COUNTERFEITING, ETC. OF DIES AND MARKS (Hansard, 20 July 1973)

§ Mr. Wiggin
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker (Sir Robin Grant-Ferris)
We are to take at the same time Lords Amendment No. 22, in page 9, line 9, leave out from "die" to end of line 10 and insert: or article bearing a counterfeit of a mark if knowing or believing the die or mark, as the case may be, to be a counterfeit, he supplies, offers to supply, or deliver the die or article".

§ Mr. Wiggin
These amendments are linked and constitute a substantial extension of the present scope of the clause but not of the present law. The penalty provisions for forgery of hallmarks under this clause, indicated at the foot of page 8 of the Bill, are, on indictment, in excess of the penalty provisions of the Trade Descriptions Act 1968 applied by Clause 8 with regard to other offences under the Bill.
The penalty provisions of the Act are proposed to be incorporated in the new Schedule A. In paragraph 1 of that new schedule it will be seen that on summary conviction there is a maximum fine of £400, and on conviction on indictment a fine without limit, or imprisonment for a term not exceeding two years, or both, 1023 are prescribed. The imprisonment proposed at the foot of page 8—namely 10 years for forgery—is in excess of those general limits of two years.
Those who feel that these penalties are severe should remember that under the existing law the penalty for the same offence is 14 years. We debated this matter fully in Committee and I am completely satisfied that it is right to include this heavy penalty. One clearly hopes that it will be a deterrent. I am not prepared to say whether the courts have exercised their discretion widely, but I do not think that anyone has been sent to prison for 14 years for the offence. It is important that we should retain the high maximum penalty. The whole system of hallmarking would break down if forgery of dies and marks became prevalent.

§ Mr. John Loveridge (Hornchurch)
I should be grateful for some guidance, as this is a complex legal matter and I am a layman. It appears at first sight that Lords Amendment No. 21, which, under Clause 6(1)(c) would have read: utters any counterfeit of a die would now read, with the amendment: or any article bearing a counterfeit of a mark. This matter, in essence, was discussed in Committee at some length together with the associated matter under Amendment No. 22 raised by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray). My hon. Friend the Member for Weston-super-Mare (Mr. Wiggin), with the courtesy and care with which he has piloted the Bill so far and upon which I congratulate him, wrote to us stating that the then clause relating to these matters would be materially altered and improved, and that was done. I am grateful for that. On the other hand, re-introducing the words or any article bearing a counterfeit of a mark seems to place a substantial onus, essentially of proof. Suppose a false mark were sold by an old lady who had a piece of silver in her family, and who was a little uncertain about the mark. She may purport that it was a fraudulent mark, or she may not know. For example, I have here a piece of silver on which I have been given two different expert 1024 opinions. One expert tells me that the mark is good Georgian and that it is a very valuable piece, but the other expert from the same well-known firm, says that the mark is all wrong and that the piece is virtually valueless. If experts can be so deceived on a mark, what of the old lady with her piece of family silver, which she wants to get rid of? She may in her bones want to say that it is very valuable, and she may need the money. If she sells it, no one knows whether the mark is good. But she could be brought to court for an offence with a maximum sentence of 10 years hanging over her.

§ Mr. John H. Osborn (Sheffield, Hallam)
I should hope that if the courts were faced with the situation which my hon. Friend poses the Bill would be suitably interpreted when it becomes an Act to comply with the situation. There may be a precedent involved. Nothing which we may say in the final stages of the Bill will influence the courts, but, I very much hope that the point which my hon. Friend has outlined will be accepted and considered in the courts if any such case comes up.

§ Mr. Loveridge
Anybody who has had experience of sitting even in a small way, as I have, on a magistrates' bench knows how difficult it is when dealing with receiving cases to be sure whether there was an intention to do something in the mind of the person before the court. That is the difficulty of understanding the possible intention in the 1025 mind of the old lady when she is brought before the court for uttering a suspect article. That seems a difficulty even if the words with intent to defraud or deceive … apply, I should like to be satisfied on this.

§ Mr. Wiggin
If my hon. Friend were to turn to Amendment No. 22 he would find that to a large extent his point is there answered by the words … If knowing or believing… That is the point. I shall extend the explanation of both amendments by saying that it concerned those who are advising me that under Clause 6(1)(c) it is an offence to utter a counterfeit of a die and under subsection (3) to supply or offer to supply or deliver a die when knowing or believing it to be counterfeit, yet it is not an offence to offer an article bearing a counterfeit of a mark—that is to say, a forged hallmark.
In practice, frauds are usually of the latter character. It would be possible to catch a person for uttering an article bearing a counterfeit mark by prosecuting under Clause 7(6), but the lower maximum penalty generally applicable to the Bill would then apply. I discussed this matter with the Department to see whether Clause 6 should be extended so as to embrace that sort of offence. The amendments taken together are directed to that purpose. I hope that that deals completely with the point which my hon. Friend has made.

§ Mr. Loveridge
I reply with the leave of the House. I am sorry to hear that the offence of issuing such an item as the piece of silver which I showed to the House should be met with the possibility of punishment of up to two years' imprisonment. On the announcement now before us, however, it seems a pity that we have to have the additional words, … or any article bearing a counterfeit of a mark … Those words are added to Clause 6(1)(c), which carries the long 10-year sentence on conviction as a possibility, which could apply even to the old lady of whom I spoke.
I am grateful and satisfied to be told that intention to defraud applies and that 1026 the old lady could not be convicted unless it was proved that she was of a guilty mind when she uttered or delivered the piece of silver. Taking that into account, and accepting that the matter of intention does apply, I am satisfied not to press the matter further, although I still voice my concern about accepting the amendment.

§ Mr. Wiggin
Might I have the leave of the House to reply for a second time on this amendment? At the risk of a dialogue developing, which I am sure would not be allowed, I must say that it would be wrong of me to make statements about the way in which the law works. We are passing these amendments today. They will become the law, which ultimately will be for the interpretation of the judiciary.
I have given as legalistic an explanation of the matter as I can. It is a complicated matter and a great deal of thought has been given to it. My hon. Friend the Under-Secretary of State for Trade and Industry and his Department have agreed that the solution that we have come to is the right one. That is by no means a reason for saying that the result is perfect, but I think, in fairness, that this is the right solution.

§ Mr. Emery
I understand the view expressed by my hon. Friend the Member for Weston-super-Mare (Mr. Wiggin). He summed the matter up fairly closely. We are intent not on catching the dear old lady of my hon. Friend the Member for Hornchurch (Mr. Loveridge), who, by accident, happens to sell something which she believes to be genuine and whose hallmark is subsequently found to have been altered. It is the intention that is important. We are after the scheming, conniving old lady who thinks that she will be able to catch out a young married couple by passing something off in an attempt to gain a considerable variation in the real value whilst knowing that she is deceiving. I am sure that the House will feel it right that any article bearing a counterfeit on a mark in that instance should be able to be caught fully and properly by the amendment.