§ Offences of attempt under other enactments
§ '(1) Subsections (2) to (5) below shall have effect, subject to subsection (6) below and to any inconsistent provision in any other enactment, for the purpose of determining whether a person is guilty of an attempt under a special statutory provision.
§ (2) For the purposes of this Act an attempt under a special statutory provision is an offence which—
- (a) is created by an enactment other than section 1 above, including an enactment passed after this Act; and
- (b) is expressed as an offence of attempting to commit another offence (in this section referred to as "the relevant full offence").
§ (3) A person is guilty of an attempt under a special statutory provision if, with intent to commit the relevant full offence, he does an act which is more than merely preparatory to the commission of that offence.
§ (4) A person may be guilty of an attempt under a special statutory provision even though the facts are such that the commission of the relevant full offence is impossible.
§ (5) In any case where—
- (a)apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit the relevant full offence; but
- (b)if the facts of the case had been as he believed them to be, his intention would be so regarded,
§ (6) Subsections (2) to (5) above shall not have effect in relation to an act done before the commencement of this Act.'.—[Mr. Mayhew.]
§ Bought up, and read the First time.7.50 pm
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
I beg to move, That the clause be read a Second time.
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
With this it will be convenient to take Government amendments Nos. 6, 7, 9, 10, 11, 13, 14, 20, 21 and 22.
§ Mr. Mayhew
I acknowledge the daunting appearance of so large a batch of amendments. However, it is not nearly as bad as it appears. Indeed, one amendment has the laudable effect of removing two subsections from clause 6. The amendments are designed to remove from the scope of the Bill offences which are triable only summarily, and to make consequential changes. The law at present, although this is not absolutely certain, is generally held to preclude a charge of attempt in respect of a summary offence except where the attempt itself is specifically penalised by statute.
It is clear from the Law Commission's report that sound arguments may be adduced both in favour of and against a general provision which would make it an offence to attempt to commit a summary offence. These arguments are set out clearly in the commission's report. The commission concluded that on balance, and primarily in the interest of consistency, there should be a general provision of this sort. However, its working party had earlier come to the opposite view, in which it was supported by the Law Society.
In Committee the hon. Member for Islington, South and Finsbury (Mr. Cunningham) questioned the Law Commission's conclusion and rightly drew our attention to the contrary view that had been expressed by Professor 214 Glanville Williams in the early stages of our proceedings in Committee. Professor Glanville Williams was of the opinion that there is no social need to extend the punishment of attempt outside the class of serious crimes.
The Government have given further thought to this matter. We believe that the arguments are finely balanced. In the absence of clear evidence we do not think that there is need of such an extension. There is not a sufficient case to warrant such an extension of the criminal law. We have concluded that on balance we prefer the view of the working party, which considered that the amount of time that may be spent in magistrates' courts considering complicated questions whether there has been an attempt to commit a minor offence may be out of proportion to the advantage accruing from allowing the law to intervene at an early stage. Therefore, the inclusion of the words—I speak to amendments Nos. 6 and 13—as an indictable offenceand the deletion of clause 5(3) remove summary offences from the scope of the Bill. This means that it will continue not to be an offence to commit a summary offence.
§ Mr. Eldon Griffiths (Bury St. Edmunds)
Will my hon. and learned Friend repeat that sentence? Did he say that it would not be an offence to commit a summary offence?
§ Mr. Mayhew
It will not be an offence to attempt to commit a summary offence. If I left out "to attempt", I am grateful for the opportunity to put that right.
The remaining amendments are all consequential on this change. They deal with existing offences of attempting to commit summary offences, created by particular statutes, which were to have been repealed as being superfluous. As a result of the change they are superfluous no longer.
The schedule is rather complicated. The assumption originally was that the law governing all criminal attempts would be dealt with in the Bill. Therefore, separate provisions for attempts to commit statutory offences already on the statute book ought to be repealed. However, the Bill will no longer apply to attempts to commit summary offences if the new clause is carried. Therefore, it is right to leave references to summary attempts on the statute book, as it is not our purpose to make far-ranging changes in the criminal law unnecessarily. Therefore, amendments Nos. 21 and 22 are deleted from the repealing schedule. However, we still need to repeal the provisions dealing with indictable attempts to commit statutory offences and any general provisions on offences of attempt and how they should be tried, hence the surviving portions of the repealing schedule.
