HC Deb 29 April 1983 vol 41 cc1111-9 9.35 am
Mr. Tim Brinton (Gravesend)

I beg to move amendment No. 1, in page 2, line 1 leave out from 'on' to 'or' in line 2 and insert 'conviction to a fine not exceeding £2,000'. The amendment doubles the maximum fine that can be imposed on those who are convicted of what are described in the Bill as lesser offences—although they are grave offences—of selling or letting the articles described in the Bill for hire or by way of trade, exhibiting or possessing them. The maximum fines in the Bill for these offences are too low. I appreciate that the cross-referencing shows that a maximum fine of £1,000 is allowed per copy found, per offence. The hon. Member for Norwood (Mr. Fraser) suggested during the earlier stages of the Bill that that might not be enough, and on looking at the problem in more detail I came to the conclusion that those who are selling, letting or in any way trading or exhibiting such articles can make a large amount of money. Therefore, the fine of £1,000 per copy will quickly prove inadequate to stop this practice.

On Second Reading I made the point that with an investment of about £60,000 a pirate video could make a huge income in a year. The same applies to the smaller-scale offender, who, with merely two video machines, a suitable connection and a supply of tape, can make many copies that might be taken in under this heading. We must remember the background to this Bill. At present, there are about 2 million video cassette recorders in private hands in the United Kingdom alone. There is a huge domestic market for any potential pirate and every pirate tape takes away jobs from the legitimate industry. Over the past four or five years, 2,000 people have been legitimately employed in the video cassette industry in this country, but it is believed that this figure could easily have been doubled if the pirates had not taken such a hold. London is the centre for illicit copying all around the world, and we lose about £120 million each year in revenue. The need for stiffer penalties has not been denied by any hon. Member.

We must have firm discouragement of pirates, and penalties must be on a par with those of other countries such as the United States of America and France. While I am satisfied with the further provisions of the Bill of my right hon. Friend the Member for Bournemouth, West (Sir J. Eden) for unlimited fines for the graver offences, I hope that my right hon. Friend can see his way to agreeing to my amendment today and thus doubling the maximum fine on the so-called lesser offences. It is well known that many magistrates have a habit of not imposing maximum fines. Sometimes the penalties that one reads about appear ludicrous to many members of the public. If the maximum fine for this offence were £2,000, the average fine that would have to be paid by these grave offenders will be more realistic.

Mr. Ivan Lawrence (Burton)

I do not see how my right hon. Friend the Member for Bournemouth, West (Sir. J. Eden) can accede to the plea that my hon. Friend the Member for Gravesend (Mr. Brinton) has just made, despite the fact that all hon. Members would adhere to its sentiment and spirit. We have considered it right that a certain tariff of fines should be leviable in the magistrates' court and the tariff of fines that is leviable for this offence is the maximum that a magistrates' court can now impose —a maximum fine of £1.000. It would not be desirable, even if it were sensible, to tinker with a framework that Parliament and successive Governments have tried to stabilise so that the law should be more readily understood, more certain, and more fairly applied throughout the land.

In addition to that technical objection there does not seem to be a strong reason for the amendment. It seeks substantial punishment for those who offend in the way that is laid down in the Bill and the measures upon which it is based but that provision exists because the Bill enables the prosecution to apply to the magistrates' court, not for summary trial but for trial in the Crown court or before a jury. In those circumstances the fine is unlimited and the sentence of imprisonment that may be imposed is two years. Therefore, if a case is of such seriousness as to be outside the category of the ordinary small-time retailer who is doing no great harm, albeit at profit to himself, there is ample provision in the Bill for it to be taken to a higher court where the sentence would be much greater than the maximum fine of £2,000 that my hon. Friend proposes.

Mr. Brinton

Let me explain in a little more detail what I have in mind. A small-time crook—these people are crooks—who has an illicit copy in his possession can hire it out at £10 one hundred times. One can begin to see how the money mounts up on that one copy. Moreover, a popular film could be hired out many more than one hundred times, thus paying any fine that may be imposed for that offence. That is why the fine should be heavy.

