HC Deb 23 February 1977 vol 926 cc1549-58

10.0 p.m.

The Minister of State, Northern Ireland Office (Mr. J. D. Concannon)

I beg to move, That the Criminal Damage (Northern Ireland) Order 1977, a draft of which was laid before this House on 3rd February, be approved. The Government's intention to introduce this order was announced by my right hon. and learned Friend the Attorney-General on 2nd July 1976. The purpose of the order is to extend to Northern Ireland, with certain modifications necessary to take account of other Northern Ireland statutes, the provisions of the Criminal Damage Act 1971, which applies to England and Wales. The 1971 Act was based on the recommendations of a report by the Law Commission, and it has worked well from the points of view of both the police and the courts.

While the order is not primarily directed against terrorism, the Chief Constable believes that it will help the Royal Ulster Constabulary in the daunting task which faces it in the present unhappy situation. The benefit to the police will result from the simplification of the law. The order also provides for greater flexibility of sentences, and creates new offences of threatening to destroy or damage property and of possessing anything with intent to destroy or damage property.

The existing law relating to damage to property is contained in the Malicious Damage Act 1861, much of which is obsolete. Some of the penalties in the Act are difficult to justify. For example, while destruction of works of art under Section 9 carries a maximum penalty of six months' imprisonment, the maximum penalty for destruction of hop-bines is 14 years.

I do not think that I need go into details of all the articles of the order, but there are one or two provisions to which I should draw attention. Article 3 creates the two main offences of the order. The first is the simple offence of destroying or damaging another's property, intending to destroy or damage it, or being reckless as to whether destruction or damage would be caused. The second main offence is the aggravated one of destroying or damaging any property intending to endanger the life of another, or being reckless as to whether the other's life would be endangered.

This article provides that any offence of destroying or damaging property by fire shall be charged as arson. The common law offence of arson is abolished. The new statutory definition of arson has a wider and more satisfactory meaning than that at common law which is restricted to the burning of houses.

Articles 4 and 5 create the offences of threatening to destroy or damage property and of having custody or control of anything intending to use it to destroy or damage property belonging to another person.

Article 6 provides the penalties for offences under the order. For the aggravated offence under article 3 and all offences of arson the maximum is life imprisonment; and 10 years for the simple offence, where the destruction or damage is not caused by fire, and for threats under article 4 and offences of possession under article 5. The maxima where cases are tried summarily are two years' imprisonment or a fine of up to £500, or both.

Article 9 enables magistrates' courts to try, with the consent of the prosecution, all offences created by the order, except the aggravated offence under article 3 (2). In this respect, the order differs from the comparable provision in the 1971 Act. The difference is necessary to take account of the accused who just says nothing, and follows the precedent of the Protection of the Person and Property Act (Northern Ireland) 1969.

Perhaps I should also refer briefly to article 13(5) of the order, which has no parallel in the 1971 Act. The House will be aware that under the Northern Ireland (Emergency Provisions) Act 1973 a range of offences of a kind associated with terrorism are treated as scheduled offences. This means that when tried on indictment—that is, in a higher court —they are heard by a single judge sitting without a jury. The House will know of the reason for that arrangement.

At present, 16 offences under the Malicious Damage Act, and the common law offence of arson, are classified as scheduled offences. The effect of article 13(5) is that all the main offences under the order, with the exception of the offence of simple damage where fire is not involved, will become scheduled offences. Provision is made, however, for the Attorney-General to certify that an offence shall not be treated as a scheduled offence in a particular case.

These are the main provisions of the order. As I have said, the purpose of the order is to apply to Northern Ireland the provisions of an Act which has worked well in England and Wales since 1971. I believe, and so does the Chief Constable, that the provisions will work equally well in Northern Ireland, and I commend the order to the House.

10.5 p.m.

Mr. Airey Neave (Abingdon)

We congratulate the Minister of State on the way that he explained the order. We welcome the order because it is an important development in the law. There are four new scheduled offences directly or indirectly connected with terrorism. It is a considerable consolidation of the law on terrorism. For that reason it is important for Northern Ireland.

The Secretary of State kindly wrote to me and to other hon. Members on 16th November explaining some of the objects. He has elaborated on them sufficiently tonight. But, of course, it is very important that it should be realised what a vast amount of damage is actually done in Northern Ireland at present as a result of damage to property and arson. Can the Minister of State give us an estimate of the total damage to property in Northern Ireland in 1976 at some convenient period either now or later? We were informed by the Daily Telegraph on 3rd February that the cost of damage by fire in 1976 alone was over £40 million whereas in 1975 it had been £13.4 million. It has now more than doubled.

In connection with the new scheduled offences we welcome article 6, which the Minister of State referred to, which imposes a maximum sentence of life imprisonment for offences of arson and other unlawful damage under article 3. An important development is the making of threats to destroy or damage property, a scheduled offence, and also the possession of anything with intent to destroy or damage property. Some people might think that the maximum penalty of 10 years was not quite sufficient, but I make no complaint about that. Obviously, the possession of anything with intent to destroy or damage property could be connected with an offence of terrorism. That is an important development.

