament which lay down short maximum sentences. I welcome the fact that the penalty of three months' imprisonment for taking away a pedal cycle has been removed.
Another matter which goes a bit wider than the criminal law and almost into the field of penal reform is covered in the new Clauses with regard to restitution of property. As the Under-Secretary may know, I happen to be a member of the Home Office Advisory Committee on the Penal System, and of the subcommittee under Lord Justice Widgery which is considering this whole question of reparation and compensation of victims of crime. It seems to me that the Bill, by giving the court wider powers to order the return to the original owner 1461 of property which has been stolen, is to be welcomed, because whereas before one could always sue for the return of such property, we know the danger involved of costs being incurred without a person necessarily being sure of the outcome. I welcome the widening of powers on restitution provided in the Bill, and I hope courts will make use of them.
Finally, I welcome the Clause on the right of a wife to give evidence against her husband or a husband to give evidence against his wife. As I said earlier, it has always seemed to me that the duty of the criminal law, whilst ensuring the acquittal of the innocent, is also to see that the guilty are convicted. To that end I believe that in the Criminal Justice Act we were right to look at the criminal procedure. It has always seemed to me absurd, as a matter of pure procedure, that those who are prosecuting in criminal courts are not, by law, allowed to comment on the failure of an accused or of an accused's wife to give evidence, when so often, if there were an innocent explanation, one would expect a man to go into the box and give it. I have always thought that if he does not do so, prosecuting counsel should be able to comment in full to that effect.
Here we are specifically laying that down and are saying that, in future, a wife shall be a competent witness for the prosecution against her husband, but we say, provided her or his failure to give evidence shall not be made the subject of any comment by the prosecution. Why? If the wife or the husband is a relevant defence witness and he or she has chosen not to be called by the defence, surely prosecuting counsel, in his closing speech, should be entitled to make the point to a jury. I would ask that that matter, which goes slightly outside, should also be considered during the Committee stage.
I welcome the Bill. I am delighted that it shows there was more reform done before this Government set up the Law Commission and I hope it will shortly be the law of this country.
§ 6.15 p.m.
§ Mr. E. S. Bishop (Newark)
I welcome the Second Reading of a Bill of this kind as a layman, although I must qualify my remark because I speak also as a magistrate of many years' experience and as a 1462 member of the Magistrates' Association. I believe that many of my colleagues who sit as lay magistrates in courts, as well as the public, will welcome this Bill, which is undertaking a mammoth task in criminal law revision and which amends 18 Acts and repeals in whole or in part 92 more Acts. It is seeking to make the law more understandable and logical in respect of theft, robbery, larceny, embezzlement, fraud and conversion, and other offences, and introduces changes of great importance. I would pay tribute to those responsible for advising the Government both here and in another place on changes to be brought about.
It is necessary, first, that we should consider the law, sometimes going back hundreds of years, in the light of custom and tradition and in relation to current customer and trading practices, as situations now facing the public were almost unknown when the original Acts were passed. I am thinking, for example, of the development of the supermarkets. It is of great importance that we should make the law easier for the public to understand and more understandable, too, to juries and magistrates who have to take decisions. I welcome the easing of the problems of definition by the reduction in the number of offences and the reduction in the technicalities.
It is right, for instance, that people who go into the woods and other places to take flowers or mushrooms should be quite clear on where they stand, should they seek commercial gain by doing so. Women who, by dubious means, try to get the putative fathers of their children to pay up in respect of their offspring, should know whether they are right in unduly seeking their just dues or whether they risk action for blackmail. Those who shop in supermarkets, too, should be clear on the position. There is danger for elderly people or those who may be a little muddled, or sick, who go into supermarkets and put goods into the wrong basket, and then, when they get outside, find they are in serious trouble, and that they have to prove their intention. There is a widespread feeling in the country that in these, and other respects, the law should be clarified for the public, and to those who have to administer the law. As a Justice of the Peace, I know something of the technicalities and confusion of the present criminal law, in regard to placing goods 1463 in a shopping bag instead of the wire basket provided by a supermart. Similarly, there are cases where a shop assistant will take money from a customer and put it, by error, in his overall pocket instead of in the till. These are technicalities of importance to those concerned. The Goya picture stealers may risk being framed if it is known they have taken a picture to keep. Those who borrow lawn mowers with the intention to return them must know where they stand if they retain them for a long time. This may be a short cut to the courts.
It seems to me that in a permissive society, where people are much more free and easy than formerly, there is more real temptation, and a situation which may invite more legal restrictions to protect society. But care must be taken to protect public interests by ensuring that people who are affected by this Bill will know where they stand in law.
