§ 10.30 a.m.
§ The Under-Secretary of State for the Home Department (Mr. Mark Carlisle)
I beg to move,That the Chairman do now report to the House that the Committee recommend that the Criminal Damage Bill [Lords] ought to be read a Second time.This Bill follows upon the first report of the Law Commission to be devoted to a review of the major area of the criminal law. Although by the provisions of the Law Commissions Act, the Law Commission has a general responsibility for promoting reform of the law, members of the Committee will be aware
§ that by far the vast majority of the 40 reports that have so far been published have been devoted to matters affecting the civil law. However, by item 18 of the second programme of law reform published in 1967, a long-term programme for codification of the criminal law was drawn up.
§ According to that programme, this work on the criminal law was to be shared between the Law Commission and the Criminal Law Revision Committee, which is a very much older committee and which has done a great deal of valuable work on criminal law and was responsible for the recent Theft Act. The law with regard to malicious damage was one of the subjects assigned to the Law Commission.
§ I am sure the Committee will wish to join me in thanking and congratulating 1435 the Law Commission and the Chairman of that very distinguished body on their work. The Bill, which has passed through another place, is in all but very minor respects the draft Bill as originally recommended by the Law Commission.
§ The Measure certainly does not purport to be revolutionary or sensational. It is essentially a Measure of codification, and its justification is that it will mark a gain in clarity and comprehensiveness over an important area of the criminal law. It introduces no new principles, except to a limited extent in its provisions for compensation, which deal with the principle that a criminal who damages property should be obliged to compensate his victim.
§ Briefly, the purpose of the Bill is to redefine the diffused and complicated law which now relates to the offences of malicious damage. It creates two main offences, both of which are set out in Clause 1. Clause 1(1) describes what might be described as the basic offence of intentionally or recklessly destroying or damaging another's property without lawful excuse, and then what has been called the aggravated offence referred to in Clause 1(2) of destroying or damaging any property, either belonging to the man himself or to another person with the intention of endangering another's life or being reckless as to whether any other person's life might be endangered.
§ In that manner the Bill simplifies and clarifies the existing law on this subject, which is at present mainly to be found in the Malicious Damage Act, 1861, and which has survived substantially since that date in its original form. The Malicious Damage Act, unlike the Bill, was based on the principle that it was necessary to spell out in detail the types of damage that might be committed and to classify offences and provide for different penalties, depending mainly on the type of property damage or destroyed, the value of the damage caused, and the means by which the damage has been caused.
§ Proceeding on that principle, and dividing offences in that way, the Malicious Damage Act is a fascinating inventory of the paraphernalia of Victorian commerce, industry and agriculture. While the Act, surviving as it has to the present day, deals 1436 with serious basic offences of damage to property, many of its Sections are now never invoked and the sense of values implicit in its "tariff" of penalties set out in it would not necessarily commend it to people of the present day.
If I may take one extreme example, for damaging any article of
…of silk, wool, linen, cotton, hair, mohair or alpaca, or of any one or more of those materials mixed with each other,…
the maximum penalty is penal servitude for life. Whereas for damaging any manuscript or work of art kept in a museum the maximum penalty is six months' imprisonment. It is this sort of contrast in penalty laid down in 1861 and continued to the present day that I do not think necessarily rightly reflects normal penal attitudes at the present time.
§ Whilst I certainly do not propose to weary the Committee with an explanation of the various facets of our social history reflected in the provisions of that Act, I can content myself by saying that in the law dealing with damage to property we have today a considerable amount of complicated and often outmoded legislation similar to that which used to exist in the law of larceny before the Theft Act, 1968, introduced by the right hon. and learned Gentleman the Member for West Ham, South (Sir Elwyn Jones).
§ Just as the Theft Act was a necessary exercise of clarification and modernisation of the law of larceny as it existed prior to 1968, so I believe that this Bill is desirable and urgently needed as a means of clarification and modernisation of the laws of malicious damage.
§ Under this Measure, unlike the previous provisions that existed, the importance of the different types of property, the importance of the degree of damage caused are left to be differentiated at the time of sentence, rather than they have been left in the past as a mean decision of the type of the offence of which a person is convicted.
§ As I have said, there is a need for simplification in accordance with modern principles, and this need is evident when it is remembered that the majority of malicious damage offences are dealt with by lay magistrates. It is desirable that here above all the law should be as simple and as straightforward as possible to 1437 apply. The Bill in my judgment exemplifies these principles, and will be welcomed as an extension of the policy of codification already exemplified by the Theft Act.
§ All the evidence available suggests that the reduction of the law on theft to a comparatively few clear propositions is in practice working well. It has simplified the task of the courts without being detrimental to the interests of the accused. I hope that a comparable improvement will follow the passage of the Bill with regard to the law of malicious damage. Having said that, I turn to a brief review of the main principles embodied in the Measure.
§ The first question to be determined is what constitutes an offence of criminal damage. The Law Commission has argued—I believe rightly—that the essence of the offence is destruction of or damage to the property of another. The Bill therefore proceeds on the basis that the circumstances in which damage occurs, the means used to effect it and the value of property damaged may all be factors which to a greater or a less extent enhance the seriousness of the effect of the crime. As such, they are factors which should be taken into consideration by the court in determining the sentence.
§ The basic definition of the offence is that without lawful excuse A damages something which belongs to B, whatever method may be taken of causing that damage.
§ To constitute an offence, it will be necessary to prove that the act done was done intentionally or recklessly. There fore, accidental damage is not a criminal offence. The traditional term "maliciously", which has so often been a cause of misunderstanding and which can easily give rise to the misconception that a person must be actively possessed with ill will before he can be guilty of an offence, has been disposed of.
§ The proposal to rename the offence "criminal damage" rather than "malicious damage" will, I think, make for clarity, and the use of the words "intentionally or recklessly" rather than the word "maliciously" will assist in that matter. The phrase "without lawful excuse" provides for the situation in which it may be right to damage someone's property, albeit intentionally. An example of that would be where a police 1438 officer, furnished with a search warrant for the arrest of a suspected criminal, finds it necessary to break down the door of the house in order to execute the arrest.
