§ Question again proposed, That the Bill be now read a Second time.11.15 am
§ Mr. John Patten
Although the malicious purpose of the sender is at the heart of the offence that my hon. Friend the Member for Sherwood wishes to create, that cannot be all. The means used must be illegitimate, and that is an important point. Let us take the classic example of a man who seeks to revenge himself on a woman who has rejected his advances by sending her genuine evidence that her husband has been unfaithful. That is malice, and I would deplore it, but I doubt whether the act could be regarded as criminal, although it would be distasteful and morally wrong. On the other hand, if the same man attempted to revenge himself on the same unfortunate woman by sending her false evidence of her husband's alleged infidelity, that would go beyond the boundary of malicious and distasteful behaviour and into that of unacceptable behaviour. It would become an offence under the Bill, and quite rightly. The force of the criminal law should be applied.
This is a difficult boundary to set, but I think that my hon. Friend has got it right. It is one of the themes reflected in a number of excellent speeches this morning, from my hon. Friends the Member for Derby, North (Mr. Knight), for Suffolk, Central (Mr. Lord), for Warrington, South (Mr. Butler) and, for Walthamstow (Mr. Summerson), who introduced doggy politics splendidly into areas where I never thought they would go. The theme was reflected also in a number of notable interventions by my hon. Friend the Member for Stafford (Mr. Cash). In an attempt to make sure that his Bill, which is 13th in the list today, is reached, I shall continue to make as much speed as I can, within the bounds of reason. We are fortunate to have had so many excellent speeches and we look forward to the speech of the hon. Member for Birmingham, Erdington (Mr. Corbett), should he be fortunate enough to catch your eye, Mr. Deputy Speaker.
My hon. Friend the Member for Sherwood has got it right throughout the Bill. Only those who pursue the illegitimate purpose of causing distress or anxiety by illegitimate and wrongful means should be penalised. As my hon. Friend the Member for Derby, North pointed out, it is important that the person who delivers a grossly offensive letter for the writer, not knowing its contents or the malice that lies behind its contents, will not be caught by the provisions of the Bill. Nor, to take an example that I used earlier, would be the friend who writes in good faith and with honest concern to tell a woman that her husband is being unfaithful if the information on which he relies turns out to be false. The criteria are intent and malice.
The bank manager has come into our debate as someone who might be accused of sending malicious communications. We wish to protect bank managers. The bank manager will not be committing an offence if he writes to someone along these lines, "Unless you take action to eliminate your overdraft, your cheques will no longer be honoured." Such a letter might not be appealing, landing on the mat in the early morning, but in the circumstances of writing the letter, the threatening bank manager himself—or herself—would not be threatened by the full force of the Bill, because he could clearly state 632 his defence, provided in clause 1(2), which carefully protects commercial practices. Bank managers have nothing to fear from the Bill.
§ Mr. Patten
If the hon. Gentleman wants me to interpret any letters that he has recently received from a bank manager with an eye to passing them over to the relevant authorities, I would be happy to do so.
I hope that the Bill receives all-party support and goes through the House quickly, but it is important that we consider its terms with some care.
§ Mr. Summerson
Will my hon. Friend confirm that the purpose of the Bill is to test the resolve of whoever sends a malicious communication, rather than the effect that it has on the recipient? For example, a truly horrible letter may have not the slightest effect on the recipient, but the recipient may nevertheless feel that action should be taken. Will my hon. Friend confirm that that is possible?
§ Mr. Patten
My hon. Friend is right. It does not matter whether any distress is caused. I have to tell the House that, when it was suggested by a constituent that rat poison should be put in my tea, I was not caused any distress but, if a prosecution had been pursued, malicious intent may have been accepted by the courts.
The 1985 Law Commission "Report on Poison-Pen Letters" considered these matters. It is an excellent report and we should pay tribute to the Law Commission. It was suggested that it should be an offence in England and Wales — there being an enabling clause to include Northern Ireland—to send or deliver or to cause to be sent or delivered certain types of letter or other article with the intention of causing distress or anxiety. My hon. Friend the Member for Walthamstow is right—it is the intention to cause distress that counts. An offence would be committed when it was the sender's purpose, or one of his purposes, to cause distress or anxiety to the recipient or another person to whom he intended the nature of the contents of the article to be communicated.
§ Mr. Cash
I notice that the Bill would not extend to Scotland. We all know that Scottish criminal law is different from that in England and Wales so it would be inappropriate for the Bill to apply to Scotland. May we be assured, however, that our friends in Scotland will have the benefit of similar provisions? I have no doubt that my hon. Friend the Member for Sherwood (Mr. Stewart), who is a Scot, would be keen for that to be the case, although I have to leave that matter to the Committee.
§ Mr. Patten
I am grateful for my hon. Friend's intervention. I shall draw his views to the attention of our right hon. and learned Friend the Secretary of State for Scotland, so that suitable account can be taken of them.
A theme of the morning has been the type of letter or article that might be caught by the Bill. For obvious reasons, I do not intend to give any examples of grossly offensive or indecent messages, but, under clause 1(a)(i), it would be an offence to send a letter or other article which conveyed a grossly offensive or indecent message. That provision would catch those who maliciously send letters or other items. They include tape recordings, and my hon. Friend the Member for Derby, North mentioned video recordings. It is important to have tests of the nature of 633 the item, and that those tests are objective. It will be for the courts, not the recipients, to determine whether the message is grossly offensive or indecent.
We must also consider unwarranted threats. The Bill is well drafted in that it would penalise menacing letters or other material which unreasonably threatened to cause the recipient or those for whom he cares financial or other non-violent harm. There would be defences, for which my hon. Friend the Member for Sherwood has provided. A business man or bank manager who sent a fierce letter would not be guilty of an offence if he could show that he believed that the letter was the most effective way in which to secure repayment of an overdue debt or to stop expenditure where an overdraft was not guaranteed, and it is nothing more than standard commercial practice.
§ Sir Geoffrey Finsberg
My hon. Friend is drawing a distinction between banks and other organisations which may wish to send such a letter. Does he feel that it might be valuable to ask the joint clearing banks to consider drawing up a code so that the bank manager at Puddletown does not send a letter which is not quite in the spirit of the Bill, whereas a bank manager in High Holborn, who is closer to the centre of things, may know how to do it properly?
§ Mr. Patten
That is a valuable suggestion. No doubt those who advise the banks will bear my hon. Friend's suggestion in mind. Perhaps it is a matter which my colleagues in the Department of Trade and Industry should consider for inclusion in their advice to banks.
The Bill hits hard at spiteful letters which untruthfully inform a wife that her husband has been killed, for example. The requirement that the sender knew or believed that the information was false ensures that honest error will not be penalised.
§ Mr. Greg Knight
I have a question concerning the scope of the matter covered by the Bill. My hon. Friend may wish to think about the issue before answering, and I would be happy if my hon. Friend the Member for Sherwood were to reply to it in his winding-up speech. The Law Commission report said that the Bill would.exclude other forms of communication, such as those effected by oral means, by radio, telephone or other forms of electronic communication.What happens if an obscene or threatening message is put on a computer floppy disc and delivered through the letterbox? Is that another form of electronic communication, or would it be covered by the Bill?
§ Mr. Patten
I am not torpedoed, but I am holed slightly above the waterline by my hon. Friend's question, which I wish he had not asked. I shall have to leave it to my hon. Friend the Member for Sherwood, whose masterly Bill this is, and who, I am sure, has such facts at his fingertips, and write to my hon. Friend the Member for Derby, North in the most courteous and non-malicious terms than I can manage.
