§ COMPENSATION ORDERS AGAINST CONVICTED PERSONS
§ Mr. Carlisle
I beg to move, Amendment No. 1, in page 2, line 2, leave out from 'compensation' to end of line 11 and insert'for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence.(1A) In the case of an offence under the Theft Act 1968, where the property in question is recovered, any damage to the property occurring while it was out of the owner's possession shall be treated for the purposes of subsection (1) above as having resulted from the offence, however and by whomsoever the damage was caused'.
Mr. Deputy Speaker
With Amendment No. 1 it will be convenient for the House to discuss the following:
§ Sub-Amendment (a), in line 2, after 'from', insert 'the circumstances of'.
§ Amendment No. 2, in line 14, leave out from 'made' to 'in' in line 15.
§ Amendment No. 4, in line 21, at beginning insert '(a)'.
Amendment No. 5, in line 21, at end insert:
(b) to any circumstances which appear to the court to make it appropriate that any issue as to liability or amount should be dealt with by a civil court'.
§ Amendment No. 6, in line 34, leave out subsection (5).
Amendment No. 10, in page 5, line 32, leave out from 'that' to 'the' in line 36 and insert:
§ Amendment No. 11, in line 37, leave out 'that person' and insert 'the offender'.
§ Amendment No. 12, in page 6, line 1, leave out from 'sentence' to end of line 2.
§ Amendment No. 13, in page 6, line 5, leave out 'been caused by' and insert 'resulted from'.
Amendment No. 37, in page 36, line 27 [Schedule 1], leave out from second 'the' to 'and' in line 29 and insert:
'loss or damage did not in fact result from any offence specified in the order'.
§ Mr. Carlisle
These Amendments meet an undertaking I gave in Committee to look at the words used in Clause 1, which it was suggested was too limited in two substantial respects with regard to the payment of compensation. It was suggested that the use of the wordsloss of, or damage to, propertymight prove to be too limited, in that it would not apply to cases where the loss concerned, though clearly financial, was not obviously a loss of property, namely as in offences under the Trade Descriptions Act, and that the words "caused by that offence" were too narrow in that it could be argued that they did not extend to all the circumstances in which compensation might be appropriate.
The Amendments develop the general approach that we have made in the Bill, which is that courts should have power to order compensation in the widest possible terms.
The main Amendment is No. 1, which will amend subsection (1) so that it will read as follows, so far as is revelant:…in addition to dealing with him in any other waya court maymake an order…requiring him to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence.The effect of the removal of the word "property" from subsection (1) is to widen the court's power to order compensation to include cases where loss or 1925 damage arises from the offence. This will remove any doubt that might have existed that the earlier words did not include offences under the Trade Descriptions Act. There was a possibility that the use of the word "property" might not include offences of obtaining pecuniary advantage by deception under Section 16 of the Theft Act.
The effect of the removal of the words "caused by" and their replacement by the words "resulting from that offence" is to avoid doubts raised by hon. Members on both sides in Committee, particularly by my hon and learned Friend the Member for South Fylde (Mr. Gardner) about limitations these words might have imposed upon the courts.
This is, in a way, an important Amendment. It clearly widens the scope of the Clause in the way that was intended. The other Amendments have a similar effect on the criminal bankruptcy provisions in Clause 7.
§ Mr. S. C. Silkin
The House will welcome the Amendments, which give effect to proposals which we made in Committee and which were supported by hon. Members opposite. The House will be particularly glad to learn that the Clause as it will be amended will enable a court which convicts someone of an offence under the Trade Descriptions Act to award compensation to a person who suffers loss or damage as a result of the offence. I therefore wholeheartedly welcome the fact that the Government have tabled these Amendments to give effect to the undertaking that the Minister of State gave in Committee to look at the matter.