§ Whilst dealing with the definition of this new effect under Clause 1, I should add that the meaning of the phrase "without lawful excuse" is further clarified in Clause 5. From that, it is clear that the term "lawful excuse" covers the case of a person who damages or destroys another's property believing that the person who would be entitled to consent to its damage had done so or would have done so had he known of all the circumstances.
§ Clause 5 also covers the case of a person who damages or destroys property in order to protect other property, when he believes that property to be in need of protection and the means adopted to be reasonable in all the circumstances. It seems right, for example, that where a person's property is in immediate danger he should be entitled to take action to defend it, even at the risk of damage to property belonging to someone else. Moreover, provided that the need is immediate—that is expressly stated in the Bill—he should not subsequently be guilty of an offence, and punished on the ground that his belief as to his rights in the matter was ill-founded. Clause 5, therefore, provides that, where immediate action is necessary, an honest, though erroneous, belief in one's right to act, is a valid defence to a charge of criminal damage which may arise from one's actions.
§ The definition of "property" and of the phrase "belonging to" is to be found in Clause 10. Those are important definitions, but they aim to be simple and as close as possible to common usage of the words. They follow fairly closely the equivalent definition in the Theft Act, with certain necessary adaptations to suit the differences between theft and damage. Real property, for example, can be damaged, but not stolen, whereas intangible property, such as patents or trade secrets, can be stolen but not damaged. Accordingly, property for the purpose of the offence of criminal damage is limited to tangible property, whether real or personal.
§ The definition of "belonging to another" is also found in Clause 10. The 1439 importance here is that it covers various situations in which a person may have a legitimate interest in property of which he is not the owner. In other words, it covers people such as the tenant of a house, or the hirer of a musical instrument or of any other goods which are in his possession and under his control as a result of the hiring agreement.
§ The Bill has the effect that the court will not have to determine the complicated question of ownership nor enter into the various legal problems which have always surrounded the use of the word "possession".
§ Except in the circumstances to which I shall refer in a moment when dealing with the aggravated offence under Clause 1, it is sufficient that the property belongs to someone other than the offender. Clause 10 sets out in detail the definition of property and the circumstances in which such property may be treated as belonging to another.
§ I now return to Clause 1. This distinguishes between what might be described as the simple offence of causing criminal damage and its aggravated form. The differences are marked under Clause 4 by appropriate differences in the maximum penalty. The test for the Law Commission of what constituted an aggravated offence was not easy, but I believe that the Commission was right to reject—as in the Theft Act—any test based merely on the value of the property that had been damaged. As the Committee will know, that was the main basis on which variations in punishment were reflected in the 1861 Act.
§ The actual or potential consequences of an act of damage cannot be held in all cases to be a measure of the actual seriousness of the crime. What does introduce a difference of quality into the situation, and what has therefore been accepted by the Law Commission as the difference which causes a crime of malicious criminal damage to become an aggravated crime of criminal damage, is the question whether there is an intention to endanger life, or recklessness as to such danger.
§ Where there is an element of intention to endanger life, or recklessness as to such danger, it is immaterial whether the property damaged belongs to the offender 1440 or to another person. Therefore, the distinction in Clause 1 is between the offence of damaging someone else's property intentionally or recklessly, without lawful excuse, and the more serious offence—in subsection (2)—of damaging or destroying either someone else's or one's own property, intending by doing so to endanger the life of someone else, or being reckless as to whether life should be endangered.
§ As its report shows, the Commission gave a good deal of thought to the question whether there should be an offence of damaging one's own property in circumstances other than those in which life was endangered. It concluded that that was not necessary, in view of the offence of obtaining property by deception created by the Theft Act. The view of the Law Commission was that if a man destroyed his own property with a view to a fraudulent insurance claim he was liable to prosecution under the Theft Act, and that the provisions of that Act were adequate to meet a case of that kind.
§ Equally, if a man destroyed his own property for a purpose other than to defraud or attempt to defraud, anybody else, one might think that he was a f000l, but he would be entitled to do what he liked with property belonging to himself, so long as it did not harm anyone else. That is why the Law Commission has not provided an offence of damaging one's own property other than in the specific circumstances—where it is done with intent to endanger the life of another, or with recklessness as to the consequences.
§ Clause 2 deals with the offence of threatening to destroy or damage property. Here again, a distinction is made similar to that made in Clause 1, in that it is an offence to threaten to damage one's own property only if the threat is made in a way that one knows is likely to endanger life. Under the present law—another example of the anomalous state of the present law—threatening to damage another's property is an offence only when the threat is conveyed in writing, and the offence relates to burning certain types of property or to killing, maiming or wounding cattle. There seems no justification for such selectivity. It is more logical and equitable to make any kind of threat of damage to property an 1441 offence, provided that the threat is intended to be taken seriously by the person to whom it is made. That is what is provided in Clause 2.
§ Clause 3 is concerned with the possession of articles which could be used to destroy or damage property. Virtually any physical object can be used to damage property, and Clause 3 accepts the logic of that situation by making it an offence for a person to keep anything in his custody or control with the intention of using it without lawful excuse—or causing or permitting another to use it—to destroy or damage property. It is a wide Clause.
§ It goes without saying that proof of intent is essential before a conviction can be obtained. The Clause will cover the case of the person who holds materials for constructing petrol bombs or other means of physical destruction, which may not at the moment be covered by the Explosive Substances Act, 1883.
§ The construction of petrol bombs is a good example of the need for the rather general terms of the Clause. For example, the possession of a milk-bottle may be wholly innocent; the possession of petrol may be wholly innocent; the possession of cotton-wool or a wedge may be wholly innocent. But if they are possessed or under the control of a person with the intention of using them to cause damage, an offence is committed under Clause 3. The Clause is wide enough to include possession in one's house as well as merely having material in one's possession or custody when one is outside one's house.
§ Clause 6 deals with the power to obtain a search warrant for the purpose of searching for anything intended to be used in committing an offence of criminal damage.
§ As I indicated earlier, Clause 4 provides two ranges of penalties for conviction on indictment, both with high maximum penalties within which the courts may exercise their discretion. For the aggravated offence—namely, the offence under Clause 1(2)—of intending to endanger life, or being reckless as to whether life is endangered, the maximum penalty on indictment is imprisonment for life, which is the present maximum penalty on indictment for various forms 1442 of arson, and for damage caused by explosives.