§ Mr. Cash
Will my hon. Friend consider whether the Bill should apply not only to material that is false, but to material that is true? The object of the Bill is to deter anxiety or distress suffered by the recipient or his family—that is one of the key questions—and the mere fact that information was false would not in itself be enough. 634 Information that was true could cause just as much anxiety or distress and could be just as malicious and unwarrantable. That is an important point. I would add that the Law Commission referred to this point in paragraph 2.4 of its report and seemed to suggest that it did not intend the offence to be confined exclusively to defamatory material in the nature of criminal libel.
§ Mr. Patten
The Government could not accede in every detail to the Law Commission's recommendations. Perhaps I shall be able to deal a little later in my speech with some of the aspects on which we were forced to dissent from the Law Commission's conclusions. On my hon. Friend's first point—my hon. Friend the Member for Sherwood will correct me if I am wrong, and this is an important Committee point — I understand that if the material were true it would not be caught by the Bill.
This is a very difficult issue indeed, and I entirely appreciate the reasons why my hon. Friend the Member for Stafford made that point. It is more than just a debating point, because it involves the question of malice and intent. However, unfortunately, information that is true cannot of itself be malicious by anyone's definition. The question whether the dissemination of information that was true could be construed to be malicious would, I suppose, depend upon intentions. That would take us into difficult territory in trying to produce an offence that would not be caught by the defence, "My Lord, I was only saying that which was true, and we should all seek to do that."
Let me deal with indecent or grossly offensive articles set through the post. I do not want to pursue the argument whether livestock could be used to convey a message, on which we had a full debate earlier. My hon. Friend's Bill would cover the act of putting a package containing excrement through a person's letter box with the intention of causing him distress or anxiety. The test of the nature of the article is entirely objective.
§ Mr. Butler
That famous organ Private Eye occasionally contains advertisements for artificial excrement which one can buy to send to people one does not like. Would that be caught by the Bill?
§ Mr. Patten
As an avid reader of the small ads in the back of Private Eye and The Digger, which my private office insists on putting in my weekend box along with other ministerial papers, I am familiar with those advertisements. I doubt whether they would be caught because, using the objective test that the Bill provides, it would be hard to prove that there was malice. The court would probably apply the test: "It was only a joke." However, such an object could be sent as part of a package containing malicious material, such as a maliciously phrased letter conveying false information. My hon. Friend will recall that I said earlier that the package did not have to be wholly malicious in its intention; just one part of it could be malicious. It would be for the courts to decide, on the merits of the evidence.
We must also consider the meaning of the word "sends", which has excited some debate, and rightly so. As I understand it, my hon. Friend's drafting of the Bill—again, he will correct me if I have misunderstood — ensures that a person, or indeed, his or her knowing accomplice, who puts his or her letter or article or package of articles through the letter box rather than posting it—one must not forget the possibility of a postman or 635 other person delivering the letter or other article — is caught by the offence. That is important. There will be no protection if the accomplice who delivers the material is a knowing and willing accomplice rather than an innocent postman or deliverer of special packages. For instance, the Bill captures the author of a poison-pen letter who asks an acquaintance to post it for him. The postman or friend might be entirely innocent of the true contents of the malicious or distasteful letter, in which case he would not be penalised under the Bill because he would not have the purpose to cause distress or anxiety. Am I right about that?
§ Mr. Patten
I am glad, because I did not want to misunderstand the purpose of the Bill. It is important to draw attention to a couple of the Bill's other effects. The first concerns the mode of trial and the penalty. We know that the offence of sending a malicious communication can be serious, and my hon. Friend has rightly made it an offence triable only at a magistrates court, with a maximum penalty of £400. When I deal with the Law Commission's recommendations, I shall explain why we agree with my hon. Friend rather than with the Law Commission on the level at which the offence is pitched.
Alas, we had to dissent from a number of the Law Commission's suggestions. My hon. Friend's Bill, too, dissents on some six points. Again, if I have it wrong, perhaps my hon. Friend will intervene to put me right because I do not want to misinterpret his interpretation of the Law Commission's suggestions.
First, the penalty suggested in the Bill is below that suggested by the Law Commission. Secondly, my hon. Friend feels that the burden of proof that a threat was warranted should be transferred from the prosecution to the defence. Thirdly, the Bill covers certain third party victims. Fourthly, the offence that the Bill would create refers explicitly to the causing of malicious communications to be sent or delivered, which is an improvement on the Law Commission's recommendations. Fifthly, my hon. Friend has omitted the defence of reasonable excuse. I find it hard to imagine how the defence of reasonable excuse could be run in such cases. Sixthly, my hon. Friend has added an important enabling clause allowing for the subsequent application of the Bill to Northern Ireland by the negative resolution procedure. Does my hon. Friend feel that I have correctly interpreted his intentions?
§ Mr. Patten
I am pleased to have that clarification. My hon. Friend's views and those of the Government seem to coincide in many respects.
People do not like this offence, and we want to try to stamp it out, but we must get the penalty fixed at the right level. My hon. Friend suggests that it should be fixed at £400. In the trade that is a level 3 fine, and I think that it is probably about right, although we could debate it in Committee. I must explain why we cannot accede to one of the Law Commission's recommendations. We take a serious view of the matter. The Law Commission recommended that the maximum penalty for the offence should be up to level 5, which is considerably higher. It is a fine of £2,000 and/or six months' imprisonment.
636 Why have we decided to support my hon. Friend in his Bill, which carries the £400 fine? It is because the Law Commission's suggestions are somewhat in excess of the maximum penalty for broadly similar offences, For example, section 43(1) of the Telecommunications Act 1984 refers to "grossly offensive" or "indecent" telephone calls, and section 5 of the Public Order Act 1986 refers to usingthreatening, abusive or insulting wordslikely to causeharassment, alarm or distress".Both Acts carry a level 3 fine at £400. My hon. Friend is right, inasmuch as there is no chance of making a significant distinction between the proposed new offence and the present offences that I have just described. I have not picked them out of a hat. I hope the House will agree that they are relevant offences. The Public Order Act and the Telecommunications Act offences relate very much to the potential offences that we are discussing. It follows that there is no justification for a higher penalty.
§ Sir Geoffrey Finsberg
I hate to put my hon. Friend the Minister to some trouble, but little notes can come via the Box which may help him. I understand that in Scotland the offences that we are talking about are covered by the criminal law and are statutory offences. By the magic means available to my hon. Friend, the information might come about the level of fines that would be imposed in Scotland for similar offences.
§ Mr. Patten
That is a test of my memory. I hope that by the end of my speech—no, I think that my memory will fail me. I shall have to write to my hon. Friend.
The six months' imprisonment and/or level 5 fine proposed by the Law Commission is the highest penalty available to magistrates. It is usually reserved for quite serious offences which pose a threat to health or safety, or which are liable to cause substantial or direct damage to the property or interest of an individual or community as a whole. It can also be applied to offences when the perpetrators are likely to gain considerable financial profit from their activities.
While it undoubtedly causes distress, the proposed offence in the Bill amounts to no more than a very serious nuisance, and I do not believe that it warrants the higher penalty suggested by the Law Commission. That is why we have decided to support the penalty in my hon. Friend's Bill. In the criminal law we need to try to keep penalties for similar offences in line with each other, otherwise we get into substantial difficulties. A higher penalty would be inconsistent with those for similar offences.
