§ Order for Second Reading read.3.32 pm
§ The Secretary of State for the Home Department (Mr. William Whitelaw)
I beg to move, That the Bill be now read a Second time.
I welcome the opportunity to bring the Bill before the House today. It makes a number of significant changes in the criminal law which I believe will be generally welcomed. Most notably, it repeals the much criticised suspected persons offence, commonly known as "sus". What may be less generally appreciated but which arguably is of much greater significance is that the Bill also codifies and reforms the present common law of attempt. I shall come to the links between these matters in due course.
First, I should like to acknowledge the debt that the Bill owes to the work of two bodies—the Select Committee on Home Affairs and the Law Commission. As the House will recall, the Select Committee produced a report in May last year recommending the immediate repeal of "sus". It produced a second report in August criticising me for delaying the implementation of that recommendation. The inclusion in the Bill of a provision to repeal the offence obviously owes a great deal to the Committee's report.
The Bill also owes a great deal to the work of the Law Commission. Its report on "Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement" forms the basis of the provision on the law of attempt. That report continued the valuable examination which the Law Commission is making of parts of the common law with a view to enactment in statutory form. The report was a result of many years study by the Law Commission of an important and fairly technical area of the law. We are greatly in its debt.
It might assist the House if I were to say a little more at this point about the reasons for the Government's decision to repeal "sus" and in doing so to explain the relevance of the Bill's other provisions. I made clear in the debate on 5 June on the Select Committee's report that the Government intended to consider seriously the Committee's recommendation that "sus" should be repealed. Indeed, I accepted that it had established a clear case for making changes in the law. I also made it plain that, in my view, it would not be sufficient to repeal "sus" only to replace it by a similar offence in modern dress.
The Select Committee considered the offence to be objectionable in principle. It argued that it carried inherently a grave risk that innocent persons could be convicted on the basis of actions which were criminal but in respect of which criminal intent could be imputed. That view was expressed by many who gave evidence to the Committee.
I emphasise two points. The Committee did not find any evidence that the police—as has been alleged—used the offence in a discriminatory fashion. Indeed, the Committee said clearly in its report that it did not believe that "sus" had beenused by the Metropolitan police with a deliberate racial bias".Secondly, in spite of the detrimental effect which the offence has undoubtedly had on relations between the 22 police and the ethnic minorities, the Committee made it quite clear that it would not have regarded this as sufficient reason for recommending repeal of the offence if it had considered such an offence to be necessary. I accept that there is a good deal of force in the criticisms which have been made of the offence. I also recognise that there are those, including my hon. Friend the Member for Birmingham, Edgbaston (Mrs. Knight), who do not share these views. But I believe that the offence has become so widely mistrusted that it is really now in everybody's interest that it should be repealed.
I should like to make it clear that in reaching this decision I have given the most careful consideration to the views of those who have urged that the offence should be retained. I recognise that a number of police forces have found "sus" useful in enabling them to intervene before crimes have actually been committed. I therefore understand the concern which has been expressed by some about the adequacy of police powers to deal with street crime once "sus" is repealed.
It would be naive and wrong, I believe, to pretend that there have not been instances in which "sus" has served a useful purpose and would do so again if it were preserved. But I also believe that there has been a tendency among some supporters of the offence to exaggerate both the overal contribution which "sus" has made in preventing crime and, hand in hand with this, to give too little weight to the other powers which the police have at their disposal.
It is worth repeating at this point that the number of persons proceeded against for "sus" is relatively small—fewer than 3,000 in 1979—and that many forces hardly use the offence at all. These facts cannot be reconciled with the view that—as some would appear to have us believe—"sus" represents the only barrier against a massive increase in street crime.
What are the other measures which the police can take? Obviously, this must depend on the circumstances of each case. In some instances it may be sufficient simply to make it clear that the person who is the object of suspicion is being observed. In other cases the police can continue discreet observation until the point is reached at which intervention is called for. Where a constable has reasonable cause to suspect that an arrestable offence—which includes theft—is about to be committed he has the power to arrest without warrant the person concerned. If the action is sufficiently far advanced to constitute the commission of an offence or an attempt to commit an offence the appropriate charge can then be laid. In other cases a warning might be given.
There are also a number of other possible preventive measures, such as the common law power of arrest on reasonable suspicion of a breach of the peace and a power to arrest a person found on enclosed premises. I think that it will be clear even from this brief, and by no means complete, summary of the courses open to the police when they see a person acting suspiciously that it is not the case that the repeal of "sus" will leave the police powerless in such situations.
§ Mr. John Fraser (Norwood)
Will the right hon. Gentleman add to that list something that might be very useful with juveniles? When a person is suspected of being about to commit an offence, if the parents are advised of 23 the suspicious behaviour of the child, it might bring them on to the side of the law instead of alienating them, as has happened in the past.
§ Mr. Whitelaw
I agree with the hon. Gentleman in one respect, while obviously wanting to consider the details, but anything that involves the parents in the way suggested must be something that this House would thoroughly welcome.
Having carefully considered the balance that has to be made, the Government do not believe that the objections to "sus" are outweighed by the arguments about the offence as a crime prevention measure. I made it plain, however, in the debate which took place last June that the Government could not agree to the repeal of the offence without considering the possible need for other measures to fill particular limited gaps in the law which might be left by repeal.
The Select Committee acknowledged that difficulties could arise in some cases in charging attempted theft, but it considered these to be technical difficulties only. It expressed confidence that the Law Commission's report—which had not then been published—would provide a solution.
The Committee had two particular situations in mind: first, if somebody tampers with a parked car; secondly, if somebody attempts to steal from a pocket which turns out to be empty. In both instances, "sus" may at present be used to make up for deficiencies in the law of attempt. I was able to tell the House, in the debate to which I have referred, that while the Law Commission's proposals would enable a charge of attempted theft to be brought in the empty pocket case they would be unlikely to have any appreciable effect on cases involving interference with parked motor vehicles.
The difficulty which can arise in cases of the latter kind that it is not always clear precisely what the person intends to do. He may have it in mind to steal the car or its contents, or to take it and drive it away. This difficulty is compounded by the requirement, under the present common law of attempt, that the defendant's actions must be sufficiently close to whatever offence it was that he intended to commit. The Law Commission's proposals do not ease the difficulties concerning the defendant's intention in these circumstances, nor do they remove the need to prove that his actions are sufficiently close to the full offence to constitute an attempt.
The Select Committee pointed out that "sus" is often used in these circumstances. It is the Government's view that unless other measures are taken the repeal of "sus" would significantly weaken the ability of the law to deal with behaviour of this kind. Clause 9 of the Bill therefore provides for a new offence of unlawful interference with vehicles in a public place.
I have seen it suggested that the proposed offence is simply "sus" in another form. I cannot accept this for one moment. It is in no sense a catch-all provision. By contrast with "sus", where an undefined range of suspicious conduct is penalised, the new offence is concerned only with overt acts of interference with motor vehicles.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
In intervening, may I first say that my right hon. Friend has in every sense delivered what he promised to deliver? Will 24 clause 9 allow the defence that a man was seeking to get into the motor vehicle only because he wanted to sleep there?
§ Mr. Whitelaw
I am sure that I would be wise to leave the answer to that question to my hon. and learned Friend the Minister of State, who will no doubt deal with it in his reply.
The other gap in the law which the Select Committee mentioned—concerning attempts to steal from empty pockets—brings me to the links between the repeal of "sus" and the provisions in part I of this Bill concerning the law of attempt. The repeal of "sus" has, of course, given an added dimension to the Law Commission's report. But, even without this, the Law Commission's proposals would have demanded prompt attention.
Quite apart from their significance in the process of codifying parts of the common law, the proposals offer much-needed clarification and reform. In particular, the difficulty concerning attempts to steal from empty pockets is but one example of a wider problem concerning what are known as "impossible attempts". I hope that one result of setting these matters out clearly in statutory form will be to remove some of the general uncertainty which may have encouraged the use of "sus" when attempted offences might have been charged instead.
It may be helpful at this point to describe, clause by clause, the main features of this part of the Bill. Clause 1 is the heart of these provisions and I hope, therefore, that the House will bear with me if I explain its purpose in some detail. Subsection (1) defines the mental element and the conduct which are necessary to constitute an attempt to commit an offence. The mental element is defined as anintent to commit an offence to which this section applies".This reproduces the wording in the Law Commission's draft Bill and is intended, as the Law Commission made clear, to make no change in the position under the present common law. The conduct which constitutes an attempt is defined asan act which goes so far towards the commission of that offence as to be more than a merely preparatory act".This again follows exactly the wording recommended by the Law Commission and is similarly not intended to mark any change of substance in the present requirement of proximity at common law.
Subsections (2) and (3) in clause 1 are concerned with the vexed problem of impossible attempts. The House will understand that it is with some trepidation that I venture on to a field which I am aware has been much fought over by eminent practitioners in, and commentators on, the law. Indeed, I fear that I may be at some risk of attempting the impossible myself. However, I am sure that my hon. and learned Friend, whom I am most grateful to have beside me, will be able to comment later on any specific points that hon. Members may wish to raise. I shall content myself, therefore, with trying to explain as clearly as I can what the provisions in question are designed to achieve—since I know that some at least will wish to question the policy which they embody—and why they take the form they do. Perhaps I should indicate at this point that the Government, in the new procedure, which I understand will apply to the Bill, and in subsequent Committee stages, will be only too ready to discuss in detail and perhaps make changes in regard to these very complicated parts of the law.
There may be a number of reasons why it is impossible for a person in a given situation to fulfil his criminal 25 purpose. The means that he employs may be inadequate. For example, the gun that the would-be murderer uses may have too short a range. It has never been seriously disputed that in such cases the defendant should be liable to be convicted of attempting to commit the offence. In some other cases—often termed cases of "factual impossibility"—impossibility may stem from the fact that the object of the offence does not exist or is not present. For example, the pocket which the pickpocket puts his hand into may be empty or, unknown to the would-be thief, the item which he proposes to steal may have been removed.
Before the decision in another place in the case of Haughton v Smith, it had been accepted that a person could be convicted of an attempted offence in such cases. But the dicta in that case were to the contrary, and that is now the position under the present common law. This aspect of the decision in particular has been heavily criticised and the Law Commission was in no doubt—and neither are the Government—that the position prior to Haughton v Smith should be restored. Clause 1(2) therefore provides that a person may be guilty of attempt notwithstanding that some fact exists which renders commission of the full offence impossible.
A third and even more disputed category of impossible attempts is that in which some essential ingredient specified in the definition of the full offence is lacking. Even if the person concerned completed what he thought he was doing, he would not actually commit the full offence. The sort of case in question may be a little clearer if I give a few examples.
There is the would-be receiver—the person who handles or attempts to handle goods in the mistaken belief that they are stolen. Those are the bare facts of Haughton v. Smith.
Another example is the youth who has or attempts to have sexual intercourse with a girl aged 16, in the mistaken belief that she is under age, or the man who goes through a marriage ceremony in the mistaken belief that he is still married in law to his first wife, who, unknown to him, has died.
Before Haughton v. Smith it was not entirely clear whether a charge of attempt lay in such cases. The decision confirmed that it did not. The Law Commission, however, came to the conclusion that such cases should be brought within the ambit of attempt. Its reasons are set out in its report. But I think it is fair to say that it believed this outcome right, not only on its merits but because it was wary of trying to draft difficult distinctions between the different kinds of impossibility I have mentioned.
We have given a great deal of thought to the policy which should be adopted in relation to cases of this kind. The differing views held by those who have long studied these questions suggest that it is a matter about which it is perfectly possible for reasonable men, and so, of course, for lawyers, to disagree. I do not believe that there is a correct answer, in the sense that one view is indisputably right. Clearly there are cases—and Haughton v. Smith is a good example—in which one would feel that justice had not been ill served if those concerned had been convicted of an offence. But should it be of a criminal attempt? Equally there are cases in which it would seem unreasonable that a person should even be exposed to the risk of such proceedings, let alone prosecuted.
But I have found myself coming back each time to the following considerations. I am not convinced that it is 26 right to use the law of attempt to extend criminal offences so as to cover behaviour which it is far from certain that Parliament intended to be covered when those offences were drawn up. For example, the offence of handling stolen goods requires that there should be stolen goods. Parliament has not yet said that there would be an offence of handling if a person merely mistakenly believed that there were stolen goods.
I also have sympathy with the view that such an extension is objectionable on grounds of logic and language. Is it not really a distortion of the concept of attempt to extend it to cases where a person not merely tries to do but succeeds in doing what he intended? For example, is it sensible to hold that a person should be liable to a charge of attempting to have sexual intercourse with a girl under age when he has succeeded in having intercourse with a girl who is above the age of consent?
While recognising the difficulties which this involves, the Government have nevertheless concluded that it is desirable to draw a distinction between this species of impossible attempt and those attempts with which subsection (2) is concerned. Clause 1(3) therefore seeks to exclude from the ambit of attempt cases in which the result which a person intends to achieve by his act—for example, handling particular goods or having sexual intercourse with a particular girl—is such that no offence would be committed if he achieved that result. As will be clear, these matters are not straightforward and the Government will welcome the close scrutiny which will undoubtedly be given to these subsections during the Bill's passage.
Clause 2 introduces a refinement into the definition of the mental element. It is necessary, we believe, to deal properly with those offences whose definition requires both that some act is done by the defendant and that some specified state of affairs exists. For instance, the crime of rape requires both that the defendant has sexual intercourse with the woman and that she did not consent. With regard to the act, the appropriate mental element in the case of attempt is obvious: it must be intention. To attempt is to try. But as to the absence of consent—what in clause 2 are called "circumstances"—the question is one of knowledge. What degree of knowledge as to the victim's lack of consent must the defendant have? The working party proposes that where the completed offence required full knowledge of a circumstance, so should the attempt; but where the completed offence could be committed by someone who was only reckless as to whether that circumstance existed, the recklessness should also suffice for the attempt.
The Law Commission rejected that distinction on grounds of complexity—a decision with which hon. Members may well sympathise—and favoured instead a requirement of knowledge in all cases. But we have come to the conclusion that as a matter of policy the working party's recommendation is to be preferred. Let me illustrate why. A man tries to have sexual intercourse with a woman not caring whether she consents. He does not know that she does not consent: he just does not care. If he succeeds in his attack he may be convicted of rape. If he fails, however, whereas the Law Commission's proposal would mean that he would not be guilty of attempted rape, under the working party's formula he would be convicted. This seems to us the right result; clause 2 puts it into effect.