§ For any other offences there is a maximum of ten years' imprisonment on indictment, but under Clause 7 all offences except the aggravated offence under Clause 1(2) are triable summarily, in which case the maximum penalty available would be one of six months' imprisonment and/or a fine of up to £400.
§ Clause 4 provides a similar maximum penalty of life imprisonment where the damage caused, although an offence under Clause 1(1)—the ordinary criminal damage or destruction offence—is caused by fire. I shall say more about that in a moment.
§ Sir Elwyn Jones
Can the Minister say why the power to impose a fine without limit has not been included as an additional or alternative weapon in Clause 4?
§ Mr. Carlisle
As at the moment I cannot, but I shall consider the point during the course of the debate. If I have the opportunity to reply briefly at the end of the debate I shall do so. The hon. and learned Gentleman is quite right. There appears to be no power to fine on indictment, although under Clause 7 there will be power to award a maximum fine of £400 where the case is triable summarily.
I want to say something about the appropriate maximum penalty for the ordinary offence of criminal damage under Clause 1(1), because that apparently occasioned a certain degree of disagreement when the Bill was going through the other place. The issue came down to the question whether the right maximum to prescribe for an offence of criminal damage was seven or ten years. I suppose that the arguments are very evenly balanced. We must be absolutely clear what we are doing, and what is the purpose of a maximum fine. We are not suggesting that everybody charged with the offence of causing damage to property should automatically be sent to prison for 10 years. The policy of the Bill, like that of the Theft Act, is to provide, in the interests of simplification, a single penalty for a broad band of offence, so far as difference in degree of seriousness is concerned.
1443 We must then ask what penalty would be adequate for the worst offences within that band, even if the maximum is likely to be imposed only rarely. The previous Administration, when taking the Theft Act through the House of Commons, decided that imprisonment of 10 years was the right maximum penalty. If that is the appropriate maximum for certain offences under the Theft Act it is equally appropriate for offences under Clause 1(1).
It is difficult to say which class of offence is the worst. Some cases of damage are more serious than many cases of theft, and vice versa. With these considerations in mind the Government think that the Law Commission was right in finally recommending that the precedent of the Theft Act should be followed, and that the maximum penalty should be 10 years.
I may be asked what cases would require the award of so high a penalty as 10 years. There is the question of possessing materials for the construction of petrol bombs—an offence that might be of the utmost gravity. Some cases are now prosecuted under Section 10 of the Malicious Damage Act, 1861, although that is not a widely used Section. Under that Section, it is an offence, with a maximum of 14 years' imprisonment, to place explosives in or near any building with a view to destroying it, or any machinery or fixtures therein.
It is felt that that Section is more appropriate than the Explosive Substances Act for dealing with attempts at safe-blowing in the course of a major burglary. The number of cases is unlikely to be large, but prosecutions have been brought under the Malicious Damage Act in recent years against safe breakers who were foiled in their attempts before the explosive charge was detonated. Crimes of that type could in future be prosecuted under the Bill, either as an attempt or, under Clause 3, for possession. It seems right, therefore, that the maximum penalty should be left at 10 years.
There is one other point to which I wish to refer concerning penalties. It is an important one. I referred just now to the maximum penalty of life imprisonment where the damage or destruction is caused by fire. The Committee will be 1444 aware that the Bill abolishes the crime of arson, both in its statutory form in the Malicious Damage Act and specifically, by Clause 11(1), which provides thatThe common law offence of arson is hereby abolished.Yet the Law Commission, having decided to abolish arson, has to ask itself whether there were any means by which it should distinguish between those who commit offences of fire raising and those who commit other offences of malicious damage. The special treatment accorded to fire-raising offences by extending the maximum penalty under Clause 4(1) is intended to suit and to meet the peculiar features of this type of offence without at the same time forfeiting what it believed was the clarity and coherence of the general structure of the Bill by limiting it to two types of offences.
On the one hand, many fire-raising offences are comparatively trivial—although always deplorable—examples of juvenile vandalism. They can be adequately dealt with by the magistrates' courts. Under the provisions of the Bill that would be possible. On the other hand, the potential danger from anyone who deliberately starts a fire is very great. Arson has always created a justifiable sense of horror in the public mind. On occasions an arsonist may be afflicted with a serious personality defect, of which the desire to create a blaze merely because he likes to see the fire engines come out may be only one symptom.
In such cases in recent years the courts have found considerable value in the sentence of life imprisonment, in relation to those charged with the offence of arson. It provides a means to protect the public from a man whose mind often appears to be unbalanced—not, perhaps, to the extent that would qualify him for a hospital order under Part 5 of the Mental Health Act, 1959, but to the extent that there is a real danger that if released he would repeat the offence.
The Bill therefore leaves the power to the court, where the damage is created by fire, to impose a maximum sentence of life imprisonment, but leaves it full discretion to pass lesser sentences in less serious cases. As I have said, minor cases can be disposed of in the magistrates' courts.
1445 It was against that background and on that basis that the Law Commission considered that there was no need to retain the offence of arson as such. That is a controversial point. It is open to argument. The Bar Council, for one, expressed strong views in its earlier comments to the Law Commission, subsequently arguing strongly that the specific offence of arson should be retained.
As drafted the Bill follows the Law Commission's recommendations and abolishes the offence of arson. On behalf of the Home Office, however, I can say that I shall listen with interest to any arguments put forward by the Committee. This Bill does not arouse party conflict, but lawyers on both sides are anxious to get the law right. I feel that we should listen carefully to any views that anybody wishes to express on the question whether or not we should retain the offence of arson, and that we should consider what is said in the course of the debate on the Bill.
So much for penalties. I should now like to refer to Clause 8, which deals with the power to award compensation—something which I mentioned earlier. In Clause 8 the Bill, to a degree, breaks new ground, although what is being done is consistent with the proposals of the Widgery Committee and also with what the present Government said on this matter during the election.
