§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
There is a printing error on the Notice Paper of Amendments. The Amendment shown as No. 1 is, in fact, not No. 1. It reads: In page 2, line 5, leave out 'anything' and insert:'any inflammable or noxious substances or any dangerous or noxious thing'.The first Amendment is, in fact No. 2, in page 2, line 5, after 'who', insert 'without lawful excuse'. With it we can take Amendment No. 3, in line 6, leave out 'without lawful excuse'.
§ 2.50 p.m.
§ Sir Elwyn Jones (West Ham, South)
I am most grateful for that information, Mr. Deputy Speaker, and it will indeed be convenient to discuss these three Amendments together.
§ Sir Elwyn Jones
But all three Amendments could conveniently be discussed together for they all arise out of the same point.
§ Sir Elwyn Jones
I beg to move Amendment No. 2, in page 2, line 5, after 'who', insert 'without lawful excuse.'
§ These Amendments derive from our concern about the wide terms and implications of Clause 3 as it is now drafted, 868 linked as that Clause is with the powers of search of homes and premises, powers provided for in Clause 6 in respect of which we have put down Amendment No. 4. In Committee we on this side expressed our anxiety about this Clause, and the Under-Secretary of State undertook to look at it again, and although he gave no undertakings that there would be any Amendments I am disappointed that nothing by way of Amendment has emerged from the consideration which he and the Home Office have, no doubt, given to this matter since Committee.
Clause 3 provides that a person who has
anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—
§ Clause 6 is linked with that in giving powers to search for things intended for use in committing offences of criminal damage.
§ The Clause constitutes an extension of the power of the police to enter people's homes. That is only justifiable in the clearest and most serious circumstances. When an attempt is made in this way to provide powers to invade the privacy of one's home a heavy burden of proving the necessity to do so falls on the shoulders of the Government, and I am anxious today that the Under-Secretary should spell out clearly what he claims to be the justification for what is proposed. In our view, while a serious problem does exist in regard to petrol bombs, and while we see a case for punishing for the possession of substances or articles which in themselves are offensive or unlawful with intent without lawful excuse to use them to destroy property, the Clause as now drafted goes further than this. The word used in the Clause is "anything" and, as it stands, the offending object can be an object most innocent in itself—a box of matches, a milk bottle, a hammer, the sorts of things which one normally finds in anyone's home.
§ Under the Clause the offending object does not have to be found on the offender's person. The Bar Council wanted 869 the Clause restricted to that. The criminal law already has provisions for punishing a person with potentially offensive things on him—a thing like a brick—when the person concerned is taking part in a disorderly demonstration involving a breach of the peace. The new powers are really not necessary to deal with that particular mischief. If the language of the Clause stands, "anything" in a house will do for that purpose of laying the foundation for proceedings. We on this side think that the Clause should be more restricted.
In the Amendment which I think is now No. 2 we propose to leave out "anything" and to specify things the possession of which, in the circumstances envisaged in the Clause, could reasonably be declared to be criminal. In place of "anything" we propose to substitution of a precisely defined type of thing or object, namely,
any inflammable or noxious substances or any dangerous or noxious thing".
§ As far as explosive substances are concerned, the Explosive Substances Act, 1883, contains two provisions prohibiting the making or possession of explosives. Those provisions carry very heavy penalties, and that will still remain part of our law. We think it right to spell out the object or thing in the way we propose in the Amendment instead of the generality of the word "anything" which the Clause at present contains.
The other Amendment, replacing the position of the words "without lawful excuse", where they were originally in the Law Commission's Report, is frankly a further attempt to restrict the scope of the Clause. As I have said, the Clause as originally drafted by the Law Commission and published in its Report, contains the words "without lawful excuse" in the position in which the Amendment now proposes to place them. The Amendment in Committee in another place resulted in the change being effected. If the Clause were to read:
A person who without lawful excuse has anything in his custody or under his control intending without lawful excuse to use it … to destroy … any property belonging to some other person …
§ the prosecution would then have to establish that the custody or control of the thing in question was itself without lawful excuse. If that were established as the first matter to be proved by the prosecution, the prosecution would have 870 to go on to prove the intent, which admittedly is the essence of the offence.
