HC Deb 28 November 1974 vol 882 cc921-30

'(1) Where a person has committed or is planning to commit an arrestable offence involving an act of terrorism, any other person who, knowing or believing that the offence has been committed or is being planned, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for the offence or in preventing the offence, fails to report such information to a police officer, whether invited to do so or not, shall be liable—

  1. (i) on summary conviction to imprisonment for a term not exceeding six months or to a fine of £400, or both, and
  2. (ii) on conviction on indictment to the same penalty as the law prescribes for the offence which was committed or was being planned.

(2) Where a person has committed an offence under section 1 or section 3 of this Act, any other person who, knowing or believing that the offence has been committed and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, fails to report such information to a police officer, whether invited to do so or not. shall be liable—

  1. (i) on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding £400, or both, and
  2. (ii) on conviction on indictment to imprisonment for a term not exceeding five years, or both.'—[Mr. Cunningham.]

Brought up, and read the First time.

Mr. George Cunningham

I beg to move, That the clause be read a Second time.

I should explain that the title given on the Order Paper for the clause is not the one I submitted along with the text of the clause, and it is inaccurate as it stands. It is inaccurate because it would cover only subsection (1) and not subsection (2).

7.30 a.m.

I can best explain the purpose of the clause by describing the situation at which it is directed. Under the law as it is now and as it will remain following the passage of this Bill if the clause is not inserted, if a person knows that a terrorist offence has been committed, or any other serious offence, or that such an offence is being planned, he is not committing any offence if he does not give that information to the police, as long as his own involvement is restricted to the mere knowledge of the facts and not to any participation in the execution of the act or in the planning of it.

That means, at its most extreme, that if it is discovered, and if it is proved, that a person knew that a bomb had been placed and knew who did it and did nothing about that information—did not pass it on to the authorities—he has done nothing criminal and cannot be penalised in any way. Although I am not a lawyer, I understand that to be correct. Assuming a person's involvement is restricted to mere knowledge and there is no further involvement, that is the case.

This feature is usually referred to with the illustration of a person who sees another drowning in a canal, or something like that. The person who observes this has no obligation either to go to the rescue or inform anyone of the fact that the man is drowning. The whole question of the obligation to report information about the knowledge of serious offences was discussed and the legal position changed as recently as 1967.

Before that date, as I understand it, the common law offences of misprision of felony would have covered some part of the offence which I am endeavouring to create by this clause. That was a common law offence and it was subject to all the obscurity which attaches to many common law offences.

The position was changed by Sections 4 and 5, particularly 5, of the Criminal Law Act 1967. What Section 5 says is that if a person has knowledge of a serious offence and he is bribed not to give that information to the police to facilitate prosecution, he is committing an offence. But if such a person withheld the information for no reason, or for any illogical reason, he is not committing any offence. That change was well thought out at the time, in 1967.

I question whether, in the context of this measure, it is still justified. It may be said that it will always be difficult to prove that a person possesses information if, in the nature of things, it is something he has declined to pass on. We have already overcome that difficulty in the 1967 Act. It may help the Committee if I read the relevant sentences. Section 5 says that: Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed, and that he has information which might be of material assistance in securing the prosecution or conviction of an offender for it, accepts or agrees to accept for not disclosing that information any consideration … he is committing an offence.

At the moment we are prepared to accept a double burden of proof. It first has to be proved that the person had the information and that he had received a consideration for not revealing it. Whatever burden of proof attaches to my proposals it is less than now exists in that the point that I am considering would not exist. When the Criminal Law Revision Committee made its report in 1965 upon which the 1967 change was based it made a few remarks about the desirability of changing to the system that now exists. Paragraph 39 reads: There are obvious objections to making a person criminally liable for not reporting to the police any minor offence of which he may happen to know. Note the word "minor". Paragraph 40: On the whole we think that the only case needing to be provided for is one in which a person accepts or agrees to accept a bribe not to disclose information to the police. Note the words on the whole we think …". That was said in 1965 when there was not the background of terrorist activity which now exists. In paragraph 42, in concluding against widening the provision in the way I am suggesting, the Committee said: But public opinion would be unlikely to agree to an offence consisting of refusing to answer questions by the police about the commission of offences. I believe that public opinion now would take a different view on that matter and on the wider points that are covered in the new clause. With the present connotation of terrorism I do not think that the public can tolerate a situation where a person could be found during proceedings for a more serious offence to have had knowledge that a bomb was going to go off the next day and not to have done anything about it. I do not think that we can tolerate a situation where a court finds that a person knew who had committed an offence but did not reveal that information to facilitate a prosecution.

I suggest that the kind of situation that might arise in practice is where half-a-dozen youths live in the same house and two or three of them are accused of conspiring to commit a terrorist act. The court might find the case proved against all but one of the youths. It might be said that while he knew about the plans there was no evidence that he had participated in them. In those circumstances I think we have to create an offence of which that person would be guilty.