I would end by asking my hon. and learned friend whether the Government have in mind any further revision of the law, not included in the Bill. What are the intentions of the Government with regard to future legislation? How much more remains to be done?
I would say a word of caution about the dangers of increasing piecemeal legislation. It may be out of order to go into the matter deeply, but at least 112 Members of the House have expressed concern in an Early Day Motion that some Private Members' Bills, concerning Sunday entertainment and Sunday trading, now coming before the House, might have been tackled by the Government in a comprehensive way. I only mention that as an example, that by leaving too much to be done by Private Members, too many piecemeal proposals are being brought before the House instead of comprehensive legislation being enacted, which I am sure is much more desirable.
However, I commend the Bill, I believe that the Government have been right in tackling the problem. It is as well for the public to know also that when all the headlines seem to be about the controversial aspects of Parliament, behind the scenes a tremendous amount of work is being done by experts and others in making life easier for the 1464 ordinary citizen and enabling him to see how he stands so far as the law is concerned.
§ 6.23 p.m.
§ Sir John Foster (Northwich)
The one point being discussed which is of prime importance is, the intention permanently to deprive the person to whom the property belongs. That is the definition of theft in Clause 1. It is also the definition of obtaining property by deception in Clause 14.
My hon. Friend the Member for Runcorn (Mr. Carlisle) used by way of example the argument that if someone just took a lawn mower for a short time it was absurd to make him liable for a criminal offence. I would say that if one takes a cigarette and smokes it, that is theft, but it does not prove that the whole law of theft is ridiculous just because it would be ridiculous to prosecute for that offence. What one has to study is how far "borrowing" is a factor of great significance.
The result of the present law is that "borrowing" a motor car was made an offence because thousands of motors were "stolen", in a layman's words; in other words, taking away and abandoning. The person taking the car said in defence that he had not intended to take it away permanently to deprive the owner. That seems to be a great social evil. The Bill seeks to make deprivation permanent by saying that if someone takes a motor car temporarily he is guilty of an offence.
It also says that if a person goes into a place to which the public has access and takes a Goya painting not intending to deprive the owner permanently, that is also an offence. A person might, to use the old terminology, break and enter a dwellinghouse to which the public did not have access, take out of it pictures worth £500,000 and put them in his cellar, not intending to deprive the owner permanently thereof. He might have made a will saying that when he died that property had to go back to the owner. If the police found out and rushed into the cellar he would say that not only had he made a will but over the previous 10 years he had taken all the pictures when people had wondered where those pictures had gone. They were still on the walls and were all to be returned to the owners; that showed that he did not 1465 intend to sell them, and he would get away with it. That example is not so farfetched, because there was a case on the Continent in which one of these mad collectors was anxious to enjoy the pictures on his walls, and he had a complete defence by saying that they had been on his walls for many years and they were going to be returned to the owners on his death. Therefore, deprivation was not permanent.
It can also be very annoying. Someone took away a man's traction engine, his steamroller. It is not a conveyance, and he caused the police a great deal of trouble, but had a complete defence by saying that he did not intend to deprive the owner permanently thereof.
I would ask the Government to look at the matter again. I would also ask the hon. Member for Runcorn to reconsider his views and to say whether it would not be right to have some form of "borrowing" as a criminal offence. I do not think he need fear that prosecution would follow the borrowing of a lawn mower, or the taking of someone else's cigarette to smoke it. That applies also to the offence of deception in Clause 14.
With regard to the query raised by the hon. Member for Runcorn about property, and if the assault takes place immediately after the robbery, from which the person is going away, that is part of the same crime, and I should have thought that the court's attitude would be fairly clear as to that.
With regard to demanding money with menaces, I think the new form is rather difficult and will need certain consideration in Committee, because there is the question of warranted or unwarranted demands. If they are unwarranted demands, a person might use the defence of warranty because the definition of subjective comes into it and—while a person might have held that the demands were unwarranted—might say he was so indignant that he felt he was justified in saying that unless the person did something or paid someone else that money he was going to take certain steps.
I think that matter should be looked into, but in general the Bill is extremely well conceived.
With regard to the picking of wild flowers, I think that is a matter which 1466 only really affects the social life of the country, so far as permanent deprivation is concerned. We are probably evolving in a better direction than thirty years ago, when one "won" things or borrowed them. Winning things in the Army was really a way of covering up stealing or borrowing. I would ask the Government to look again at the question of depriving the owner of some goods. Even if it is for a temporary period, there should be some Clause which makes that a criminal offence.
§ 6.29 p.m.