§ 3.0 p.m.
Was that what the Law Commission intended? If there has been a change, what is the reason for the change? The noble Lord, the Lord Chancellor, replying to the speech of the mover of the Amendment, said:
I tried very hard to make out whether the noble Lord is right or wrong in his Amendment. He is probably right, and therefore I propose to accept it."—[OFFICIAL REPORT, House of Lords, 30th March, 1971; Vol. 316, c. 1248.]
§ Good stuff, if I may say so, from the noble Lord, characteristic of the man we used to know here.
§ That was as far as discussion of this matter went in another place, and I do not think it went far enough. Accordingly, we on this side of the House feel that the Under-Secretary of State should explain why the drafting of the Law Commission was rejected and why the Amendment moved in another place was agreed to. After all, the fact that these proposals emanated from the Law Commission gives them enormous weight when they come before the House. Although my admiration for the Law Commission does not lead me to conclude that we should accept everything it suggests or brings forward to us, I should require good reason for departing from what it proposed on such an important matter. Therefore, I ask the Under-Secretary of State whether the intention was not originally to set greater limits on the proposed offence than we now find in the Clause, and what justification there is for broadening the matter as was done by the Amendment in another place.
§ The other Amendment would be convenient for discussion later.
§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle)
I am sure the House is grateful to the right hon. and learned Gentleman not only for placing these Amendments on the Order Paper to enable us to look again at the wording of Clause 3, but also for the customary clarity with which he has explained to the House the difficulties involved in this Clause.
In Committee I conceded that there was bound to be concern at the width of Clause 3 as it appeared in the Bill. On being pressed by the right hon. and 871 learned Gentleman and others in Committee I said that, in view of the right hon. and learned Gentleman's feelings, I would of course look at it again to see whether it required amendment, although I also said:I shall look at the right hon. and learned Gentleman's suggestion but, on balance, I think that it is right to have this wider offence."—[OFFICIAL REPORT, Standing Committee D, 17th June, 1971; c. 37.]Having looked again at the Clause, I have come to the conclusion that, if it is to succeed in meeting the mischief which it is aimed to meet, it is impossible to see how one can achieve that end in words that are narrower than those used, or how it could be limited in a way which would still achieve the purpose, which the right hon. and learned Gentleman welcomed.
I must probably take a high degree of responsibility for misleading the Committee when I talked about this as a rather novel feature of our law and said that I knew it was one which would raise concern to a lawyer. If one goes back to the Malicious Damage Act, 1861, one finds that, far from this being as I thought—and due to my incompetence in saying so led other people to believe—a new provision, it very nearly repeats in more up-to-date language provisions which have existed for more than 110 years in Sections 54 and 55 of the Malicious Damage Act.
I do not think it can be suggested—and we at the Home Office have no evidence to suggest—that although a similar provision has been on the Statute Book for over 100 years it has during that period led to the abuse which it could possibly give rise to at first sight. There is no evidence to suggest that the power in Sections 54 and 55 of the Malicious Damage Act, 1861, which relate to making it an offence for anyone knowingly to have in his possession any dangerous or noxious thing or any machine, engine, instrument or thing with intent thereby or by means thereof to commit an offence, has in practice led to abuse.
To turn to the Amendments, I wish to consider why the Government chose to accept the Amendment moved by the noble Lord, Lord Airedale, in another place which changed the position of the words "without lawful excuse" in the 872 Bill as originally drafted. The brevity of debate in the other place on that occasion should not be taken as indicating the amount of thought given to this matter in the Home Office before the recommendation was made that the Amendment should be accepted.