The House may be relieved to know that it is unnecessary for me to discuss the remaining clauses at 27 similar length. Clause 3 is concerned with procedural matters. Clause 4 provides principally for the mode of trial and penalties.
Two provisions should be mentioned briefly. Subsection (2) enables a magistrates' court, contrary to usual practice, to try two informations together without the defendant's consent when those informations charge him with the full offence and an attempt to commit that offence. Subsection (3) also confirms that, while it is the function of the judge to decide whether the actions with which the defendant is charged are capable of constituting an attempt, it is the function of the judge to decide whether the defendant's actions actually constituted an attempt. Clause 5 makes similar changes in respect of conspiracies to achieve the impossible as clause 1 makes in respect of impossible attempts. Clause 6 abolishes the common law offence of attempt.
Subsection (3) also makes it clear that it is possible to charge a person with attempting to commit a summary offence. This is probably not possible under the present common law. The Law Commission considered, however, that although prosecutions would not be common there were some offences in respect of which such a charge should be available.
The final clause in part I—clause 7, makes a number of technical amendments. Part II—is concerned with the repeal of "sus". Clause 8 repeals the offence itself and clause 9 gives effect to the Government's decision, which I have already explained, to introduce a specific offence penalising interference with vehicles. Part III—clauses 10, 11 and 12—is concerned with formal and procedural matters.
The Bill deserves a warm welcome from all parts of the House. It fulfils the clear wish of the House, expressed in the Select Committee's report and reflected in the speeches by hon. Members in the debate last June, that "sus" should be repealed, But the Bill also ensures, by closing particular loopholes in the law which would otherwise result, that repeal will not deprive the public of the degree of protection which they have a right to expect. Nor will it, as I have demonstrated, leave the police without adequate powers to satisfy that expectation. The Bill also deserves a warm welcome as a further important step forward in the process of codifying and clarifying the present common law.
I believe therefore that this is a substantial and constructive piece of legislation, and I hope that the House will speed its passage.
§ 4 pm
§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
The Opposition do not propose to vote against the Second Reading of the Bill. I describe our attitude in that neutral, perhaps almost negative, way because of the essentially different positions that we propose to take up regarding different parts of the Bill.
Of course we accept the need to amend the law of attempt. We greatly welcome the repeal of section 4 of the Vagrancy Act 1824. But we have the strongest reservations about the Bill's proposals concerning interference with motor vehicles, which, we fear will perpetuate many of the features of the old "sus" laws—laws which we regard both as intellectually disreputable and socially disruptive.
28 Let me assure the Home Secretary that our objection to them and the parallel that we draw with the "sus" laws is not because we fear that that part of the Bill is a catch-all. Indeed, it is not. Our concern about that part and our criticism of it arises because it depends far too little on actions and far too much on intentions. The debate about the Bill today must concern us and the House with that precise distinction—the distinction between what a man or woman does and what a man or woman intends to do or, more properly, is suspected of intending to do.
Our attitude to the whole Bill is based on two specific principles. The first I can best describe by quoting the Law Commission, to which I pay a tribute of the sort and, I hope, of the same warmth as that paid by the Home Secretary. It said that itis a fundamental principle of our law that it should not seek to penalise the mere intention to commit a crime.Clearly the Opposition endorse that judgment.
The second principle on which we wish to examine the Bill must, I fear, be described in my own and, therefore, less elegant language. It seems to me that the test whether a crime has been committed should be an objecive test or, at least, as objective a test as is possible in the real world. At least it should be more than one man's judgment about what is going on in another man's mind. I therefore share and endorse the Government's view, as represented in clause 1, that the offence of attempt must involve more than a mere preparatory act. I endorse it by quoting again the Law Commission, which said that an offence must amount toa decision to bring about insofar as it lies within his power … the offence which it is alleged the accused attempted to commit.I share the Government's view, although in this it disagrees with the Law Commission, that the crime of attempt is possible even though the attempted crime is in some cases incapable of being carried out. Clearly a man who attempts to steal from an empty pocket—taking the example that the Home Secretary gave in his list—and manifests that attempt by some physical action is guilty of more than intention itself. He has taken positive steps to commit an offence which he believes to be possible. Clearly there must be some action against that overt physical act. In that sense the Opposition and the Government are at one in terms of the definitions of attempt and impossibility.
On the other hand—here I share the Government's view again—if the attempt, even if it had succeeded, would not have constituted a criminal offence, it seems to me obvious that that should not be prosecutable under the law. It seems to me that it is not possible to prosecute a man for attempting to buy goods which he wrongly believes to be stolen if, had he succeeded in his attempt and had it been discovered that the goods were not stolen, it would not have resulted in his prosecution. An attempt must be related to a crime which, if it had been successfully committed, would itself have constituted a prosecutable offence. Therefore, in general—although no doubt my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham), who hopes to serve on the Committee that examines the Bill may have detailed improvements to suggest—the Opposition do not wish to take issue with clauses 1 to 7.
On the other hand, whilst our attitude to those is the neutral one that I have tried to describe, to the proposal in clause 8—the repeal of section 4 of the Vagrancy Act 29 1824—we offer nothing but enthusiastic welcome. The "sus" laws have been with us for far too long. The extraordinary factor about section 4 is that it has survived for so long. Again, I join the Home Secretary in congratulating the Select Committee which brought that law to an appropriate if not speedy end.
To read section 4 of the Act is to reveal at once its inadequacy—Every suspected person or reputed thief frequenting or loitering about … with intent to commit an arrestable offence … shall be deemed to be a rogue and a vagabond.It is clearly not the antique language about which we mainly complain. I understand that some of the words in that sentence which have the greatest antiquity are ignored when charges are brought under the Act. It is not the language of the Act but the circularity of its logic, the subjectivity of the tests by which it is applied and the consequent selectivity of its application, about which we complain.
The arguments for the retention of "sus" are well known. They are best and most succinctly expressed in the attitude of the Metropolitan Police who, I understand, told the Select Committee:it is essential in the public interest that police retain the power to arrest suspected persons loitering … with intent to commit crime.In spite of the apparent strength of that argument and assertion, on the available evidence, whilst the Metropolitan Police regard it as essential for the prevention of crime in their area, it is not so regarded in Birmingham, Bristol, Coventry, Leeds, Newcastle and a whole variety of other towns, cities and police areas where this power is rarely, if ever, used.
§ Mr. Percy Grieve (Solihull)
Is not the right hon. Gentleman aware that in Birmingham there are local provisions in the byelaws under which this sort of offence is dealt with?
§ Mr. Hattersley
There is a whole variety of local provisions in the Metropolitan area as well. If the hon. and learned Gentleman reads the evidence which was presented to the Select Committee he will see that there was a discussion at some length about "sus" being used as an alternative to local provisions. The chief constable of the area that he and I represent talked about the impropriety of using "sus" as an alternative to more appropriate local provisions and other available means of detecting and preventing crime.
My point is valid that in other police areas the "sus" provisions have not been regarded as necessary. However, even had they been of general application throughout the United Kingdom that would not have justified their retention. To say thatit is essential in the public interest that police retain the power to arrest suspected persons loitering … with intent to commit crime.begs the essential issue and avoids the essential point. The main issue is the one that I have already described as dominating the whole of the Bill. It is the undesirability of penalising for intent alone and the essentially related problem concerning how such intent is detected and proved.
To put it simply and crudely, how does a policeman, with the best will in the world and the most honourable intention, decide what is the intent—criminal or otherwise—of a young person who is loitering? I repeat my strongly held view that it is wholly undesirable for the 30 law to be dependent on one man's judgment about what is going on in another man's mind. Therefore, on the ground of penalising intent alone, the ending of the "sus" laws must be applauded.
The idea of penalising the intent to commit a crime carries with it a series of important philosophic implications about the nature of the morality. Politicians are unwise to speculate on such matters, and I have left it to the Select Committee to make a definitive statement about that essentially moral point. Indeed, many of its members were particularly well qualified to deal with such matters. It said:Most law-abiding citizens have occasionally been tempted … but they have controlled their impulses.It said that they would have been surprised if it had been the casethat their intentions had rendered them liable to prosecution.The implications of that judgment are right, and the philosophic objections to "sus" led to a series of practical objections about its consequences. Too often, the burden of proof fell on the defendant. He had to demonstrate that he was innocent. Previous convictions were used to help to secure successful prosecutions. Again, I understand that those convictions were not admissible within the London magistrates' courts area. However, in other areas they were admissible.
The most telling point about "sus" was made by the chief constable of the West Midlands, Sir Philip Knights, in his evidence to the Select Committee. He said that if it was being used, as many people feared that it might have been used, as an alternative to powers to stop and search, it was an abuse to "sus" procedures. He added that it should not be used to stop people "lurking around", because lurking around was not an offence.
In London, the "sus" laws have been used too often when it has been thought desirable—for no reason that the House has endorsed—to clear the streets and to send young men packing off home. Perhaps the most obvious and strong objection to "sus" and to what it stands for was contained in the evidence given by a barrister to the Select Committee. He said that young men convicted or charged under the "sus" law invariably made the immediate response that they had not done anything.
Often such a claim is literally true. They have been prosecuted in the belief that they were about to do something. That cannot be right, because it relies on intentions rather then on attitudes, and because such a law leaves many of the young men prosecuted with a deep sense of grievance. Most of the young men so prosecuted—the statistics show that it is an almost exclusively male offence—have been suspected of contemplating one of two opportunistic street crimes, namely, pickpocketing or purse snatching, or theft of or from a parked car.
Most of the charges under "sus" have been made within the three police districts of the Metropolitan area, Greater Manchester and Merseyside. I do not wish to speculate about why those police districts employ those practices and why others do not. However, the reason is most likely to be found in tradition rather than in anything else. There is little evidence to suggest that those areas were, on any objective test, in special need of that power. The argument that such power is particularly neccessary in London bears no comparison with what happens in London. The pattern 31 of "sus" prosecutions in London varies from district to district and there is no discernible reason why one district should employ such a measure and another should not.
§ Mr. Eldon Griffiths
Does the right hon. Gentleman recognise that the Metropolitan Police, which has an excellent law department, sent out a force order following the case of Haughton v Smith and instructed station sergeants not to prosecute in the case of the impossible offence? For the most part, that was not done in other police areas and that is one reason why the Metropolitan area used the "sus" laws when others did not.
§ Mr. Hattersley
I take the hon. Gentleman's word that that is the reason. However, off hand, I cannot follow the logic of why cases should be pursued in that way. Nevertheless, I stand by my initial remarks, namely, that the tradition of "sus" has dominated decisions on its use. Its tradition is a thoroughly bad reason for using it in one part of the United Kingdom or in one part of the Metropolitan area and not in another.
Although most of the country can do without such measures, in those areas in which it has been used—particulary the Metropolitan area—enormous damage has been done to community relations. Damage has been done not only to relations with young blacks in the age groups in which incidence usually arises, and to relations with those who have grown to wisdom and maturity, who spend less time on the streets, and who are therefore less vulnerable to this charge, but to relations with the entire community. The community has grown to believe that somehow the law is being used to pick on and penalise them.
There can be no doubt that the black population in general and the black population of London in particular feel that the "sus" laws bear disproportionately on them. Statistically at least, there can be no doubt that that is true to a degree. The Home Secretary said that the Select Committee had been clear in its statement that there was no intention to discriminate by the Metropolitan Police. We all believe that that is true. The Select Committee was right to say:We do not believe that 'sus' has been used by the Metropolitan Police with a deliberate racial bias. But selective perception of potential offenders is inherent in 'sus'. The repeal of 'sus' will remove such grounds for suspicion as may exist.It is that subjective judgment to which we object in general, and its application to the racial minorities that has caused the damage in particular.
I hope that outright repeal of the "sus" laws will help to improve relations between the police and the minority communities. The abolition of the "sus" laws is a sign of the Government's genuine wish and proper determination to remove all fears of discrimination and of harassment from the mind of the black community, irrespective of how justified and realistic those fears must be.
While I welcome the repeal of the Vagrancy Act, I must make clear that the criticisms that I am about to make of the rest of the Bill should not be used by anybody—the black community or those who seek to represent it—as an argument to diminish the importance of the repeal of the "sus" laws. The repeal of the "sus" laws is wholly good in itself, and my remarks about clause 9 do not detract from the values and virtues of that part of the Bill.
Clause 9 is the most unfortunate proposal, not only because of the "sus" implications but because of its 32 intellectual inconsistency with the parts of the Bill that precede it. If the House agrees—as I do—with the Select Committee that it is not in the public interest to make behaviour, interpreted as revealing criminal intent, but equally open to an innocent interpretation, subject to criminal penalties, there is very little to be said in favour of clause 9.
The proposals contained in clause 9 have been built on one of the most objectionable ingredients in any law of intent. It is concerned with the intention to gain access to a motor vehicle or trailer for a specific purpose or for specific purposes. It is very difficult to reconcile clause 9 with the general statement concerning attempt in clause 1. Clause 1 states that if an act is to constitute an offence it must be:more than a merely preparatory act.Something positive needs to be done.
The Home Secretary may argue—indeed, he half did argue—that the clause 9 offence requires some actual literal interference with a vehicle—for example, tampering with a door handle, as the right hon. Gentleman said, in Birmingham in the summer. The world is full of boys and young men who tamper with car door handles and interfere with vehicles without any malicious or criminal intent, who do not intend to gain access to a vehicle or anything carried in it, who do not propose to steal it or to steal from it and, indeed, who do not even propose to sleep in it.
I understand that under clause 9 if a youth were seen in New Palace Yard touching the Cadillac which is owned by an hon. Gentleman who sits on the Government Benches, a policeman who observed him touching that vehicle would have to decide whether he was touching it, manipulating its handles, running his fingers along the paintwork and looking in through its windows out of interest, reverential awe or with the intention of gaining access to it. I regard that as a wholly unreasonable obligation to place upon a prosecuting officer. The offences which might be prosecutable under clause 9 also involve actions which could have wholly innocent interpretations.
