Northern Ireland (Criminal Attempts and Conspiracy)

HC Deb 14 July 1983 vol 45 cc1082-90 8.23 pm

The Under-Secretary of State for Northern Ireland (Mr. Nicholas Scott)

I beg to move, That the draft Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, which was laid before this House on 3rd May, in the last Session of Parliament, be approved. The order is designed to bring three aspects of the criminal law in Northern Ireland into line with changes already made in England and Wales. First, it creates and defines a statutory offence of attempt. Secondly, it abolishes in Northern Ireland the offence of loitering with intent, often known as the sus law, and creates instead a new offence of vehicle interference. Thirdly, it creates a new statutory offence of conspiracy.

The provisions of part II of the order relating to criminal attempts correspond to those introduced in England and Wales by the Criminal Attempts Act 1981.

Part III of the order, repealing the offence of loitering with intent, also corresponds with provisions of that Act. That act introduced a new offence of vehicle interference to fill a gap which would have been left by the repeal of the sus law in England and Wales. The order makes similar changes for Northern Ireland.

Part IV, the third substantive part of the order, relates to criminal conspiracy. The Criminal Law Act 1977 defined the ambit and essential elements of the offence of conspiracy and the related penalties in England and Wales. Subsequently, the Criminal Attempts Act 1981 provided that the offence of conspiracy, like that of attempt, can be committed even where the intended substantive offence is impossible in the circumstances. Part IV of the order applies these provisions to Northern Ireland.

Those are the three areas of reform dealt with in the order. I should now like to explain the main effects of the individual articles. Articles 1 and 2 are mainly formal. The order, if approved, would come into force two months from the day of its making. Articles 3 to 6 are concerned with the law of attempt. Article 3 defines the mental element and the conduct necessary to constitute an attempt to commit an offence. The mental element required is an intent to commit an offence.

The article therefore provides that a person may be guilty of attempt even where the attempted offence was inherently impossible. What matters in this situation is the intent, and that is determined by what the person believed to be the facts. The conduct, which is the other essential ingredient for attempt, must be something more than an act which is preparatory to the commission of the offence. This broadly repeats the present situation in common law.

Article 3 applies to an attempt to commit any offence which, if completed, would be triable in Northern Ireland, with the exception of offences such as aiding and abetting where an attempt would be at a double remove —therefore remote—from a substantive crime.

Article 4 provides that where special rules, such as time limits, apply to the substantive offence, they will apply also to attempts to commit that offence.

Article 5 provides that, in general, the mode of trial and the maximum penalty for an attempt will be same as that for the substantive offence, except for certain offences which statutorily carry a lower maximum penalty.

Under article 6 the common law offences of attempt and of procuring materials for crime are abolished. This article also ensures that the jurisdiction conferred on Northern Ireland courts by the Criminal Jurisdiction Act 1975 to try attempts to commit certain serious offences, where those attempts took place in the Irish Republic, is unaffected by the provisions of this order.

Part III deals with suspected persons. Article 7 repeals the suspected person offence in section 4(k) of the Vagrancy Act 1824. That provision relates to suspected persons or reputed thieves frequenting or loitering about certain places with intent to commit arrestable offences.

While there have been very few prosecutions under this provision in recent years in Northern Ireland, the Government accept that the offence should be repealed there as it was in England and Wales. However, we propose, as in England and Wales, to introduce a new offence of vehicle interference. A person would commit this offence under article 8 if he interfered with a motor vehicle or trailer with the intention that he or someone else should commit any of the following offences: theft of the vehicle or trailer; theft of anything carried in or on it; or taking or driving away without consent. The offence would be triable summarily with maximum penalties of three months' imprisonment or a fine of £500 or both. Under article 8, a police constable whould have power to arrest, without warrant, anyone who is, or whom he reasonably suspects to be, guilty of the offence.