I thought that it was important to draw to the attention of the House the recommendations of the Law Commission with which my hon. Friend did not seem to agree, and to seek clarification from him. I think that my analysis of his thoughts has proved to be correct. I wanted to try to explain to the House why I felt that the penalties suggested by the Law Commission were a bit on the high side. Having, I hope, satisfied the House why I feel that the offence itself will be properly punished, I should like to say that the balance of the Bill is right and its purpose is right, too. I am sure that my hon. Friend would not claim that it is a major reform of the criminal law. It is not. If the Bill is passed, it will be a small but valuable and justified addition to the criminal law. That is why the Government wholeheartedly support it.
637 The mischief that the Bill will prohibit may not be the worst mischief that people can do to each other, but it is a serious mischief. That is reflected in the maximum penalty that my hon. Friend proposes. The activity is criminal and the Bill will try to deal with it. The Bill will provide protection for those who may be the wholly innocent victims of hatred or malice, and whose lives can be blighted by fear, by unnecessary grief or simply by the appalling and undermining sense that someone, usually unknown, is dedicating his time to making their lives as miserable as possible. Such people exist. It is time we gave society protection from them.
If my hon. Friend's Bill is passed, it will be an effective measure, characteristic of my hon. Friend's political career so far, in seeking to be as effective as possible. He wants to give people who recieve such communications effective protection. I entirely agree with my hon. Friend. I congratulate him on introducing the Bill, on his excellent speech and on the clarity with which he put his arguments. I shall support the Bill, and I hope that the House will give it an unopposed Second Reading.
§ Mr. Robin Corbett (Birmingham, Erdington)
The House will remember Tuesday's historic vote to admit, as an experiment, television cameras to the Chamber. When that motion was passed, many of us hoped that it would have a direct influence on the length of time that hon. Members felt it necessary to speak. I am setting out to demonstrate that I am the first in the learning queue.
I congratulate the hon. Member for Sherwood (Mr. Stewart) not just on his luck in the ballot, but on raising what may be a comparatively small but important issue. Probably those whom the Bill seeks to catch are sad and lonely people at war with themselves, often born out of frustration, despair and depression. That loneliness is at its bleakest in many of the pig sty estates in our inner cities, where those people are forced to live. They enter a cycle of despair and depression, which tempts them, and perhaps even propels them, to hit out at random from an isolated and alienated position. That is in no way, a defence for those who originate and send such hate mail, but I think that it is important for us to try to understand their motives.
I have as good reason as any other hon. Member for being in favour of the Bill. A lady came to see me at my advice bureau who had lately come out of prison after serving a sentence for a non-violent offence. Over the months, with help from various departments of Birmingham city council, she was able to pick up the pieces and reunite her family that had been split when she received a custodial sentence. Eventually she got a flat in my constituency. Hardly had she put the key in the door and got the carpets down when poison-pen letters started to arrive to remind her of her past. That was bad enough, but such was their frequency and the intensity of the hate in them that the family, once again, were forced to move to another part of the city. None of us would defend such behaviour. I felt sad for the woman and her family and, in a sense, equally sad for the person who had originated the letters.
The hon. Member for Sherwood and some of his hon. Friends have mentioned hate mail in the context of the miner's strike. I am not seeking to defend the sending of 638 such mail, but it is important to understand that in industrial disputes, as in disputes between neighbours, passions can be aroused and excited so that people are encouraged to use that form of outlet. I do not want to be misunderstood — I am not seeking to excuse what happens—but perhaps it is partly an explanation.
I do not believe that it is right for the Bill to offer the prospect of a custodial sentence for those found guilty of the offence. I believe that it is generally accepted — I know that the Minister shares this view—that there are too many offences on the statute book for which custodial sentences have been considered to be the answer. It is time that we started to encourage the Government to develop alternatives to custodial sentences. In the case of the originators of poison-pen letters it may be that, given some of the motives that I have described, a custodial sentence would be entirely inappropriate. What is needed is the help and advice of some of the caring services and perhaps, in some cases, the offer of treatment for mental illness or disturbance.
Does the hon. Member for Sherwood believe that the Bill could be applied to graffiti? I am thinking in particular of tower blocks and the entrance halls and landings of such blocks. Indeed, any right hon. or hon. Member who has such blocks in his constituency will be aware of the problem. Regrettably, it is almost the norm that many walls of those blocks are painted with the most offensive, personally-directed statements such as, "Joe Brown beats his wife" or "Jane Smith is going about with Tommy Brown". I have known cases where such imputations are literally outside the door of the family concerned. In other cases graffiti has been written in the entrance halls, the lifts or the landings. I regard that kind of malicious communication — regrettably a modern form of communication — as being deliberately and wantonly written with the intention of causing distress, anxiety, pain and suffering.
§ Mr. John Patten
I entirely agree with the hon. Gentleman about the need for fewer people to go to prison and, in particular, with his extremely positive remarks about graffiti. Is he aware that most of the circumstances to which he has referred would be covered by section 4 of the Public Order Act 1986?
§ Mr. Corbett
I am grateful to the Minister.
The Minister, in common with many other hon. Members, will be aware of the enormous amount of hurt, shame and distress that graffiti causes. Graffiti is bad enough in itself. However, I should say, Madam Deputy Speaker, that it is one of my ambitions to meet the person—it must be a man because women are too sensible to do such things—who found a way of putting paint into a can together with a propellant to make it easier for people to engage in such practices.
§ Sir Geoffrey Finsberg
I agree with the hon. Gentleman about the uses to which such things are put, but will he bear in mind, first, that for those who are forced to engage in DIY under controlled conditions, paint spraying is a valuable thing and saves a lot of argument between husband and wife? Secondly, nowadays, properly used, paint can be applied beforehand which will make the use of graffiti much more difficult.
§ Mr. Corbett
I am grateful to the hon. Gentleman for pointing that out. I admit that spray cans, like other advances, have a proper and—regrettably—an improper use.
Far too often in our inner and outer cities families in ethnic communities are targeted. They feel especially at risk, as the poor social and economic conditions in those areas feed and fuel racial hatred, and picking on people merely because their skins are a different colour provides an outlet for the frustrations of some who see a solution in doing so. Poison-pen letters can and do cause great harm and immense distress within families and to people living in isolation. Typically, they are single parents and pensioners who live alone in anonymous dark housing estates or urban city streets. That is why we welcome the Bill and wish it well for its Committee stage.
§ Sir Geoffrey Finsberg (Hampstead and Highgate)
I want to pick up the first point made by the hon. Member for Birmingham, Erdington (Mr. Corbett). I hope that the introduction of television—apart from the experiment—will be long delayed and will not change the practices of the House. We should not change our practices to suit the media.
I came here today because my hon. Friend the Member for Sherwood (Mr. Stewart) wrote and asked me to support his Bill. I was glad to do so, although I told him I would not be able to be here the whole time. Alas, I did not hear his speech, but I shall take the precaution of obtaining two copies of Hansard so that I can read it on more than one occasion. Last week, I responded to the hon. Member for Cynon Valley (Mrs. Clwyd), whose Bill I came to support, but as it was No. 3 it was never reached and so could not have its Second Reading without a debate. I thought that its principles were good. I wonder whether an amalgam of her Bill and my hon. Friend's Bill could have been found.
The House may recall that the hon. Lady's Bill dealt with the right of reply to the press. Many malicious articles appear in the press and the public have no opportunity of defending themselves against them. The point about newspapers, journals and the like was raised earlier in the debate by my hon. Friend the Member for Stafford (Mr. Cash). Why was it not possible to find a way of bringing those two Bills together? To judge from the long title of this Bill, that would prove somewhat difficult, although opportunities might exist in another place, where they are not so bound by the niceties of long titles.