I understand that we have clause 9 because of the Home Secretary's view that something specific needs to be done about motor vehicles. In Birmingham on 11 July the right hon. Gentleman said:there may still be some activities, in respect of which 'sus' is sometimes used now, which ought to remain within the ambit of the criminal law … There is probably a case for certain specific provisions, such as tampering with car door handles.The difficulty about the Home Secretary's provision is that he does not want to penalise tampering with car door handles; he wants to make it an offence to tamper with car door handles for specific purposes. Therefore, mind reading is again involved. Mind reading is wholly undesirable and, in our view, wholly unnecessary in this context.
Section 29 of the Road Traffic Act 1972, as again the Select Committee made clear, makes it an offence punishable by fine toget on to the vehicle or tamper with the brake or other part of its mechanism".I am advised that that Act could easily be amended and extended to cover the specific problems to which the Home Secretary referred.
If that is impossible—no doubt we shall be told later whether I am right or wrong—I can see no reason why we could not have a Bill which introduced specific offences 33 which do not require the degree of subjective judgment which is inherent in clause 9. I object to that because, as the Select Committee said in its fourth reportOpinions as to the extent to which an innocent interpretation can reasonably be placed on attempts to open a succession of car doors will depend on the circumstances of the case.That is exactly the danger on clause 9—the need for interpretation of every action and the necessity to form a judgment on what a suspected person intends to do.
The only good thing to be said about clause 9 is that it applies only to motor cars, not to handbags. Thus, "sus" is genuinely and completely removed from the range of offences where it did so much harm to community relations. Our regret is that the concept of intent and the need for proximity to action has not been completely removed from the Bill.
Had clause 9 not appeared, or had it appeared in a more positive, precise and specific fashion, we would have welcomed the Bill with enthusiasm. As it is, hope that it will get a Second Reading, but it will pass without the full-hearted and formal consent of the Opposition.
§ Mr. Percy Grieve (Solihull)
I shall not take up the comments of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley), save to say that I found his attack on clause 9 completely unrealistic. I shall return to that matter in a few minutes when I discuss part II of the Bill.
I have unreserved approval for part I. The Bill defines "attempt" in broad terms which closely follow those proposed by the Law Commission and which will make it easier for judges when they have to direct juries in this difficult area of the law.
The law relating to attempt has been bedevilled in the past, as my right hon. Friend the Home Secretary indicated in his cogent presentation of this part of the Bill, by the law relating to impossibility, by varying judicial decisions and by the difficulty which any judge had of explaining attempt to a jury in language which it was easy for the jury to assimilate and understand in sometimes very short cases. Therefore, I commend that part of the Bill dealng with the extension of the law of attempt to an attempt to do that which is impossible—for example, attempting to pick an empty pocket, as illustrated by my right hon. Friend—and that part dealing wih conspiracy in the same regard.
I should like, in passing, to commend the work of the Law Commission in general. In recent years the Law Commission has made an important contribution to the modernisaion and rationalisation of our law, and many of its recommendations have already been passed into law by Parliament.
Part I presents no difficulty for me, and I am glad to commend it in every possible way.
I have grave reservations about part II. In view of the recommendations of the Select Committee last year and of what has been said by my right hon. Friend and by the right hon. Member for Sparkbrook, I recognise that I may find myself in a minority this afternoon. However, I should be failing in my duty to Parliament and to those I represent if I did not express my grave reservations about part II.
I am aware, as any lawyer and as any responsible citizen must be, of the drawbacks of the "sus" law. I have carefully followed the sustained campaign that has been maintained against it in recent years. I am acutely aware 34 that it is an exception to the general principles of our law that, save in exceptional circumstances, the prosecution does not adduce a man's previous convictions and that the amount of objective evidence required from the prosecutor is small in relation to the proof of intent, to which the right hon. Member for Sparkbrook drew attention. It is an anomaly. But it is an anomaly that has long been justified by circumstance and is more justified by circumstance today than in the past.
The Vagrancy Act 1824 was passed because of the grave incidence of street crime in nineteenth century London. But today street crime in London and in our other cities is on a scale which could not have been imagined at that time. In 1979, there were over 11,000 cases of robbery and theft with violence on the streets of London alone. I therefore ask whether this is the time to repeal a branch of the law which is protective and preventive.
In general, our criminal law is designed to enable the police to detect crime when it has been committed and to bring the criminals to justice. This law was clearly designed to prevent the commission of crime, in the sense that suspected persons—that is, persons who were doing acts which the police found to be suspicious, who were known to be criminals, and who had criminal convictions—could be prevented from pursuing any nefarious purpose any further by being run in as rogues and vagabonds, to use the rather picturesque language of the Act.
I appreciate that here there is an anomaly in the law. I recognise the sincerity of those who believe that this has had an adverse effect upon community relations in our great cities. However, I am not sure—statistics cannot help us here—that the fact that a disproportionately large number of coloured young people have been proceeded against under section 4 of the Vagrancy Act does not proceed from the fact that one has the impression—I put it no higher, and I am using my words carefully, because I do not want to use any words which could conceivably exacerbate race relations—that a disproportionately large number of offences of violence and robbery are committed by young coloured people. That is the impression that one gains in the Crown court.
If that is so, should we not look to an educative process among those people—my words are deliberately vague—rather than remove one of the lines of protection of the innocent citizen going about his business on our streets?
§ Mr. Edward Lyons (Bradford, West)
The hon. and learned Gentleman says that he is using his words carefully. Is he not aware that crime statistics indicate that Asian youths commit far fewer offences of violence than people with a whiter skin? Secondly, is it not right that many of these offences could still be prosecuted as attempts but that the only reason why they are prosecuted as such is that there is no trial by jury, and the matter can be disposed of quickly in the magistrates' court?
§ Mr. Grieve
I am happy to agree with the hon. and learned Gentleman's first point. Perhaps I did not use my words as carefully and with as much definition as I should. It is mostly, I fear, the West Indian youths who are responsible for the type of crime in the numbers that I have indicated. Certainly, I am happy to confirm that Asian youths are usually not involved.
On the second part of the hon. and learned Gentleman's intervention, I shall be happy to develop my argument 35 further. However, I believe that even with the extended law of attempt, and even with clause 9, with the abolition of section 4 of the Vagrancy Act, the public will be denied some of the protection to which they are entitled. It is to that matter that I shall devote the rest of my remarks.
I welcome clause 9. The attack upon it by the right hon. Member for Sparkbrook was wholly unrealistic. The type of event envisaged in clause 9 is one with which those of us who practise in the courts are all too familiar. It is not a matter of one individual looking at one motor car; it is an individual going round many motor cars, trying the handles to see whether they have been left unlocked and, if so, helping himself to whatever portable valuables may be inside.
The right hon. Gentleman attacked the necessity, as it were, to prove intent. Of course, intent is an element in this offence as it is in almost every criminal offence, and in every case it has to be proved. Juries try the question of intent every day of the week by all the surrounding circumstances.
§ Mr. Hattersley
So that the rest of the debate may not continue on a false understanding of clause 9, will the hon. and learned Gentleman confirm that clause 9 refers to "motor vehicles", in the singular? It is not a matter of attacking, approaching, or interfering with a series of vehicles, as he says. A single vehicle will technically suffice.
§ Mr. Grieve
Does the right hon. Gentleman really think that a matter of this kind will be tried by a justice and a finding of guilty brought in on the evidence of one vehicle alone? In my view, that is highly unlikely. There is a strong likelihood that the evidence adduced in the cases which are prosecuted will be that of interference with a series of vehicles. That is why I suggested that the right hon. Gentleman's reflections on clause 9 were completely unrealistic.
§ Mr. Douglas Hogg (Grantham)
My hon. and learned Friend has defended clause 9. I am in favour of a clause similar to clause 9. But would not he agree that the intent proscribed by the Bill is too wide in that, for example, it includes people who want to sleep in the car, or to move the car for the purpose of enlarging a parking space? Would it not be better if the clause were redrawn so as to provide that the prohibited intent should be the intent to commit an arrestable offence?
§ Mr. Grieve
That is a valid point which should be considered in Committee. I should like to consider the matter further at that stage.
I turn to the question of the repeal of section 4, and to the extent to which the two purposes of the Bill, or ways, as it were, of recompense or cover for what was covered in section 4 do not sufficently protect the citizen. I join issue with my right hon. Friend on the repeal of section 4.
Clearly the extension of the law of attempt will, to some extent, compensate for and enable the police to proceed in cases where they could not have proceeded before, and where they might have had to proceed under section 4. It is clear also that clause 9 will cover many cases in which previously people would have been proceeded against under section 4 of the Vagrancy Act. But there is one type 36 of case that deeply concerns me. Many of the robberies on the streets of London and other cities—many thefts of handbags, the knocking down of women, elderly and disabled people, and the taking from them of portable valuables—are committed by persons who, for that purpose, are prowling the streets, lurking in the shadows, and ready to pounce upon innocent citizens going about their lawful business.
The right hon. Member for Sparkbrook said, in a jocular fashion—I hope that he will forgive me if I paraphrase his words, but I think I paraphrase him accurately—"Thank heavens we have not got a clause 9 relating to handbags." It is for the woman who is out in the street carrying a handbag that I am worried. If section 4 is abolished, I do not believe that there will be sufficient protection for the ordinary citizen going about his business. Only when the police know the convictions of the person or can see from suspicious activities that he is lurking for no good purpose can he be run in under section 4.
In the future, the police will be obliged to wait until the crime has actually been committed. I do not think that that is good enough. That was the view which the Commissioner of Police of the Metropolis expressed to the Select Committee. I have not the honour of serving on the Select Committee. I have the greatest respect for most of the hon. Members serving on that Committee, and a high regard—[Interruption.] I do not have it for all of them: it is no use my pretending that I have. There is one on the Opposition Benches at present for whom I have none.
I believe that in making this recommendation the Select Committee has not had regard to the reality and the necessity of protecting innocent people on the streets of our great cities. I hope very much that as this Bill proceeds in Committee it will be possible to plug this loophole by providing some further clause which will protect the innocent citizen against the night prowler.
If the Bill goes through and section 4 is repealed—I have no doubt that it will be—it will diminish the protection which the citizen is entitled to expect from the Government. As my right hon. Friend the Home Secretary knows, in almost everything the present Government have my full support. I regret very much that on this matter I should be at issue with my right hon. Friend, but I have to speak my mind and to say what I believe, along with the Commissioner of Police of the Metropolis and the evidence that he gave last year—that it is an error, without further provisions, to repeal section 4.
In saying that, I think that I am within the sense of the Home Office working party which was set up by Mr. Reginald Maudling in 1971 and which reported in 1974. It said:an offence on the lines of the existing offence of being a 'suspected person' in section 4 of the 1824 act is still necessary to deal with behaviour which falls short of any other criminal offence or of an attempt to commit an offence, but which the public interest nevertheless requires to be punishable. Such an offence is likely to be necessary even if the scope of the law on attempts is widened.With those sentiments, I am in complete agreement.
Therefore, whilst welcoming part I of the Bill, I regret very much, in its present terms, the repeal of section 4 of the Vagrancy Act in part II.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
I do not share the conviction of the hon. and learned Member for Solihull 37 (Mr. Grieve) that this Bill diminishes the protection available to the citizen. The hon. and learned Member only had to describe the circumstances in which he would find the use of the old "sus" law desirable to reveal just how objectionable and unsatisfactory it is to conceive that someone should be arrested merely for loitering, on the basis of a supposition, which is impossible to prove, about what he might be about to do.
One of the Bill's many welcome features is that it is in part a consequence of the work of the Select Committee on Home Affairs and its recommendations to the House. It is one of the first fruits of the new Committee system of the House of Commons, and I think that it is to be welcomed particularly for that.
The complaints about the "sus" law go back very much longer than either the Home Affairs Committee or even the arguments about minority communities which have featured in the discussions in recent years. They go back at least 50 years. There have been authoritative criticisms of the "sus" law over a very long period. But in recent years it has been among young black people in about three police areas that the criticisms have focused, because that is where the use of the provisions has been.
A law whose basic fairness is widely doubted, and not merely by those against whom it is used, is really no basis for a relationship of trust between the police, who have to enforce the law, and the community. The Select Committee said:We do not consider that the public interest is best served by an offence which leaves a significant proportion of those convicted with a sense that their conviction was unjust.Lord Avebury put this case to the other place from the Liberal Benches in a Bill in 1978. At that time he was opposed by the then Labour Government. He was opposed from the Government Front Bench by Lord Harris of Greenwich, who adduced many objections, more far reaching than anything to which the right hon. Gentleman the Home Secretary has referred today, and saw far more gaps which needed to be filled than either the Home Secretary or the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley).
Since then we have had the Select Committee report and the Law Commission's report, and there is now a very wide consensus of opinion, excluding only a few hon. Members, that "sus" must go and that the repeal of these provisions is long overdue.
What will replace "sus" is a Bill which contains a codification and modification of the law of attempt, plus a new provision about tampering with motor cars. The Law Commission clearly regarded the concept of attempt as something which could be described in everyday English which people easily understand. I wish that that could be said of the Bill as a whole. I think that the Home Secretary probably echoed wider feelings in explaining his difficulties in defining and interpreting some of the Bill's features. It is quite difficult to conceive what constitutes more than a merely preparatory act. I think that the average man would have some difficulty with that. The whole area of "impossible offences" raises the same problems of knowing precisely what the Bill means.
§ Mr. Grieve
Is it not a very much better definition than that which is habitually used nowadays—"a proximate act"?
§ Mr. Beith
Yes. On the word "attempt" alone, I think that the Law Commission was right. All I am saying is that it found difficulty in extending the principle very far beyond the title of the Bill.
Interestingly, the Government have adopted the cautious view, one might even say that it is the soft view, on one of the problems to which the Law Commission addressed itself—things which do not turn out to be offences at all. The Home Secretary produced a few rather devastating examples of these. I should like to offer as another example the case of someone who attempts an offence involving drugs and it turns out that the commodity being handled is some harmless substance and not a drug at all. I agree with almost all hon. Members who have taken the view that the Government are right not to proceed in an area fraught with as many difficulties as this one is.
I should like to concentrate a few remarks on the replacement provision concerning interference with a motor vehicle, which comes in the latter part of the Bill. Is it not remarkable that the one great gap which must be filled when the "sus" law is repealed, according to the Government, is that of motor cars? The one great gap which the 1824 Act fills is the protection of the relatively recent invention of the motor car. In saying that, I do not wish to deny that there is some scope for provision to protect motor vehicles and to ensure that the kind of offence which the Home Secretary has in mind can be dealt with. I agree with him that it is clearly very much better to have a specific offence capable of objective test than any kind of intention. It is much to be preferred. He has set out to achieve such a test in the Bill. Clearly, interfering with a motor car is something which a witness can say someone did. I think that the provisions have within them the seed of something acceptable.