Part IV of the order, which contains articles 9 to 13, is concerned with the law of criminal conspiracy. Article 9 creates a new statutory offence of conspiracy. It replaces the existing common law offence usually regarded as any agreement to effect any unlawful purpose. The new provision defines conspiracy more precisely as an agreement with at least one other person to pursue a course of conduct that will amount to or involve the commission of a criminal offence. This change is based on the recommendations of the Law Commission, which found general support for the proposition that it should not be a crime for two or more persons to agree to do something which it would not be a crime for one of them to do. The article provides also for "impossible" conspiracies, in much the same way as article 3 covered "impossible" attempts. Additionally, it says that there is no conspiracy unless the person concerned and at least one other knew that any relevant circumstances would exist at the material time. Article 9 applies to any offence triable in Northern Ireland and, exceptionally, to murder wherever committed.

Article 10 sets out exemptions from conspiracy, such as agreements with an intended victim or between husband and wife.

Article 11 provides that the penalty for the new statutory offence of conspiracy, where it relates to offences punishable with imprisonment, would be limited to the maximum term available for that offence or the most serious of two or more offences. As for fines, there would be no limit on the fine for conspiracy to commit an offence triable on indictment, but the maximum fine for conspiracy on summary conviction would be the same as for the substantive offence.

Under article 12, proceedings for conspiracy to commit a summary offence could be instituted only with the consent of the Director of Public Prosecutions for Northern Ireland. Where the consent of the Director of Public Prosecutions or the Attorney-General would be required for proceedings for the substantive offence, or where specified time limits apply, the same requirements would apply to proceedings for conspiracy.

Article 13 is concerned with consequential abolitions, savings and transitional matters. It abolishes the common law offence of conspiracy except in so far as it relates to conspiracy to defraud and conspiracy to corrupt public morals and outrage public decency. It abolishes also the offence of incitement to commit the offence of conspiracy. The article provides that the acquittal of one parry to a charge of conspiracy would no longer necessarily entail the acquittal of others. It also preserves the jurisdiction conferred on Northern Ireland courts by section 6 of the Criminal Jurisdiction Act 1975 to try cases of conspiracy to commit certain serious offences even though the conspiracy was formed in the Republic of Ireland. Those are the main provisions of the order.

Part V, consisting of article 14, is concerned solely with technical repeals consequential upon the introduction of the new offences and the repeal of "sus". They are set out in the schedule.

When the draft order was published as a proposal in Northern Ireland, its reception reflected a general welcome for a measure aimed at keeping the law in Northern Ireland up to date. Against that background, I commend the order to the House.

8.29 pm

Mr. Clive Soley (Hammersmith)

I do not intend to keep the House long, but it is interesting to note that, had we been discussing the original Act, we would have had a major debate. That says something about the position in Northern Ireland which is different from here.

As I understand it, there have been only about 17 prosecutions and 13 convictions in Northern Ireland since early in the 1970s under section 4 of the Vagrancy Act 1824, a section which aroused a great deal of feeling in the House and the country. It is not a major issue. That says something about the nature of the cultural, social, economic and political problems in Northern Ireland compared with those of the rest of the United Kingdom.

I do not know whether the Minister has a view on this —he may not have the information to enable him to form a view — but I should like to know whether he thinks that the previous Act and the new one would be more widely used if it were not for the existence of the Northern Ireland (Emergency Provisions) Act. I suspect that they would be.

I have always had serious reservations about conspiracy charges. It is difficult to justify a conspiracy charge when no act has been committed. One has to decide whether two or more people have sat down and decided intelligently, thoughtfully and intentionally to carry out an action which in certain circumstances — albeit rather rare — could result in a life sentence, because if it were a conspiracy to commit murder, it could end in that way. I am not entirely happy with the conspiracy charge, but I accept that there have been arguments about it on a number of occasions in the House and elsewhere, and that argument certainly cannot be resolved during a debate on this order tonight.

I suspect that I might be more worried about the offence of interfering with vehicles if the position in Northern Ireland were as it is here. The old Act required two separate actions before a police officer could arrest a person. The new Act requires only one. The problem with that is that if a young person has been crouching down by a car, looking through the window and, perhaps, putting his hand on the car door handle, he could be guilty of an offence. Under the old Act another action would have been necessary—perhaps looking as if he were trying to slide the window down or something like that. Neither of those Acts is satisfactory in this country, but given the number of prosecutions in Northern Ireland, frankly it would be irrelevant, if I chose to make an issue of it. We might want to consider the point again if, in more normal times in Northern Ireland, this became a problem in the way that it did here.