There are three matters that I need to deal with—those which are raised by sub-Amendment (a) and that which is raised by Amendments Nos. 4 and 5. Sub-Amendment (a) may well seem to be a minor matter. In Committee I moved an Amendment, one of the objects of which was to seek to widen the scope of the right to compensation so that it was not narrowly restricted to injury or loss which had been caused by the actual offence, but would extend to injury or loss caused not only by but also in the course of furtherance of the offence or as a result of an attempt to evade detection or arrest.
1926 In putting forward that Amendment the opposition had particularly in mind the innocent bystander who may well be caused injury which does not arise directly out of the offence charged. We took the view that such persons are often in a much greater need of compensation than possibly a wealthy corporation insured against loss from theft, which would normally be directly envisaged by the Clause.
The Minister of State pointed out in Committee that there were certain difficulties about our Amendment, although he appeared to be generally sympathetic towards its objectives. My right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) suggested as an alternative to the narrow words "caused by" some such words'…as or arising from the circumstances of the commission, of that offence…'" "—[Official Report, Standing Committee G, 7th December, 1971; c. 56.]The hon. and learned Member for South Fylde (Mr. Gardner) suggested "caused by or in the course of the commission of the offence." The Minister, who was good enough to agree those forms of wording, undertook, if he was advised that wording of that nature was more appropriate than the words "caused by", to put down an Amendment at this stage.
The Government Amendment, as the Minister has already informed the House, has altered the wording in this way, that the words "caused by" are removed and the words "resulting from" are inserted. A similar Amendment is to be made to Clause 7.
Unless there is authority to the contrary—and if there is I am certain the Minister of State with his great knowledge in these matters will tell the House—that seems to be a distinction without a difference. The sub-Amendment on the Order Paper in the names of my right hon. and learned Friend the Member for West Ham, South, my hon. Friends and myself, would somewhat widen the scope of the clause. Compensation could be awarded, if that sub-Amendment were accepted, not only for injury or loss resulting directly from the offence, but also for injury or loss resulting from the circumstances of the offence. Thereby we believe, from the sort of situation which I earlier described, that 1927 that wording follows the wording suggested by my right hon. and learned Friend in Committee while not going quite so far as the wording suggested in the Opposition's Amendment in Committee or the wording suggested by the hon. and learned Member for South Fylde. We think that the addition, though minor, would be useful and one which the Government either here or in another place could usefully accept.
I turn to Amendments Nos. 4 and 5. In Committee there was a great deal of discussion on the possible conflict between the power of a criminal court to award compensation and the jurisdiction of a civil court to order damages. There, again, I moved an Amendment, one of several of the same character on the Order Paper, the purpose of which was to ensure that the criminal court would not order compensation where the defendant had or seemed to have a good defence to a civil claim, as such cases were clearly more appropriate for the civil court.
At col. 65 the Minister went some way towards accepting, at any rate, the objective of those Amendments, because he said:If the intention of the Amendment is to ensure that the offender should not be required to pay more in compensation than he would be liable to in civil law or, indeed, that a compensation order would not be made where it was inequitable for it to be made, I can assure the hon. and learned Gentleman that I am in sympathy with that intention.However, the hon. and learned Gentleman felt unable to accept the Amendment because it appeared to him to require the criminal court to enter into consideration of matters which were more appropriate to a civil court. The Minister adopted the view of the Widgery Committee, which he quoted at col. 66:The criminal courts are in no position to make any kind of detailed assessment of the extent of the victim's loss. In practice, compensation in criminal proceedings tends to be confined to cases where liability and the amount of the offender's loss are reasonably clear, and, usually, where the amount is small. We see no advantage in providing for delegagation of the assessment of quantum to a civil court'."—[Official Report, Standing Committee G, 7th December, 1971; c. 65–6.]We have taken note of the Government's view and of the opinion of the Widgery Committee. Amendment No. 5 is worded so as to reflect those views by amending subsection (3) which at present 1928 requires the court, in deciding whether to make a compensation order and the amount of any such order, to have regard to the defendant's means so far as they appear or are known to the court.
If our Amendment is accepted the court would also be required to have regardto any circumstances which appear to the court"—the court of criminal jurisdiction—to make it appropriate that any issue as to liability or amount should be dealt with by a civil court.It reflects almost to the words the view expressed by the Widgery Committee which the Minister of State quoted and accepted as valid.