Clearly, however, there are many circumstances in which merely to have tried the door handle of a motor car should not put one in jeopardy of coming before the courts for a criminal offence. One or two examples have been mentioned already, but let me enlarge on the example of someone who tries the door handle of a motor car with a view to seeing whether he can identify the owner because the car is in an obstructive position, obstructing either an access or a parking place, or preventing him from moving his own car. Therefore, he sees whether the car door is locked as a means of seeing whether the owner is likely to be near at hand. Perhaps he can see on the seat of the car something from which he can identify the owner and perhaps discover whether he is in a nearby building. There is a variety of circumstances—
§ Mr. Douglas Hogg
There is an interesting corollary to the hon. Gentleman's remarks. Clause 2(9) provides the defence that the owner consents. But if the person was opening the car door with a view to identifying the driver in order to have him prosecuted for a traffic offence, we may take it that the driver would not consent and thus an offence would be made out.
§ Mr. Beith
Indeed. The hon. Gentleman helpfully anticipates my argument. In my view, the defence under clause 2 is not a sufficient one. Many owners would not have consented to the car being opened at all. They would have been even less likely to consent had they thought that the person might then decide to move the car—to "bounce" it, in the phrase that is sometimes used, if the 39 key could not be found—or if they thought, as the hon. Gentleman suggests, that the matter might go even further and prosecution might result.
Clearly there are circumstances which need to be examined at a later stage and which take these provisions very much wider than what the Home Secretary has in mind and has sought to protect as can be seen from the wording of the Bill. My hon. Friends and I are not happy about the provisions so far. We are dealing with an offence for which the accused is liable to summary conviction. The protection of a trial by jury will not be available.
Having made those few reservations about that provision, I should point out that if the Bill goes through with all the other provisions in it the police will not only have powers to deal with attempted offences; they will also retain many existing powers to stop and search people on reasonable suspicion. We therefore certainly do not need to add to the Bill. I merely suggest that we modify it a little.
The powers that the police already have to stop and search people must be used with the greatest of care. It is sometimes forgotten that it is in the day-to-day exercise by the police of their discretion that much of the distinction between a police State and a free country consists. For those who pursue controversial constitutional cases to the limit, the distinction may repose in the written law and in the constitutional remedies available, but for most ordinary citizens in Britain the difference between our happy position as a free country and the feeling of being in a police State which exists in a number of other countries lies in the fact that most of the time the police do not go about their business by constantly stopping and searching people, or appearing to suggest that people are about to commit criminal offences. It is upon that exercise of discretion that much of the feeling and ethos of freedom in Britain depends. More important, therefore, even than the letter of the law, in this and in other matters, is the way in which the police exercise the provisions.
It is clear that at least some of the anxiety and hostility which grew out of the "sus" law must have grown out of a feeling that it was being extensively and unfairly used. Its removal will not of itself solve the community relations problems which were highlighted and to some extent exacerbated by instances of its use. Indeed, the Select Committee warned that the direct results of repeal may come as a disappointment, pointing out that repeal could do no more than create a marginally more favourable climate for improvements in the relationship between the police and the black community. Those problems, to which "sus" was merely an irritant, can only be solved by other means.
One of the most important factors in such improvements is community policing—the presence within the community of policemen who know their area and the people in it, and who are known and respected in the community. Sometimes that presence needs to be backed up by the presence of rather more uniformed police. I turn to the examples that have been quoted and to the question of what a policeman should do when he sees people who he thinks may be about to commit offences, to rob or to mug. One thing he can do is to show that he is there. In areas where there is a great deal of trouble of this kind one of the most important things that the police can do is simply to make their presence seen by 40 people who know that if they are spotted doing those things they will be prosecuted for an offence, and by citizens who want the assurance of knowing that the police are present with them. I therefore welcome attempts to strengthen the police force and to make larger numbers available. But we also want to see policemen present in larger numbers on the beat and in the community.
The second area in which problems will have to be solved is one with which the House will have to grapple on many other occasions in the present Session, namely, the problem of unemployment, which bears particularly heavily upon young black people. When young people are seen loitering on the streets, one reason why they are there may be that they have no jobs.
I say that as a Member from the North-East of England. Anyone going to the North-East in the 1930s, or indeed to some parts of the North-East now, would notice immediately numbers of men standing about at the street corners. If we had full employment, one might have wondered what they were doing. They are there because they have no jobs to go to. They are fed up with sitting in the house. If they are young men, they want to be out of their mothers' way. Even if they are married men, they do not want to be in the house all day. So they go to the street corners and talk with other men about their position. That happens to white British citizens in areas in which there is no great immigrant population. Much the same is true of many young black people who are to be seen on the atreets in our inner cities. A very much higher proportion of them is unemployed than is the case among the population at large. Unless we can solve the problem of unemployment, these difficulties will remain with us.
I do not believe that repeal of the "sus" law will of itself solve the problems faced by the police and the community in these respects. We must tackle those problems in other ways. But these provisions are none the less welcome.
§ Mr. John Wheeler (Paddington)
I am particularly glad to be able to speak so early in the debate, not least because, to me, as Chairman of the Sub-Committee on Race Relations and Immigration of the Home Affairs Committee which was charged with the investigation of the Vagrancy Act offence, the Bill is the wholly welcome fulfilment of a Select Committee investigation. I am sure that I can say on behalf of all members of the Select Committee on Home Affairs that the repeal of the "sus" offence is particularly to be welcomed, not least because of the very wide measure of agreement among those who gave evidence to the Committee on their objections to the continuance of the offence on the criminal law statutes.
First, I welcome the way in which my right hon. Friend the Home Secretary introduced the debate. I thank him for his sympathy and for the early review of section 4 of the Vagrancy Act 1824. It is perhaps worth reminding the House that the Select Committee began the investigation of the Vagrancy Act because of the widespread concern in the community as a whole about the character of the charge and the fact that it was seen or believed to be bearing unjustly upon the minority community in England and Wales.
I am particularly glad to associate my name with the statements made in the House today that there is no adverse reflection upon the police, and particularly the 41 Metropolitan Police, for the way in which they have discharged their duty. As the Select Committee said in its report:The most powerful argument against 'sus' is that it is a fundamentally unsatisfactory offence in principle. It is not generally acceptable in English law to exact penalties for forming a criminal intention. The intending criminal has usually to carry out some act as an attempt to implement his intention.That is the basic reason why this law is so unsatisfactory. That is why many people, including many distinguished lawyers, have for many decades opposed the continuance of this charge under the criminal law. Indeed, some of the most compelling evidence to the Select Committee was that submitted by the chairman of the Criminal Bar Association and by the lay justices of the peace—two groups of people, one of which is responsible for both prosecuting and defending, the other for judging guilt or innocence. Those two groups of witnesses were overwhelming in their opinion that section 4 of the 1824 Act should be removed from the statute book.
There will undoubtedly be a gain in the repeal of section 4 for police-community relationships. The number of charges brought under section 4 in England and Wales is fewer than 3,000, and about 50 per cent. arise in the Metropolitan Police district. A good proportion relate to white youths. However, the minority communities, particularly in London, felt that the "sus" charge was unjustly used against them. However, I, too, emphasise that the repeal of section 4 is not the whole answer. The answer rests in enhancing the contact between the police and the community, and particularly in encouraging members of ethnic minority communities to join the police service and participate in the policing of the community in which they reside. I am particularly glad to learn that the number of ethnic minority members joining the Metropolitan Police is gradually increasing, but it is still inadequate if minority communities in London are to believe by the evidence of their own eyes that the Metropolitan Police are truly representative of all the citizens of London.
The effect on crime prevention has already been referred to. The truth again is that the section 4 charge is rarely used in England and Wales. Broadly speaking, it is generally used within the Metropolitan Police area, but even there the Select Committee found that its use was often confined to a few divisions or districts. I do not believe that the public will be at greater risk as a result of its repeal.
It is of interest to examine the type of crimes that led to a charge under section 4, which broadly speaking fall into two parts—charges against youths in particular who attempt to take away a motor vehicle, and persons who attempt to steal from a handbag or purse, particularly in the high street and supermarket areas of the capital. Section 4 has rarely been used in connection with a charge of robbery or, as it is more popularly known, mugging, which is essentially a crime of stealth and occurs in a fleeting moment, when the victim and those about him in the street have their attention divertd elsewhere. It is extremely rare for section 4 to be used in connection with an attempt to commit robbery.
§ Mr. Grieve
Is my hon. Friend alive to the point that the use of section 4 may well operate to prevent such an offence? Obviously it would not be used after such an offence had been committed.
§ Mr. Wheeler
I am grateful for that intervention. However, I contend that, since the crime of robbery is essentially one of stealth, it is impracticable for any police officer to make use of section 4 as a means of preventing it. If we intend to prevent street robbery, we need uniformed police officers on duty in the parts of an urban area where the crime is prevalent. I do not accept therefore that the repeal of section 4 will in any way inhibit the ability of the police to prevent robbery or other serious crimes.
I welcome the proposals in the Bill to deal with the purse issue, which the Law Commission report has very adequately recommended. It is common sense to include that issue within the common law.
The point at which some contention arises is with clause 9 and the proposal to introduce a new criminal charge to deal with interference with motor vehicles or trailers. Generally speaking, I accept the purpose behind the clause. I do not believe for one moment that it is in any sense an attempt to reintroduce the "sus" law under another name. The differences are clear.
Under clause 9 it will be necessary for the prosecution to prove to the court that the accused person had made a distinct move towards the commission of a criminal offence. It will not rest upon the interpretation of the behaviour of the accused and what is supposedly in his mind.
§ Mr. George Cunningham (Islington, South and Finsbury)
I believe that I heard the hon. Gentleman say that under clause 9 it would be necessary to show that the accused had made a move towards the commission of a criminal offence. If he looks at clause 9 more carefully, he will find that it is not necessary to intend to commit a criminal offence—the point already made by the hon. Member for Grantham (Mr. Hogg). Having access or entry to a car or trying to discover whether one can get access or entry is not a criminal offence. Therefore, in this narrow but important respect, what is being done is to make certain behaviour criminal which was not criminal under "sus", a point which I hope the hon. Gentleman and his colleagues on the Committee will regard as important.
§ Mr. Wheeler
I am grateful to the hon. Gentleman. I was about to say that the House clearly has some concern about the interpretation of clause 9. It is clear to me that what the Home Secretary intends is that the public shall be protected and the police shall have adequate powers to deal with those cases in which a person or persons are seeking to commit what the public would regard as a criminal act by stealing from a motor vehicle or removing that motor vehicle or attempting to do so. However, there could be other interpretations arising from the way that clause 9 is presently drafted. I accept the comment made by my hon. Friend the Member for Grantham (Mr. Hogg). He has made a point that needs to be carefully explored by the Standing Committee.
Subject to the reservation that the Committee will review clause 9 and that the offence that is subsequently recommended to this House will suffice and meet the Home Secretary's point, I concur with the Bill and give it my support. The main purpose of the Select Committee's work was to bring about the repeal of section 4 of the Vagrancy Act 1824. I therefore particularly welcome the Bill and commend it to the House for what it intends.
§ 5.8 pm
§ Mr. Ronald W. Brown (Hackney, South and Shoreditch)
I, too, welcome clauses 1 to 7, but I have some questions for the Home Office. We need some clarification. I am not a lawyer. I am of that happy breed who ask questions and watch lawyers acting.
About 89 per cent. of my area consists of local authority dwellings. The police are not entitled to enter those council estates. We have had rows and arguments over that for many years. It was only in the time of Sir Robert Mark that we were able to obtain from him a tacit agreement that in certain areas—and mine was one—his police officers would show a presence on council estates now and again, provided that they were not used as council caretakers. Generally police officers are not allowed to enter the larger part of my constituency because it consists of housing estates.
We have heard clause 1 praised and we have heard the Home Secretary talking about the problems of attempt. However, if this is good for the population at large, why will it be refused to my constituents who live on council estates? Is the right hon. Gentleman proposing that clause 1 shall apply to every area of constituencies such as mine which include large council estates? That is an important question because one of the areas where I have maximum problems, certainly muggings, is council estates. The police can be called only after the commission of crimes, after my constituents have been hurt, when the police have the impossible task of trying to find the assailant. It should be made clear that the police will be able to maintain surveillance on those estates as they do in other parts of my constituency.
I have some difficulty in understanding how far the Government feel that the corrobrative evidence provisions in clause 3(2)(f) can be applied. In many circumstances there will be no evidence to corroborate the evidence of the person who saw the attempted crime. With a rigid application of subsection (2)(f) will few offenders be apprehended, not because they were not seen to have committed an offence but because there is no corroborative evidence? I presume that fingerprints and instruments used in connection with the crime or offence can be used as corroborative evidence, but many of those offences set out in clause 9 can be committed when wearing gloves and other forms of protection which would not leave corroborative evidence. Will subsection (2)(f) allow people to be apprehended, or will it be impossible, because of its requirements, to stop such acts taking place.
I turn briefly to the question of the "sus" law. Like so many other right hon. and hon. Members, I am delighted that section 4 is being abolished. But in saying "good riddance", we have a problem in London. Often there has been an outcry against the "sus" laws in London, when in reality the powers used are those contained in section 66 of the Metropolitan Police Act 1839. That states that a constable may stop and detain any person in a public place whom he suspects to be in possession of stolen property or in possession of property "unlawfully obtained". The phrase "public place" is the reason why the police will not go on to the council estates. It is by that method, of the stop, search and detain law, that the Metropolitan Police operate. But the unitiated see very little difference between the operation of the stop, search and detain law under section 66 of the Metropolitan Police Act and the operation of section 4 of the Vagrancy Act.
44 The figure for the Metropolitan Police district of those stopped under the section 4 procedure was only 0.56 per cent., but the general feeling in London is that it was much higher. When the figure of 0.56 per cent. of all arrests is quoted, nobody believes that that number arrested under the "sus" laws is correct. The majority of the others were detained under the stop, search and detain procedure under section 66. I support the hon. Member for Paddington (Mr. Wheeler), who said that he thought that on enactment of the Bill there may be some disappointment among those who believe that repeal of section 4 of the Vagrancy Act will eliminate all the hassle. In fact, the use of section 66 will continue to give rise to accusations that the "sus" laws are still in operation.