At present, the magistrates' courts may order compensation in cases of damage of property up to £100. But in most cases compensation orders require application by the person who suffered loss before they can be made. It is within the knowledge of any lawyer on the Committee that there is considerable lack of clarity in people's minds whether it is necessary to make an application before an order for compensation can be granted, and matters of that nature. I have always felt that it was restrictions of that nature which had often inhibited courts in making orders for compensation where they would otherwise have been willing to do so.
Clause 8 proposes that in all cases the magistrates' court shall have power of its own volition, whether or not any application is made by the loser, to order compensation subject to a maximum of £400. There is no maximum in the higher courts.
1446 I hope that this provision will be welcome. It is in accordance with the recommendation of the Advisory Council on the Penal System in its report published last autumn on reparation of the offender. I may have a certain personal bias on this matter, since I happened to be a very humble member of that subcommittee sitting under the present Lord Chief Justice, then Lord Justice Widgery, which made recommendations for the simplification and clarification of the law with regard to compensation. I have no doubt this proposal fits within the recommendations of that Committee, and I commend it to the House.
Clause 9 deals with the effect of the Bill on civil proceedings, and is similar to Section 31 of the Theft Act, 1968.
I apologise to the Committee for having taken some time to introduce what is a fairly complicated provision of the Bill, although, as I said, its purpose is simple. I believe that here we have a Measure which will help to bring clarity and simplification into an important area of the criminal law and which affects, particularly, many cases appearing before the magistrates' courts. I confidently recommend it and invite the Committee to give it a Second Reading.
§ 11.12 a.m.
§ Sir Elwyn Jones
On my way here this morning I walked through the Embankment Gardens between the Temple and Temple Station. There is a charming fountain there. It was erected in June, 1898, from subscriptions from children in memory of work done for the temperance cause by the Lady Somerset. There used to be a charming bronze statue of a child on top of the fountain. It has been sawn off at ankle level, and today one sees two feet on top of this touching memorial. A terrible example of an evil feature of our contemporary society. I pray no foreign photographer sees it, and I hope that the G.L.C. may soon make up for the evil that the vandal achieved; the crime committed.
This reflects one of the mischiefs against which the Bill is directed. I welcome the measure for the fact that to some extent it will help deter vandals and perpetrators of acts of destruction for profit, as was obviously the case in removing that statue for its bronze. It will penalise also those who destroy property senselessly, just for the fun of it.
1447 The effect of the Bill was a little over-dramatised in The Times headline when it came up with:Vandals face jail for life under terms of new Criminal Bill.When we on the Opposition side were discussing whether we should agree to the Second Reading procedure, and I thought that that was a sensible course to take, some of my hon. Friends said: "We cannot do that. This is the Tory Party in action, as it has been down the ages, attaching more importance to crimes against property than crimes against the individual." Happily that is a caricature of the provisions of the Bill and imprisonment for life, we have been told, is confined to the crimes of arson and destruction of property with an intent to endanger the life of another, or reckless as to whether the life of another would be thereby endangered.
As the Under-Secretary has said, the language of Clause 1 is very wide and the penalties are very considerable: 10 years and life. One has a slight fear that this may lead some of the courts to impose rather heavier penalties than the crime justifies. We must clearly be aware in our state of concern about this problem, and not become victims of what Sir Nigel Playfair called "the punitive obsession". But the present phase of damage by arson and other means presents a challenge to our society which must be faced, and it is right that the armoury of the law should be adequate to deal with it severely in appropriate cases.
One aspect of crimes to property which is of the gravest character, and is increasing alarmingly, is arson. The report of the Law Commission—and I share the gratitude that we feel to the Law Commission for the report and its work on the Bill—gives the figures. At assizes and quarter sessions in 1964, 218 cases of arson; 1968, 308. I fear that the figures in the last two years will have shown a further increase. In Magistrates' courts—225 in 1964; 315 in 1968. The appalling thing is that in both categories most of the offences are committed by those under the age of 21.
Bearing in mind the gravity of this increasing menace—and we have seen recently the most dreadful example of what death and destruction it can cause— 1448 I was gratified that the Law Commission changed the provisional view which it expressed in its working paper that there was no need to distinguish in any way offences of damage to property caused by fire. The Bill clearly makes that distinction.
I still have an open mind whether it would not have been better to retain arson as a crime, or at least to have retained arson as a word—a description—in the Bill. It is a well-known word, a well-known crime. It is a crime to which the public reacts. The publicity attached to "arson" has a way of being more effective, I think, than it has to damage caused by fire. There is some value in retaining some of these evocative words, provided no mischief is caused as a result.
I certainly want a close examination of this in Standing Committee stage and I, personally, shall be very interested to hear what other Members have to say about it. There is no party issue here. I am bound to say that I am impressed by the seriousness of the increase in the volume of arson. Indeed, one of Her Majesty's most distinguished judges expressed this concern personally to me only a couple of days ago.
The Bill in its penalty attached for arson goes the whole hog, if that is not too unattractive a phrase. It provides for the maximum penalty of imprisonment for life. That is justified, not only because of the challenge and the frequency of this crime, but, as the Law Commission points out, because many arsonists are mentally unbalanced and in need of treatment, yet frequently they do not qualify for admission under Section 60 of the Mental Health Act. It is right to have provisions enabling arsonists, fire-raisers, pyromaniacs—whatever they are called—to be kept in detention for psychological and psychiatric treatment as long as is necessary. This is obviously very important. Imprisonment for life is a flexible sentence, and I entirely agree with the appropriateness of its availability for the kind of situation for which Clause 1(2) of the Bill provides.
The Bill gives effect to the recomendations of the Law Commission, which in its analysis of the statistics of crimes against property, points out that most were dealt with in magistrates' courts. Very few called for heavy sentences and imprisonment and the crime was very 1449 prevalent among juveniles. It recommended, because of those conclusions, that as the brunt of the work is done it the magistrates courts the law should be simple and straightforward. In any event, I do not see why the law should not be simple and straightforward for the higher judiciary as well.
One has had experience in the Court of Appeal—and I say this without any disrespect to the distinguished members of the judiciary—that even they can sometimes err, particularly on malicious damage. I remember, with some apprehension, my own experience of the ease with which one could make some mess of a summing-up in regard to malicious damage. I do not think I was actually caught out myself, but once or twice I am sure it must have been a narrow squeak.
