OFFENCES (Hansard, 30 April 1975)

§ Dr. Summerskill
I beg to move Amendment No. 52 in page 9, line 20 after "Act", insert or regulations made under it".

Mr. Deputy Speaker
With this we may also discuss Government Amendments Nos. 55 and 56.

§ Dr. Summerskill
The amendments to lines 20, 23 and 30 on page 9 will amend subsection (5) to read: (5) A person guilty of an offence under this Act or regulations made under it shall be liable—

(a) on summary conviction—to a fine not exceeding £400.

(b) on conviction on indictment—to imprisonment for a term not exceeding two years or to a fine or to both."
The Government have reviewed the penalty provisions in Clause 12 following discussion of this matter in Committee, and the amendments now proposed will bring subsection (5) into line with modern practice in this respect. An offender will not be liable on summary conviction to imprisonment but will be liable to the usual maximum fine of £400. On indictment, there will be liability to an unlimited fine, or to imprisonment for a term not exceeding two years, or to both. The opportunity has also been taken to improve the drafting of the Clause so as to dispense with subsection (6).
The amended penalty provisions will apply to persons convicted of offences under the Bill, and regulations made under it, while the Government new clause makes similar provision in relation to the lottery offences remaining in the Betting, Gaming and Lotteries Act 1963.

§ Mr. Alison
I beg to move Amendment No. 57, in page 9, line 40, leave out from 'of' to 'any' in line 41.
The effect of the amendment is to take out the poor suffering sheep from a lot of goats, if I may put it like that. Subsection (7) associates people who have committed offences with consent or connivance, in other words, wilfully, deliberately and maliciously, with those whose offence is attributable to neglect.
It seems unsatisfactory that those who have been guilty of neglect should be classified with those who have been convicted of connivance or acting wilfully or deliberately. Neglect is quite different, yet the misdemeanour of neglect comes within the ambit of the penalties of imprisonment and so on specified in subsection (5) on exactly the same level and in exactly the same category as those more wilful and reprehensible acts.
It is wrong that neglect should be treated in this way, and we ask the hon. Lady to consider deleting the misdemeanour of neglect and leaving the penalties to apply to wilful acts or connivance at misdeeds.

§ Dr. Summerskill
Clause 12(7) enables a prosecution to be brought against the men controlling a company in certain cases where an offence under the Bill has been committed by the company. The language of the subsection is not apt in relation to a local authority, and is not intended to extend to it. The purpose of the subsection is to prevent wrong-doers from sheltering behind a company that has no assets. The provision is a common-form provision that has been used for many years and, so far as is known, 681 it has not given rise to any difficulty or injustice. A provision of this kind is never likely to be used where justice can be done by prosecuting the company itself.
The purpose of the amendment is to prevent a director or other officer from being prosecuted for the company's offence where that offence is shown to have been attributable to his neglect. It is prompted, I suspect, by anxiety lest a person should be convicted who is not, in any sense, guilty.
In fact, any such anxiety is misplaced because every criminal offence involves guilt and it is this which distinguishes a prosecution from a civil action. Accordingly, in the present case, before the director of a company could be convicted under the subsection, it would be necessary to prove, first, that the company had committed the offence and then that the director either consented or connived, or that that offence by the company was attributable to the guilty neglect of the director in question. In other words, the company must be shown to be guilty and the director in question must be shown to have been responsible for that offence.
It would be a misconception to suggest that an offence could be "attributable" to the neglect of a person where that person could not have prevented it or be expected to prevent it. I hope that this explanation satisfies the hon. Gentleman.

§ Mr. Graham Page
It does not entirely satisfy me. I should like to know whether the company can commit an offence by being neglectful and whether it is any offence to prove that there is simply neglect—not gross neglect, not wilfulness, but neglect by the company. I can find no such crime in the statute or anywhere in the Gaming Acts. I do not, therefore, sec why a director who is merely neglectful should be committing a crime when his company cannot be convicted of the same crime.

§ Dr. Summerskill
As I understand it, the company can be shown to have committed an offence. Before the director can be convicted it must first be proved that the company has committed the offence and then that the director either consented or connived in it.

§ Mr. Page
Or neglected?

§ Dr. Summerskill
Yes.

§ Mr. Rees-Davies
I think that the word "neglect" is rather strong. Subsection (7) states that Where an offence … committed by a body corporate is proved to have been committed —that is true, so the company must have committed the offence, but it is with the consent or connivance of … any director". I have no worry about that. That is plainly right. It says: or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer". It is fairly harsh to bring some small neglect into an offence which will carry not only substantial fines but also imprisonment. I think that this goes rather further than most of the betting and gaming legislation hitherto.

§ Dr. Summerskill
I can only repeat that the wording of the provision is a common form which has been used for many years and that as far as we know it has not given rise to any difficulty or injustice.