§ Mr. Alexander W. Lyon (York)
The Committee made that point, but it is important to recognise that the stop and search provision is simply that, and that there is no offence unless the stop and search procedure reveals evidence of another offence. Therefore, that materially differs from section 4, under which a person may be brought before the courts and convicted on what is no more than suspicion.
§ Mr. Brown
That is right; I accept it. But the man who is stopped at 2 o'clock in the morning and dealt with in that way feels slightly differently. He does not see the sophistication of my hon. Friend's point. Individuals feel that the "sus" laws are being applied against them, even though, as my hon. Friend has illustrated, they are not. There is a substantial difference.
The term "loitering" is still being used under section 6 of the Vagrancy Act 1824, as well as under the Penal Servitude Act 1891. Will those sections still apply on enactment? Will people be apprehended for loitering under those Acts? If so, is the Home Secretary satisfied that the argument of the "sus" laws will not be continued in a different guise? Is he satisfied that he has taken every action he can to ensure that people understand what the new law will be?
Will the Home Secretary say why the Bill contains powers of arrest by a constable only? Under section 66 of the Vagrancy Act and under the Penal Servitude Act any person, which includes the police, has the power to arrest. If any person arrests an offender, a police officer must take him into custody or face court action. Is the Home Secretary saying that that provision is still in being? Although the Bill refers only to a constable, is the Minister implying that any person can make an arrest?
I have some doubts, like so many hon. Members, about clause 9. Tampering with motor vehicles is adequtely dealt with in section 29 of the Road Traffic Act 1972, which clearly lays down:If, while a motor vehicle is on a road or on a parking place provided by a local authority, a person otherwise than with lawful authority or reasonable cause gets on to the vehicle or tampers with the brake or other part of its mechanism, he shall be guilty of an offence.The Bill changes that substantially, in that it refers only to "a public place". Why is the Home Secretary eliminating the council parking areas in my constituency? They are just as relevant as any other part. In using the words "a public place" in clause 9 the Home Secretary is eliminating the argument for section 29 of the Road Traffic Act 1972. Why has he done that? Why has he not included the words "local authority" in exactly the same way?
45 I welcome the Bill generally. It is an attempt to achieve some advance, but I hope that my questions will be answered, because they are very important for my constituency.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
I should like to start with some felicitations. The first goes to the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) on his emergence as Shadow Home Secretary. I am sorry that he is not here to hear me say this, as he is an old colleague of mine in the House. I hope that his new position will enable him to adopt a suitably Left-wing position on social issues, so that he may keep a suitably Right-wing position on economic and defence matters.
In particular, I also very much welcome the appointment of my hon. and learned Friend the Member for Royal Tunbridge Wells (Mr. Mayhew) as Minister of State, Home Office. I hope that I may be allowed to say that "Prior's loss is Whitelaw's gain." When I recall my hon. and learned Friend's admirable handling of the legislation in his previous Department, I can well understand why in his speech this afternoon my right hon. Friend the Home Secretary said how grateful he was to have my hon. and learned Friend to deal with what could be a somewhat complicated Committee stage.
Thirdly, in this agreeable mood, I congratulate my right hon. Friend on the fact that he has got into the habit, as a senior Minister, of keeping his promises. He promised the West Indian community before the election that he would have a good look at "sus" with a view to seeing whether it should be removed; and he kept that promise. In the Queen's Speech and in the debate on the Select Committee report my right hon. Friend said that he had been persuaded that "sus" should go, and in the Bill, with the support of my hon. and learned Friend and of the House, he will get rid of it. I think that that is right. In addition, in response to speeches that I and others made on this matter, my right hon. Friend said that he would not remove "sus" unless he could put in its place something that was less offensive but that would be no less effective in securing the maintenance of law and order. I believe that in the Bill he has got the balance just about right.
I am bound to say—here I declare an interest—that the Police Federation would have preferred "sus" to remain. That is particularly true of the Metropolitan Police. I hope that no hon. Member will underestimate the value of the experience of the police in this matter, for they are at the sharp end and have to deal with the problem. But although I declare an interest I believe, dissenting from the view of the Metropolitan Police, that on balance it is right for Parliament to take "sus" off the statute book and to put the Bill in its place.
I should like briefly to make three points. First, the problem that we are dealing with is largely street crime. I have with me, as no doubt a number of my colleagues do, the report of Her Majesty's Chief Inspector of Constabulary and the report of the Commissioner of Police of the Metropolis. Street crime is a major social offence. It deeply disturbs large numbers of elderly, lonely and handicapped people who are knocked about and who become frightened. They rightly look to the police not merely to try to bring prosecutions when the offences have been committed but, if possible, to prevent them. It is with the prevention of the large numbers of street crimes that the House should mainly be concerned today.
46 Secondly, whilst I think that "sus" should go, there is a problem of loitering with intent. The hon. Member for Berwick-upon-Tweed (Mr. Beith), the spokesman for the Liberal Party, was at sea when he talked about young people loitering because they were unemployed. That is not an offence. It is a matter that we all regret. The offence is that of loitering with intent. It is precisely because intention is at issue today that the Bill is called what it is: it is a Bill to do with attempted crime.
There is nothing more frustrating for police officers or ordinary citizens than to have reason to believe that a certain person has committed a series of offences and to have evidence that suggests inferentially that that person may be guilty but to be unable to prove it to the point where they will be justified in bringing a charge. In many of the neighbourhoods of our big cities elderly people who may be a little confused will often allege that it is Mr. X who stole a handbag or broke into a car. The police are called upon to seek out Mr. X, but the evidence may be slightly uncertain. Having the practical problem of trying to identify the person referred to by the witnesses, the police will sometimes place themselves in a position from which they can observe suspects to see whether they are undertaking actions that tend to confirm the charge that other persons have made against them.
It was naive of the hon. Member for Berwick-upon-Tweed to suggest that the right approach of the police in such a case was boldly to step forward and show their uniform. The police are there precisely to discover whether an allegation made by a damaged or affronted person is correctly made against a specific person. They must act on suspicion and must be guided by the pattern of conduct that a person is pursuing. A man or woman of whom another person has said that he or she has been guilty of an attack or other offence may be seen by police on a Tube with his or her hand going into other people's pockets, or be seen trying a series of car doors on a dark night, or engaged in other activities where "sus" has been used. In such circumstances the police will feel the more certain that witnesses' allegations on previous matters are true and can be taken to the point of arrest and of taking the man or woman concerned before a court. Therefore, whilst I believe that "sus" should go, I also believe that it has been made to seem a much bigger monster than it ever was.
I completely understand the view of many of those in the immigrant communities, and the feelings of many young people, but on the evidence—whether it be numbers or cases—it is wholly wrong to suggest that "sus" has been a monstrous imposition, by the Metropolitan Police in particular, on racial minorities or young people. I very much welcome the fact that the Select Committee, representing all parties in the House, and my right hon. Friend in his speech today, totally rejected any suggestion that the Metropolitan Police had used "sus" in a racially discriminatory way. It is equally true that "sus" has been used on occasion to prevent crimes which would have severely damaged many ordinary citizens.
I judge the Bill very simply by the criterion of whether it fills the gap that will open up through the expungement of "sus". I believe that on the whole it does, but I have a number of questions that I hope my hon. and learned Friend will be able to deal with.
First, despite the intervention of the hon. Member for Islington, South and Finsbury (Mr. Cunningham), it is the fact that several years ago the Metropolitan Police, 47 following the case of Haughton v. Smith, sent out a force order, which, as with all force orders in the Metropolitan Police, has been pretty scrupulously observed. It said that charges should not be brought if they were based on an impossible offence. A summary of Haughton v. Smith was made available. Since that time, I think it is a fact—I do not know whether it is desirable or, in every sense, a commendable fact—that in many areas of the Metropolitan Police, on the basis of Haughton v. Smith, charges of attempted theft have not been brought. Instead, in practice, rightly or wrongly, the Metropolitan Police have tended to rely on "sus". It is open to the House to criticise the Metropolitan Police on that ground. I might criticise it myself. That, however, explains more than any thing else the difference between the practice of the Metropolitan Police in using "sus" and the practice of many other metropolitan area forces in not applying "sus".
§ Mr. Alexander W. Lyon
The Metropolitan Police did not put that forward as an explanation of the discrepancy. If it was true, one would have expected to see an increase in the incidence of "sus" arrests in every division of the Metropolitan Police. In fact, one of the major factors affecting the minds of the committee was that the incidence differed largely and indiscriminately between one Metropolitan division and another. It had no relation to any observable fact such as the incidence of street crime.
§ Mr. Griffiths
I understand what the hon. Gentleman says. I reassert that Haughton v. Smith led to a great unwillingness on the part of the Metropolitan Police to pursue cases that could be regarded as impossible crimes. Can the Minister say whether that force order is still in being and whether he has had the opportunity to discuss with the Metropolian Police the impact of Haughton v. Smith on its practice?
Clauses 1 and 2 must be taken together in the creation of this new offence. I shall not follow my right hon. Friend down the complicated labyrinths of the sexual attempts. That might be difficult. In the case, however, of the handbags, the shopping bags and pockets with nothing in them, I believe the the new charge of attempt will be satisfactory in every respect.
I should like to ask whether the Minister can bend his mind to another possibility. One of the impossible offences that continues to be committed is that where a replica firearm is produced and pointed at someone. The menace takes place, but it turns out that the firearm is a fake. All over the country, fake firearms are purchased. They are technically toys. I believe that it is an impossible offence, under firearms legislation, if the device is a toy. None the less, it would seem that the use of these replica guns is a serious matter. It should be dealt with.
The Home Secretary is aware that we have had some discussion on the matter. The Bill may not be an appropriate vehicle for dealing with it. My right hon. Friend has been good enough to say that he will look to see whether the matter can be dealt with in other ways. I have the opportunity now to ask my hon. and learned Friend whether, in his reply, he will say one word about the whole matter of an impossible offence where replica firearms are concerned.
I turn to clause 9. I listened carefully to the remarks of the right hon. Member for Sparkbrook. I see his point. 48 This is a matter that may require some attention in Committee. I am attracted, at least at first sight, to the suggestion made by my hon. Friend the Member for Grantham (Mr. Hogg) that clause 9 would perhaps be better if it included the need for there to be intent to commit an arrestable offence. At first blush, I am attracted by that idea. I would need to take further advice before arriving at any conclusions on behalf of the police service.
The notion of the right hon. Member for Sparkbrook is conceivably right. A person could be trying the door of a Cadillac or a Rolls-Royce belonging to a Member of this House out of curiosity and admiration. I hope that the right hon. Gentleman does not believe that any rational police officer would bring forward a charge on that sort of evidence. He would be bound to know in advance—if he did not, he would very soon learn—that no court of law in this country would, for one moment, convict in that case. We are talking as if, once a charge is brought, it is invariably found to be proved. It is not.
§ Mr. Griffiths
The hon. Gentleman says 97 per cent. I am not talking about that. I am saying that, in the case of "sus" the police, in addition to understanding the need to retain a measure of public confidence will rarely bring charges before a magistrate's court if they know perfectly well that they will be laughed out of court. A practical problem is involved. The number of auto-crimes is large. Happily, over the past year, it has gone down a little. It has nevertheless become a major problem. It is not merely a question of the theft of a vehicle. It is the opening of the vehicle—not everyone, unfortunately, locks the car door—and the stealing of the radio, the stealing, increasingly, of the tape recorder, the opening of the back door and the stealing of the spare wheel, the tyre or the tools, or, often, simply the opening of the back window and the taking of the coat, the shopping bag or some other item left there.
Auto-crime is a major problem. The police, like the public, are intensely frustrated when there is tangential evidence to suggest that a certain party has been guilty of auto-crime and the police, to use a television phrase, stake themselves out to check whether the person against whom this is alleged could be the criminal in question. They see the pattern of trying doors. It is a useful adjunct to their powers to prevent further crime.
I believe that clause 9 is essential to the Bill. It may require some amendment. I should like my hon. and learned Friend, in his reply, to deal with the possibility of extending clause 9 to include intent to commit an arrestable offence.
§ Mr. Alexander W. Lyon (York)
Like everyone else in the debate, I intend to concentrate on part II of the Bill. I hope that when the Bill goes into Committee serious attention will be given to clause 1, which is drafted in the manner recommended by the Law Commission. I took part in the seminar of the Law Commission on this subject at All Souls. I know the tortured and tortuous examination that was carried out on the business of distinguishing between a preparatory act and an attempted crime. At the moment, the test known to English law is that there should be a proximate act, the effect of which is to say to the jury 49 "What would have happened next if the police had not intervened?" There is, however, a real problem that arises and increases as one moves back from that test.
I find it difficult to accept the notion that one has committed an offence if one has done something that is no more than a merely preparatory act. The first adjective qualifies the second. To have a merely preparatory act suggests that one can commit an offence if one has simply committed a preparatory act. There has always been a distinction in English law between a preparatory act and a proximate act, for the simple reason that it is so difficult to evaluate what the intention is merely from a preparatory act.
If I am going to murder my wife by buying rat poison and then administering it in something that she drinks, do I commit a preparatory act when I buy the rat poison, or is it a preparatory act that constitutes an attempt? If it is merely a preparatory act, does it become more than that if I take it home? Is it more than that if I have it available when I make my wife's tea? Does it become more than that up to the point where I put it in her tea? Does it become that when I take it upstairs to my wife who is in bed, in readiness to give it to her? At what stage have I committed the attempted offence of murder? That sort of speculation can be used in all sorts of offence, and enormous difficulty will be created for juries.
In its report the Law Commission goes through the problems of alternative definitions and indicates that in other jurisdictions they have led to considerable difficulties. However, it plumps in one sentence in one paragraph for the test that is included in clause 1(1). It does not define why that is an easier test to apply for juries than any of the others that it has discounted. We shall have to have a serious discussion in Committee about what that means and how difficult it will be to apply.