Mr. Lawrence

I agree completely. I merely point: out that as my hon. Friend's case grows stronger so does the case for leaving the Bill as it is because there is a provision for imposing a fine in excess of £2,000 and for a sentence of imprisonment far in excess of that which is available to the magistrates court. Therefore, the more enormous is the offence that is committed by the small retailer the worse becomes the case that my hon. Friend is propounding. There is more scope for proper punishment in the Bill than there would be if it were amended, as it were putting a temptation in the way of any magistrate to say than an offence is summary and that therefore his powers are limited to an imposition of a £2,000 fine. The Bill has more scope for substantial sentencing in a proper case than there would be if my hon. Friend were to extend the limit of the magistrates court's powers which might, in some cases, prevent a person going to a higher court where the sentences would be more substantial.

There is the additional advantage that there is more likely to be publicity in the Crown court. The press are more likely to report proceedings in the Crown court than in the magistrates' court. Therefore, the effect of a substantial sentence in the Crown court will reach a wider public, thereby perhaps effecting a more substantial deterrent than if the matter were trundled away quickly with the speeding and traffic offences in the magistrates' court when nowadays few members of the press gather.

For those reasons I am doubtful about my hon. Friend's amendment although I, and I should think nearly all hon. Members here, if not all, would support the spirit in which it is advanced. I shall be interested to hear what my hon. Friend the Minister says in reply.

9.45 am
Sir John Eden (Bournemouth, West)

Like my hon. and learned Friend the Member for Burton (Mr. Lawrence), I have much sympathy with the amendment that has been moved by my hon. Friend the Member for Gravesend (Mr. Brinton). I am sure that it would find an echo in every part of the House because no hon. Member can now be unaware of the magnitude of the crime that is being perpetrated against the legitimate manufacturer and retailer of video cassettes and other copied material.

The size of that illegal trade has been well illustrated by my hon. Friend. There are other aspects of that illegal traffic with which I would dearly love to be able to deal in the Bill, but that cannot be. There are those who engage in the making of pornographic films and cassettes, the video nasties and all the other associated material portraying acts of extreme violence in the most offensive manner. The making and selling of such films in cassette form represents a major onslaught against society. It is an unscrupulous and callous attack on impressionable minds but it is not possible to deal with the matter within the compass of the Bill which claims only to be an interim measure with limited objectives.

The Bill seeks to increase the penalties for those who seize other people's property and who, by copying that property, seek to make profit for themselves at the legitimate owner's expense. They comprise the manufacturer, the large-scale operator, and the retailer. It is the retailer who comes within the compass of my hon. Friend's amendment.

I am the first to recognise that some illegal retailing activity is on a large scale. My hon. and learned Friend the Member for Burton stated that the large-scale operators would be caught by the option given to magistrates' courts to determine whether cases should be committed to a Crown court, where the operators would be liable to higher or unlimited penalties. The run-of-the-mill illegal retailer who makes back-to-back copies and then lets them out or sells them would not come within the description of a large-scale operator but he is causing quite unacceptable damage to the legal owner of the material. In that case, he would be subject to the maximum penalty in the Bill although there is a sliding scale. The sliding scale is capable of adjustment and has built into it the safeguard of inflation-proofing. The advantage of the sliding scale penalty in respect of the small-time operator is that it will not remain fixed. The present maximum level on the sliding scale is £1,000.

Mr. Brinton

My right hon. Friend referred to the small-timer. Will he give the House a clearer definition of what is meant by "the small-timer"? How big is a small-timer?

Sir John Eden

I cannot do so. In many respects the term is relative. Comparisons must be drawn between the operations of a retail outlet with the operations of a manufacturing or production unit. My evidence confirms that in the retailing operations there are instances of substantial illegal trafficking, which would be subject to the large-scale penalties. The magistrates would have the discretion to consider how the operation should be tried.

It is important and worthwhile to keep the two-tier structure and to maintain the first level and relate it to the standard scale, which has provision for an increase. I trust that my hon. Friend the Member for Gravesend will not press the amendment. He will appreciate that there is considerable international and national sympathy with his objectives. Countries throughout the civilised world have been doing their best to deal with the problem and they have approached it in many ways. The formula devised in the Bill is reasonably balanced. I trust that my hon. Friend considers that that is the way the Bill should proceed.