§ Mr. Norman Miscampbell (Blackpool, North)
I intend to be very brief this evening, because I expect on a few matters to trouble the Committee at Committee stage.
I should like to welcome this Bill, as has been stated by a number of other Members, because of its clarity and its comprehensibility. It stands a very good comparison with most Government legislation in the last four years and perhaps even before that. It is about the clearest Bill I have had occasion to read, and will certainly be of great assistance to lay magistrates and judges up and down the country, whether in the High Court or in quarter sessions, when they come to deal with this important subject. Therefore, I welcome the Bill wholeheartedly.
It is important to recognise that we are dealing this evening with perhaps the major portion of the criminal law as it applies to the ordinary people of the country. As society has become more affluent, as we have seen the growth of supermarkets and as temptations have grown, so we know from statistics that the most common crime of all has become that which is now covered by the term of "theft" in this Bill. It has been the common experience of everybody practising in the courts that that has become a matter of great complexity when applying the law. Thus, for the simplification and relief which is to be afforded to all of us who go to the courts, we can but be thankful.
I look back with a certain nostalgia at a number of trials at quarter sessions. Carlisle Quarter Sessions in particular, when there were interesting moments; one tried to amend the indictment at a very late stage to allege break ins, to try to prove break ins or to say that something had happened inside or outside the 1467 house. An equally fertile source of litigation on the Cumberland coast is the rescuing of coal from the sea, and I do not think that will be changed by this Bill; but there are often interesting moments when people bring the coal up in prams from Whitehaven and whilst the few top pieces of coal may look well washed, further down in the pram one finds some coal which has come straight off the siding at Whitehaven. Those are matters which will be resolved in part, and in part will continue to tax the Bar. But we can be nothing but thankful for the relief which this Bill gives to all those who practise in the courts.
I think it is extremely sensible that we should have a high standard sentence which we can recognise for theft, but that it should be left to the discretion of the court to make up its mind as to the degree of culpability of the person before it. I cannot think of anything more ridiculous than that the House of Commons should, as in the past, try to decide what varying punishments should be given for different crimes when the House has little or no knowledge of the actual culpability of a person before a court.
Lastly, one knows how important this Bill is when it is realised that apart from embezzlement and fraudulent conversion, matters which are covered by the new definition of theft, it includes, I believe, no fewer than 20 other types of larceny. I welcome the Bill, and I look forward to the Committee stage.
§ 6.33 p.m.
§ The Solicitor-General (Sir Arthur Irvine)
I am glad that this Bill has received such an agreeable reception from the Committee and, as a Law Officer, I wish explicitly to join my hon. Friend in the tribute which he paid to the Criminal Law Revision Committee and to its Chairman. The Committee's task was to consider matters with a view to providing a simple and more effective system of law, and, in my view, that task has been successfully accomplished. The separate offences of larceny, embezzlement, and fraudulent conversion, with the complexities which are attached to them, are replaced by the new offence of theft. As I understand it, that simplification derives mainly from discarding "taking" in favour of "dishonest appropriation" in Clause 1, and going from the concept of right of possession, to which my hon. 1468 Friend the Under-Secretary referred, to that of right of ownership. From comparatively small adjustments in the language of Statutes it seems to me that great advantages may accrue, and this Bill offers an example of that.
On Second Reading the Committee is concerned with the principle of the Bill, its purpose and, broadly, its method of achieving that purpose. I am glad that in those respects the Bill has received the welcome that it has. As has been said, we shall have plenty of points to consider at the Committee stage, and I do not propose to anticipate those now.
I will just refer to one or two of the matters raised in the course of the debate. We shall obviously have interesting arguments about "permanently". It may facilitate consideration during the Committee stage if I indicate now what our viewpoint is of these. There was a proposal made in another place which would have had the effect that it would be theft dishonestly to appropriate property belonging to another with the intention of depriving the other of it, even if it was only intended to take the property temporarily. This is contrary to the policy advocated by the Criminal Law Revision Committee which the Government fully support. Its viewpoint was that, subject to certain limited exceptions dealt with in Clause 10, "Removal of articles from places open to the public" and in Clause 11, "Taking motor vehicle or other conveyance without authority", dishonest borrowing should not be a criminal offence. That is the view now taken. I have listened with careful attention, and with the respect the Committee would expect from me, to what has been said by the hon. and learned Gentleman the Member for Northwich (Sir J. Foster) and by others. This whole matter is appropriate for us to consider carefully at Committee stage.