The removal of the references to the Deer Act 1963, the Conservation of Seals Act 1970 and the Official Secrets Act 1920 stem from what I have just said. Section 7 of the Official Secrets Act applies both to summary and indictable offences under that Act. Strictly, it needs to be retained only for the sake of the former, but any attempt to apply the provisions of the Bill to indictable offences under the Official Secrets Act and to leave summary offences of attempt to be dealt with under the Act would produce a clause of great complexity to nobody's advantage. The removal from the repeal schedule of the Official Secrets Act provision leaves all attempts to commit offences under those Acts to be dealt with under 215 those Acts, and makes it possible to simplify the Bill by removing subsections (1) and (2) of clause 6, which would be necessary if the repeal were made.
Finally, there is the new clause and its accompanying amendments. These are designed merely to ensure that the specific statutory attempt provisions which will remain, and any which might be created in future, will be interpreted according to the same principles as attempts under the Bill. These provisions apply not only to existing statutory attempts but to any which might be created in future—for example, by means of downgrading an offence triable either way to one triable summarily only and specifying that an attempt to commit it remained an offence.
This is a sensible and simplifying group of amendments, although it may not seem to be as simplifying as it appears on the Order Paper. I commend the clause and the amendments to the House.
§ Mr. George Cunningham (Islington, South and Finsbury)
I am sure that the House is grateful to the Minister of State for that lucid explanation of the purpose of the new clause. I doubt whether I am the only hon. Member who still has some doubts about its effects. The general purpose covered by this group of amendments is one which the Opposition wholeheartedly welcome—that is, to make it impossible as a general rule to charge a person with an attempt to commit a summary offence.
The Minister said that as the law stands, before the Bill goes on the statute book, it is not possible to charge with attempt in the case of a summary offence. The Law Commission in its report, which is the basis for this Bill, was, I think, slightly more cautious. On page 55 it said:in the case of attempts, it seems probable that at present, in the absence of specific provision, an attempt to commit a summary offence is not itself an offence.There appeared to be, at least in the mind of the Law Commission, some doubt about the present law on this point, and that doubt is being removed as well as the fact that we are taking a policy decision one way or the other by means of these amendments. As the Minister said, the working party of the Law Commission took a contrary view.
The reasons why the Law Commission seemed to disagree with its own working party were two. First, it said on grounds of consistency that it should be possible to charge an attempt to commit a summary offence as it is possible to charge an attempt to commit an indictable offence. Secondly, it said that the distinction between a summary and an indictable offence was a shifting distinction; indeed, we shifted that distinction quite markedly a few years ago. It said that the distinction was not one which could be equated with the distinction between a trivial and a serious offence. Upon that ground the Home Office initially favoured the view of the Law Commission.
In Committee I said on behalf of the Opposition that I had an open mind on the question of making the amendment, but in the light of discussion in Committee and the Minister's explanation of his position while we were all thinking aloud I opined the view that the discussion of the matter and the Minister's speech had led me to think that my amendment was wiser than I thought when I first tabled it. I was fortified in that view by the fact that Professor Glanville Williams, in giving evidence to us, had been emphatic that there was no need to extend criminality to attempts to commit summary offences. In 216 Committee we were all sure that we did not want to have the possibility of an attempt to commit the new summary offence of interfering with motor vehicles. That fortified us in the general conclusion that we should cut out attempts to commit all summary offences.
Therefore, our conclusion is that it is best to make the change advanced by the Government. In Committee the Minister said, in giving a reason why it might be better to keep the possibility of attempts to commit summary offences:The police and prosecuting authorities will not wish to add to their burdens by charging people with attempts to commit summary offences unless there are good reasons for doing so."—[Official Report, Special Standing Committee, 17 February 1981; c. 238.]I think that that statement must have been based more on hope than on confidence, because we have found an the past, not least on the "sus", that charges are brought in circumstances which many people feel do not justify a charge. It would not be right to rely too much on prosecutorial discretion, even in respect of a provision in a Bill, a large part of which relies on prosecutorial discretion on the issue of impossibility on attempts.