Mr. John Fraser (Norwood)

The arguments are evenly balanced. It is important-I speak in favour of the amendment—that not only should there be heavy penalties for piracy but also that justice should be swift. If a well-known film is being pirated and prosecutions are taking place, it should be known early in the life of that film that heavy penalties are being imposed. I am worried about the interval, especially in London, between the charge or the issue of the summons for the offence and the date of the ultimate conviction, which could well be three months. As people are unlikely to be kept in custody for this type of offence, six to nine months could pass before the matter comes before a Crown court. Such delays can be disastrous. If the Under-Secretary of State for Trade will consider that point, I will abide by the advice he gives to the House. Although penalties should be heavy, they should be administered swiftly and relate to the current state of the market. Offenders should not have to endure long delays.

The Under-Secretary of State for Trade (Mr. Iain Sproat)

My hon. and learned Friend the Member for Burton (Mr. Lawrence) said that he was looking forward to my speech. He will hear an extremely interesting speech in a moment, as he says they always are, but this one is a humdinger. He will learn much from it.

Mr. Lawrence

As always.

Mr. Sproat

Before I deal with the legal intricacies of the amendment proposed by my hon. Friend the Member for Gravesend (Mr. Brinton), I congratulate my right hon. Friend the Member for Bournemouth, West (Sir J. Eden) on pursuing this matter so vigorously and, so far, successfully. All hon. Members hope that the Bill has a speedy passage in the House, and, as soon as may be, in the other place. My hon. Friend the Member for Gravesend pointed out that London has become the video centre of the world. That must never be forgotten. It is especially important that my right hon. Friend's Bill becomes law for that reason. We are discussing not a country with a peripheral interest in this activity but the very hub of this crime — and crime it is. The word "pirate" gives these activities a spurious glamour. The Government must do their best to ensure that any such glamour that lingers is shorn from a crime that deprives a legitimate industry of the greater part of its profit.

My hon. Friend said that the illegitimate industry totals about £120 million a year. That means that about 65 per cent. of all video cassettes in Britain are illegitimate. That is the majority of the industry. This crime has the gravest effect upon the legitimate part of the industry, which is why the Bill must have a speedy passage. My hon. Friend said that, as the crime is serious, the punishment must fit the crime. The heart of his argument is that the punishment does not fit the crime. I wish to persuade him that the punishment does fit the crime, although perhaps he hardly needs convincing.

My hon. and learned Friend the Member for Burton put the matter succinctly, forcefully and correctly when he said that it would be rash to tinker with the legal framework of a Bill of this type. He rightly said, as I wish to convince my hon. Friend the Member for Gravesend, that there is ample provision in the Bill for most of the more serious crimes that are referred to. My right hon. Friend the Member for Bournemouth, West, who has fought hard and successfully in this matter, has made it clear that, were he Ivan the Terrible, he would make amendments to the Bill, but that he cannot do so. He sees vast areas of things that need to be set up. Incidentally, I must immediately apologise to my hon. and learned Friend the Member for Burton. My remarks were no reflection whatever on his Christian name. I was merely picking up a phrase that one of my officials used the other day in another context.

Particular mention was made of viciously violent video films, which are often known as "nasties". The Bill does not deal with them. It is an important area, but we all know that the opportunities to deal with such things in private Member's Bills are very limited. My right hon. Friend the Member for Bournemouth, West has extremely wisely chosen to focus on perhaps the most important single aspect—the £120 million worth a year of illegitimate video films that are sold in this country. As he said, this is an interim measure of limited objective, and that limited objective is extremely well achieved in the Bill.

10 am

The hon. Member for Norwood (Mr. Fraser) made an important point about the law's delays. We all know that, ever since Shakespeare wrote "Hamlet", such delays have been making life a misery for all those who are tempted to seek legal redress. That does not make the matter any less important, but there is not much that we can do in the Bill about those delays. However, I do not deny the force of the hon. Gentleman's comments and the difficulties that are often caused because of the length of time between the offence being committed, arrest and trial.