Therefore we, on this side of the Committee welcome this simplification in the law and the wide latitude given in regard to the range of penalties, providing for higher maximum penalties in particularly serious cases. The worry I still have is that the wide range and the wide language might encourage courts to punish excessively. But, happily, we have the remedy of the Court of Appeal, and in these days it is more willing to interfere with excessive sentences than it used to be in the old days.
The conception of the aggravated offence I find wholly acceptable. The test of potential consequences, thereby enabling the especially blameworthy offender to be identified and punished, is right.
In the definition in Clause 10 of property damaged, I see that there are certain exclusions; mushrooms growing wild, and wild flowers; wild animals save those reduced into possession or in the course of being so reduced. But in case the poacher and the picker of wild flowers might feel encouraged by the omission from the sanctions, it is the case that those crimes are penalisable under the Theft Act and other provisions of the law.
It would be deplorable if, for instance, the attempt to protect the osprey were to be destroyed by the amendment of the law. I had better not say any more about that matter, which I hope will very soon be sub judice, if those who are 1450 responsible are caught, as we greatly hope they will be. I have no criticism of that. As to the mental element, as I have indicated, I am quite happy that "unlawfully and maliciously" have gone the way of all flesh and that "without lawful excuse" has come into the Bill.
I confess that at the moment I find it hard to conceive of a situation where there can be a lawful excuse for damaging property, intending to destroy it and intending to endanger the life of another. But I suppose that there is some remote possibility of some gentleman with a machine gun, or whatever, in a building and that the police and the soldiery might be required to knock the building down, or whatever, in order to subdue him. Perhaps we can look at that in Standing Committee, but at the moment it does seem a remarkable occasion that one could call in aid the principle of lawful excuse to justify what was done.
We shall have to look at the penalties in Standing Committee. I notice, in passing, that Clause 11(2) drives another nail in the coffin of the death penalty. That is not a very suitable metaphor—though perhaps it is quite suitable, come to think of it. It does away with The Dockyards, etc., Protection Act 1772:(under which it is a capital offence to set on fire. burn or otherwise destroy Her Majesty's ships, dockyards, stores, …I suppose that hereafter that will be liable to either 10 years or life, depending on the circumstances. But we can say farewell to that provision without tears, and reflect that now only a very small segment of criminal misconduct carries the risk of the death penalty. I hope that that will be universally greeted in the Committee, although I venture to doubt it.
With regard to the jurisdiction, the Bill provides that offences punishable with life will not be triable by courts of quarter session, but otherwise the newly defined crimes will be triable. That is satisfactory.
I welcome the provision in regard to compensation. I was a little put off the provision when the Under-Secretary described it as a Tory election pledge. Were that the ground for introducing it, it would be regarded by me as a kiss of death. But he gave a more respectable reason for it, namely the reports by distinguished Committees—of one of which 1451 he was himself a distinguished member—which had commended this provision.
I am bound to say that I found impressive the observations of the Justices Clerks' Society that the public is concerned less with the legal niceties of jurisdiction between criminal and civil courts than with the elementary justice of ensuring that defendants who cause damage and involve loss should pay compensation. I am sure that we all heartily endorse that observation, and the Bill will give greater powers to the courts to order compensation. As the Under-Secretary has pointed out, there will be no need for the victim to apply and there will be no limit to the amount recoverable in the case of offences tried by indictment.
My hon. Friends and I welcome the Bill. Though a number of issues will have to be raised in Committee, we think that the Bill makes an important contribution to the protection of our society, at a time when protection is needed.
§ 11.30 a.m.
§ Mr. Michael Havers
I, too, welcome the Bill as a whole. I want to take up the Minister's invitation on the one exception that I have to the Bill, which concerns the abolition of the offence of arson. I liked the comment made by the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), that arson should be retained as a word, or as a description. It has the advantage that it is easily and quickly recognisable. Apart from crimes involving the use of explosives, I suppose that arson is the most dangerous offence—or the offence most likely to be dangerous—involving the use of fire, weapons or anything else. About two years ago in Brighton a fire in a hotel led to a dreadful loss of life. I think that seven people died, and about the same number died only a few days ago in London.
Arson is committed for a number of reasons. It usually indicates that the person who commits it is an exceptional kind of person. Spite is often the motive, and the offender is often a person—sometimes called a pyromaniac—who has deep mental trouble. From one's experience in the courts one has come across the man who has been convicted of arson. On looking at his records one 1452 has found that he has committed the offence of arson a number of times before.
He may have started by burning down an outhouse. He then may have progressed to straw stacks. In the country that is often done for reasons which are impossible to discover. Sometimes, as the Minister has said, the man likes to watch the fire engines and he enjoys all the excitement. Very often he is the first to volunteer to join in helping to put out the fire.
It is important that the nature of the offence with which the man is either charged or has been convicted should be quickly recognised by the court, the probation officer, the prison doctor and the psychiatrists who may be called in at any stage, both before and after conviction. I regret that the Law Commission, whose report is otherwise excellent, has seen fit to say that that would merely lead to a complication of the substantive law, when such complication as there might be had already, in a sense, been created by the Commission in its recommendation of a special penalty for cases involving fire.
The Law Reform Committee of the Bar Council dealt with this question. After the publication of the report of the Law Commission it made a unanimous recommendation opposing the abolition of the offence of arson. The Committee is made up of a number of practising lawyers, some of whom sit judicially and many of whom, I suspect, have been prosecuting or defending cases of this kind. That unanimous decision is something that the Committee and the Home Office ought to bear very much in mind for the future.
The other forms of malicious damage are hooliganism and vandalism, or are acts committed for personal gain, as in the case of persons who damage property in order to benefit from the insurance, or who exercise spite against friends by breaking shop windows, and so on. That sort of person is sometimes easily recognisable for the offence he has committed, and the motives behind it are easily recognisable.