The Minister did not refer to a point raised in Committee by the hon. Member for Burton (Mr. Lawrence) about Northern Ireland. He asserted that the law in Northern Ireland specifically permits a charge of attempt to commit a summary offence. I do not know whether that is so, but it is a point worth raising. If it is so, it could be argued that as there is greater control over prosecutions by central authorities in Northern Ireland, that is a reason for tolerating the situation in Northern Ireland, even if we are not prepared to tolerate it in England and Wales.
Even if we got our system of Crown prosecutors—as recommended by the Royal Commission recently—in England and Wales, it would surely be wrong to rely too much on prosecutorial discretion. It would be better to tidy up the law so that everyone knew where he stood. On those grounds the Opposition welcome the change.
I now come to the other part of the package of amendments and new clauses. I am reminded of the delightful remark of Sir Henry Skinner to our Special Standing Committee on another issue—that the confusion was clear. The Minister referred to the offence, mentioned in the schedule, under the Deer Act. As I understand it the Minister is saying that the provision—for example in the Deer Act—specifically allowing a charge of attempt to commit a summary offence should be retained on the statute book. Similarly, that applies to the Conservation of Seals Act and the Official Secrets Act
. The Official Secrets Act is an important matter. We shall not discuss "moles" tonight; we have enough complications with deer and seals. On the face of it, If we are deciding, as a general rule, that one should not be charged with an attempt to commit a summary offence, is there anything so special about doing something wrong about deer and doing something wrong about seals which makes it desirable to sustain the possibility of a criminal offence in attempting to commit an offence under those Acts?
Have the Government explicitly and clearly addressed their minds to those two offences and decided consciously that they want to maintain the possibility of attempting to commit a summary offence in those cases? I thought that 217 I saw the Minister shaking his head at that point. Unless there is an overwhelming case—the Minister has not stated a case—for preserving the criminality of an attempt to commit a summary offence in those cases, I hope that we shall wipe them out as we are wiping out all the other attempts to commit summary offences.
The Minister moved a new clause on special statutory provisions. I am still baffled to know why the new clause is necessary. It seems to take those provisions in statute law where an attempt is specifically provided for by statute and to apply to those statutory attempts the three points which appear in clause 1. If that is the purpose, I should have thought that the most natural way of doing it was simply by redefining the wordsan offence to which this section appliesrather than by introducing a new clause. I suppose that the effect would have been the same, but it would have been more obvious in its meaning if we had gone about it in that way.
The Minister should give an indication—not necessarily a complete list—of what he is pleased to call the special statutory provisions and what one could call attempts otherwise provided for in statute. He should give an indication of what offences are included in that definition which will be subject to the new clause rather than to the provisions of clause 1 as it stands.
It would have been much more convenient for all of us to have dealt with those points in Committee, but we accept that that was not possible, because in Committee we were clearing our minds on the question whether we wanted criminality for attempts to commit summary offences. Although we are dealing with the matter on the Floor of the House, some clarification of those technical points is in order. However, on the main policy point, we strongly welcome the effect of this group of amendments.
§ Mr. Eldon Griffiths
The hon. Member for Islington, South and Finsbury (Mr. Cunningham) referred to one of the witnesses who appeared before the Committee, who said that the confusion was clear. May I say with affection to my hon. and learned Friend the Minister of State that his clarification was confusing to me? No doubt he will be able to set my mind at rest.
I refer my hon. and learned Friend to the lapidary phrases which he used in Committee, when he said:It is common ground to the Committee that there should be a criminal offence of attempting to commit a criminal offence. The mere fact that one has not got as far as fulfilling the criminal intention and completing the offence ought not to save one from criminal liability."—[Official Report, Special Standing Committee, 17 February 1981; c. 239.]Those sentences lie at the heart of the Bill.
In my very brief remarks I want to ask my hon. and learned Friend whether he can apply the effect of his amendments and his new clause to two or three specific cases that the police witnesses indicated to the Committee.
I should declare an interest. As the House knows, I have a connection with the Police Federation. In this case the federation did not give evidence to the Committee.