I add a cautionary note, perhaps only to put it on the record, that to have such an offence triable summarily only and not by jury puts the person much more at risk because it places a great deal of weight on the police officer's evidence and little on that of the individual. One almost has to prove one's innocence rather than having one's guilt proved.

The Opposition will not oppose the order, and I expect that it will be accepted in Northern Ireland largely without comment.

8.33 pm

Mr. J. Enoch Powell (Down, South)

I can relieve the Minister's mind at once, if he is anticipating that on this occasion the motion might be opposed by myself or my hon. Friends. However, I immediately add that that immunity should not be held to extend to future commissions of the same offence. When I say "offence", I am referring not to the offences that constitute the title of the order, but to the offence that is offered to Northern Ireland and its people by the continuation of direct rule —of which the passing of the order before the House is yet another example. The Minister must not take it amiss if, briefly, I dilate upon the implications and the reasons why exception is justly taken to this form of procedure by my hon. Friends and myself and by those whom we represent.

If the procedure continues, in accordance with the undertaking that we gave to our electors at the general election to do our best to put an end to direct rule in the compass of this present Parliament, we shall need to mark our displeasure by obliging the Government, if they decide to do so, to resist a vote against the motion.

As the Minister has explained, the effect of the order is to apply to Northern Ireland the changes in the law of England and Wales that were made by the Criminal Attempts Act 1981, including changes that went back to the Criminal Law Act 1977. I and my hon. Friends and the Ulster Unionist party believe that where there is no clear reason to the contrary there should be uniformity of law in Northern Ireland with the law in England and Wales. Although the hon. Member for Hammersmith (Mr. Soley) pointed out some differences in the background in Northern Ireland and in England and Wales, he did not go so far as to say that he would regard this as an instance where there was justification in those differences for having different law in those respects in the two parts of the kingdom.

In believing that there should be uniformity of law, we find ourselves in a difficulty. The law with which the law of Northern Ireland is to be brought into conformity by the order is a law that was in effect made without our participation. Upon the face of it, the 1981 legislation did not apply to Northern Ireland. Northern Ireland and its representatives were, therefore, not brought into the processes of debate and consideration that resulted in the placing of that Act upon the statute book.

We were not involved in the legislation, not because there was any doubt that it would sooner or later be applied in Northern Ireland, but because of the determination to maintain one of the consequences of the annually renewed direct rule, that being that Northern Ireland can be legislated for by Order in Council. Therefore, instead of including Northern Ireland in the 1981 legislation so that we would have participated on an even footing with all other hon. Members of Parliament in that legislative Act, Northern Ireland was excluded from that Bill.

There is a procedure whereby an England and Wales Bill can include a clause that enables it to be applied, subject to negative procedure, to Northern Ireland with the necessary mutatis mutandis. Even if such a clause had been included in the 1981 legislation, it would have been plain upon the face of it that that was legislation intended to apply to Northern Ireland and, consequently, we would have had equal rights and equal expectation that we would participate in the legislation that was to be applied to our own constituencies and constituents.

There is no excuse now, whatever might have been the case in the past, for this procedure. With the extension of the representation of Northern Ireland, there are now at least 12 working Members of Parliament for Northern Ireland in the House fully able and ready to cover the whole range of subjects which come before Parliament and to apply themselves to the legislation which is to extend to their own constituencies no less than to the other constituencies of the United Kingdom. The Government cannot argue that, as the law in Northern Ireland on these subjects may hitherto have been different from that in England and Wales, the application clauses would be complicated. I have never believed this excuse in any case because the draftsmen in other circumstances show themselves perfectly capable of whatever complexities need to be brought into a schedule to a United Kingdom Bill in order to make it applicable to Scotland or, if necessary, to Northern Ireland. Nor have my hon. Friends and I ever accepted the proposition that there should be "immortal, invisible" what is called a Northern Ireland statute book to which additions are not simply made by this House by ordinary legislation but to which additions will be made only by the process of Order in Council.