But the arsonist—the pyromaniac—generally falls into a special category. Arson is not only an offence that ought 1453 to be retained because it is so well recognised by the public; it should be retained because it will enable all those concerned with the administration of the law—lawyers, the prison doctors, psychiatrists, and others—to recognise at once that this may be one of those cases which must be looked at in a special way. I hope very much that the Minister will reconsider the point.
§ 11.35 a.m.
§ Mr. John Loveridge
I support the view of my hon. Friend that the offence of arson should be retained. When considering the question of sentence after conviction a court must know much more clearly what kind of man it is dealing with if it knows that there have been two or three previous offences of arson. If it is merely told that there have been two or three previous offences of criminal damage no such indication is given. I hope that the Government will consider this point.
Secondly, I wonder whether the Government will consider lower maximum sentences for recklessness? Should there not be a separate offence for that? It seems extraordinarily difficult. We are told that an accidental matter would not come under the criminal law, but what is the dividing line between accident and recklessness? Recklessness is a very broad term. I am not sure that I know what it might mean to a court. It might mean one thing to one court and another to another court.
It is said that it would be a lawful defence to show that there was an erroneous belief in one's right to take action, but how would that apply to recklessness? I am not dear about it. The term is far too wide to allow such a substantial maximum sentence. Should not this be a separate offence with a lower maximum sentence?
Thirdly, on the question of compensation, there is no maximum. Many of us will welcome the fact that compensation provisions will be more widely applied by the courts. However, that raises a difficulty. When a man has possession of all the family assets he could receive a very long prison sentence and also have compensation awarded against him, so that innocent persons could have their possessions taken from them because of his action. If the power of compensation 1454 is to be extended, should we not at the same time consider extending the rights of a wife and, perhaps, other members of the family and dependants, in relation to property seized or sold for compensation? I hope that the Government will give consideration to this.
§ Mrs. Elaine Kellett
I agree entirely with my right hon. and learned Friend and my hon. Friend that the offence of arson should he retained.
§ Mr. Robert Cooke
I have a number of points to make. I straight away add my voice to the unanimity shown by the speakers on this side of the Committee in support of the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), but I should like to see the term "arson" retained.
Arson is a special crime, at any rate in the eyes of most people, and we have already heard that there is a special type of person who is likely to commit such a crime. I should like to ask my hon. and learned Friend whether he is correct in saying that there is no offence in destroying one's own property. I think that that is what he said.
I hope that nothing in the Bill will take away from the discouragement to destroy property—even one's own—which is of national importance. We have spent much time legislating to protect historic buildings, and so on. It is certainly a crime wilfully to destroy historic buildings. It is a crime to burn one down, even if one is the owner, and nobody is injured in the process. I hope that nothing in the Bill will have any ill effect on what has already been decided on that matter.
My hon. and learned Friend might also care to contemplate the wider issue. Under existing law no crime would be committed if one went to an auction sale, bought the Radnor Velasquez with one's own money, and then went to some private place—even one that could be viewed from a public place—and deliberately destroyed the painting and announced that one was going to do it. The law could not prevent the carrying out of that threat.
Clause 5 contains the phrase, "without lawful excuse". Recently, a lady visitor from overseas panicked when she found 1455 herself shut up in an historic church. Thinking herself locked in she endeavoured to draw attention to her supposed plight, and stuck her umbrella through a window. If proceedings had been brought against her she might have pleaded that she had a lawful excuse, because she was locked in the church, but she was a stupid and ignorant woman and there could have been no reasonable excuse for any normal person to think that she had been locked in. However, she thought she was.
§ Mr. Cooke
She poked her umbrella through a window, which, although recently repaired, could not be described as of any historic interest. But she might have poked her umbrella, or thrown her heavy handbag, through a window and said that she did it justifiably. I hope that the Bill will cover such points.
Occasions could arise when it appeared that someone's life was in danger, and for some reason it might be necessary to break into a building. The police or the fire brigade might be involved, and in their wild enthusiasm they might do irreparable damage to a building of historic importance. Surely we should indicate to such people that they should take reasonable care in obtaining entry and do it in such a way as not to cause irreparable damage. There is no doubt that to walk straight up to a building and smash one's way in through the most prominent entrance may not be the best way of getting in. I hope that that point will be covered.
Recently Westminster Hall has been treated for the death watch beetle by a revolutionary process—the letting off of gas canisters containing a substance called. I believe, Gammexane, obtainable from I.C.I., which gives the impression that the building is on fire, because smoke pours out of the generators from all the cracks and crevices in the roof. Someone passing a building being treated in this way might think the building was on fire, and might even think that someone was trapped inside and do irreparable damage to the building.
The Committee may regard that as farfetched, but I am sure that it could happen, indeed, when I was treating 1456 some outbuildings at home I had all the neighbours rushing across the road to tell me that my buildings were on fire and that I should rescue anyone inside—to which I replied that it was quite all right; they were only beetles and they could look after themselves.
My last point arises on the Interpretation Clause. Under the Bill it is not an offence to go into a field and pick mushrooms. I am sure that that is right. We have all gone into fields and picked mushrooms at various times, otherwise they would have gone rotten, and we do not want to come down on the picking of wild flowers. But the digging up of wild flowers—sometimes rare flowers—should certainly be a culpable offence. This may not be the right Bill in which to do it, but I leave my hon. and learned Friend with the thought that when another one of my hon. Friends and I tried to introduce a Bill making it an offence to dig up wild flowers it did not get very far in the House. There is a world of difference between digging up and just picking flowers.
The sad thing about the digging up process is that flowers are invariably dug up and transplanted into places where they will not grow, so that the plant is lost not only to its original habitat but for good, because it dies where it is finally planted.
Those are just a few thoughts which occur to a layman in what is obviously mainly a field for lawyers. Lest anyone should think that I was suitable material for the Committee stage of the Bill, I make it quite clear that I do not think that I am.
I have two other points. My hon. and learned Friend the Member for Wimbledon (Mr. Havers) referred to the difficulty of deciding whether damage was purely accidental, or was blameworthy. If one is driving a car rather too fast along a wet road, and one skids and knocks down a building belonging to someone else, should we not try to tackle that problem?