I do not necessarily accept that part I is entirely devoid of controversy, but I accept what the Home Secretary said about getting rid of Haughton v Smith. I think that the House of Lords made a wrong decision, and I am glad that we are abandoning it. I agree with the Government that to have gone as far as the Law Commission did in abandoning it and saying that an offence can be committed if someone intends to commit it—that which was not an offence in English law—would have been absurd. I accept that which is done in clause 1(3). Therefore, on the whole I support part I.
I approve of clause 8, being one of those who was part of the unanimous view of the Sub-Comittee—only one person voted against it in the whole committee—that proposed the complete abolition of "sus". Therefore, I am glad to see clause 8, but I am sorry to see clause 9.
The argument for getting rid of "sus" is so strong that I am sorry that it has not persuaded the hon. and learned Member for Solihull (Mr. Grieve). If he had read the report in detail he would have seen that a great deal of his anxiety is removed when the evidence is considered soberly. The remarks that he made are the sort that have been used to justify the retention of "sus", despite the criticism of many over the years. That criticism has been made by others apart from black people, and before black people came to live in Britain. For many years before black people came to live in this country there was criticism of "sus" by lawyers and judges.
The report quotes the remarks of the Lord Chief Justice in the middle 1930s about the effect of "sus". It has been a matter of concern for lawyers and civil libertarians for 50 a long time. The main reason for that concern is set out in paragraph 22, which has been quoted with approval by many hon. Members today. Mr right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) saw in it some moral content. I am glad to know that, as I drafted the paragraph. The fundamental difficulty about the "sus" offence is that it transgresses the prime vile of English law that a person cannot be convicted merely because he has formed a criminal intention. It is necessary to do something other than that.
The main justification for that principle is that it would lean against forming a criminal intention and subsequently removing the criminal intention by going back on it. If a person knew that when he formed a criminal intention he had committed an offence and could be convicted of it, he would be less disposed to abandon the intention and not to commit the offence. It is a sound principle, and one which I set out in paragraph 22. I recognise that the hon. and learned Member for Solihull, in disapproving of me, may not be persuaded by that argument. I ask him to read paragraph 3.27 of the Law Commission's report on attempt, which says exactly the same thing, namely, that it is wrong in principle that merely the intention to commit an offence should be a punishable offence. For that reason I and, I thought, the rest of the Sub-Committee were against putting any thing in its place.
Whatever is put in its place to fill the alleged gap is bound to have the difficulties that we have encountered with "sus". Anything that we put in its place is something less than an attempt. The Government's attempt to fill the gap by clause 9 is lamentable. The hon. Member for Grantham (Mr. Hogg) said, perfectly correctly, that clause 9 contains a totally unsatisfactory definition of an offence because a person does not have to have the intention to commit any sort of criminal offence, let alone an arrestable offence. At the very least it would be necessary to qualify it to that extent to fulfil the Home Secretary's aims. Even if it is qualified to that extent, it still remains true that a person will be convicted of forming a criminal intention and not of carrying out an overt criminal act.
§ Mr. Douglas Hogg
Does the hon. Gentleman agree that he is being less than fair to clause 9? When he criticised the old "sus" law, one of his major criticisms was the absence of actus reus. As he well knows, clause 9 does have actus reus, namely, interference. That surely goes a long way to meet the criticism of the "sus" law.
§ Mr. Lyon
Those who tried to defend section 4 of the Vagrancy Act 1824 before the Sub-Committee constantly said that before a person could be convicted under that section there would have to be two proven incidents that indicated the existence of the intention. Clause 9 merely says that there has to be an overt act that proves an intention. However, that is not an overt criminal act. It is an overt act intended to indicate that intention, and that overt act is as capable of an equivocal explanation as was the "sus" law.
If I go to the Cadillac that my right hon. Friend the Member for Sparkbrook spoke about and take hold of the door handle and try it in order to open it, why am I doing that? Am I doing is because I want to get in to drive it away, because I want to get inside to steal something from the car, or because I so admire the car that I should like to have a look at the speedometer to see whether it is the type of car that I want to register in my book of records? 51 There are many innocent reasons why someone might want to touch a car. I should not be persuaded, because I have been against the proposition from the beginning. Even if I were persuaded as far as the Home Secretary is that touching car door handles is something so intrinsically regrettable that we should create a criminal offence for it, I still could not go as far as clause 9.
I do not think that the right hon. Gentleman has read the clause. It goes far beyond what he said he wanted to do in his speech of June 1980. It goes far beyond what he has referred to today. It says, in effect, that anyone who interferes with a motor vehicle in any way will be committing an offence. That includes, for example, touching the side of the car or the aerial. It seems that that will be enough if it constitutes an intention that the magistrates accept as one of gaining entry.
§ Mr. Lyon
That takes the matter no further. It merely means that one has to have a bona fide belief that the owner will not object. All sorts of things that one might wish to do could be objectionable to some owners but not to others. Some owners might object to someone entering the car for any reason. Others might be perfectly willing to allow someone to enter. It would be difficult for the courts to sort that out.
Clause 9 is redolent of the sorts of difficulties and objections that brought "sus" into disrepute. If it becomes law it will be used by the police in the same way as the "sus" law, and it will have the same effects. I say to the hon. Member for Bury St. Edmunds (Mr. Griffiths), that the sorts of "sus" offences that hit blacks were the handbag and loitering offences, while the sort of offence that hit young whites was the motor car offence. I suspect that there will be an outcry from young whites, rather than from young blacks, about this proposal. It will be as disreputable an offence as the "sus" offence ever was.
§ Mr. Warren Hawksley (The Wrekin)
I shall try to be brief and not detain the House for long. As a member of the police authority I have a special interest in the matter. We should give as much support as we can to the police in Britain to enforce our laws. We should not in any way weaken their position. It has been said that on occasions in Northern Ireland our soldiers have had to fight their battles almost with their hands tied behind their backs. There is a danger that we are trying to do the same to the police. It is important that we do everything that we can to give them the powers to do the job that we expect of them. Let us not forget that the police have a job not only to detect crime but to prevent it. It is important to remember that when considering section 4 of the 1824 Act. In the past that section has been used to prevent crime. It is an important part of police work, and we should give serious consideration to it.
I am concerned aboout the ablition of the "sus" laws because of the pressures exerted on them. Many hon. Members have referred to the fear about community relations. The immigrant community exerted pressure and said that it was hard done by by that piece of legislation. I am worried that when that legislation is written out of the statute book pressure will be exerted over a wider area; for example, the laws on drugs and on unlicensed drinking. 52 In both cases I hope that we shall receive an assurance that we shall not give in to pressures such as those exerted on the "sus" legislation.
Although I have grave reservations about the decision to abolish the "sus" laws, I support the Bill. As my right hon. Friend the Home Secretary promised, it gives the safeguards that are necessary to replace that law. The alternatives, especially those in clause 9, go a long way towards helping the police in relation to vehicles. However, I wish to consider another aspect. Although we may be covered for vehicles, I question whether we are completely closing the gaps that will be left by the abolition of "sus". I cite as an example the youngster waiting in a bus queue and looking at handbags. He does not get on the No. 7 bus when it arrives but disappears into a shop doorway. He reappears when the next bus queue forms. Is he covered sufficiently under the proposed legislation? I have serious doubts about that.
The Home Secretary referred to the warning that would be given simply by the sight of a policeman. The Liberal spokesman, the hon. Member for Berwick-upon-Tweed (Mr. Beith) said that if policemen were more numerous on the ground that would be a deterrent, but I doubt that. I fear that there will be many more complaints of harassment. There will be complaints that the police are not being fair because they are harassing a youngster who is receiving warnings. The number of complaints to the Complaints Board will rise steeply in areas where the "sus" laws were previously used.
I am no lawyer, but as a lay Member I have reservations about the wording of certain clauses. Clause I contains the phrase:which goes so far towards the commission of that offence as to be more than a merely preparatory act".I question whether we are not walking into what might be a lawyer's paradise. I hope that before the Bill becomes law we shall achieve a lawyer-proof definition of the word "attempt". I hope, too, that a better attempt will be made to deal with that aspect. The last thing that we want to do is to give the lawyers a heyday as a result of the Bill.
My final point concerns an omission from the Bill. The second report of the Select Committee on Home Affairs suggested that the police should use the powers of stop and search, and various hon. Members have raised that point today. Those powers generally come under the Metropolitan Police Acts. Authorities outside the metropolitan area are concerned that they do not have enough powers. A recent Royal Commission reported on criminal procedure and recommended that the police should be given powers to stop and search in the street. I hope that when my hon. and learned Friend replies to the debate he will give us some hope that in Committee we shall find an acceptable clause that will put into effect the suggestion of the Royal Commission. That would go a long way towards reassuring those who are fearful that by abolishing "sus" we are weakening the powers and the authority of the police.
The balance between those who break the laws and those who keep them is so fine that anything that we do to weaken that balance might be dangerous. I hope that my hon. and learned Friend will give an assurance that consideration will be given to including safeguards beyond those in clause 9, which deals only with vehicles.
§ Mr. A. W. Stallard (St. Pancras, North)
In common with the hon. Member for The Wrekin (Mr. Hawksley), I am not a lawyer. I shall confine my remarks to a narrow point so that as many hon. Members as possible may speak in the debate. I agree with most of what has been said by Labour Members, especially the remarks by my hon. Friend the Member for Hackney, South and Shoreditch (Mr. Brown), who pin-pointed some especially serious London problems in relation to the Bill. I hope that they will be dealt with more fully in Committee.
If it is necessary or possible, I wish to correct an impression that is abroad outside the House and which has been repeated by almost every speaker this evening, namely, that section 4 of the 1824 Act has been repealed. If I understand the Bill correctly, only a small part of it has been repealed. Had it been repealed in full, I might be making a different sort of speech.
I wish to make a brief and urgent plea to the Home Secretary, mainly in my capacity as chairman of CHAR—the Campaign for the Homeless and the Rootless Group—which is a national campaign for single, homeless people. My colleagues on that committee, from all parts of the House, with whom I have been able to discuss the matter welcome the proposal to repeal that part of section 4 which deals with the notorious "sus" offence. However, we are gravely disappointed that the Home Secretary has failed to seize this opportunity to remove from the statute book some other unacceptable offences under section 4. Had that section been repealed, those offences would have been abolished. The section is best known because it contains the "sus" offence, which the Select Committee on Home Affairs unanimously requested should be repealed—and which of course party lines demanded should be repeale—but which also includes other offences.
It will still be a criminal offence to beg. That carries a maximum fine of £20 or one month's imprisonment for the first offence and a maximum sentence of one year for subsequent offences. It is wrong to argue that that part of the Act is being repealed.
It will still he a criminal offence for homeless people to sleep rough. That involves a maximum sentence of £100 or three months' imprisonment for the first offence and up to one year's imprisonment for subsequent offences. I do not wish to quote too many statistics. That has been avoided in this short debate. However, in 1979 167 persons were prosecuted for sleeping rough. Forty-four were given immediate prison sentences. In the same year 965 persons were prosecuted for begging, 15 were sent at once to prison and 224 were eventually sent to prison for sleeping rough and begging because they could not pay their fines. It is wrong, therefore, to say that the entire section has been repealed.
Ever since our all-party group, CHAR, was set up in 1973 it has urged successive Home Secretaries to repeal these archaic and punitive laws, especially that which relates to sleeping rough. A number of hon. Members in the Chamber are founder members of that group. We have argued, when discussing overcrowding in prisons and so on, how the situation could be eased by the repeal of such archaic laws.
On 16 December last year I wrote to the Home Secretary on behalf of the group and asked him to use this Bill to introduced these repeals. On 6 January he wrote to 54 me saying that he could not. My plea is that the Home Secretary should reconsider that decision and introduce the necessary amendment in Committee. I am sure that the Committee, the House and most interested people outside would support him. In his letter to me the Home Secretary said that such a change would be controversial. It is even more controversial, indeed it is a disgrace, that a civilised society should still send men and women to prison for the so-called crime of having no home or being unable to keep a home together.
Many examples have been brought to the group's attention. One was reported in the Cambridge Evening News. A 31-year-old woman was sent to prison for three months for sleeping under the canopy of a local police station. The magistrates said that they sent her to prison reluctantly because nowhere else could be found for her. The woman went to gaol. She had a long history of psychiatric care and was homeless. She should have been dealt with, not by the courts but by the local housing department under the Housing (Homeless Persons) Act 1977. That is the compassionate and caring way to deal with people who sleep rough. We should not pointlessly push them through the courts and prisons at no help to them and at great cost to the criminal justice system.
That is one of the many examples of the injustices caused by that part of the legislation that remains. It is a serious omission from the Bill. I urge the Home Secretary to think again in the few weeks available before the Committee stage. I urge him to introduce an amendment to the Vagrancy Act 1824 to include those matters to which I have referred.
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§ Mr. Douglas Hogg (Grantham)
I hope that the hon. Member for St. Pancras, North (Mr. Stallard) will forgive me if I do not comment on his interesting speech, because I wish to concentrate on that part of the Bill that repeals a part of section 4 or the Vagrancy Act.
I congratulate my right hon. Friend the Home Secretary on the measures in the Bill. Like others who have participated in court appearances where vagrancy offences have been tried, I have always been uneasy about the operation of that statute. If I had to pinpoint the central cause of my anxiety, I would say that when one considers a section 4 offence too much depends on the evidence of one police officer, in particular, exactly what he saw, and, frequently, what the defendant said to him. I have no doubt that injustices have been done by the courts in that context. There is a widespread belief that such injustices have been done by the courts. Therefore, I welcome the repeal of that provision.
I was troubled by whether there was a need to introduce clause 9. It is a nice judgment. On balance, I believe that the Home Secretary is right to introduce a clause designed to meet such a situation, but I am anxious about the exact formulation of the clause.
I do not agree with the criticisms made by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley). His criticisms were twofold. First, he said that too little attention was paid to prohibited acts and, secondly, that too much attention was paid to prohibited intentions. In summary, that was his criticism. I agree with the response to him by my hon. and learned Friend the Member for Solihull (Mr. Grieve), that the courts are always seized of the need to determine criminal intention. In almost all 55 offences that is an essential element that has to be proved. This in no way departs from the standard tradition and practice of our common and statutory law.
I wish to put to the House a more important criticism of clause 9. If one looks carefully at the clause, one sees that, although it contains the prohibited intention, it carries the prohibited intention further than did the Vagrancy Act itself—the prohibited intention in gaining entry to a motor vehicle, for example, or discovering whether it is possible to gain such entry. I can imagine occasions when someone will wish to gain entry to a car for non-criminal purposes. I ventured to cite two examples in an intervention.