§ Madam Deputy Speaker
Order. The hon. Member for Stafford (Mr. Cash) is being rather naughty. I was tolerant earlier, but we only have before us the Bill that we are debating, and we must wait patiently for the hon. Gentleman's Bill.
§ Sir Geoffrey Finsberg
Anything that has the number 13 attached has my support because I was born on the 13th, Alas, I am a realist and I have not had a chance to read the edifying piece of literature produced by my hon. Friend the Member for Stafford.
640 I have looked carefully at the Bill and have tried to see what is behind it. Having done that, I think that the word "malicious" could be construed as meaning evil. The House is very much like a British jury, because hon. Members are drawn from a wide cross-section of the community, people who inhabit the top deck of the Clapham omnibus — if there still is one. However, I doubt that we would respond to a malicious or evil letter in the same way as an ordinary citizen. For that reason, we need to err rather more on the side of severity than leniency. I shall shortly come to the points about fines made by my hon. Friend the Minister.
Chain letters are frequently circulated in Britain and seem to go through phases. Some chain letters say things such as, "If you do not send this letter to 20 other people grave consequences may follow." We might think that the grave consequence would be that by putting it in the waste paper basket it might never be recycled. In the eyes of worthy bodies such as the Friends of the Earth, that might be a grave error. However, the average citizen who is not used to that sort of threat—and it is a threat—might be quite genuinely worried. I do not know whether that sort of letter is covered by the Bill, but perhaps the Minister will tell me when he replies. I think that it would, but I should like to know if that is correct.
§ Mr. Summerson
Does my hon. Friend think that in certain circumstances political literature could be classed as malicious communication? For instance, if with a fiendish grin on my face I put one of my leaflets through a door that I know to be the door of a Labour candidate, knowing perfectly well that he will screw it up and hurl it across the room and probably trip over the cat in his outrage, could that be construed as falling within the terms of the Bill?
§ Sir Geoffrey Finsberg
Not having drafted the Bill, I can only say that in certain circumstances a leaflet on which there is a grinning face might be taken as an alternative front cover of Private Eye. I leave it to my hon. Friend to decide whether that is a malicious publication.
§ Mr. Greg Knight
I am sure that any literature sent by my hon. Friend the Member for Walthamstow (Mr. Summerson) could not be called offensive, although if it contained a grinning face it could be regarded as rather comic. However, my hon. Friend the Member for Walthamstow made a good point and I ask my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) to consider the mushrooming over the last 20 years of parties on the extreme Right and extreme Left. If a party such as the National Front delivered what purported to be a manifesto to the home of a coloured or Jewish person, it might be delivered with the intent of causing distress and anxiety.
§ Sir Geoffrey Finsberg
My hon. Friend is right. I have an idea, which perhaps the Minister will confirm, that that type of literature may already be covered by various Acts and, presumably, would be referred to the Director of Public Prosecutions who would take action. I see that my hon. Friend the Minister nods in the affirmative. I am glad to know that that point is covered.
As my hon. Friend the Member for Walthamstow (Mr. Summerson) said in his intervention, some literature from political parties that are not on the extreme Right or extreme Left might well be malicious. Literature from the 641 party of the red rose which says that the community charge will involve identity cards or that the Housing Bill will mean that private tenants will lose their security of tenure is malicious.
§ Mr. Summerson
My hon. Friend mentioned the community charge. A leaflet from my local Labour party that is circulating in my area says that all who do not put their names down on the community charge register will not be eligible to vote.
§ Sir Geoffrey Finsberg
I would regard that as my alternative to "malicious". It is evil, apart from being untrue.
We must consider what type of leaflet or other communication is involved. As my hon. Friend the Member for Stafford has said, we must be certain that the word "article" falls within the narrow boundaries laid down in clause 1.
My hon. Friend the Member for Sherwood has specified a fine at level 3. My hon. Friend the Minister produced a convincing argument for introducing level 3 rather than level 5, and I think that I agree. But why should we not bring about a happy compromise — in typically British fashion — and make it level 4? I understand my hon. Friend's wish for equivalent types of offence to be covered by the same level of fine. I merely ask him to assure me that if, when his memory is miraculously restored, he finds that the level of fine for similar offences in Scotland is above level 3 he will be willing in Committee to up the level from 3 to 4.
We have been given examples of the type of article that might be put through a letter box. I know of cases in which pieces of wood infected with dry rot have been put through letter boxes, and I imagine that they would fall within the definition of a grossly offensive article. If I am wrong about that, I hope that my hon. Friend will consider amending the wording "indecent or grossly offensive". We were talking earlier about the natural processes of elephants, or of other people, being bagged up and put through letter boxes. However, considerable offence and, indeed, danger could be caused if infected wood were left lying around for a few days. The spores could get into the recipient's own wood and cause grievous damage.
I said at the outset that I was sad that it had not been possible to amalgamate the Bill with that of the hon. Member for Cynon Valley, which I supported. Indeed, who knows? When I have the pleasure of reading Bill 13—which I certainly shall not do during this debate—it may become clear that it could have been added to this legislation. The more potions that can be mixed together, the better the result may be. Unfortunately, we have not been given the chance.
I do not know whether a letter would be caught if it contained a newspaper article that was grossly offensive, whereas the letter itself was not. I am not a lawyer, and I am reading the Bill as a layman. It refers toa letter or other article which conveys—Would it be possible for a newspaper cutting, accompanied by a compliments slip— which poses no threat, except to the finger if it is caught on the staple— 642 be defined as an article; and would it be possible for a recipient who found it grossly offensive, or untrue, to claim that the item should be caught by the legislation?
- (i) a message which is indecent or grossly offensive;
- (ii) a threat; or
- (iii) information which is false and known … to be false".
§ Mr. Greg Knight
I do not know whether my hon. Friend has had the opportunity that I have had to read the Law Commission's report upon which the Bill is based. If he has a copy, he will discover that this matter is dealt with on page 15, paragraph 4.10. The Law Commission considered the kind of examples that my hon. Friend has given in which, for example, a letter may be sent containing some kind of excreta, or where a parcel contains no message but has contents that are clearly designed to be deeply disturbing and offensive. According to the Law Commission, those items will be covered by the Bill.
Sir Geoffrey Finsburg
My copy of that report has been read so often over the breakfast table that it is in no condition to carry around.
I hope that my hon. Friend the Member for Sherwood and my hon. Friend the Minister will assure me that the examples to which I referred—which are covered in the Law Commission's report—are caught within the Bill very firmly and without any chance of equivocation. Perhaps when my hon. Friend the Member for Sherwood replies he can give me that assurance. If he is not sure, perhaps he will say that he will take steps in Committee to ensure that those points, which are clearly endorsed by the Law Commission, are covered in the Bill.
I have already mentioned the distress that can be caused by chain letters. If such letters are within the scope of the Bill, much of the stress that they create will be alleviated. I believe that there must be a link in the sending of chain letters because certain types of chain letter are sent at irregular intervals. If it becomes known that people may be caught by this legislation, there may be fewer chain letters, although the Post Office may regret the loss of revenue.
I have referred to Scotland because, as I said, the information available to me is that this type of offence is already caught by Scottish law. I do not pretend to understand Scottish law, but I am told that it works very well. Are there sufficient similarities between the Scottish law and my hon. Friend's Bill to allow people who feel aggrieved or offended by receiving that type of communication to take action? If there are similarities and people will have the same redresses under this Bill as are available under Scottish law, I would be satisfied. That would also satisfy me with regard to the level of fines.