The two specific cases that I have in mind are the ones that were alluded to by the Metropolitan Police in their evidence, and thereafter in the case put by the Association of Chief Police Officers of England, Wales and Northern Ireland. Perhaps, to refresh my hon. and learned Friend's memory, I may quote the cases that they have in mind.
The Metropolitan Police said this: 218'B' "—the initial of a person's name—stands in a crowded area at a bus stop. A female standing nearby is holding a shopping bag containing property including a purse which is clearly visible. 'B' spends some time watching and when a bus comes the woman goes towards a crowd which forms around the platform. 'B' approaches from behind and places himself behind the woman just as she removes the purse from her bag. 'B' immediately withdraws taking no further interest.He has, one might suppose, been foiled by her action.He crosses the road and stands by a bus queue for buses going in the opposite direction and repeats his actions in respect of two other women. In each case they seem to be alarmed and remove purses from their shopping bags."—[Official Report, Special Standing Committee, 10 February 1981; c. 138.]By so doing, of course, they have made it impossible for him to commit an offence. The Metropolitan Police then go on to say:Neither of these incidents are catered for under the existing or proposed law regarding attempt.They made their case—with which I disagree—that that is a reason for retaining "sus" on the statute book.
I said in the Second Reading debate that in my judgment "sus" should go, but I urged at the time—and my right hon. Friend the Home Secretary, in replying to the debate, went some way towards satisfying me—that if "sus" is to go, the law of attempt should be changed so as to fill the gap created by its abolition.
I ask my hon. and learned Friend very politely whether he is satisfied that the Bill, with his new clause and amendments, will be able to deal with example "B" as put to the Committee by the Metropolitan Police.
My second example was put to the Committee in the evidence of the Association of Chief Police Officers of England, Wales and Northern Ireland. In many respects this is perhaps a much more relevant practical example. In its memorandum the association said:A member of the public looking out of his bedroom window at 2 am sees a man approach a row of terraced houses opposite. He pauses at each front door and front window of three houses and appears to examine them to see if they are secure. At this point a motor vehicle approaches and the man conceals himself in a recessed doorway until the vehicle has passed. He then examines the exterior of another house before walking away and disappearing from view into a side street. The watcher decides to call the police, but before the arrival of the police the man returns and appears to examine houses on the opposite side of the street. On the approach of a pedestrian he again conceals himself and emerges later to examine a further house. At this point the police arrive and the watcher explains to the police what he had seen. The officer questions the man who denies any intention to commit a crime but says he has lost his way".The crucial point is thatinquiries show he has four convictions for housebreaking and is suspected of, crime locally; the officer must now tell his informant"—that is the member of the public who has complained about what he has seen—that the man has done nothing which makes him liable to arrest. The suspect's actions, whilst they would fall within the provisions of section 4 of the Vagrancy Act, will not amount to an offence if the suspected persons law is repealed, nor would they constitute an offence under the Bill.That is the example given by the Association of Chief Police Officers.
I do not wish to pursue this argument. The various arguments have been listened to in Committee. I want only to ask my hon. and learned Friend whether he believes that the Bill, with his amendments, will enable the police to act in cases of that sort. If it will not, the anxieties expressed by the Metropolitan Police—and, indeed, by the 219 Association of Chief Police Officers—will be widely shared by members of the public, who are increasingly the victims of this kind of offence.
I have one other quotation from the evidence given before the Committee, where the Association of Chief Police Officers drew attention to the comments of the Prosecuting Solicitors' Society on the draft Bill. I suspect that all hon. Members, whatever view they take about the Bill, will share the view of the society thatControlled police intervention is preferable to members of the public taking the law into their own hands if the police are powerless."—Official Report, Special Standing Committee, 10 February 1981; cc. 147–8.]8.15 pm
That is what worries me very much. If, in the circumstances of the two hypothetical cases that I have put before my hon. and learned Friend, the member of the public who has complained to the police is fearful that a would-be house breaker—a would-be thief—cannot be dealt with, arrested or charged by the police because Parliament has altered the law, there is a very real possibility of some members of our society taking the law into their own hands. That would be highly regrettable.