We also welcome the fact that, since damage to property is such a major part of the offence of terrorism, this simplifies the law. It will not only counteract terrorism but will help the RUC in its prosecutions, because some of these offences were not adequately covered by the common law or by the Malicious Damage Act 1861. We therefore welcome the order and the way in which the Minister of State commended it to the House.

10.8 p.m.

Mr. J. Enoch Powell (Down, South)

The Minister of State must experience curious sensations when he finds himself a few seconds before ten o'clock discoursing upon the general security situation in Northern Ireland and then, after the lapse of the fraction of a minute and the drawing of one breath, presenting the House with such a lucid and comprehensive explanation of the draft order before it.

However, when the Minister referred to the fact in the previous law the heinous offence—which it clearly is—of damaging or even destroying a hop-bine carried a penalty of 14 years, a doubt just crossed one or two minds whether the Minister of State was quite sure what a hop-bine was.

Mr. Concannon indicated dissent.

Mr. Powell

The Minister of State is clearly well briefed and enlightenment will in due course come when he winds up the debate.

The order is not that new dispensation on criminal damage for which we are waiting and which, I hope, will be presented to the House when it comes rather in the form of a Bill than an order.

We are dealing with the harmonisation of the existing code for the punishment of criminal damage in Northern Ireland with that introduced in Great Britain by the statute of 1971.

In Northern Ireland, as in Great Britain hitherto, the basic legislation has been the Malicious Damage Act 1861. It is salutory occasionally to be reminded that for 122 years the law in Ireland, as in Great Britain, was made exclusively in this House. Of course, some of the law which this House made applied only to Ireland, just as some of the law applied only to Wales or to Scotland. Therefore, in this instance it is not so much the legislation of the last 50 years of the devolved Parliament of Northern Ireland as the legislation of 1861 as it has continued to apply to Ireland which we are bringing up to date.

I do not think that anyone who studies the order and the explanatory material upon it can doubt that this is a rationalisation process which was highly necessary. Although the Act and this order would be necessary if there were no terrorism, I agree with the hon. Member for Abingdon (Mr. Neave) that some of the principal effects of the order must be extremely welcome against the background of terrorism.

I should like to refer to three consequences. First, the law relating to such offences is simplified. That must make for quicker and surer administration of justice in that greater flexibility in sentencing is provided. I think that I am right in saying—perhaps the Minister will confirm—that, although some harsh penal sentences, such as 14 years for the hop-bine, may be somewhat modified, the general effect is to render the punishment available to the courts more severe under the new code than under the existing one.

Mr. Concannon indicated assent.

Mr. Powell

I am glad to have the hon. Gentleman's assent. That is one area in which this is a definite gain in present circumstances.

Secondly, there is the new offence of threats. The threat of damage can sometimes in present circumstances in a city such as Belfast be as serious and as much a danger to human life as the actual damage. Indeed, there are circumstances where the relationship could even be inverse and a false alarm or hoax could cause more chaos and loss of life than actual damage. That provision is welcome.

While on that point, I should like to refer to article 4. What is the effect of the words intending that that other would fear it would be carried out"? I take it that the object of those words is to exclude from the effect of the article a mere frivolous threat such as might be made either in jest or in some unserious way in circumstances where the person threatened would know that it was not intended to carry out the threat. I trust that there is no question that hoaxes could be excluded by that wording and that the only intention is to eliminate acts which we would all regard as innocent even though in some cases they might be rather foolish. That is the second benefit that we should get from this new dispensation—namely, that the hoax and the threat of violence become a criminal offence.

Thirdly, there is the new offence of possessing articles with the intention of destroying or damaging property. This, clearly, can be a useful weapon to the security forces in the same way as the possession of a firearm is an offence just as is the unlawful use of a firearm.

I draw the Minister of State's attention to article 5, which, I accept, reproduces textually the corresponding section of the 1971 Act but which is extremely difficult, I find, to construe. Perhaps the hon. Gentleman will accompany me in my difficulties in construing article 5(b). It reads, when construed, as follows: A person who has anything in his custody or under his control intending …to use it or cause or permit another to use it … to destroy or damage his own or the user's property in a way which he knows is likely to endanger the life of some other person, shall be guilty of an offence. I think the Minister of State will admit straight away, and will not feel inhibited in admitting, that that is not the most lucid piece of draftmanship with which he has ever been confronted. Although it is already on the statute book, it is not exactly clear in its effect. I think that the user in paragraph (b) is a reference to "another" person in line 2 of the article whom the guilty person may be allowing to use the article, and that the person himself who may be guilty uses it to damage his own property or, alternatively, entrusts it to someone else to use it to destroy that other person's property. But in both cases they must be doing so in circumstances calculated to endanger some life.