This is exactly the type of Bill that should be introduced by a private Member. It fills a gap in legislation. It is basically non-controversial and it does not try to do a job that should be done by the Government. As the Bill has cross-party support, it stands a good chance of becoming law. It is always difficult to decide what legislation to choose if one is lucky in the ballot. I believe that my hon. Friend's decision to pick up this particular ball and run with it was wise, and many people will be grateful to him when the Bill reaches the statute book.
§ Mr. William Cash (Stafford)
I wish to join other hon. Members on both sides of the House in congratulating my hon. Friend the Member for Sherwood (Mr. Stewart) on choosing this subject for his Bill. The question whether one 643 comes high in the ballot is of some interest to me today, and my hon. Friend has been fortunate in coming high in the ballot. He has chosen an important subject and given a fine explanation of the reasons for his choice. We look forward to hearing from him when he makes his concluding remarks.
I had the good fortune to be with my hon. Friend in the United States late last year. It is always a pleasure to be with him on any occasion. That was a particularly enjoyable time, during which we discussed many constitutional questions. The constitution of the United States provides for an approach to the subject matter of the Bill and it is about time that we had similar legislation in this country. Indeed, I would go further and say that, in many respects, I am astonished that we have not done so already.
I was delighted to hear from my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) that Scottish law deals with this issue. It is not just a lacuna, but an extraordinary omission that causing distress and anxiety of the kind that the Bill seeks to alleviate has not been made the subject of criminal law.
If we consider the long title of the Bill, we see that the key question is whether punishment should be imposed onpersons who send or deliver letters or other articles for the purpose of causing distress or anxiety.That is the crucial point. In an intervention I asked whether the phrase "other articles" might include newspapers or periodicals. We must consider that question in Committee.
As many hon. Members know, I am concerned about the right of privacy. Many features appear in newspapers, particularly in certain quarters of the press, which are clearly unwarrantable invasions of people's privacy. Indeed, one of the greatest problems for hon. Members is that we want to protect the freedom of the press and would, therefore, be reluctant to impose any unreasonable and unnecessary restrictions upon the press. On this point, I refer again to Blackstone. Press freedom is for the protection of the individual. The question relevant to the Bill is whether press freedom can, from time to time, invade individual freedom. If it does, Parliament must step in to protect those affected.
§ Mr. Greg Knight
My hon. Friend has not mentioned the fact that his Bill is No. 13 on the Order Paper. He and my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg), appear to be attached to the number 13. En passant, I understand that yesterday was the 13th anniversary of my right hon. Friend the Prime Minister's leadership of the Conservative party. That is another No. 13 for my hon. Friends to consider. I hope that my hon. Friend the Member for Stafford (Mr. Cash) will not urge, either now or in Committee, that the Bill should cover the press. If he intends to take that line, I could not support that proposal.
§ Mr. Cash
I am delighted that my hon. Friend has raised that point, because I was about to deal with it. I am concerned that the principles which underpin the Bill and which I have in mind should not be made a criminal offence. That would be a great mistake. It was precisely that matter, which I raised with my hon. Friend the Minister regarding the definition of the words "or other articles", ejusdem generis with letters, that caused me concern.
644 Following the line taken by my hon. Friend the Member for Hampstead and Highgate in amplification of my earlier points, the question whether a newspaper cutting attached to a letter that falls within the ambit of the Bill is made a criminal offence will have to he looked at carefully in Committee. In my judgment there is no distinction in principle between a newspaper cutting attached to a letter that is sent to cause "distress or anxiety" and the sending or delivering of the newspaper containing the identical information whether it is sent in the normal way through the newspaper vendor or, as so often happens today, direct from the press.
I accept that that creates a problem. However, it is our job in Committee to address ourselves to those questions. It would be a disaster for newspapers or periodicals to be found guilty of a criminal offence when, in my judgment, invasions of privacy by the press should be dealt with through a civil action as specified in article 9 of the civil code in France and the first amendment to the American constitution. I do not want to dwell on that point, because to do so would be to move down a different channel.
There is another point that causes me some concern in this otherwise excellent Bill. We all know that the Committee stage is provided for the purpose of ensuring that we have a close look at the Bill, line by line. We should consider whether the Bill should cover letters or other articles sent for the purpose of causing "distress or anxiety" but which contain true material. I began by placing special emphasis on the words, "cause distress and anxiety", because what is malicious is the fact that that communication has been provided, packaged and sent for that purpose and no other.
The fact that the information is false is, some would say, a question of criminal libel. It is defamatory. However, what difference does it make should the information prove to be true? It may be that the person sending the information has a legitimate public interest in communicating that information. However, an example has been brought to my attention of a communication that has been sent annually, over a period of time, to a certain person. It contains information, some of which may be true and some of which may be false. That raises another problem that will have to be looked at in Committee.
A communication can be of a mixed character. It may contain information both true and false. In that instance, on what does the prosecution base its case? Should it be based exclusively on that which is false, or on a mixture of the two? I strongly urge my hon. Friend the Member for Sherwood to speak to his legal advisers in the run-up to the Committee stage. There are some serious problems. It is not simply a grey area. It could render the Bill extremely difficult to operate if such things are not thought through carefully before the Bill emerges from the Committee.
I should like to refer to whether it is exclusively the recipient to whom anxiety or distress must be caused or, as it says in the Bill, "to any other person". I gave an example earlier of a family to whom 45 letters had been sent, and a letter in identical terms was sent to all their friends. It is a matter of grave anxiety to the family and all their friends that that communication, which by any standards is malicious and falls within the terms of the Bill, should have been sent. It was not only the recipient who was concerned about it, but all the friends. It was a poison-pen letter aimed at causing anxiety not only to that person, but to all the other people involved—an entire network 645 of friends, relations, children, aunts and uncles. Having had this poignant matter brought to my attention, I am glad to be able to support the Bill.
Some hon. Members may recall a film about the sending of white feathers during the Boer war. I cannot remember how many feathers were involved—
§ Mr. Cash
I have seen the film several times, and one of its essential characteristics was that those feathers were sent by cowards. Those who send malicious communications—they always do so anonymously—have that one prevailing characteristic. It is one of the worst and most pernicious examples of criminal behaviour, and it should be incorporated in an Act of Parliament. The Minister said that he thought that this matter might be regarded as being on the margin of the criminal law, or on the margin of what should be brought within the ambit of the criminal law. I am not sure that I agree with him on that matter, in what was an otherwise excellent speech. The standards of behaviour that characterise people who send malicious communications is a subject that deserves severe punishment. I agree with my hon. Friend the Member for Hampstead and Highgate that the level of fine should be considered carefully in Committee.
I referred earlier to the application of the Bill to Scotland. There is a provision in clause 3, which says:This Act does not extend to Scotland or, except for section 2, to Northern Ireland.I am not clear what that means, because normally when drafting a "short title, commencement and extent" clause we make it applicable to Northern Ireland. I suspect that the reason is that legislation in Northern Ireland is dealt with by virtue of Orders in Council, and that therefore one must take account of the difference.
§ Mr. Tim Janman (Thurrock)
Does my hon. Friend agree that, apart from any technical considerations, the fact that the Bill states only that Northern Ireland may be covered is rather unfortunate, because of the sectarian and civil strife in Ulster, which has been going on for decades? The Bill is more applicable to Northern Ireland than perhaps to England and Wales. Although I entirely support the Bill, there is another dimension to the problem in Ulster, where there is sectarian bitterness and strife. People may wish to send such communications for reasons that would not appertain to England and Wales, and for reasons that appertain to what my hon. Friend has outlined. Will my hon. Friend comment on that point?