That is why I hope that my hon. and learned Friend will be able to say that as a result of his amendments being accepted, as I am sure they will be—namely, that with the abolition of "sus" we should not open a gap unfilled by the reformed law on attempts which this Bill seeks to produce—the public will not be left exposed and the police left powerless in cases of the kind that I have described.
§ Mr. Ivan Lawrence (Burton)
I hate to make things awkward for my hon. and learned Friend, who has conducted these historic and fascinating proceedings from start to finish with very great skill and ability. Those of us who have also been concerned in this matter from start to finish must be filled with admiration for the way in which he has conducted himself and the case for the Government. But we are—I hope he will forgive me for pointing this out—in danger of making our law very muddled-looking and illogical.
There was presumably a time when one could attempt to commit every inchoate offence. Now we have got ourselves into a position where, under the Criminal Law Act 1977, it is an indictable conspiracy to agree with others to commit a summary offence. But under this measure one cannot attempt to commit a summary offence. We have got ourselves into the position where an attempt to commit a summary offence is no offence in England and Wales but is an offence in Northern Ireland. That seems similar to the position into which we have got ourselves in the Bill, whereby if one completes a series of acts there may be no crime but if one attempts to commit a series of acts which one thinks may end up in a crime there is a crime.
From the point of view of the public, who must understand our legal system, we are in danger of becoming lopsided in choosing what shall or shall not be an offence. We are distorting what I suggest is a more balanced and simple view of the law, in which consistency is one of its virtues. That is somewhat philosophical, I admit.
I turn to a second reason for my doubts about the sense of what we are doing here. The Law Commission working party which considered this decided, albeit tentatively, that all three inchoate offences—conspiracy, incitement and attempt—should be treated in a similar way, so that 220 an attempt to commit a summary offence would in itself become an offence. Having come to that conclusion and worked the matter out, the working party's conclusions were considered by the Law Commission itself. The Law Commission considered the arguments advanced for the attempt to commit a summary offence not being an offence. They are set out on page 55 of the Law Commission's report, and I shall not weary the house by repeating them. The report states, on page 56:While acknowledging that there is force in some of these arguments, we have concluded that consistency in this context would be preferable. An attempt may fall little short of the completed crime and, in such instances, the defendant's conduct may be almost as serious as if he had been successful; this consideration applies with equal force to summary and indictable offences.The report continued—this had been the main objection to having as an offence the attempt to commit a summary offence, and the main argument relied on by my hon. and learned Friend—We do not think that there is a real danger of a needless proliferation of charges of attempt to commit summary offences … there are other summary offences in which it seems desirable that a charge of attempt should be available.That is when we came to talk in Committee about offences relating to the protection of birds and animals.
The report makes the further point that a number of offences which had previously been triable only on indictment had been shifted to the lower category of being triable only summarily. There was, as it were, a growing tendency to take offences out of the triable by jury category and to put them into the summarily triable category. Therefore, the more such offences were taken to the summary court and out: of the jury category. the less sense there was in taking attempt out of the legal system for summary offences.
It must be remembered that there is substantial pressure due to the time taken in processing criminal trials. I hope that no one will conclude from the time that I take making my arguments in the House that I take as long in court. There will therefore be a tendency, which was resisted in considering many of the recommendations of the James report, to shift more offences now triable on indictment to the magistrates' court. A new situation will therefore arise in which we shall increasingly have to ask whether we did right to do away with the offence of attempting to commit a summary offence.
The Law Commission therefore concluded:Having regard to these considerations, we do not think there are compelling reasons for a conclusion differing from that which we adopted in regard to conspiracy, and therefore recommend that an attempt to commit a summary offence should itself be an offence.We have the views of the Law Commission, the working party and what I believe is the logical balance of our criminal law, all in favour of keeping the attempt to commit a summary offence as part of the criminal calendar.[Interruption.] Page 55 of the report shows clearly that the working party tentatively came down in favour of retaining attempt to commit the three inchoate offences as criminal offences. Whether I am right or wrong about that, I am certainly right about the second case, if not about the first. Having considered the matter, the Law Commission certainly came down in favour of keeping attempt to commit a summary offence.