I have responded to some of the peripheral points and should like to turn to the substance of the amendment, as my hon. and learned Friend the Member for Burton is so looking forward to that. However, I must tell him that I shall learn more from this speech than he will, but perhaps the House will find a grain or two of wheat amongst the chaff. Although the Government cannot advise acceptance of the amendment—for the reasons that I am about to give—I would not like my hon. Friend the Member for Gravesend to think that we are out of sympathy with the main thrust of his arguments. Indeed, we are not. It is, of course, important that maximum penalties of sufficient severity should be available to deter would-be offenders against copyright law, and to punish the guilty I am sure that we are all at one on that point.

The only difference between my hon. Friend's amendment and the proposals in the Bill, which the Government so strongly support, is one of approach. I shall now seek to persuade my hon. Friend the Member for Gravesend that the Government's approach — backing my right hon. Friend the Member for Bournemouth, West—is the more appropriate one. The amendment is concerned solely with the maximum fine available for the less serious offences covered by section 21 of the Copyright Act 1956, but it may help the House if I give an explanation of the increases in penalties achieved by clause 1(3) as a whole in order to set that maximum in its proper context.

The broad pattern is that the film and record-related offences are divided into two categories of more and less serious offences, with penalty structures applicable to each category. The more serious offences are those involving the source of pirate material: the manufacturers, distributors and importers. The less serious offences are those concerned mainly with the retail end of the chain. The more serious offences are made triable either way —that is, summarily in the magistrates' courts, or on indictment in the Crown court, depending on the gravity of the offence as presented by the prosecution and assessed by the magistrates' court, with the defendant having the overriding right to elect trial by jury.

The maximum penalty on summary conviction is a fine not exceeding the statutory maximum, which currently stands at £1,000, and on indictment two years' imprisonment, or a fine, or both. The Crown court has complete discretion over the financial penalties it may impose. That is an extremely important point and I was sorry to see that some sections of the media did not pick it up at an earlier stage. It is an unlimited fine in the Crown court.

The introduction of these heavy penalties, with, the consequent changes to the mode of trial, is, of course, the main purpose of the Bill. They are intended to bite, and to bite hard on the principal offenders, who are concerned with the manufacture, distribution and import of pirate films and sound recordings. They bring the penalties for the offences concerned into line with those already available under the Trade Descriptions Act 1968 in respect of counterfeiting

That leaves the lesser offences, with which this amendment is specifically concerned, of selling or letting for hire, or by way of trade offering or exposing for sale or hire, by way of trade exhibiting in public or possessing by way of trade infringing copies of films or records knowing them to be such. For these offences, summary trial only is retained, together with the existing two months' imprisonment, but the maximum fine is increased to level 5 which, like the statutory maximum to which I have referred, now stands at £1,000. The parity between the statutory maximum for offences triable either way dealt with summarily and level 5 — the maximum applicable to purely summary offences — will become more significant in what I shall have to say in a moment. The retention for purely summary trial of this group of offences, concerned mainly with the retail end of the pirate market, has the Government's full support. The offenders involved are not generally the major culprits, and it is consistent with that assessment that they should not be subject to the penalties available in the Crown court for those who manufacture and provide pirate material to them.

It is important, too, in view of the very large numbers of retail and rental outlets throughout the country, and the heavy pressures on the Crown court, that there should be no prospect of numerous prosecutions for relatively minor offences being undertaken there. As I have said, the right to choose is ultimately in the hands of the defendant, where the offence is triable either way.

That leads me to the first problem posed by this interesting amendment. Its form — I refer to the amendment as opposed to the exegesis given by my hon. Friend the Member for Gravesend—leaves the mode of trial unspecified. If that is intentional, it is wholly contrary to the provisions of the Criminal Law Act 1977, which established three types of offence by reference to their mode of trial—indictment only; either way —that is, summarily or on indictment; and summary only. It is essential both for the proper distribution of the court's business and in the interests of individual defendants to know, in each case, what mode of trial is available. Therefore, every offence on the statute book now has assigned to it a mode of trial.