The hon. Member for St. Pancras, North will know of occasions when people want to sleep in a car because they have nowhere else to sleep. That should not be a criminal act. Another example is when there is a restricted parking space. A person who wishes to park his car may wish to move another parked car to create a larger parking space for himself. That should not be a criminal act.
I cannot see into my right hon. Friend's mind, but I fancy that he will say that he has provided a defence under clause 9(2). However, I do not believe that the defence goes wide enough. One has to contemplate whether the defence applies to the situation before the courts.
I believe that we can get round the problem by saying that the prohibited intention should be an intention to commit an arrestable offence. That is precisely the same intention as was prohibited by the Vagrancy Act. I do not believe that the criticism of the Vagrancy Act centred on the definition—if I might use the lawyers' phrase—of mens rea, or the prohibited intention. The criticism of the Vagrancy Act was based on the absence in that statute of the actus reus and, more particularly, of the difficulty in proving the commission of the offence.
So far as the prohibited intention is concerned, namely, the mens rea, I should like to build on the contents of the Vagrancy Act and argue that the act should not be a criminal offence unless it is done with the intention of committing an arrestable offence. I hope that that brief point will receive favourable consideration by the Government Front Bench.
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§ Mr. Edward Lyons (Bradford, West)
I welcome the provision in the Bill which says that an attempt to commit the impossible in certain circumstances can be a criminal offence.
I take an obvious example. Let us suppose that a group of terrorists sought to kill someone but that another group of terrorists had already achieved the killing an hour before. If the second group of terrorists shot at a dummy in a window in the belief that it was their intended victim, there is no reason why that second group of terrorists should not be charged with attempted murder. Therefore, although it may seem odd on the face of it, the proposed correction to the existing law is a correction that is worth making.
Most of the discussion has centred upon part II of the Bill. The reason why the "sus" law is called the "sus" law is that it is unique in resting upon suspicion rather than upon anything else. It is out of context with the rest of English law, for, if a policeman sees two suspicious acts, he can proceed to lay a charge of loitering. Suspicion in other circumstances is not enough. It is not enough, in 56 other circumstances, simply to have two suspicious acts establishing intent when there are no other overt acts of attempt. Accordingly, the "sus" law is a bad law and should go.
The "sus" law was conveniently used for several reasons. The first was that trial was only in the magistrates' court, so that the harassed policeman did not have to attend a longer trial in the higher court and be cross-examined by counsel. It is also the fact that a higher rate of convictions is obtained in the magistrates' courts than in the Crown court. In certain parts of the country, therefore, the pattern grew up of charging "sus", while in other parts of the country, such as West Yorkshire, the offence of "sus" was seldom charged. In a year in West Yorkshire there are about 80 charges of "sus", but in London in a year there are well over 2,000 such charges. In some parts of the country the "sus" charge is virtually unknown.
Another problem with "sus" relates to motor car offences. In the old days, the problem about charging attempt in relation to taking a motor car without the owner's consent, or stealing the car or its contents, was that when someone was arrested for having been seen to have been operating on the handle of a motor car, if he were charged with attempting to steal the car, the jury might take the view that he was going for the contents, whereas, if he were charged with stealing the contents, the jury might take the view that he was intending to take the vehicle. As a result, it became a common practice to charge the "sus" offence, because it got round the difficulty of charging attempt in circumstances in which one could not prove which of the two offences the person concerned had been seeking to commit. It was, not that there was no evidence of attempt, but that one did not know which offence was to be attempted. Therefore "sus" was used. One can, therefore, see the temptation to put into the Bill a clause which gets round the difficulty concerning attempt. The difficulty, as I have indicated, was in deciding whether the car was to be taken away or whether the contents of it were to be stolen.
Clause 9 goes far beyond that. It would have more respectability if it dealt with the alternatives to which I have referred—taking something from the interior of the car or taking the car. Suppose that a man, in wanting to move his car, found that another car was, in his view, in the way. He might be tempted to move the other car a yard or two in such circumstances. Alternatively, he might want to park his car in a gap which could be made sufficiently wide if he were to move the other fellow's car a yard or two down the road. To do that is to take something of a liberty but, none the less, it should not be a criminal offence. Certainly it was not contemplated under the original law of attempt, because there is in Britain no offence relating to moving a car a yard down the road in order to create extra space.
In my view, therefore, there is here an enlargement of the criminal law which does not even relate to dishonesty, because clause 9 has nothing in common with an offence of dishonesty. There can be dishonesty contemplated, but it need not be contemplated. It is clear from the last part of subsection (1) that it is sufficient to be interfering with a vehicle. The word "interfering" is not defined. The words in the subsection arediscovering whether it is possible to gain such entry or access.If my car breaks down, on seeing a car nearby I may wonder whether I can get a torch out of that car—so that 57 I can see what I am doing when I try to repair my car—or I may wonder whether I can borrow a jack from that car. A magistrate—because there seems to be no entitlement to go to a jury in such cases—would need to say "You interfered with that vehicle in order to gain entry to it to borrow a jack" and that would be sufficient for me to be found guilty. Surely it is not the intention of the Home Secretary that people should be placed in jeopardy for that sort of reason.
I know that clause 9(2) is a saving subsection, in that if a person has a belief that he has lawful authority to do what he is doing—or that he would have the owner's consent—that prevents the matter from becoming an offence. But there are circumstances which would not be covered by either of the two matters mentioned in subsection (2).
Why cannot clause 9 expressly indicate a dishonest intention? It is left to inference. As it stands, the clause is highly unsatisfactory and will have to be looked at again. None the less, the abolition of the "sus" offence in general is welcome.
It has been said today—as it always is—that somehow "sus" has been used in order to prevent crimes of violence. That is nonsense. There is no evidence that "sus" has been used to stop people who were about to commit crimes of violence. It has been used almost exclusively in order to prevent the theft of property. That is why the examples that are always given are in relation to cars and in relation to pickpocketing. It is not generally used in order to prevent old ladies from being mugged. It is not used in relation to violence; it is not seen to be used in relaton to violence. Those who seek to use that argument are doing a disservice to the case for the abolition of "sus".
I congratulate the Home Secretary on going as far as he has done, but I hope that he will go a little further in relation to clause 9.
§ Mr. George Cunningham (Islington, South and Finsbury)
Although the new Minister of State, Home Office comes not at all fresh to this subject matter—far less fresh than I do—he comes fresh to this team, and therefore I should like to take the opportunity to welcome him, as my opposite number, to his new position and hope that we shall have productive dealings.
The Bill before us, as has been said, is divided into two parts, and, like others, I want to concentrate on the second part, despite the fact that the first part, codifying the law of attempt, is extremely important in its own right. But the two parts are not separate, and the principles which the Law Commission set out in its report—the Law Commission is to be congratulated on making the task of the House much easier, in the light of that report—are principles that ought to be firmly borne in mind when we come to consider clause 9.
The House ought to appreciate—I am sure that people do—that while the first part of the Bill comes to us with the imprimatur of the Law Commission, subject to a few amendments, clause 9 most certainly does not. Clause 9 comes to us with the imprimatur of the Home Office, which, with great respect to Ministers, is a much less respectable one in the eyes of many of us, and one that we would less automatically follow than we would the advice, perhaps, of the Law Commission, at least on this subject.
The changes that the Home Office is recommending us to make in the draft of part I in the report of the Law 58 Commission will no doubt be gone into carefully in Committee, which will be all the more thorough for being under the new and experimental Special Standing Committee procedure. All that I should like to say at this stage is that, as my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) said, we agree that the departure from the Law Commission's proposal with regard to impossibility is to be commended. The addition of recklessness in motive in clause 2(3) will have to be looked at extremely carefully in Committee.
The other changes are of language and no doubt are to be attributed to the feeling on the part of every parliamentary draftsman that he knows better how to draft Acts of Parliament than do hon. Members who interpret them. Whether that is so is extremely questionable.
There have been references to the various fascinating examples of impossibility. It might be thought, or hoped, that the discussion of English law should lose the interest of considering such questions as whether it should be an offence to go up to a victim who one thinks is sleeping and stab him in the back, when in fact he died five minutes before of a heart attack, or whether it should be an offence to do all that is necessary to commit an illegal abortion, only to discover afterwards that the woman was not pregnant.
I should miss, and everyone would, the fascination of discussing those issues. However, as my right hon. Friend the Member for Sparkbrook suggested, the wordseven though facts exist which render the commission of that offence impossibleleave great scope for the re-emergence of those old issues that have given so much pleasure to so many people in the past. I think that we shall see as much of them in the future as we did in the past.
I turn now to the second part of the report. I shall not dwell long on the virtues of repealing parts of section 4 of the 1824 Act. We had a full debate on that last June. No tears should be shed over the loss of those provisions. If there is any lesson to be hammered home now, it is that Parliament should be extremely careful about putting woolly language like that in the 1824 provision on the statute book. When Parliament finds that it is on the statute book, it should not be so conservative in deciding that because it is there, it ought to stay there. If we take that approach, the statute book will continue to be cluttered up with things that should not be there, which are offensive to the proper principles of English law, and which were just as offensive to those principles when they were put on the statute book in 1824 as they are today.
One has to be extremely careful in considering clause 9. It creates a new offence. The first question that we have to ask is the one posed by the hon. Member for Grantham (Mr. Hogg), namely whether there is any need to put anything in the place of "sus". Eminent judicial authorities were quoted in the debate last June as being in favour of the view that there is no need to put anything in the place of "sus". It was the view of the Select Committee that there was no need to put anything in the place of "sus". It is the view of many people that we should use the general law of attempt and that that should be sufficient.
When the Home Secretary introduced the debate, I thought that some of the words that he used were significant. He talked of "gaps left by repeal". He talked of "actions sufficiently close to the full offence", and of 59 "closing particular loopholes in the law which would otherwise result". He meant that which would otherwise result from the repeal of "sus".
The right hon. Gentleman's remarks during the debate last June were of the same nature, and the remarks made by the then Minister of State, Home Office were similar. The Minister of State said:there is some ground which 'sus' covers which ought to be covered by the criminal law in a form which is more modern and does not have the objectionable features that the present 'sus' law has."—[Official Report, 5 June 1980; Vol. 985, c. 1815.]I draw the conclusion from that quotation that it was the view of Ministers—I think that it still is the view of the Home Secretary, despite the drafting of the Bill—that if something is needed in place of "sus", it is something that covers behaviour that was previously covered by "sus". I suspect that the Home Secretary still thinks that what he is doing in clause 9 is to cover some, but not all, of the behaviour previously criminal under "sus". I hope that in the next few minutes I can persuade him, as others have sought to do, that he is not doing that.
The right hon. Gentleman is doing something additional to what he contemplated last June, what he contemplated in his speech today, and what I think he is still contemplating. In rough terms—I should prefer not to use these words—we are preserving a sort of "sus" in relation to vehicles, and we are making it worse. As I have said, it is important that we should consider clause 9 against the background of the principles on preparatory actions leading up to an offence. I say "preparatory actions" rather than "attempt" in order to deal with those actions that are thought to be preparatory to an offence, but which are too distant from the offence to be called an attempt.
There are many references to this matter in the Law Commission's report. I pick only one from paragraph 2.23:For reasons we have given above, we have as a matter of policy decided against the possibility of penalising criminal intent accompanied by merely preparatory actsThe whole report is littered with references of that nature. It insists time and time again that actions that should be criminal at least under the general law of attempt are actions that go close to the completed offence.
I accept right away that, at the same time as saying that, the Law Commission acknowledges and commends the use of specific offences for certain preparatory actions, where that is thought to be in the public interest. An example is going equipped to steal, which is a preparatory offence, one could say, but is a specific offence and does not have to be dealt with under the general law of attempt. Other examples are carrying a firearm, or doing certain things in relation to the forgery legislation.
The Law Commission implies—and we ought to be sure from our knowledge—that where it is proposed that preparatory behaviour should constitute a specific offence on its own, as is proposed in clause 9, we should be extremely reluctant to do it in the first place. The burden of proof lies with Ministers who propose it—otherwise we should rely on the general law of attempt. So it is on that doubting, suspicious and reluctant basis that we ought to approach clause 9.
Clause 9 provides that if one does certain preparatory things with a view to gaining entry to a vehicle, gaining access to a vehicle or discovering whether one can gain 60 entry or access to a vehicle one has committed a criminal offence. That was not an offence under "sus". I hope that the Home Secretary realises that. Under "sus", bad as it was, one had to have an intention not only to commit an offence, but to commit an arrestable, that is, a relatively serious, offence. And the intent is not just to gain entry or access, but to discover whether entry or access can be gained.
I find it incredible that the Home Secretary should be proposing that the burden with regard to intent should be weakened in this provision as compared with "sus". The effect of it is that certain behaviour, which at the moment is not criminal even under "sus", will be criminal if the Home Office gets its way and puts this provision on to the statute book.—[Interruption.] If the Home Secretary is asking the Minister of State whether that is right, the answer is "Yes".
May I remind the right hon. Gentleman that conspiracy, which was re-formed a little while ago, now applies only to conspiracy to do a criminal offence? I am sure that the Law Commission, had it had an opportunity to consider clause 9 as it stands, would have come to the conclusion that it is contrary to the principles that should govern the passing of legislation. Because of the way in which we shall have a Standing Committee on the Bill, I hope that we shall have an opportunity of discovering an answer to that, and not have to speculate on what the Law Commission would have said had it known in advance.
There is also something of a conflict of principles, surely, between clause 9 as it stands and clause 1(3), which has the effect of saying that a person cannot be guilty of attempting to commit an offence if no offence would have been committed had he completed the actions. All right, that is dealing with the law of attempt, whereas clause 9 is making a specific offence. But there is something curious in saying that one cannot be guilty of an attempt to commit an offence if what one is trying to do is not an offence, and, under the later provisions of the Bill, saying that one can be guilty of an offence for interfering with a car when, had one done all that one intended to do, it would not have been an offence. There is an unacceptable oddity there.
There is another respect in which the clause is making criminal behaviour that is not criminal at the moment, even under "sus." With all its faults, "sus" requires that two overt acts should be committed, one to become a suspicious person and the other to trigger off the next stage of the process. Clause 9 does not require two actions. Only one would be sufficient so long as the court held that that action was interfering with a car and was sufficient to show the intent set down there.