§ Mr. Cash
I entirely endorse what my hon. Friend has said so far as it applies to the immediacy of the problem in Northern Ireland. However, I would not draw a distinction between malicious communications from any part of the United Kingdom. In reality, there are probably a greater number of instances of what some people would identify as malicious communication in Northern Ireland, for the reasons that my hon. Friend mentioned.
I should like to draw attention to another unusual aspect of the Bill. I wonder whether some of the famous love letters that have been published in the past might conceivably come within the ambit of clause 1(1)(a)(i). Although it would be extremely difficult to weave one's way through that argument, perhaps it should be considered in Committee.
646 The object of the exercise remains to prevent distress or anxiety to the recipient or to any other person, but circumstances could arise in which a person had received a letter and the person who had sent it thought that the recipient might like to receive it and then discovered that he was at the wrong end of a criminal offence. Although that is a rather unlikely proposition, it could be looked at in Committee.
Many other aspects of the Bill are extremely interesting, in particular the fact that it is based on the Law Commission's 1985 "Report on Poison-Pen Letters." When the Law Commission produces a report on a particular matter and then appends that report to a Bill, as in this case, it is quite difficult for hon. Members to disentangle those parts of the Bill that relate to the report from those that the Government or the promoter of the Bill decided to disentangle from it. I wonder whether, my hon. Friend in drafting the Bill, no doubt with some advice, was aware of the difficulties that arise in extracting parts from a Bill that was originally drafted by the Law Commission? I hope that he will have an opportunity to talk to the Law Commission about the implications of the Bill as it is drafted. It is important to ensure that the two gell, and that in extracting principles from the body of the report one ends up with the objects that one seeks and does not become ensnared in producing a Bill that covers aspects that one had not intended to cover.
This extremely good Bill is in many ways an improvement on the Law Commission's draft Bill. It is more carefully thought through in certain respects, save only those that I have mentioned. The Law Commission's draft Bill contained vague language. Clause 1 stated:A person who, without reasonable excuse, sends to another any article".This caused me some concern. Clause 1(2), of my hon. Friend's Bill, which provides a defence for a person who would otherwise be guilty, gives the person who has sent the communication the opportunity to defend himself. In putting such a provision at the beginning of a Bill one raises presumptions that must be overcome, but I believe that, in the majority of cases, the fact that it is a malicious communication will be apparent.
The next question to consider will be not whether the person had any reasonable excuse for sending the communication, but whether he can afford himself of one of the defences because there was a legitimate basis on which to send the communication. Such a defence would include the factthe threat was used to reinforce a demand which he believed he had reasonable grounds for making; and"—the crucial word is "and"—that he believed that the use of the threat was a proper means of reinforcing the demand.I am confident that the Committee, under the admirable guidance of my hon. Friend the Member for Sherwood, will consider the grey areas which I envisage arising from that.
§ Mr. Greg Knight
Is not this Bill less effective than the Law Commission's draft Bill in respect of clause 1(4)? The Law Commission was of the view that the scale of fines should be level 5, which would be far more appropriate to deal with serious cases, whereas this Bill refers only to level 3, the maximum fine under which is £400, as I am sure my hon. Friend is aware.
§ Mr. Cash
My hon. Friend may recall that I alluded to this matter earlier. This activity is not just at the margins 647 of criminal law, but is at the centre of a certain type of criminal action. The Law Commission's suggestion that it should be level 5 is important. I hope that members of the Committee will seriously consider increasing the level.
The Law Commission's report deals with what was the Post Office Act 1953 and is now a provision in the Telecommunications Act 1984. Under this Act it is an offence to send by telephone an indecent or grossly offensive message for the purpose of causing annoyance, inconvenience or anxiety. The Bill is needed because it is not an offence to send the same message by other means. I have not had an opportunity to see whether the fines in the Telecommunications Act 1984 are at level 3. If so, that may he the reason why level 3 has been chosen for this Bill, because the draftsman likes to achieve consistency.
Mr. Andy Stewart
The fines in the Telecommunications Act are at level 3.
§ Mr. Cash
That is an understandable reason. Last year I served on the Committee debating the Obscene Publications Bill. We had some interesting and useful discussions about the application of that provision in the Telecommunications Act 1984, what it meant and what it was designed to achieve, and what penalties should be applied. It would be a mistake for us to confine the level of the fine in the Bill to level 3 simply because that is the level in the Telecommunications Act, when there is a good case for increasing the fine under that Act. We may have been looking at this problem through the wrong end of the telescope.
Clause 1(1)(a)(i) would make it an offence, with the purpose of causing distress or anxiety, to senda letter or other article which conveysa grossly offensive or indecent message. This would catch those who sent letters or other articles maliciously, and we have dealt with whether it should include newspapers or periodicals. It also includes tape recordings, and I was interested to hear the discussion on whether it should include floppy discs. The words "or other article" will he construed as meaning more than just a letter, and I believe that the object of the exercise will be to catch communications which convey information. We need to be careful that it does not simply include information conveyed by physical means. I hope that the Committee will take an interest in the provisions of the Copyright, Designs and Patents Bill that is going through the other place. In an interesting debate, the other place tried to distinguish between reproduction of information by physical means and that falling within the category of a letter.
§ Mr. Janman
It has been a great delight to listen to my hon. Friend's legal brain this morning. He has gone through the Bill in great detail. I apologise for not having forewarned him of the matter that I wish to raise with him. I should be interested to hear his views on one point. It concerns the phrase "unwarranted threat". It has not escaped my notice that my hon. Friend the Member for Sherwood (Mr. Stewart), who should be commended on bringing the Bill before the House, represents a constituency that was right in the heart of the industrial strife that occurred during the last miners' dispute. It may well be the case—he may wish to comment on it in his winding-up speech—that during that dispute there were many people who were on the receiving end of what we 648 may well consider to be unwarranted threats from people who wanted to coerce them into joining the strike when they did not want to. It is conceivable—
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. Is the hon. Gentleman making an intervention, or a speech?
§ Mr. Janman
I am about to get to my intervention. I am sorry to have gone around the houses a bit, but the point that I would like to ask my hon. Friend is whether he considers it would be warranted or unwarranted for somebody who is trying to coerce someone else to come out on strike to send what is in effect a threatening letter, calling him a scab—
§ Mr. Deputy Speaker
Order. I am sure that the hon. Member for Stafford (Mr. Cash) has got the point.
§ Mr. Cash
I am glad to respond to that intervention, because I have miners in my constituency and I made my maiden speech on the miners' strike. I raised the issue of intimidation against my miners and others when I got on the platform in Hamley park in Stoke-on-Trent to challenge Arthur Scargill personally to lay off intimidating my miners. I was aware that a serious quantity of abusive and threatening communication, which caused my miners great distress, was taking place. Some of that communication would have been covered by the Bill. My hon. Friend the Member for Sherwood did much to help his miners during the strike. By following up with his Bill, he will help all miners if such circumstances recur.
§ Mr. Greg Knight
I notice that that last exchange woke up the hon. Member for Barnsley, West and Penistone (Mr. McKay), particularly when Mr. Scargill was mentioned.