Coming back to the question of buildings of merit, I remember the case of a famous and rather beautiful hotel in the city of Truro. Someone drove a lorry far too fast down the hill into the town and it went into the building and did so much damage that it collapsed. The building has never been rebuilt. It has been lost 1457 to the citizens of Truro for ever, first because of what was seen to be a blameworthy act. Whether blame was attached to the person who was driving that lorry—and who ought to have known better—I am not sure.
I know of several other cases where important features of buildings have been wiped off by passing vehicles travelling too fast. I very much doubt whether, in many cases, blame was attached to the people concerned. I know of many cases where features that have been wiped off have never been replaced. With those thoughts I conclude my remarks.
§ Mr. Jeffrey Thomas
I, too, was somewhat startled to hear that the Minister regarded this Measure, to some extent at any rate, as the redemption of an election pledge. I am sure that that was a slip of the tongue. On the basis that it was, my hon. Friends and I cannot reach a consensus that the measure is to be welcomed.
I rise to make two short points. The first concerns the sentence of 10 years. In my view, that sentence would seem to be unnecessary. There is a danger of increasing the tariff unnecessarily with regard to too many criminal offences. Not only does it result in a debasement of the coinage; unless there is a real necessity for a long maximum sentence in matters of this kind it should be avoided at all costs. When this matter was debated in another place the noble Lord, Lord Gardiner, made it plain that the Home Office had been unable to find any case in the five years covered by the Law Commision's report in which a sentence of more than seven years had been imposed for an offence of this kind.
In the hope that repetition is emphasis, I add my voice to the other voices raised in support of the retention of the word "arson". I endorse the comments made by the hon. and learned Member for Wimbledon (Mr. Havers) in this regard. Arson is a special offence, committed by offenders who, for the most part, are in a special category. In order that both the courts and the public should be left in no doubt as to the offence which is now known as arson, the word should be retained. No doubt that matter can be gone into in Committee
§ 11.51 a.m.
§ Mr. Peter Fry
I welcome the Bill. If it will do anything to help reduce the appalling level of vandalism in this country it will have universal approbation. I support my hon. Friend the Member for Hornchurch (Mr. Loveridge) on the question of the definition of "reckless". I have had experience in motor insurance, and I can see that we are opening a new field in this Clause.
How could one define "reckless" in respect of convictions for driving without due care and attention? Not only do we have the two laws in contradiction; at the moment, if no person is injured in a motor accident all that the two parties concerned have to do is to exchange names and addresses and the names of their respective insurance companies—and no offence is committed under the law. As I read the Bill an offence will be committed if one of the two drivers can be considered to have been driving recklessly.
I should be interested to hear the Minister's observations on that point, which raises the further question of compensation. Again from personal experience, I know that it is all very well to allow legal compensation. But it is a very difficult matter to obtain compensation from men of straw. I should like to see further attention being given by the Government to the question of the way in which aggrieved citizens could obtain rightful damages from people.
§ Mr. Cooke
My hon. Friend might care to know—from my own experience—that although one can be awarded compensation by the court the collection of that compensation appears to have nothing to do with the court. One has to collect oneself. In a recent case I was awarded £50 by a magistrates' court. I have so far received 12s. 6d. from one of the criminals. That was more than a year ago—and I have been told I am lucky.
§ 11.53 a.m.
§ Mr. Carlisle
With the leave of the Committee, I should like to reply to the 1459 points that have been made. I start by expressing my great personal distress on the comments of my hon. Friend the Member for Bristol, West (Mr. Robert Cooke), who said that he did not feel that he was a suitable person for the Committee on the Bill. With his handbag-thowing, umbrella-swinging, pyromaniac-suffering foreign visitor, he would be a very suitable person for the Committee.
§ Mr. Carlisle
The right hon. and learned Gentleman has got it wrong. She ceased to be a refugee from the Tory Party conference when my hon. Friend described her as stupid and silly. Up to that stage it might have fitted. Nevertheless, I feel that we will miss my hon. Friend, even if, in view of some of the points that he has raised, the Committee stage may be somewhat shorter as a result of his absence.
The Bill does not make it an offence to damage or destroy property belonging to oneself, other than where it is done in such a way as to endanger someone else's life. There are provisions in other Acts of Parliament which prevent one damaging historic buildings. Those offences will continue; it is merely that there will not be an offence of criminal damage under this Measure.
I strongly suspect that the description he gave in relation to works of art was right. We are faced with a problem: if we believe in the individual right to possession, we must agree that an individual is entitled to do what he wants with that which he possesses, even if he merely buys something for the purpose of having the pleasure of destroying it. Rather than trying to legislate, in a blanket way through an offence of this kind, if we feel that there are particular things—works of art or historic buildings—which must be preserved for the good of the country, even against the desire of the owner, we can preserve them only by legislating to protect them.
§ Sir Elwyn Jones
What is the position about a Velasquez, or another famous work of art? Is there a classification which protects them? I suspect that there is not. I am rather disturbed about the 1460 idea that a lunatic millionaire might buy and acquire a famous picture and, either in the privacy of his own madhouse or in some other place, destroy it. That gives rise to disturbing thoughts.
§ Mr. Cooke
My hon. and learned Friend might care to concentrate. Obviously we cannot pursue this point now. The law already recognises things such as the Velasquez as being of national significance. Special provisions are made regarding estate duty, and so on, which apply to such things. Buildings are already scheduled and protected in various ways. This would not be the right Bill in which to do it, but my hon. and learned Friend, with his Ministerial colleagues, might care to bear the point in mind for some future date.
§ Mr. Carlisle
I certainly will. The point that my hon. Friend has made is a very real one, as taken up by the right hon. and learned Gentleman opposite. The answer to the right hon. and learned Gentleman's specific question is that at the moment no law prohibits the destruction of a work of art which belongs to the person who chooses to destroy it. There is specific legislation to deal with historic buildings, ancient monuments, and the protection of birds, but there is no specific legislation concerning historic works of art. We must provide legislation against destruction, rather than proceed through the general principle of the criminal law.