A criminal court would not be barred from awarding compensation, even in the cases covered by the Amendment; but in such cases a criminal court would be required to take account of that factor. Thus, counsel for the defence would be in a position to draw the court's attention to the provision and to inform it of the circumstances which, if not already apparent, suggested that, in the words of the Widgery Committee, the case was not one of thosewhere liability and the amount of loss are reasonably clearand therefore where it would be better to leave the question of compensation or damages to a civil court.
The Minister made it clear in Committee that in the sort of case we have in mind he would expect the criminal court in practice to refuse to make a compensation order when there appeared to be complications. But he went on to say:It is one thing to say how one would proceed in practice, and entirely another thing to write into what is attempted to be a simple basis of enabling and encouraging courts to order compensation words which are likely to frighten them off so that they never use them at all".—[Official Report, Standing Committee G, 7th December, 1971; c. 68.]Whatever criticism of that nature may have been advanced against the Amendments we moved in Committee, these Amendments are as simple as it is possible for Amendments to be. They could not possibly frighten off any court, and the court would not, in any circumstances, be likely to be deterred from using its powers simply because it 1929 was necessary for it to take into account circumstances which appeared to make it appropriate that an issue as to liability or amount should be dealt with by the civil rather than the criminal court. They do no more than give statutory effect to what the Minister concedes is a desirable practice, and the necessity for including such words in the legislation, if it can be done simply, is very well illustrated by a report in The Timesyesterday morning of an appeal before the House of Lords in which the noble Lord Lord Reid criticised the authorities for failing to ensure that the legal profession was aware of and acted upon an assurance, which had been given by the then Solicitor-General to this House in recommending legislation, to the effect that the corresponding common law offence to that enacted by the legislation would not be used. Nevertheless, it was used and the matter went to the House of Lords.
It is because of that kind of case that when we can do it in a simple way it is better—and I am sorry again to refer to O'Keefe—to draw specific attention to the point in the legislation rather than to leave it to a practice which may be overlooked by magistrates and even by higher courts in the absence of express provision in the legislation.
I invite the Minister to look with sympathy on these Amendments. If he is not able to accept them, I hope that he will undertake to consider whether they can be inserted in the Bill when it goes to another place.
§ 1.15 a.m.
§ Mr. Kenneth Lewis (Rutland and Stamford)
People outside recognise this as a criminal justice Bill. They tend to assume that it deals purely with criminal matters. Not many people understand that the Trade Descriptions Act is covered by this Bill. Most of the actions which arise under the Trade Descriptions Act are thought to be civil matters. That Act is comparatively new and there have not been many cases brought under it. There is a concern that now that compensation can be given under this Bill covering cases arising under the Trade Descriptions Act many more people will seek damages or compensation under the Act.
I should be the last to suggest that anyone who feels that he has a case 1930 under the Trade Descriptions Act should not bring it. Clearly he should, and clearly, if there is a case against a manufacturer or a supplier of a service, the plaintiff has a right of redress. But it is also important that encouragement should not be given to people to bring cases which may be unreasonable and may cause litigation and difficulty for those in business and industry engaged in providing goods or services.
This is the danger which concerns business and industry. They feel that a new situation might arise which we do not contemplate at this moment, that because proper compensation is available to enable those who suffer from criminal activities to obtain redress, people will see the opportunity on other matters that concern a simple trade or business to run for compensation.
For example, the travel and holiday industry is concerned about this. Quite rightly there has been action in the last year or two to try to provide redress within the industry for those who feel they have a grievance when something goes wrong on their holiday. Arbitration has been arranged by certain companies and the Association of British Travel Agents is trying to secure a watertight form of justice which will ensure that where difficulties arise which are not the fault of the customer, he will receive some form of redress and compensation.