I trust that I have roughly got that right but it is a most obscure piece of drafting. If we had been proceeding, as I hope we shall be in future commonly, by way of a United Kingdom Bill, those dealing with the Bill in its various stages, especially a Bill of this sort that is of particular importance to Northern Ireland, would have had the benefit of the scrutiny and intelligence that Northern Ireland Members could bring to bear upon it. I venture to wager that if the Bill presented in 1971 had been presented in 1977 as a United Kingdom Bill we should have succeeded in making the corresponding clause to article 5 much more lucid.

At all events, this is a piece of uniformity, it is a new area of uniformity of the law in Northern Ireland and in Great Britain, to which I believe no possible objection or criticism can apply and from which only advantage can accrue. In that context my hon. Friends and I welcome its having been brought forward.

10.18 p.m.

Mr. William Craig (Belfast, East)

I, too, join other hon. Members in welcoming the order. It will be a useful addition to the law, especially in dealing with the terrorist offences that plague us daily.

I do not want to put the Minister of State on the spot but as I thought about the consequences of the order I could not but help think of some of the worst type of offences that result in damage to property—for instance, the crime that we describe as a proxy bombing. I ask the hon. Gentleman to ponder for a moment, as the order is drafted, what sort of penalty would be imposed upon those who use blackmail to cause others to bomb and damage property.

I hope that the Minister will address his mind to dealing with those who conspire to cause damage to property and will see that they will be dealt with in future. I believe that those who conspire and cause others to go out and carry out these jobs are just as guilty and as deserving of heavy penalties as are others. I should like some assurance that the order is wide enough and will be adequate to enable life sentences to be imposed.

10.20 p.m.

Mr. Concannon

I am grateful for the welcome given to the order. It seeks to pull together and to make more flexible the laws of Northern Ireland and put them on a par with some other matters in a Northern Ireland context. Furthermore, it seeks to bring parity to the situation.

I am glad that we have not confused the argument in this discussion between compensation and matters involving destruction. If we had confused those considerations, it would have confused the discussion on the order.

I was asked to give a figure of estimated damage last year in Northern Ireland. I can only say that compensation claims have been made and are in the pipeline—in other words, claims are still coming forward. I should not like to attempt to give a figure of such damage because it would be difficult to slot it into a particular year. The figure is quite considerable —well over £100 million—since the legislation came into being. Claims to the extent of about £60 million are now pending.

The report in the Daily Telegraph caused me some concern. I do not know how that newspaper reached its figure. We are examining the situation, and I shall write to the hon. Member for Abingdon (Mr. Neave) when we have reached a conclusion.

The first thing I did on hearing the right hon. Gentleman was to find out what a hop-bine was. I am still not exactly sure what a hop-bine is, but I think the right hon. Gentleman now knows the answer. I understand that it is netting that is stretched out among the hops in the same way as one uses such nets for runner beans to run up. I hope that that satisfies the right hon. Gentleman's curiosity. I certainly would not argue about the good sense of those who drafted the provisions in 1861 and I would not seek to question their priorities in those days. I merely stressed that matter to suggest that up to now we were working under those laws in Northern Ireland.

Mr. Powell

It has been confirmed to me that hops do not grow in Northern Ireland.

Mr. Concannon

It shows how sensible we are to get rid of that legislation. I understand that there are no elephants in Northern Ireland either.

Although article 4 merely follows the wording of Section 2 of the 1971 Act, this will be a valuable new offence in Northern Ireland because in many cases it will apply to persons who make hoax bomb threats. At present the police in Northern Ireland generally have to proceed against such persons either for the common law offence of causing a public nuisance or for wasting police time. That is not a satisfactory situation. Offences under article 4 are punishable by imprisonment of up to 10 years. This will be a valuable piece of legislation for the police in Northern Ireland and for the general public. It will do a great deal to prevent frivolous cases being brought.

The word "custody" in article 5 means physical custody and "control" imparts the notion of the power to direct what shall be done with the property in question. The use of the phrase "in his custody or under his control" rather than the term "possession" is intended to avoid the difficulties of interpretation that have arisen in the past.

The essential feature of the proposed offence is not in having custody or control of something that can be used to destroy or damage property since that would include everything from a tin-tack to a bulldozer. It is the intention to use something without lawful excuse to commit damage which makes the possession criminal, as many articles which may on occasion be used to commit criminal damage may be possessed lawfully. The provision includes the intention of causing or permitting another to use the article in question. For example, it may involve an associate of a criminal organisation who keeps materials which may be used by other members of the organisation for a prohibited purpose.

I was also asked about people who destroy their own property. That is not an offence if that is all that is done. But if it is followed up by a claim for compensation or insurance an offence is committed.

I am not 100 per cent. sure about the matter referred to by the right hon. Member for Belfast, East (Mr. Craig) but I shall write to him and tell him whether what he said is correct.

I commend the order to the House.

Question put and agreed to.

Resolved, That the Criminal Damage (Northern Ireland) Order 1977, a draft of which was laid before this House on 3rd February, be approved.