We have never accepted that in principle because we have never believed that there is such a thing as a Northern Ireland statute book, as the law in Northern Ireland dates from a whole series of legislative sources only one of which is the legislation carried out in Northern Ireland by the former Parliament of Northern Ireland and by the subsequent brief and ill-fated Northern Ireland Assembly of 1973–74. If there ever was any excuse, which we do not admit, on grounds of maintaining sacrosanct a Northern Ireland statute book, it does not apply here, for we are dealing—we are specifically told so in the note on the order — with the criminal law, which is a reserved matter. In any case, the statute book that we are supposed to keep on transferred matters so that we can hand it over to the new, quasi-anticipatory federal institution in Northern Ireland would not include legislation of this sort.

In short, there was no justification in 1981, and there will be no justification in similar cases in the future, for excluding representatives of Northern Ireland from full participation in the legislative processes of this House when law is being made which will be applied to Northern Ireland. If repetition of that procedure continues, we shall not rest content as we have done hitherto with simply putting the matter on record in debates such as this.

We should be able — the hon. Member for Hammersmith substantially agreed with us — to make our voice heard where the law of the United Kingdom is being made. Where the law in Northern Ireland has hitherto been different or is to remain different, we should be able to discuss with our peers in the House whether that is justified. I noticed, although the Minister did not emphasise it in introducing the order, that in Northern Ireland, unlike England and Wales, attempts to commit a summary offence have themselves been since 1953 a summary offence. It is not proposed to alter that. So, in that respect, the Criminal Attempts Act 1981 combined with this order will still leave a difference between the law in Northern Ireland and the law of England and Wales.

There should have been arguments—I am sure that I shall carry the hon. Member for Hammersmith with me on this—as to whether that offence is justifiable any longer in Northern Ireland or, if it is justifiable any longer in Northern Ireland, why it is not requisite in the rest of the United Kingdom. There may be reasons for that, but it should have been possible to test those reasons by the common legislative methods, in Committee, on Report and in debate across the House, in the same way as they are tested in other contexts.

Mr. Soley

I would argue strongly that this House has the right and duty to debate any legislation that affects Northern Ireland. What we choose to apply to Northern Ireland, however, is a matter of choice for this House as well. Similarly, I would see a rather different solution from the right hon. Gentleman because in an all-Ireland solution I should be thinking in very different terms. Up to that point we are on similar lines.

Mr. Powell

I do want to intrude or stray into the world of the imagination which the hon. Member for Hammersmith (Mr. Soley) inhabits, but we were substantially on the same point.

I do not dispute that the extent of an Act of this Parliament is a matter for this Parliament but, then, I do not imagine that anyone doubted when we were passing the 1981 Act—in any case, we should have known and been told it at the time—that it was legislation which would be, and was deemed to be, requisite and applicable in Northern Ireland.

We also agree, if I understood the hon. Gentleman aright, that if differences are to remain—and there is this difference to remain in respect of summary offences —that should also be decided by this House after due debate.

Nobody could possibly seek to assert that we can test these matters properly by debating an Order in Council because, apart from the well-known fact that such a debate imports none of the normal processes of legislation, we find ourselves already committed by what has been placed on the statute book in a past year.

I am glad therefore that, to the extent that it does not impinge on his dream world of the future, the representative of the official Opposition, the hon. Member for Hammersmith, is in line with my hon. Friends and me in resenting procedure by Order in Council for applying to Northern Ireland law which has been made for England and Wales in the knowledge that it would in due course be applied to Northern Ireland.

I hope that the Government will not be deceived by the relatively easy passage of the order tonight and that they will not proceed gaily on their former course but will understand that they are now confronted with a representation of the people of Northern Ireland which is determined no longer to live under a form of quasi-colonial rule but which, being sent to this House to take a full part in the procedures, powers and rights of this House, is determined to exercise those in all matters which can affect the Province which they represent.

I invite the Minister to convey that message not only to those corridors of power in which there are doors behind which the legislative draftsmen work, but that he will also convey it in quarters in which more distinctly political decisions for the future are taken. It is not the wish of hon. Members on this Bench to be a source of unnecessary inconvenience to the House, but I fear that if the warning that I have uttered tonight is not heeded that will prove to be the case, and that is a message which the representative of the Patronage Secretary — the hon. Member for Calder Valley (Mr. Thompson) — might also usefully convey to his master.