I know that I am a voice crying in the wilderness. I do not intend to embarrass my hon. and learned Friend by voting against the Bill. Nevertheless, I think that perhaps 221 not enough thought has been given to this matter. I appreciate that Professor Glanville Williams thought that it was a waste of time having the offence of attempt to commit a summary offence, and that he is one of the leading criminal jurists if not the leading criminal jurist of our generation. But that does not make him right in every case. I hope that the Government will look at this again before the matter is finally disposed of, on the basis that on this occasion the Law Commission was right, the working party may have been right, and there is some sense in keeping a consistent approach to all three inchoate offences and thus removing the stigma of the illogicality of making distinctions for no valid reason.
§ Mr. Mayhew
I am grateful for the careful speeches that have been made on this group of amendments. I shall seek first to deal with the points made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham). He asked why it was proposed to delete the Deer Act and the Conservation of Seals Act from the schedule. He also asked why, if we are deciding that there should be no liability for an offence of attempting to commit a summary offence, these offences should be retained under those Acts.
In Committee the hon. Gentleman dwelt on the importance of this proposition. We have taken care to ensure that the Bill will not make unnecessary changes of any substance in the criminal law. The two statutes to which he refers are statutes in which Parliament thought it right to provide that a summary offence shall also carry liability for attempting to commit it. That is in conflict with the generally held state of the common law, namely, that there is no liability for attempting to commit an offence which is triable only summarily.
We now propose not to change that state of the common law, contrary to the recommendation of the Law Commission, which was arrived at only by balancing many considerations. Equally, we propose not to change the state of the statute law which Parliament previously thought it right to introduce. That is why those offences are being preserved.
We propose to leave the Official Secrets Act as a code of its own. It would have been possible to have constructed an elaborate clause which would have made an exception of the one summary offence which the Official Secrets Act contains—all the other offences being indictable. However, that would have been quite needlessly complicated, and m the interests of clarity and simplicity we prefer to leave the Official Secrets Act as a code of its own.
The hon. Gentleman also asked why, if we are wiping out all the other attempts to commit summary offences, we are proceeding in the way that we have proposed in the schedule. With respect, that is not an accurate way of putting it. We are not wiping out the other summary offences. There are no summary offences, other than the statutory ones contained in the schedule, for which, under the existing law, it is possible to be liable for attempting to commit them. That is not a beautiful piece of syntax, but I hope that my meaning is clear. Accordingly, and unusually for the hon. Gentleman, that point was not accurately expressed.
222 The hon. Gentleman stated the objective of the new clause, which is to apply the principle set out in clause 1 to those offences already on the statute book which carry liability for attempt. I sympathise with his view that this could have been drafted more simply. However, I am advised that greater simplicity is not capable of being achieved commensurate with the necessary clarity that we require in statute. I am advised that for technical reasons it is necessary to draft the new clause in this way. I am afraid that we can do nothing about that.
My hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) kindly told me that he had an appointment which would prevent him from staying for my answer to his questions.
He referred to what he said in Committee when I set out the general principle by which we were guided. I stand by that principle, which I explained as follows:It is common ground in the Committee that there should be a criminal offence of attempting to commit a criminal offence. The mere fact that one has not got as far as fulfilling the criminal intention and completing the offence ought not to save one from criminal liability."—[Official Report, Special Standing Committee, 17 February 1981; c. 239.]I agree with that. The shorthand label that we have attached to it is the "dipping" offence. For example, a person may put his hand into someone's pocket intending to steal whatever there may be in it but discover that it contains nothing. We all believe that the failure to complete the full offence should not save that man from liability for criminally attempting to steal. The Bill fulfils that principle. However, with respect, that proposition has nothing to do with the new clause or the group of amendments under consideration.
I was asked for my opinions about the examples quoted from the evidence given by the Metropolitan Police and the Association of Chief Police Officers of England, Wales and Northern Ireland. In both cases, the law of "sus" would have enabled a prosecution to have been brought, but a prosecution cannot be brought under the law of attempt. It is more usual for such a scenario to arise in enclosed premises, because a person is much more likely to get away with a nefarious purpose in enclosed premises. The section of the Vagrancy Act that makes it an offence to be found on enclosed premises is not affected by the Bill and will remain available.