The reason the Government decided to accept the Amendment was that we felt the new positioning of the wording would more clearly meet the clear intention of the Law Commission than the form in which the Bill was originally drafted. The Law Commission in paragraph 60 of its Report No. 29 said, when discussing this particular offence:The essential feature of the proposed offence is to be found not so much in the nature of the thing—for almost any every-day article, from a box of matches to a hammer or nail, can be used to destroy or damage property—as in the intention with which it is held. The intention of the possessor to use the property himself for the prohibited purpose is straightforward. It is also necessary to include the intention of the possessor to permit or cause another to use the thing …The Law Commission's view of the offence is that it is not possession of the article but the intention with which it is possessed that creates the criminal offence. The words "without lawful excuse" should be in such a place in the provision to make clear that they relate to the intended use rather than the basis of the possession of the article itself.
§ Mr. Jeffrey Thomas (Abertillery)
The real difficulty when somebody is in unlawful possession of an article is in proving the intention of the person in relation to its use. This is why the words were used in that particular place in the provision.
§ Mr. Carlisle
With respect to hon. Gentlemen, I do not accept that. It is not a matter of the unlawful possession of the article, or the fact that the person has not lawful excuse to have the article. It is his intention to use it for an unlawful purpose. If the reverse is the case there is no point in the Law Commission saying, as it did in its report, that almost any everyday article, from a box of matches to a hammer or nail, can be used to destroy or damage. If there is intention to use an everyday article to damage something, then if the Bill were drafted as originally intended, it would have to be shown that there 873 was no lawful excuse to have in the possession of that person the hammer, nail or box of matches. That would be an impossible position and would be directly contrary to what the Commission argues in paragraph 60 of its report.
§ Mr. Clinton Davis (Hackney, Central)
Is there not a practical difficulty, with legislation drawn in such wide terms, in being able to obtain a conviction? I think that the difficulty with which prosecutions will be confronted is that the courts will be loth to convict.
§ Mr. Carlisle
It may be a practical difficulty, but my answer would be that it would be very much more difficult to prove lack of lawful excuse for possession than it would lawful excuse for the intention of using the article.
The effect of the Amendment would be that the mental element would be transferred not from the intention with which one uses the article but to the possession of the article itself. It would limit an offence only to where one could show that the possession itself was without lawful excuse. Therefore, if there was any innocent object which could, prima facie, be an innocent object and was held for the purpose of using it with intent, without excuse, to cause damage, one could never obtain a conviction because one could never show that the possession of the article itself was without lawful excuse.
The effect of the Amendment could be to limit the possession to being without lawful excuse or, alternatively, it could be argued that one would then have to have, without lawful excuse, both custody and possession of the article and the intention to use it. If one had to show that the article was held without lawful excuse, then the person making the petrol bomb, for example, from a can of petrol which happened to belong to him, in his house, presumably would be committing no offence because he could say that he had lawful excuse to have a can of petrol in his house or garage. But if he had stolen a can of petrol for the purpose of making a petrol bomb, he would be committing an offence because one could say that he had no lawful excuse for having the petrol at all. It seems an extraordinary position that, where one is concerned with the intention with which the goods are being held, 874 the argument would then revolve around whether or not the person was in lawful possession of the article.
Equally, it would mean that, if one had in one's house, without lawful excuse, limited purely to the possession, a stolen sledgehammer with which one was intending to damage someone's property, but perfectly lawfully doing so—in other words, knock it down at the owner's request—one would then be committing an offence under Clause 3 because one would then have no lawful excuse for having the article in one's house. It is clearly impossible to limit the words "custody or control" by the phrase "lawful excuse". What was clearly intended was that the lack of lawful excuse should limit the intention with which it was proposed that the article should be used. For those reasons it was decided that the Amendment put down by the noble Lord, Lord Airedale, met the intention of the Law Commission to make it an offence to have articles, perhaps of an everyday nature, in one's house without lawful excuse and with the intention of using them to damage or destroy another's property. In the opinion of the Government, the Bill, as amended, meets the intention of the Law Commission on this point.