My hon. Friend referred to my question about floppy discs. I have had an opportunity to look at the Law Commission's report, paragraph 4.8 of which leads me to think that they would be included as it says:The fact that the contents and character of the message cannot be determined until the film is projected or the video tape is played back on a video cassette recorder is, in our view, no more relevant than the fact that the contents of a poison-pen letter cannot be ascertained until it is taken from the envelope in which it is sent.That clearly covers floppy discs, which cannot be read until inserted into a computer.
§ Mr. Cash
I listen to my hon. Friend with great interest. There has been an enormous amount of discussion in the Copyright, Designs and Patents Bill on the distinction between forms of communication and reproduction. Whether an article is a visual image, and many other arcane definitions, which I find fairly formidable and which many people find eye-glazing and tedious, have been considered. Nevertheless, such matters must be considered. I am sure that my hon. Friend is on to an important point, because the object of the exercise is to catch the mischief.
It does not really matter what form the malicious communication takes if it causes anxiety and distress. That is the object of the exercise that we must all bear in mind. We would not want people to get round the Bill by discovering a new form of communication that it did not catch. I have the greatest confidence that, like Robin Hood, my hon. Friend the Member for Sherwood will ensure that he catches his victims.
§ Mr. Ivan Lawrence (Burton)
I join other hon. Members in congratulating my hon. Friend the Member for Sherwood (Mr. Stewart) on introducing and choosing a measure that has so little opposition. To get a measure on to the statute book is a great achievement for a private Member.
I am pleased that, once again, one of the recommendations of the Law Commission has been accepted by the Government as a worthwhile addition to the statute book. The Law Commission does a wonderful job under the chairmanship of Mr. Justice Beldam as it did under the chairmanship of his predecessors. The trouble is that if we ask the Law Commission to examine what is wrong with various parts of our law and expect it to spend a great deal of time working with skill and dedication to produce sensible solutions to the problems only to leave its suggestions to gather dust on the shelf, the intelligent and hard-working members of the Law Commission may easily become disillusioned. One of the great achievements to emerge in the legislative process in the past few years is the importance attached to the work of the Law Commission. I hope that we shall continue to find ways of putting its sensible and constructive proposals on to the statute book.
§ Mr. Cash
On a point of order, Mr. Deputy Speaker. This causes me some amusement. I sat down because I thought that my very good Friend the hon. Member for Burton (Mr. Lawrence) proposed to intervene and I am delighted, because it gives us the benefit of his extremely erudite thoughts on the subject. The only question I want to probe—and I do not know whether you, Sir, are in a position to answer it—is whether he intends to make what I was regarding as an increasingly long intervention, or a speech, which would prevent me from coming back on this subject.
§ Mr. Deputy Speaker
I think that my feeling was shared by the whole House. I assumed that the hon. Gentleman had finished his speech and I am afraid that we cannot go back.
§ Mr. Lawrence
I apologise to my hon. Friend the Member for Stafford (Mr. Cash). He ought to know that, however long my interventions may be, they are nothing like as long as my speeches. He should therefore, have no difficulty in distinguishing between a speech and an intervention.
This is a small but important Bill about which I have some reservations. It is a civil liberties measure. The right to privacy is a vital part of our freedom, but our freedom exists only if those who would abuse it are restrained from doing so. True liberty gives no licence to harm others, so the law must protect the freedom and privacy of decent citizens. I know that my hon. Friend the Member for Stafford would have wished to say a little more about his own proposed measure, the Right of Privacy Bill, which is rightly arousing much attention in the media and elsewhere.
As this is such a sensible and important Bill, protecting the liberty of the individual, it comes as no surprise to me that the Government support it. Happy as our society generally is, there is a dark side. There is hatred and a lack of self-control under the surface, sometimes leading to physical violence. The courts protect the individual against 650 physical violence. Sometimes, that hatred and lack of self-control lead to mental violence, and the law has been less good at protecting the decent citizen against that.
The Telecommunications Act 1984 is one example of the way in which the law helps to protect the citizen. It goes a little way. It makes it a criminal offence to send by telephone any indecent or grossly offensive messagefor the purpose of causing annoyance, inconvenience or … anxiety".But to deliver the same message by other means than the telephone is not a criminal offence, so the Bill fills that important gap.
The civil law probably could not fill that gap. The Law Commission looked into the possibility that poison-pen letters could be dealt with better by the civil law, but concluded that it would require a statutory new tort. It also concluded that, in civil matters, the police are reluctant to become involved. Therefore, a protection which might, through the criminal law, be open to the citizen, might be taken away if reliance were placed on the civil law.
The unfortunate strong undercurrent of anger in our society manifests itself in all our surgeries. I speak from experience in what is otherwise the tolerant, moderate, reasonable, well-balanced and sensible constituency of Burton, which is what hon. Members would expect, judging by the choice of Member. I continually hear of cases in which there are neighbours disputes—between neighbours on council estates mostly, but not exclusively. Week after week constituents come to tell me of the anger and underlying hatred between neighbours and themselves. That has been growing in the 14 years that I have been privileged to represent Burton.
With the breakdown of marriage and the ease with which partners can break up, there is a higher level of men and women being scorned and wanting to get back at their partners. I am also noticing the hate campaigns by jilted partners, wronged partners and partners who feel that the best way to demonstrate their dissatisfaction is the poison-pen letter or harassment.
Bitter disputes arose in some of the recent strikes because, from the start, some were likely to end in failure. The miners' strike, which has been mentioned, was never likely to succeed. Those who took part in it and felt driven to do so became more angry as they saw the Government standing firm, so the bitterness that was engendered was great and a considerable number of the offensive mental attacks, which are the substance of the Bill, also sprouted. Anti-semitism seems, once again, to be rearing its ugly head in the world, as it does from time to time with the swing of the pendulum.
Although we have no precise idea of how numerous poison-pen letters and similar activities are—because there is no crime, they do not form part of the statistics —my feeling is that there is a growing problem which needs to be addressed. The Bill addresses that problem in a way that is consistent with the Law Commission's recommendations.
I welcome the Bill, although it raises some interesting matters of detail, some of which cause me concern. The objective test for what is indecent or grossly offensive, which emerges by implication from the terms of the Bill, is worthy of observation. The ordinary courts have no difficulty in deciding what is grossly indecent or offensive. Even now there are offences that come before the courts —indecency in public places and in public lavatories— 651 for which there is no definition of what is indecent or grossly offensive. However, ordinary people serving on juries and ordinary magistrates know exactly the meaning of those words and there is no problem.
The astonishing thing is that the Obscene Publications Act 1964, which has caused so much trouble and taken up so much of our time, tries to define obscenity, indecency and grossly offensive material. However, in the act of definition that Act destroys itself and fails. Once again, when we come to consider the reform of offensive publication law, we must pause to realise that, on many occasions, as with legislation of the type that we are discussing today, it can best be left for juries, ordinary people, to decide the level of indecency and gross offensiveness. If that were the test, it would be a much more effective way of ensuring that the obscene publications legislation—necessary to the country— worked.
I am not sure that my hon. Friend has got it right by changing what the Law Commission recommended as the format for clause 1 of the Bill. My hon. Friend's Bill leaves out the words "without reasonable excuse." I am not sure that I understand why those words have been left out. If one is defining an offence and there is a qualification to that offence, the clause that deals with that definition should contain that qualification. However, I am bound to say of the Law Commission's draft that, given the words "without reasonable excuse" in clause 1(1), I do not believe that it is wholly sensible for clause 1(2) to be drafted as it is. As the Law Commission draft had mentioned "without reasonable excuse" in clause 1(1), I should have thought that clause 1(2) should read:For the purposes of this section it is a reasonable excuse if the sender—I do not know why the Law Commission has drafted clause 1(2) in the way that it has, but, that apart, I believe that the present format of my hon. Friend's Bill, which removes the words "without reasonable excuse", is not good. This matter is tied up with the necessary intent implied in the Bill, and I believe that that should cause us a little further concern. However, before I discuss that problem, may I also state that I do not understand why clause 1(2) of my hon. Friend's Bill uses the words, "if he shows":
but not otherwise.