The fear is that the customer may refuse to accept what is offered to him voluntarily and may run to the courts instead. In marginal cases where it is difficult to define whether a mistake has been made, or whether the damage has been done, the courts may not accept the case. But a great deal of difficulty and trouble will have been caused just the same for those running the business.
The hon. and learned Member for Dulwich (Mr. S. C. Silkin) indicated that he did not think the courts would award compensation in such cases but would instead send them back to the civil court. Whatever my hon. and learned Friend the Minister of State may say, the courts do not take notice of his speeches at the Dispatch Box. They concern themselves only with what is in the Act. Even at this late stage I hope the Minister will agree to have the matter reconsidered when the Bill goes to the House of Lords.
1931 The last thing that business wants is to put individuals in the position of not being able to obtain redress. Equally, would think it desirable that there should be no encouragement for some seeking of redress that was not justified and was simply creating difficulties without reason.
§ Mr. Carlisle
I am most grateful to the right hon. Gentleman. It is nice to hear him agreeing with me for once. I should like first to answer the points raised by the hon and learned member for Dulwich (Mr. S. C. Silkin). I think that adding the phrasethe circumstances ofis a question of semantics. It was argued that if something were damaged in the process of a burglary it might be said that the damage was not caused by the burglary, but clearly it results from the damage. I do not think that the words would add anything.
I do not think it is either necessary or desirable to add the words that the hon. and learned Gentleman wishes to add by means of Amendment 5. I have no doubt that the courts will not exercise their powers to order compensation when they believe that serious issues of complex liability arise. If we inserted the words of the Amendment the criminal court would immediately be removed from its main task of deciding the guilt or otherwise of the accused. The Amendment would cause courts to be unduly restricted in their exercise of the power to grant compensation. Anyway, I think there are adequate provisions in the Bill to meet the case where a person wishes to challenge a decision that he owes compensation.
With respect to my hon. Friend the Member for Rutland and Stamford (Mr. Kenneth Lewis), an offence under the Trade Descriptions Act is not a civil matter. It is an offence, and compensation will follow under the Bill. It is nothing to do with civil liability if the person who is providing the service or 1932 selling the goods has been convicted of a criminal offence. I do not believe that any honest trader need fear for a moment the effect of the Amendment. To commit an offence under the Trade Descriptions Act a person must either apply a false trade description or supply goods to which a false description is applied.
I have no doubt that in fact if those who sell goods, applying to them a false description—the point I am trying to look for and cannot at the moment find is that it must be knowingly—are convicted of doing so, it is reasonable for the court to have power to order compensation for the buyer. If, on the other hand, everything which occurred in fact occurred because of innocent error, I have no doubt that compensation under this Bill would not be appropriate. I do not think my hon. Friend need worry at all that the honest trader has anything to fear from the power to order compensation, any more than he has to fear from the Trade Descriptions Act as a whole.
§ Mr. Kenneth Lewis
Can my hon. and learned Friend say what happens when someone in this country in business acts as an agent and therefore inadvertently finds himself in a situation in which the description may be slightly incorrect, not through his fault, but arising out of something provided from another country? This will be important in a wide area when we go into Europe.
This means now, with the new Amendment my hon. Friend has put down, that whether a company is acting as an agent or a company overseas is to blame, any individual can go directly for compensation, whereas before he had to go for civil damages.
§ Mr. Carlisle
I apologise for not being able to answer my hon. Friend's point entirely.
I have no reason to believe that giving power to the courts to order compensation following a conviction for an offence under the Trade Descriptions Act goes any wider than civil rights for damages which an individual would be able to achieve. I will look at this again for any fear that it does.
We all know the type of person to whom the hon. Gentleman referred in Committee, where a case was drawn to my attention in which a court held that 1933 there was no power to order compensation. The honest trader, however, need have no fear of the effects of the power to order compensation here widening his liability. If there is any doubt about this I will look at it.
§ Amendment agreed to.
§ Amendments made: No. 2, in page 2, line 14, leave out from 'made' to 'in' in line 15.
§ No. 6, in line 34, leave out subsection (5).—[Mr. Carlisle.]