I now turn to the other Amendment which attempts to limit the scope of Clause 3 by removing the word "anything" and specifying in its place particular articles which it would be an offence to have in one's possession with the intention, without lawful excuse, of using them.
It is impossible to find any definition which can limit Clause 3 in this way without breaching the whole purpose of the Clause. Surely what matters is not the inherent nature of the article, as would be the effect of the Amendment, the "inflammable or noxious substance", but the use to which it is proposed to be put.
It is an extremely wide offence, but we are facing a situation where there is a need for a power of this kind because a potential group of extremists is prepared to attempt to use widespread destruction as a means of demonstration. It is far better to have a Clause which enables us to cover any article which may be 875 intended to be used for that purpose than one which is limited to a particular type of article and perhaps has to be repeatedly amended as different manifestations of this violence become apparent.
§ Sir Elwyn Jones
Is not the immediate mischief with which we are concerned the petrol bomb? The Amendment spells out that mischief quite specifically. It would be helpful if the Under-Secretary would explain what wider mischief than that the Government have in mind in insisting on the broad generality that any object, however innocent. could be the basis of a prosecution.
§ Mr. Carlisle
I accept that the petrol to go into the bomb would clearly be covered by the word "inflammable". The other articles used for the preparation of a petrol bomb presumably would not. Are we bound to assume that the danger must always be the petrol bomb? A recent example is the move from the petrol bomb to the nail bomb.
§ Mr. Carlisle
The right hon. and learned Gentleman says that it is a noxious thing. The dictionary definition of a "noxious thing" is "unwholesome".
§ Mr. Carlisle
Dangerous or unwholesome. The Pocket Oxford Dictionary definition is "harmful or unwholesome".
§ Mr. Carlisle
We are considering putting into the Clause words which the right hon. and learned Gentleman would argue are so clear and precise that they cover the possible dangers without going wider.
We must look to the definition: it is either a dangerous or noxious thing which is unwholesome or harmful. Is a nail or a box of studs a dangerous or a noxious thing? They may be being held there for the purpose of making nail bombs to cause damage and destruction. It is not possible in a provision like this to attempt to limit in advance the type of articles which might create the offence. What is inherent in this offence is the intent 876 concerning the use of the article and not the article itself. Although the Department will study the points made we have concluded that this type of attempt to narrow the effect of the Bill is not the right way and it is better to leave it as a wide offence in the way that the Law Commission recommended, remembering that the safeguard always lies with the necessity to prove that the articles were held with the intention of using them to destroy property.
§ Mr. Jeffrey Thomas
The Clause as it now stands represents in our view a serious and far-reaching encroachment of individual liberty. If these Clauses had been introduced by a Labour Administration the dogs of war would have been unleashed and we should have been the victims of the kind of Press attack normally reserved for child beaters and abductors of orphans.
It is indicative of a wholly new concept of law in that for the first time the articles and items which under previous legislation have been carefully described and confined within the terms of the titular Act of Parliament are unlimited. This is the part of the Measure to which we take the greatest exception. We think that many of the matters complained of by the Under-Secretary and particularly the mischief with which he is mainly concerned are more than adequately covered by other legislation.
The only realistic illustration which we had from the Government of the kind of mischief which this particular Clause wishes to end is the mischief of the petrol bomber. Time and again the Under-Secretary when asked for an example of the kind of thing he has in mind simply referred to the petrol bomber or the individual who will take a milk bottle, a piece of cotton wool and so on.
Matters of that kind are more adequately covered by other legislation. It has never been suggested that there is compelling evidence that the petrol bomber case is not covered by other legislation. The highest at which this has been put by the Government is that it may not have been covered by other legislation. That was the position in another place and when we discussed this matter on Second Reading. The other legislation which runs parallel with this Bill and which provides, in our view, 877 an illustration of the adequate coverage of this type of offence, is the Firearms Act of 1968. Apart from dealing with the general question of the possession of firearms and ammunition, Section 5 refers to the possession ofany weapon of whatever description designed or adapted for the discharge of any noxious liquid, gas or any other thing and any ammunition containing, or designed or adapted to contain, any such noxious thing".These are already offences.