My comments on the example given by the Association of Chief Police Officers also apply to the first case. Section 2 of the Criminal Law Act 1967 would enable the police officer in such cases to arrest the person on suspicion of being about to commit an arrestable offence. Therefore, it is not right to say that the policeman would have to tell the householder that he was sorry that there was no ground on which he could arrest the chap. I hope that I have dealt with those points.
I am grateful to my hon. Friend the Member for Burton (Mr. Lawrence) for the kind compliment that he paid me. He has never succeeded in embarrassing me by any of his contributions. I hope that he will forgive me if I do not go into great detail. However, he was right to say that there will be a discrepancy between the way in which the law treats the offences of conspiracy and incitement and the way in which it will treat the offence of attempt. It is possible to charge someone with attempting to conspire. However, if the Bill is amended that will not apply in the case of attempting to commit a summary offence. Conspiracy always involves more than one person. As my hon. Friend will know, if more than one person is involved 223 in a criminal offence it has always been thought that that added to its severity. That applies particularly to conspiracy.
In my opening remarks I tried to explain why we believe that this is a pretty finely balanced judgment. Ultimately, we were persuaded that there was an unnecessary risk that magistrates' courts would be bogged down because in a significant number of trivial cases they would have to go into the structure of the law of criminal attempt—which is far from easy.
It is no accident that common law has always held hitherto—or so it is generally believed—that attempt does not lie for a summary offence. That has probably been a sensible rule. Professor Glanville Williams was probably right to say that there is no social need to extend it. The decision has not been easy, because consistency is always attractive. However, on the balance of considerations we felt it right to adopt the view that Professor Glanville Williams took for the reasons set out clearly in the working party's report. Indeed, those reasons are also referred to in the Law Commissioner's report. At length, we felt it right to come down on the side of these amendments. Therefore, I hope that I shall have the support of my hon. Friend the Member for Burton and of the rest of the House on this matter.
§ Question put and agreed to.
§ Clause read a Second time and added to the Bill.
§ Mr. George Cunningham
On a point of order, Mr. Deputy Speaker. I do not know whether the absence of my hon. Friend the Member for York (Mr. Lyon) complicates the proceedings, but if it would assist I should be happy to move amendment No. 1 formally, although it is not one that I support. That would allow us to take the proceedings in a logical order and we could discuss that amendment and Government amendment No. 12 together, as we expected to do.
I beg to move amendment No. 1, in page 1, line 6, leave out "merely".
Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
I am in the hands of the House. Amendment No. 12 will be moved in due course when we reach it, but as amendment No. 1 has been moved formally we shall discuss with it amendment No. 12.
§ Mr. Mayhew
I am happy to speak to amendment No. 12 but I do not want to take up time speaking to amendment No. 1. This is a minor but none the less useful amendment, the substance of which was suggested by Professor Smith in evidence that he gave in the Special Standing Committee and which has the Law Commission's support. The Law Commission is content with the provision that we have just discussed.
Clause 5 abolishes the offence of attempt at common law. It is possible that there exists at common law a separate offence penalising certain acts of preparation. In the 1966 case of Gurmit Singh it was held, following a number of nineteenth century decisions, that it was an offence at common law to procure a rubber stamp, which bore the realistic legend "Magistrate First Class Jullundur", with intent to commit forgery. It is unclear whether that case and its predecessors are simply examples of attempt in which liability has been imposed by the court at an unusually early stage of the defendant's activities, or, on the other hand, whether they are specific offences at common law. If the latter, they would not be abolished by 224 clause 5(1) and it might therefore be possible for a court to rely on them in certain special cases to convict a defendant who had not proceeded beyond a preparatory act. That would be contrary to the principles of the Bill. Thus, the amendment abolishes any such specific offences as may exist. The amendment is proposed out of what the courts call an abundance of caution, but it is sensible and I hope that it will have the support of the House.
§ Amendment negatived.
§ Amendments made: No. 6, in page 2, line 6, after `Wales', insert 'as an indictable offence'.
§ No. 7, in page 2, leave out line 15.—[Mr. Mayhew.]