My clause is based largely on the wording of the 1967 Act and it takes whatever respectability the wording of that Act may have. The 1967 Act flowed very much from the committee's report. The reference to material assistance is a straight quotation from the 1967 Act. The differences are that I propose that it should be an offence to withhold information not only about an act that has been committed but about planning for a future act. Secondly, there is no provision about consideration. I propose that information should be given whether or not it is requested. I am not proposing that it should be an offence only to decline to give information to the police if they have reason to ask for it but that it should be an offence not to give it even if a person is not requested.

Subsection 1 would apply such an offence to arrestable offences—namely, serious offences involving an act of terrorism as defined in the Bill. Subsection 2 is less important and jettisonable. It provides for the honest disclosure of information about a relatively minor offence now created an offence by earlier clauses of the Bill.

I hope that the new clause commends itself to the Government, if not necessarily in my words. If it does not at this perhaps it might in six months time if the Bill has to be renewed. The situations which I have described should not be tolerated without some punishment attaching to those responsible.

Mr. Douglas-Mann

I join with my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) in his arguments on the first part of the new Clause 1. I think that there is a deficiency—a deficiency which could otherwise only be cured by the overused law of conspiracy. However, I should be reluctant to see further recourse to that law. I should prefer to see the provisions in the first part of the deficiency—a deficiency which could be rather than to rely on the law of conspiracy. The law of conspiracy has been over-used on previous occasions and is liable to be used to meet a deficiency which the first part of the new clause would seek to remedy.

I strongly dissent from the proposal that the second part of the clause should be incorporated in the Bill, because it would make it an offence if a knew that somebody had collected money for the IRA or had been a member of the IRA and I failed to disclose it. Many of us have an idea about several such people, but I am not sure that there should be an obligation to disclose that, with a criminal sanction if one does not. However, if one has knowledge of a proposed act of terrorism one ought to be under an obligation to disclose it to the authorities and should be regarded as committing an offence if one does not disclose it. Although I do not think the law is as deficient as my hon. Friend suggests, I think that it would be desirable to have contained in the Bill the provisions of the first part of the new clause.

The Attorney-General

I am grateful to my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) for the clarity with which he introduced the new clause, and for the manner in which he traced the history of the matter. I have a great deal of sympathy with the idea behind the clause. I know that both my hon. Friend and also my hon. Friend the Member for Mitcham and Morden (Mr. Douglas-Mann) have reservations about the second part of the clause.

Perhaps I, too, should say something about the history of the matter. Before the report of the Criminal Law Revision Committee to which my hon. Friend referred, there was a great deal of doubt as to the law of so-called misprision of felony. But what seems to be quite clear is that in order to commit that offence it was necessary to be guilty of some dishonesty, such as that of "telling a lie to put the police off the track". There were also probably some limitations affecting the relatives of the person who had committed the felony.

The committee gave thorough consideration to the changes that would be necessary as a result of the abolition of the difference between felony and misdemeanour and closely considered the law on misprision and what should take its place. Although my hon. Friend the Member for Islington, South and Fins-bury quoted the passage in which reference was made to minor offences, it is fair to say that the committee went beyond that and said "The present law of misprision is also open to objection in that it does not require that the omission to give information of the felony should be dishonest, and that it contains no clear limitation as regards offences committed even by near relatives". That was a matter which the committee felt it was necessary to deal with.

7.45 a.m.

I understand my hon. Friend's proposal to go much wider than certainly the law before the report of the committee and also much wider than the committee felt should be the law and that the House of Commons put into law as a result of the passage of the Criminal Law Act 1967. My hon. Friend says, in effect, that here we have a special, unique type of offence and that we ought to have a different duty from the duty which has been accepted as a result of all that consideration in respect of all arrestable offences—that is, those subject to imprisonment for five years or more, even the most heinous of those offences which may come before the courts.

The question, therefore, for the Committee is whether, in the context of this temporary provisions Bill, one should step completely out of line with what was considered to be right for all those more serious offences as recently as the report in 1965 and the Act of 1967, and whether we ought to impose a burden which would be substantially wider than both the burden before the 1967 Act and the burden created by it. It would certainly not deal with either of the points which the committee felt to be of importance—the element of dishonesty and the element of protection for a relative who in some circumstances could perhaps hardly be expected to comply with the wide duty which my hon. Friend suggests should be in force.

One of the difficulties about this very wide duty is that although, as he has said, my hon. Friend has followed the wording to some extent of the 1967 Act, the basic point of that Act is that there had to be an element of bribery about the offence. That, of course, would be very much easier to prove than what my hon. Friend now suggests should be the law. The offence which would be created by my hon. Friend's new clause would be not only substantially wider than the law as it is today but substantially more difficult to prove than under the law as it is today.

Sir Michael Havers

Can the Attorney-General advise the Committee on a point which may be of importance? Where the person who has committed or is planning the crime is a husband and the wife gets knowledge of it, not through the husband but through a third person, would she be protected against prosecution under the amendment?

The Attorney-General

As I understand my hon. Friend's amendment, I see no protection whatever as regards relatives or husbands and wives.