As for the man driving down the hill, in whichever of the attractive towns of Devon or Cornwall my hon. Friend was referring to, the answer is that damage created by that driving would be covered by an action in the civil courts for damages. In fact, the person would be likely to be committing the criminal offence of careless driving at the least, if he were travelling at a reckless speed down the hill and would be covered there, even if not by the Bill. He might argue that the damage caused was accidental, but if the accidental damage caused was as a result of carelessness in his method of driving he would be guilty of the criminal offence of careless driving.
With regard to the point raised about arson, I might have helped the Committee at the beginning. I was to a certain extent trailing my coat when I said that I would be interested to hear the Committee's views and comments on the 1461 decision of the Law Commission that arson should not be retained as a separate offence. Every member of the Committee who has spoken has mentioned this, and I note that all have unanimously said that they would like to see arson retained as a separate offence.
I am grateful to the hon. Members for their views. I am grateful to my hon. and learned Friend the Member for Wimbledon (Mr. Havers) who, with great clarity, put the case for the retention of arson as a separate offence. In the Home Office we shall consider very carefully what has been said, and shall come back to this in Standing Committee, perhaps as a decision taken by the Home Office. Presumably the matter will be pursued by members of that Committee.
My hon. Friends the Members for Wellingborough (Mr. Fry) and for Horn-church (Mr. Loveridge) raised the question of recklessness. I am not sure whether one would gain anything by creating another offence as my hon. Friend the Member for Hornchurch wished.
§ Mr. Carlisle
I shall say something about maximum sentence in a moment. One would still be faced with the difficulty that exists of correct definition of the word "reckless". My hon. Friend the Member for Wellingborough asked: did it cover careless driving? I should have thought that in anything that was reckless there would inevitably be a degree of negligence which would cover being careless.
The use of the word "reckless", as I understand it, in this Bill or in any Act, covers cases where the offender did not necessarily intend to cause the damage, but could not care less whether he caused it or not. That degree of lack of interest must amount to careless driving, in the way my hon. Friend mentioned, or to driving without due care and attention, or driving without reasonable consideration for other people.
This is something that we ought to look at in detail in Standing Committee, although I am not keen on the idea of dividing the offence, or dividing the penalty, as was mentioned by the hon. Gentleman the Member for Abertillery (Mr. Jeffrey Thomas) and other hon. 1462 Members. If one is to have a broad band of offence, inevitably the maximum penalty prescribed for that offence is bound to be high.
The whole purpose of the Theft Act was to reduce what were all sorts of different types of offences to aspects of a similar form of conduct, but with widely differing sentences. What the Law Commission attempted to do was to bring the general criminal law to state a simply definable criminal offence, which could cover a multitude of degrees of seriousness, and then fix a penalty which was the appropriate maximum for the most serious type of crime of that kind which could be imagined, but below which the courts had complete discretion. I do not think that the fact that the penalty maximum is high means that the nature of the sentencing given by the courts is likely to increase, or that courts will be affected by the fact that the maximum is 10 years rather than seven years, when dealing with a normal case.
§ Sir Elwyn Jones
There must be limits to this principle, otherwise one could transform the criminal law by saying that all crimes should be penalised with a maximum penalty of 20 years or life, and leaving it to the courts to work out what it ought to be. That would not give the courts much guidance. One can think of one or two somewhat, I will not use the unkind description "Draconian courts" that one has appeared before where the temptation to err into exessive severity would become almost irresistible.
§ Mr. Carlisle
I accept that. There are some people who would argue for the approach that punishment should be at large on every type of offence. I agree with the right hon. and learned Gentleman that there must be limitation to the degree of discretion given to the courts, and that Parliament has a duty to fix an appropriate maximum for an offence. If one is to keep the law reasonably simple and go for a broad band of offences, one is bound to put that maximum fairly high for any group of offences.
An example mentioned by my hon. and learned Friend the Member for Wimbledon was the offence of causing death by dangerous driving: the fact that the penalty contains a maximum of 1463 a substantial number of years imprisonment does not mean that the normal person convicted of the offence goes to prison. I do not think that there is the fear that by putting a maximum of ten years one will raise the tariff for cases of vandalism and malicious damage.
I think that covers most of the points that were made. There remains the point on compensation. I agree that the fact that one gives power to order the payment of compensation does not mean that it shall automatically follow that the courts will make orders for compensation, but to simplify the power to make orders for compensation means that they are likely to be used more readily than they have been in the past, where, for example, no order could be made until an application had been made on behalf of the person who had the loss, and this had to be made after the case was over, and so on.
I must reply to the chiding of the hon. Member for Abertillery and the right hon. and learned Gentleman the Member for West Ham, South. I did not say for one moment that the implementation of the Bill was the carrying out of a Tory election pledge. What I said was that the widening of the powers of the courts to give compensation was welcome because it was consistent with the views expressed by the Widgery Committee, and were also welcome equally on this side in that they were consistent with the arguments we advanced at the time of the election for a clarification and a simplify-
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Wallace, Mr George (Chairman)||Hastings, Mr.|
|Awdry, Mr.||Havers, Mr.|
|Bagier, Mr.||Jones, Sir Elwyn|
|Brocklebank-Fowler, Mr.||Kellett, Mrs.|
|Carlisle, Mr.||Loveridge, Mr.|
|Cooke, Mr. Robert||Speed, Mr.|
|Fry, Mr.||Tapsell, Mr.|
|Harper, Mr.||Thomas, Mr. Jeffrey|
§ cation of the law in regard to the opportunity for the court to award compensation. I hope we shall find a suitable legislative occasion on which we can implement the other proposals in the Widgery report.
§ I have attempted to answer the various points raised by hon. Members on both sides, and I look forward to the Standing Committee stage, which will be constructive and reasonably brief.
§ Question put and agreed to.
§ Mr. Carlisle
Before we all leave, Mr. Wallace, I should like to take the opportunity to thank you for the very pleasant manner in which you have presided over our proceedings. The Bill has been so short, and your need to guide the Committee has been done so pleasantly and so quietly that I had not appreciated the great service you have provided.
§ Sir Elwyn Jones
May I concur with those observations, Mr. Wallace. When I was telling the sad story about the fountain, I made inquiry of the Chairman about the temperance habits of the occupant of the Chair. I was reassured that though they are sound, they are not unqualified.
§ Committee rose at nine minutes past Twelve o'clock.