As I have said, we firmly believe that the offences concerned here are suitable for summary trial only, as they have been since the 1956 Act, and the prescription in the Bill — "liable on summary conviction" — secures that position. But the main point of substance in the amendment is the proposal that the maximum fine should be £2,000 instead of level 5 on the standard scale. The majority of hon. Members will probably need no reminding of the intricacies of part III of the Criminal Justice Act 1982 in its treatment of maximum fines for summary offences, but for those few—very few—whose memories may need refreshing on the technicalities it may be important that I should say a word or two about them.

Section 37 of the Criminal Justice Act 1982 established a standard scale for summary offences consisting of five levels. Level 1 has a value of £25; level 2 has a value of £50; level 3 has a value of £200; level 4 has a value of £500; and level 5—which we have been discussing this morning—has a value of £1,000. The purpose of scale was twofold—first, to provide a basis for assimilating all maxima into a rational penalty structure; secondly, to enable all maxima to be altered from time to time by order of the Home Secretary to enable them to keep pace with the change in the value of money without the need for primary legislation, which, because of the pressures on parliamentary time, of which we are all acutely aware, is inevitably a piecemeal process itself creating inconsistencies.

The present values on the scale are those employed in the Criminal Law Act 1977. The top value of £1,000 is equal to the value of the statutory maximum applicable to either-way offences tried summarily because the most serious summary offences are generally on a par with those tried on the summary limb of the either-way procedure. Therefore, £1,000 represents the current dividing line between the powers of the magistrates court and those of the Crown court, and thus the jurisdiction applicable to each.

There is a handful of exceptions to this approach, justifiable on particular policy grounds, for dealing with the offences concerned. Some fisheries, shipping and oil pollution offences carry high maxima on summary conviction to deal speedily with the masters of foreign vessels before they leave our jurisdiction. The law relating to sex establishments provides maxima above the norm for the summary offences against the licensing system in order to deal effectively with the widespread public annoyance and disruption of normal commerce that such places may cause to the great financial benefit of their organisers. But unless there are wholly exceptional reasons for departing from the approach I have described, we must stick to the dividing line; otherwise its integrity will go and all the gains made in the Criminal Law Act 1977 and more significantly in the Criminal Justice Act 1982 will be lost, with maximum fines returning to their previous chaotic state.

There are no such reasons in this instance, and I must therefore advise my hon. Friend the Member for Gravesend and the House that the present prescription of liable on summary conviction to a fine not exceeding level 5 on the standard scale is the correct course. In giving my hon. Friend that advice, I should add two further points. The formulation of new subsection (7A) introduced by clause 1(3) means that if more than one offence is involved the maximum applies to each. This covers my hon. Friend's important question, when is a business a big business, which was well illustrated by his example of £10 for a cassette —the cassette might cost less than £10 to rent but it could be rented more than 100 times.

However, I take my hon. Friend's point that a so-called small business can turn over a large amount of money. A retailer facing a number of charges relating to different pirate titles would therefore be liable to maximum fines totalling many thousands of pounds. The first order made by the Home Secretary to increase all summary maxima will take into account inflation since July 1977. That means that if an order is made this year, as is presently contemplated, it will double existing maxima, which in turn means that my hon. Friend's objective will soon be achieved in a way which is consistent with the general approach to penalties in the criminal law.

With that deeply satisfying answer, I hope that my hon. Friend will withdraw his amendment.

10.15 am
Mr. Brinton

In briefly responding to the debate, I thank my hon. Friend the Under-Secretary of State for a humdinger of a reply and the good news kept to the end. Hon. Members who have spoken have been most sympathetic to the target in my amendment. I very much appreciated their sympathy and understood the persuasive arguments which clearly make my humble amendment not possible because of the other problems faced in the legal apparatus, in which I am unqualified.

I appreciate that my right hon. Friend's Bill tries to do the simple thing and does not get involved in minutiae. It will be urgent soon to identify exactly who is a small-timer and how small he really is. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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