There would be considerable difficulty in proving the matters contained in the new clause, and it would go much wider than the present law. I sympathise with, and applaud, the view that one might wish to have a more stringent duty for most serious offences—not only terrorism. It may be that the 1968 Act did not go far enough in that direction. But this is the sort of matter that should be considered in the context of our criminal law as a whole, rather than moving out of line with the criminal law in a temporary provisions Bill of this character.

As it appears from the views so far expressed that in any event subsection (2) is unsatisfactory, I suggest to my hon. Friend that we can consider the matter further before the Bill is renewed, if it is. In those circumstances, I ask him to seek leave to withdraw the new clause. If he feels unable to do so, I cannot at this stage recommend it to the Committee.

Mr. Maurice Macmillan (Farnham

The Attorney-General said two things in consecutive sentences. First, he thought that the provisions of the clause should be considered in the context of the criminal law as a whole, and that we should not go beyond it in a temporary provisions measure. Then he added that he thought that the matter could be reviewed in the six months while a new measure is considered to deal with temporary provisions against terrorism.

If there is any question of an amendable measure being introduced in six months' time, an amendment on the lines proposed in the clause should be considered. There is an essential difference between foreknowledge of terrorism and foreknowledge of other criminal acts. The terrorist killing is the only one that is directed not at any specific target but at the public in general. This imposes a much heavier burden than normal duty on people who might have foreknowledge which they should, as good citizens, communicate to the authorities.

The Attorney-General

The existing law to which my hon. Friend the Member for Islington South and Finsbury (Mr. Cunningham) referred would apply in respect of the Bill if the new clause were not inserted. I suppose that even if it were added to the Bill there would be two duties running side by side and overlapping. But there is no reason why, before we renew the measure, if we have to, we should not consider, both in relation to the Bill and possibly in a wider context, the kind of provision my hon. Friend suggested.

Mr. George Cunningham

My hon. and learned Friend the Attorney-General has not completely poured cold water on the idea. I am grateful for that, and for his undertaking that it can be considered in the next six months.

But it should be part of our strategy in dealing with the situation in the next six months to have a package of devices rather than to introduce one every month. It would make a much greater impact on the terrorists if they saw that we were adopting a large number of practical proposals—which is how I regard the proposal in the clause—rather than having them in bits and pieces.

What we shall need in order to combat the terrorist is information, as has often been said in the context of Northern Ireland. Many of us fought hard two or three years ago to stop some methods of obtaining information. But we must assist in obtaining information legitimately and legally. The new clause would not only penalise those who did not assist in that and positively impeded it but would create an atmosphere in which it was respectable to provide the information when the denial of it, which could cost lives, would be a criminal act.

I cannot understand the Attorney-General's point that it would be more difficult to prove a charge under the new clause than under the existing law, because under the existing law one has to prove that the person had the information and withheld it and that he was bribed, whereas under the clause one would have to prove that he had the information and withheld it and no question of bribery would arise.

The Attorney-General

The new clause makes it an offence to withhold information if a person believes that something has happened, whether or not it has. That would be very difficult for the prosecution to prove—a belief that something had happened. There is the provision in the clause which relates to information which might be of material assistance. Again, that is a form of words which the prosecution would find difficult to fit into its case in a criminal court.

Mr. Cunningham

I hesitate in bandying words with the Attorney-General on a point like this, but my clause refers to a situation Where a person has committed or is planning to commit an arrestable offence", and goes on with the words which my right hon. and learned Friend has just quoted. But the 1967 Act uses those words. I accept that there is greater difficulty in respect of my clause because I suggest that it should be an offence to deny information about even the planning of an offence.

However, on the other points, I should have thought that the burden of proof was decidedly weaker in the case of my clause than on the law as it is. I see no reason why a wife should be protected if her husband has planted a bomb in a pillar box. I do not see why she has any entitlement to deny that knowledge to those who wish to stop people being blown up by it. I should be prepared to see her go to gaol if she declined to give that information.

Leaving the law as it is means that if a court, after rigorous examination of the evidence, finds that a person knew of an offence which had been committed or an offence which was about to be committed even in circumstances in which he could have avoided the loss of life, no one will be able to say that he was committing any offence and no punishment would attach to him. I cannot believe that the public would wish that situation to arise.

Mr. Douglas-Mann

May we ascertain from the Attorney-General confirmation that the legal position is not as it was suggested by my right hon. Friend the Member for Islington, South and Fins-bury (Mr. Cunningham)? It would be unfortunate if the impression were to be gained that, even without the new clause, somebody knew that a criminal offence was about to be committed and did not report it was not liable to incur a penalty. There is the matter of the law of conspiracy and the question of people being accessories before the fact. It is not correct to say that somebody who knows that an offence is about to be committed and passively co-operates in it is not committing an offence. The law needs to be tightened up. There should be an obligation on such a person to take action.

Mr. Cunningham

If it is possible for the Attorney-General to confirm that, I shall be grateful. It would do much good outside the House of Commons.

I do not intend to press the clause to a Division, but I am not inclined to withdraw it.

Question put and negatived.

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