AMENDMENTS CONSEQUENTIAL ON PART I (Hansard, 31 March 1981)

§ Mr. Mayhew
I beg to move amendment No. 15, in page 4, line 38, at end insert— '(2A) The following subsection shall be inserted after subsection (2) of section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 and section 42 of the Naval Discipline Act 1957 (all of which relate to civil offences)— (2A) For the purpose of determining under this section whether an attempt to commit an offence is a civil offence, subsection (4) of section 1 of the Criminal Attempts Act 1981 (which relates to the offence of attempt) shall have effect as if for the words 'offence which, if it were completed, would be triable in England and Wales as an indictable offence' there were substituted the words 'civil offence consisting of an act punishable by the law of England and Wales as an indictable offence or an act which, if committed in England or Wales, would be so punishable by that law .'. This is simply a technical amendment. It is designed to overcome a difficulty that the Bill might cause in relation to the Army and Air Force Acts 1955 and the Naval Discipline Act 1957. Each of these statutes makes provision for the trial by court martial of any person subject to service law who commits a "civil offence", which means an ordinary criminal offence as opposed to a specifically military one, such as having one's hair too long. "Civil offence" includes any act which, if committed in England, would be punishable under the law of England. At present, therefore, it includes the common law offence of attempt. Once this Bill becomes law, however, it is possible that it would be argued that a soldier who, say, attempts to steal in Germany is not guilty of a civil offence because he is not attempting to commit, as specified by clause 1(4), an offence which, if it were completed, would be triable in England and Wales". Theft committed outside the territory is not so triable. By replacing this part of clause 1(4), for the purposes of Armed Services law, with a simple reference to a "civil offence", this argument is precluded.

§ Mr. Mayhew
I beg to move amendment No. 16, in page 5, line 4, at end insert— '(3A) In section 12(1)(a) of the Misuse of Drugs Act 1971 the reference to an offence under that Act includes a reference to an offence under section 1 above of attempting to commit such an offence'. This amendment, which is technical in nature, corrects an omission from clause 6. Section 12 of the Misuse of Drugs 1971 empowers the Secretary of State to give a direction imposing restrictions in respect of the prescribing of controlled drugs on practitioners convicted of offences under the Act. At present section 19 provides that an attempt to commit such an offence is itself an offence under the Act, so a person convicted of tempt would be liable to a direction under section 12. Under the Bill, however, section 19 will be repealed and attempts to commit offences under the 1971 Act will become offences under clause 1. Consequently section 12, with its power to order restrictions, would not apply in respect of them. 226 That power ought to be applicable. This amendment ensures that a section 12 direction may be given in respect of a conviction of an offence under clause 1 of the Bill.

§ Mr. George Cunningham
Perhaps I can pursue this a little to make sure that I have clearly understood it. Do I take it that the position is that a substantive offence under the Act is an offence under the Act and an attempt is an offence under the Act, but that in future an attempt to commit an offence under section 12 of the Misuse of Drugs Act 1971 will be an attempt under a combination of that Act and the Bill, and therefore will not be caught by the words an offence under this Act in the 1971 Act?
I am sure that I have expressed that question less clearly and helpfully than the answer with which the Minister anticipated it, but have I got it about right? I see the Minister nodding. On that basis, I think that the amendment is acceptable. I wonder, then, whether the Home Office has done much homework in order to ascertain whether there are any other cases like that which might give trouble in future.
Secondly, may I take it that the substance of this point is approved by the Law Commission?

§ Mr. Mayhew
The hon. Gentleman, in his own engaging words, has got it about right. The importance of this clause is that section 12 confers these special powers to give restrictive directions, and it is important that that should be maintained. The effect of the clause is to ensure that reference to an offence under the 1971 Act includes a reference to an offence under section 1 of attempting to commit such an offence. That is because, as the hon. Gentleman says, an attempt to commit a misuse of drugs act of this type becomes an offence under clause 1. It is important to keep these restrictive powers, and that is what the amendment is all about.