Section 1 of the Prevention of Crime Act, 1953, which deals with offensive weapons, says thatAny person who without lawful authority or reasonable excuse … has with him in any public place an offensive weapon shall be guilty of an offence.The important aspect of that offence and of offences under Section 8 of the Theft Act—being in possession of housebreaking implements—is that the offender must have such article in a public place. It must be strictly proved that the offender, at the time of the offence, was not at his place of abode.
That is the danger of this Clause. It is one thing to be in possession of an article in a public place; it is a completely different thing for an offender to be in possession of an article—particularly an article of an ambiguous or equivocal kind—in his own home. In our view our Amendments would restrict the use of the Clause and, at the same time, ensure that the kind of mischief referred to by the Under-Secretary is catered for.
§ Mr. Clinton Davis
I have no doubt that we are all at one in seeking to attain the same object. Nevertheless, I cannot help feeling that this legislation is extremely clumsy. It is obvious that society must protect itself against petrol bombers and the like, and that people are in fear of the sort of situations that have arisen with greater frequency recently, but we must also guard against giving the Executive powers which are capable of abuse. I support my hon. Friend's argument that there is a vast difference between the situation envisaged in the 1953 legislation and that with which the Bill is designed to deal, under which a relatively inoffensive article—on the face of it—may become the subject of a prosecution.
878 The Under-Secretary said that he was concerned with the intention of the user rather than the inherent nature of the article, and went on to cite the case of the nail and the matchbox. The point that I made in an intervention has some substance. What possibility exists of achieving the end that the Minister desires, namely, a successful prosecution, when we are faced with a prosecution based upon the possession of a nail or a matchbox?
The purpose of the Amendment is to define what the law intends. There is a duty upon us to make the law specific in these matters. Sometimes, inevitably, hon. Members opposite are not prepared to admit that the Executive can abuse the law, especially if it is drawn too widely. I am sure that the hon. and learned Gentleman is as anxious as I am to avoid that.
The enormous difficulties on the part of the prosecution in establishing guilt here will, in effect, be self-defeating. This series of Amendments—which, on the one hand would give some protection to civil liberties and, on the other, would make the offence more specific—would, therefore, create a situation in which it would be very much easier for the prosecution to undertake the burden which should rest on it.
The hon. and learned Gentleman cited the Malicious Damage Act, 1861, and I confess not to have gone into that matter previously. However, the word "thing" in the provisions to which he referred is qualified by the preceding adjectives. That situation does not exist in Clause 3 of this Measure, and the word "anything" is, in my view, too wide.
§ Mr. Carlisle
Both the hon. Gentleman and his hon. Friend the Member for Abertillery (Mr. Jeffrey Thomas) referred to the difference between this legislation and that of 1953. The earlier Act dealt with having various articles on one's person while outside one's house, and the Amendment is not aimed at that. Whether or not an article is a housebreaking implement or offensive weapon is decided by the intention for which it is proposed to use it. Exactly the same test has to be applied under this legislation.
§ Mr. Clinton Davis
Experience has shown that there are considerable difficulties in getting a successful prosecution where one has something which is not inherently dangerous on the person, such as a nail. There is, of course, a difference between, say, a steel comb, which is capable of being used offensively—and there should be a burden on the defendant to show he has lawful use of it—and the everyday articles which the hon. and learned Gentleman cited and which are to be found in the home. This therefore gives draconian powers to the Executive which seem unnecessary in the light of the remarks of my hon. Friend the Member for Abertillery (Mr. Jeffrey Thomas).
I come to the question of the power to search and here there must be the most stringent qualification—
§ Mr. Clinton Davis
I am obliged to my right hon. and learned Friend and I reserve my right to speak on this subject a little later.
§ Amendment negatived.