8.49 pm

Mr. Scott

I hope that the hon. Member for Hammersmith (Mr. Soley) will forgive me if I deal first with the points raised by the right hon. Member for Down, South (Mr. Powell) because he raised issues which go much wider than the precise contents of the order. I am sure that my ministerial colleagues will have noted the grave warning issued by the right hon. Gentleman and will bear it in mind as we consider these matters in future. We are all anxious, perhaps direct-rule Ministers as much as others, to see an end to direct rule as soon as we can find an alternative method of government for Northern Ireland that is acceptable across the Northern Irish community. If that can be achieved within the provisions of the 1982 legislation, the machinery is available to lead us to the restoration of devolved government for Northern Ireland. We are only too anxious to see that machinery operate. The right hon. Gentleman knows as well as I do that if that is to be achieved it is essential for widespread cross-community support to be in evidence.

Mr. J. Enoch Powell

Has the Minister reason to suppose that legislation, passed in the House by the due processes, which applies to Northern Ireland as well as to the rest of the United Kingdom, is not acceptable to all sections of the community in Northern Ireland? If he has such reason, why do the Government persist in so legislating?

Mr. Scott

It is the view of Her Majesty's Government that the way forward beyond direct rule for Northern Ireland is a return to devolved government on the basis of widespread cross-community support. We have said that often enough, and my right hon. Friend the Secretary of State reiterated it before the Assembly only a few days ago. We look forward to the day when that may be brought about.

The right hon. Gentleman addressed himself to whether the order should have been encompassed within the 1981 legislation. It was felt that both the 1977 legislation and the 1981 legislation needed to be examined in some depth and at some length to ascertain how appropriate it was to the needs of the Province. That was one reason, but by no means the sole reason, why it was decided not to incorporate Northern Ireland within the terms of that legislation. As Bill after Bill comes forward, consideration is given to whether it should be extended to Northern Ireland or whether equivalent legislation should be adjusted as appropriate to the needs of Northern Ireland, to be introduced by Order in Council. Pending the return to devolved government, it is important to preserve the integrity of a Northern Ireland body of law.

Mr. J. Enoch Powell

The Minister evidently inhabits the same dream world as the hon. Member for Hammersmith (Mr. Soley). When legislation is being prepared, why do the Government deliberately refrain from considering whether it should apply to a part of the United Kingdom until they have enacted it for England and Wales? What possible justification can there be for separating the two processes in this way unless the intention is, quite deliberately, to maintain for political purposes — they cannot include the purpose of maintaining the Union—a distinction and a difference between Northern Ireland and the rest of the United Kingdom?

Mr. Scott

I am back on familiar ground with the right hon. Gentleman. He seems basically to consider every act of Her Majesty's Government to be some form of conspiracy against the Union of Northern Ireland within the United Kingdom. The Province had 50 years of devolved government and we hope that it will return to devolved government. We believe that the integrity of its body of law should be maintained. As the right hon. Gentleman has said, this is a reserved matter. Although it is envisaged that transferred matters should first be returned to any devolved Administration which emerges in the Province, reserved matters could also become its responsibility.

The hon. Member for Hammersmith will recognise that the emergency provisions in the prevention of terrorism legislation apply only to terrorist offences. The extent to which that legislation impinges on others is a matter of judgment. However, the rights of constables are restricted to being able to arrest those whom they suspect of terrorist offences.

I note the reservations of the hon. Member for Hammersmith about conspiracy. It is a step in the right direction to introduce in a new statutory form what was widely regarded as an unsatisfactory common law provision on conspiracy. Whatever residual doubts the hon. Gentleman may have about conspiracy, I hope that he will accept that that is a step in the right direction. Putting the provision on a proper statutory basis rather than leaving it under common law is a step in the right direction.

The hon. Gentleman referred to vehicle interference. That problem does not loom large in Northern Ireland, as the hon. Gentleman rightly said. The courts on this side of the water have not been in the habit, since the law was changed, of taking simply looking into a car and putting one's hand on the door handle as evidence of an attempt to interfere with the vehicle with the intention of taking it away or stealing something in it. There has to be positive interference with the vehicle with the intention to do one of the three things that I outlined in my speech. The courts see that as a more restrictive provision than the hon. Gentleman suggested in his remarks.

We have heard that the order will not be opposed. I commend it to the House.

Question put and agreed to.

Resolved, That the draft Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, which was laid before this House on 3rd May, in the last Session of Parliament, be approved.