There has been some mention in our considerations of wild plants. In the same manner in which I have dealt with the word "permanently" I would like to indicate to the Committee what our view is on that matter. The commercial test can be strongly argued against, but it can be regarded as a reasonable compromise between making it on the one hand always theft dishonestly to pick a wild flower, and on other hand making it never theft. One is dealing here with 1469 a wide range of acts. The Criminal Law Revision Committee considered the possibility that dishonest picking of wild flowers should in no case be theft, leaving it—I think it had in mind—to the landowner to prosecute for malicious damage or to take civil proceedings. The Committee rejected this, because it seemed to the Committee that such a dishonest and profitable activity as picking a person's holly in order to sell it should be criminal.
I have endeavoured to indicate what is our present thinking there, but to make it clear at the same time that we shall listen with the greatest care to arguments presented on these matters.
The right hon. and learned Gentleman referred to forgery, and asked whether it would not be possible to phase the treatment of the law relative to forgery with the rest of this reform of the criminal law. The position is that the Law Commission is at present engaged in preparing a report on that branch of the law. My understanding is that some little time is likely to elapse before that recommendation is received from the Law Commission. One has always in this matter to guard against the danger that by endeavouring to phase in every connected proposal one may defer desirable objectives far too long. I would ask the right hon. and learned Gentleman to consider that. It is a fact that that branch of the law is receiving careful consideration. I draw the attention of my hon. Friend the Member for Newark (Mr. Bishop) to that point because he helpfully indicated the importance of ensuring that the work of law reform should be well sustained and well spread. That is in the mind of the Government. I am satisfied it is also in the mind of the Law Commission. Broadly, we believe that a desirable course is being properly pursued.
There are one or two rather more technical matters which I do not think it would be serving the purpose of the Committee if I were to deal with now. They are rather Committee points. The hon. Gentleman the Member for Runcorn (Mr. Carlisle) will, perhaps, be good enough to take it from me if I go no further than to say that we will certainly consider his point about robbery and the violence occurring after the act of stealing, but I would not, with respect to him, 1470 entirely commit myself to the view of the present law which he expressed. It calls for some adjustment, but I will not go into the detail of that now, if he will permit me. We can deal with that later in Committee.
My hon. Friend the Member for Newark asked about the bearing of all this upon problems arising in supermarkets. We will pay attention to that. In the category of offence he has in mind there will, in some instances, be a change in character and title of the offence, for example, from embezzlement to theft where the money is taken before it gets into the till, an offence which commonly arises in that context. For the rest the prosecution in the class of case he has in mind will have broadly the same task and burden to discharge after this Bill becomes law as it has had to discharge thus far.
I want the Committee to rest assured that there are several matters upon which we are at present engaged in carrying out consultation and on which we are reflecting further. The right hon. and learned Gentleman very accurately adumbrated these matters. They are matters to which we are giving further consideration.
The question of a subjective or objective test in the matter of blackmail is receiving consideration. The Lord Chief Justice and others are being asked for their views on that. In another place there were interesting suggestions on how that should be dealt with. There was a proposal that the proposition in the Bill might be modified by a compromise which would apply the subjective test to the question of reasonable grounds for making the demand and applying the objective test to the propriety of using the pressure brought to bear. I only mention that to indicate that this is the kind of issue which has a good deal of refinement and nicety in it, and to assure the Committee that it is receiving careful consideration.
Another example of a provision in the Bill which is receiving further thought and which has been referred to the judges is the language of Clause 15. It may be helpful to Members of the Committee to know that the view has been expressed by some that the expression "pecuniary advantage" may prove to be a source of difficulty. It is right to say it is a term 1471 which at present as a matter of law does not have a commonly accepted meaning.
With these observations I venture to repeat what I said at the beginning, that I am glad that the considerable work comprised in this Bill has received from this Committee the welcome and indications of support it has had.
§ Question put and agreed to.
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Russell, Sir R. (Chairman)||Lee, Mr. John|
|Atkinson, Mr.||McCann, Mr.|
|Bishop, Mr.||Miscampbell, Mr.|
|Carlisle, Mr.||Morgan, Mr. Elystan|
|Davies, Mr. Ednyfed Hudson||Rawlinson, Sir P.|
|Forrester, Mr.||Solicitor-General, The|
|Foster, Sir J.||Wainwright, Mr. Edwin|
§ Mr. Elystan Morgan
Before we leave, I am sure the Committee would like me to thank you, Sir Ronald, for taking the Chair at this Committee and for the expeditious way in which our business has been conducted this afternoon.
§ Sir P. Rawlinson
May I second that? You will now see, Sir Ronald, how good humoured those much abused people, the lawyers are, when they are discussing a matter of real importance.
§ Committee rose at eight minutes to Seven o'clock.