The Home Office seems to have changed its mind. The Home Office working party of 1974—not one of the most progressive bodies in the world on this subject—at page 62, paragraph 203, when recommending that "sus" should be replaced by something, said:The offence should in our view be limited to the case of a person whose antecedent conduct in a public place reveals his intent to commit an arrestable offence. 'Antecedent conduct' should, as under existing law, include at least one suspicious act before and distinct from the act which caused him to be charged with the offence.To put it crudely, that working party was made up of Home Office officials and police, and it took a certain view of the whole subject matter as a result. But even it did not suggest that we should get away from intent to do a non-crime and from two specific actions.
61 There is then the question of what interpretation will be put upon the word "interference". First, why have Ministers introduced the word "interference"? If there is already on the statute book a word that is used in this context and another word is used, the courts are bound to presume that something different is meant. There is a word already on the statute book. It is in section 29 of the Road Traffic Act 1972, and the word is "tampering". Since Ministers are proposing that we should not use "tampering", the courts will presumably hold that "interference" means something different from "tampering", although I should have thought they were very similar.
Why did Ministers use a different word? Would it be necessary to touch the vehicle in order to interfere with it? Would trying one door handle constitute interfering with a motor vehicle? Would standing outside and not touching the vehicle but having a stick with a piece of string on it in one's hand with a view to holding it inside the vehicle and undoing the handle constitute interference?
In this case the actus is too vague, and we shall not know what it means until five or 10 years of court cases have clarified the matter for us. That is what we are trying to get away from. Add to the vagueness about the actus reus the vagueness about the low level of the burden of proof with regard to intent, and we have a recipe for all the complaints about this offence in its limited sphere of action that applied to "sus" in its wider sphere of action.
I hope that when the Minister of State replies to the debate he will confirm as a matter of fact that it is true that certain behaviour that is not at the moment criminal under "sus" will become criminal under this provision. He has already nodded his head. I still find it incredible that when we have gone through the whole argument about whether it is necessary to replace "sus" with anything, Ministers should come to us with a recommendation that we should intensify criminality of behaviour, although on a much narrower front.
My personal view is that there is no need for clause 9. If, however, we are to put on to the statute book something of this nature, it needs to be changed, as the hon. Member for Grantham said, in order to make the intent at least an intent to commit an offence, preferably an intent to commit an arrestable offence.
There is another way of dealing with it, for which there is a perfect precedent. In past remarks on this subject the former Minister of State and some speakers in the debate today have said that the problem is that one does not know which offence a person is trying to commit if he is trying to get into a car. He might be trying to steal the car, he might be trying to take and drive away the car, he might be trying to steal from the car, or do malicious damage to the car, and so on.
We have a precedent for making behaviour criminal where we have one of a number of intents in mind. It is in the definition of burglary in the Theft Act, where it is an offence of burglary if a person enters a place as a trespasser with intent to commit any offence mentioned in the Bill. There then follow a number of offences, including stealing. If we wanted to, we could base ourselves upon that precedent and say that it is an offence to do a thing with the intention of stealing a car, taking it away, stealing from it and so on. That would be more specific, the burden would be more proper and the language would be a great deal clearer.
62 The provision as it stands is unsafe. We would continue to rely upon what a policeman said he saw when the actions he saw were susceptible of an innocent interpretation as well as a guilty one. That is exactly the situation from which we are trying to escape. I hope that after rigorous examination of clause 9 in Committee, it will be decided either to excise it from the Bill or to subject it to the qualifications that I and many other hon. Members have raised in this debate.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
A wide area of common ground underlies the debate. There has been wide agreement that the "sus" law should go. Nevertheless, I well understand the reservations expressed by my hon. and learned Friend the Member for Solihull (Mr. Grieve). In addition, there has been wide agreement that the law of attempt should at least be clarified.
For a long time there has been great pressure to repeal the law of "sus"; and that pressure has come from a great many quarters. Some people have stressed an objection to "sus" based on one ground and others have stressed objections based on different grounds. While I accept that entirely legitimate objections and reservations have been expressed—notably in our most recent deliberations by the Metropolitan Police—there is a general belief that this offence should go. Indeed that belief has been held for quite a long time.
Common ground may have been obscured during the debate, but it is a matter for satisfaction, at least for Conservative Members, that the Conservative Party committed itself in its manifesto to the repeal on the law of "sus". I am grateful to right hon. and hon. Members for the welcome and the congratulations that have been expressed to my right hon. Friend the Secretary of State on having taken this step.
It has always been clear that the law of "sus" has close links with the territory covered by the law of criminal attempt. I am glad to endorse warmly the compliments that have been paid to the Law Commission for the very diligent and, as the hon. Member for York (Mr. Lyon) said, at times tortured care that it has devoted to its deliberations on how to clarify the law of attempt. Its work has been of the greatest value to us.
Several hon. Members pointed out that the Bill departs from the Law Commission's recommendation that it should never be a defence to a charge of attempt that the commission of the full offence would have proved impossible for some circumstantial reason. The course that my right hon. Friend has taken in forming the Bill in this way has met, I think, with universal approval from those who have spoken on this subject today.
It is only courteous to the Law Commission to say a word or two about why we have adopted this course, although it has not featured prominently in today's debate. We have taken a partially different view from that of the Law Commission, but we acknowledge that persuasive arguments can be male on both sides. The broad question is whether impossibility should be a defence to a charge of attempting to commit an offence and, if so, to what extent. We agree that if the impossibility lies only in the fact that inadequate means are used—for example, if too weak a poison is used—that is no defence. Indeed, that was still the law after the case of Haughton v Smith.
63 We also agree that where the impossibility lies in some matter of fact—for example, the pocket did not contain a wallet or the wallet contained nothing of value—it should not serve as a defence. On that point, we are on common ground with the Law commission. We also agree that there should be no guilt where the only culpability lies in the accused trying to do something that he wrongly thinks is unlawful. My right hon. Friend the Secretary of State used the illustration of a girl who is older than the man supposes her to be. He supposes her to be under the age of consent and intends to have intercourse with her, but in fact she is 17.
If the behaviour, when carried through to completion, would still not have amounted in law to an offence due to the existence of some circumstance which the accused was ignorant of it is not right to call that an attempt to commit an offence. It may be thought that such matters should be punishable, but I do not agree. However, if it is thought that that should be punishable, that end should be achieved not by amending the law of criminal attempt, but, as my right hon. Friend suggested, by making it a substantive element of the Offences Against The Person Act, or whatever the relevant statute might be.
It would be a distortion of the concept of attempt to extend it to cases in which someone not merely tries but succeeds in doing what he had intended to do. The division of opinion lies between those, such as the Law Commission, who take the "subjective" view, who focus on the person's intent and pay less regard to the circumstances that make the commission of the full offence impossible, and those who pay primary regard to the degree of danger to the public that that conduct presents. It is an interesting and highly debatable subject. I am glad that the Government's proposals have met with the approval of the House.
Whichever course we had chosen to follow in the reformulation of the law of attempt, the necessity for which arose as a result of a decision in the other place in the case of Haughton v Smith, and even if we had followed the Law Commission's recommendation, there would have been a dangerous gap in our defences against dishonesty if we had not legislated specifically for dishonest interference with motor vehicles.
How is such legislation to be achieved? I accept the point made by several right hon. and hon. Members to the effect that clause 9 makes it an offence—subject to the defence set out in clause 9(2)—to seek to enter a motor car for the purpose of going to sleep. However, if the acceptability of the Government's approach is to be tested, we must ask ourselves whether it has been established that the public need to be protected from street crime connected with parked motor vehicles. No one has seriously contested the fact that a problem exists. Indeed, the Select Committee acknowledged that a considerable volume of dishonest and criminal activity was connected with parked cars.
That must be the starting point. Therefore, the Government have demonstrated that that first condition for legislation has been established. There is a need to protect the public. One must then ask whether the proposal is something that society can reasonably take to itself by way of protection or whether it is unreasonable, as virtually all hon. Members agree is the case as regards section 4 of the Vagrancy Act. It it is unreasonable, in the sense that it is 64 likely to cause unacceptable criminality, we should not proceed. The Government would not wish to proceed if they felt that that was the case. However, we do not believe that that is so. To use the language of the hon. Member for Islington, South and Finsbury (Mr. Cunningham), to say that the Bill will intensify criminal behaviour does not dispose of the issue; it is making something criminal which the Vagrancy Act does not make criminal. That is not the point. I acknowledge that in the instance that I have given the Bill does that. But if it permits dishonest behaviour which is perpetrated to a cerain extent to be more readily stopped, I believe that we are following a legitimate procedure.
§ Mr. George Cunningham
If someone goes to a car and the door happens to be open and he goes in and sleeps in it and he does not commit an offence, why should it be an offence if the door happens to be closed to interfere with it for the same purpose?
§ Mr. Mayhew
If it be necessary to provide the police with an effective weapon to curb this criminal behaviour, to catch that activity, I believe it to be legitimate. Although it is not an offence now to enter a car to sleep, if the clause becomes law, it will be known that if a person interferes with a car with the intention of gaining entry to it for any purpose, he commits an offence.
§ Mr. Mayhew
Time is getting on. I wish to deal with the point made by my hon. Friend the Member for Grantham (Mr. Hogg). It is possible to say that we will limit this to an arrestable offence. We shall consider the point. But if the law were not changed, that would have the effect of enabling trial by jury to be opted for, and that is cumbersome.
§ Mr. Mayhew
Because arrestable offences are nearly always triable by jury. That is an objection, but we shall consider the point.
The fundamental objection to clause 9 is that it enables someone to arrest a person on the ground that he has a certain intent. That point was made the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) as being a fundamental objection. I believe it to be a misconceived objection. As my hon. Friend the Member for Grantham said, time and again every day the courts are concerned with construing and determining a person's intention from the circumstances of the case.
For example, the hon. Member for Islington, South and Finsbury mentioned burglary. One type of burglary is defined as entry as a trespasser with intent to commit theft, rape, criminal damage or grievous bodily harm. That is on all fours with somebody attempting to enter a motor car with no ostensible title to do so. That has not caused any difficulty to the courts in determining whether in a burglary case somebody entering as a trespasser had or had not the intent. One looks at the circumstances. Similarly one looks at the circumstances in which somebody is charged with interfering with a motor car. The point is that one looks at the circumstances in every case.
§ Mr. Hattersley
Will the hon. and learned Gentleman, to whom I add my welcome, clarify one point? The offence that he is comparing with clause 9 is entering a building for the purpose that he described. I understand that the clause concerns "interfering with" or what the 65 Secretary of State described as "tampering with". There seems to me to be a substantial difference between the two, not least because the hon. and learned Gentleman cunningly—I mean that as a compliment—changed the two verbs between two sentences.
§ Mr. Mayhew
There is no problem on this aspect. The point made by the right hon. Gentleman was that one could not safely deduce somebody's intent from his observed actions and that it was wrong that somebody should be allowed in evidence to say "I saw this man doing something and from that I deduced that his intention was X or Y." If that were an objection, it would be an objection to a very large corpus of the criminal law of England and Wales. Burglary, handling stolen goods and uttering forgeries are examples. For example, to utter a forged £1 note is an offence only when the person concerned knows it to be a forgery and intends to defraud. Therefore, we must look carefully at the position.
I believe that "interfering" as a word will not cause the slightest difficulty to the courts. If somebody holds a stick through the open window of a car, that is plainly interfering. If somebody handles a car door handle, that is interfering. The question is the intent with which it is done. Is it for the purpose of gaining entry? One does not gain entry to a car by touching the aerial. But if a person is fishing around inside, in all probability—the burden of proof will be on the prosecution—he is attempting to gain entry or access to something in the car.
The hon. Member for Berwick-upon-Tweed (Mr. Beith) asked whether it would be an offence if somebody opened a car door to see whether he could identify the owner in order to get him to move his car. I draw attention to clause 9(2), the special defence. We shall consider whether a "without reasonable excuse" defence might be incorporated.
My hon. Friend the Member for Grantham suggested that the person concerned would not consent if the intention was to identify the driver for the purpose of a prosecution. That is ingenious, like most of my hon. Friend's interventions. But one does not need to open a car door to discover who the driver is. That can be done these days by looking at the number plate.
I am grateful to my hon. Friend the Member for Paddington (Mr. Wheeler), as Chairman of the Home Affairs Sub-Committee, for his welcome to the Bill. I am glad that he, with his experience, regards it as a satisfactory measure. He said that the public would not be at greater risk by reason of the repeal of section 4 of the Vagrancy Act 1824. He also said that he did not accept that the police would be inhibited in dealing with mugging.
The hon. Member for Hackney, South and Shoreditch (Mr. Brown) asked some questions on which I had better write to him because they relate specifically to London. Broadly, clause 1 applies to everywhere in England and Wales. Clause 9, dealing with public places, will apply to council estates where the public generally are admitted, but there are areas of council estates which are private and which by definition are not public places.
I thank my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) for his compliments both to my right hon. Friend and to me.
I have already dealt with the question of entering a vehicle to sleep. On the question of an arrestable offence in connection with sleep, I can see the attraction of making it a necessary condition of guilt that there should be an 66 intent to commit an arrestable offence, but, as a matter of practicality, there will be a big temptation on the part of anyone who is caught dishonestly fiddling or interfering with a motor car to say "I was intending only to sleep in the car." That is one of the practical considerations that have to be taken into account.
I shall write to my hon. Friend the Member for Paddington (Mr. Wheeler) about firearms. He has already had a letter from my right hon. Friend and he knows that to use a firearm, whether a toy or not, for the purpose of demanding with menaces is an offence.
I should have liked to be able to deal with many of the further questions that have been posed, but time does not permit.
It is common ground that the public must be protected from motor crime, particularly crime relating to parked vehicles. It is a serious problem. On the other hand, we must ensure that we do not give the law-enforcing authorities weapons which are incompatible with the liberty of the subject. We believe that we have got the balance about right in the Bill. However, we are not so dogmatic as to believe that our formulation is the only one that can achieve a proper balance.
We are grateful to those hon. Members who have contributed to the debate. We shall listen carefully to what they say in Committee. We have profited from what has been said today, and I am grateful for the broad welcome which the House has given the Bill.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Special Standing Committee—[Mr. Le Marchant.]