- (a) uses a threat to reinforce a demand that he believes he has reasonable grounds for making, and
- (b) believes that this use of the threat is a proper means of reinforcing the demand,(2) A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—(a) that the threat was used to reinforce a demand,and so on. That is a rather unusual form of words—"if he shows". If it means "if he proves"—
§ Mr. Lawrence
I am thinking aloud and if I am interrupted I shall get it wrong.
If it is meant to be the same as "if he proves" —where the law requires, if the defendent has to prove anything, that, unless otherwise stated, it is on the balance of probabilities rather than the burden of proof that applies to the prosecution, which is to satisfy the court so that it feels sure— the clause should say so. Then the courts would not be misled into thinking that the words "if he shows" might mean something less than "if he proves". If the clause means something less than "if he 652 proves", what does it mean? What does "show" mean? How does one demonstrate in court so that one "shows"? There is a dangerous possibility of confusion in that, and I ask my hon. Friend to consult his legal advisers to see whether it would not be better to use the form of words that the courts, the solicitors, the lawyers and everyone understand—the simple matter that one has a defence if one can prove on the balance of probabilities that one believed that one had reasonable grounds for making a demand, or was using reasonable means to reinforce it.
§ Mr. Greg Knight
My hon. and learned Friend has answered my question. I was going to ask him what is the difference between "show" and "prove"? Surely, there is none.
§ Mr. Lawrence
The answer, if I have not made it clear, is that the courts have a format that does not normally use the word "show". It is ambiguous and could mean anything, whereas "prove" means only one thing as far as the courts are concerned. It is simpler to have it like that than to invent a new word, or apply old ones in a new context.
The third matter that should cause a little concern is the issue of intent in clause 1(2). I understand the reason why it is thought necessary to make this an offence not of strict liability, but one in which the accused must be shown or proved to have intended harm. There are some cases in which a threat might be legitimate if it is a threat of legal action. But the trouble with having an intent in the Bill, framed as it is in clause 1(2), is that if someone is not certifiably insane, but is nevertheless mentally unstable, and believes it is all right to put obscene or grossly offensive tape recordings through someone's door— or excreta, or filthy literature—he is not guilty, because it is a defence for that person to believe that he had reasonable grounds for doing what he did, or that that was a proper means of doing it. So a high proportion of people who will send poison-pen letters or put excreta through the door, or in some way infringe someone's privacy by the excessive degree of unpleasantness envisaged in the Bill, and who are therefore mentally unstable, will be able to say they had a genuine, honest belief that that was the right thing, and everyone will know that they did, because they are mentally unstable, although not insane. In those circumstances there would have to be an acquittal. That makes one wonder whether the number of convictions likely to result from the legislation will be quite as high as perhaps one might expect or wish if one were trying to stop this sort of activity.
The alternative is to make this an offence of strict liability. That is to say, there would be no clause 1(2), which provides a defence if thethreat was used to reinforce a demand which he believed he had reasonable grounds for making; and (b) that he believed that the use of the threat was a proper means of reinforcing that demand.Therefore, anybody who sent a letter or other article conveying an indecent or grossly offensive message, or a threat or information that is false and was known or believed to be false or any other such article, would be guilty of this offence. That is the alternative if we do not provide defences and do not require the necessary intent.
My hon. Friend the Minister said that that is going too far. The trouble is that it would catch the letter threatening court proceedings for debt. The solution would be to exclude letters that threaten legal proceedings. I have not 653 sat down and sought to think about a form of words, but I am sure that a form could be found specifically to provide a defence for dunning letters or anything with a perfectly legitimate reason. That would mean that indecent or grossly offensive messages would not be allowed because, as the Minister said, it is difficult to think of any justification for sending an indecent or grossly offensive message. It would mean that information that is false, and known or believed by the sender to be false, or any article that is indecent or grossly offensive would be banned. However, if the threat was of legal action, which is perfectly proper and fair, it would not have a criminal offence accorded to it.
It would be better if the Bill required strict liability in two of its three clauses, so that anybody who sends anything indecent or grossly offensive, or who knows or believes it to be false and is such as to cause distress or anxiety, should be liable. We should make an exception for the kind of activity that we do not think is necessarily worthy of blame. If it is not too late, perhaps that could be considered. That would enable us to get away from the situation in which a significant proportion of those who will be charged could put forward the excuse, "Look, I am not actually mad, but I am mentally unstable and I honestly believe that this is the right way to go about things." In such a case the magistrates would acquit.
The fourth matter with which I should like to deal is false information.
§ Mr. Alan Meale (Mansfield)
I should like to make a plea to the hon. and learned Gentleman to push forward with his arguments so that the debate may be concluded. I am afraid that if he continues at the same speed we will face the great danger that hon. Members will carry out the unlawful acts that the Bill sets out to stop.
§ Mr. Lawrence
I do not know whether speeding up will stop the unlawful acts, but I think it important that, on Second Reading, these matters are properly examined. If we are to rush through Bills without any discussion, we might as well pack up and go home — and the hon. Gentleman will have wasted his time in standing for election. While I appreciate that there is other business and that we wish to get on, I consider it important to raise these matters, but I shall do so with as much dispatch as I can.
The fourth point that I wish to make concerns clause 1(1)(a)(iii), which deals withinformation which is false and known or believed to be false by the sender".I suppose that that covers spiteful letters telling a wife that her husband has been killed on a trip abroad or claiming that her husband is sleeping with someone else—which would cause great anxiety and distress — if the information is known or believed to be false.
The courts are getting into considerable difficulties over precisely what is meant by "knowledge" or "belief". I could have brought in a copy of Archbold and a number of other legal tracts, which are becoming thicker and thicker and more and more voluminous as the House of Lords, the Court of Appeal and all the other courts consider what is "knowledge". The boundaries of knowledge have been pushed forward in recent years—or so some authorities say—to involve cases in which the perpetrator is careless whether the information is true or false. Knowing that it is false is one thing; believing it 654 to be false is another; believing that it is probably false is another; yet another is carelessness whether it is true or false. Those categories are causing such difficulties that I ask my hon. Friend to consider with his legal advisers the possibility of simplifying the matter by adding, after the wordsinformation which is false and known or believed to be false by the senderthe words "or where the person is careless whether it is true or false", so that the question whether a degree of blameworthiness is imported in the provision is put beyond doubt. We could then avoid the need for the case to be stated to the Court of Appeal, and also avoid what every hon. Member seems to wish to avoid—any more money than is necessary going into the pockets of lawyers. When I look at the Bill, I begin to salivate at the words and phrases that would become minefields for the poor prosecutor, or indeed the poor defender, gladdening the heart of any lawyer short of work.
§ Mr. Cash
Will my hon. and learned Friend allow me to intervene on what I thought to be technically an intervention, although it has now been going on for some time? Does he agree that the real object of resolving the question of what is true, what is false, and so forth, is to prevent the causing of distress or anxiety; and that, if we keep our minds on that, many of the other questions about shades and degrees of knowledge that lie in the sender's mind are less important than the extent to which distress or anxiety is caused to the recipient?
§ Mr. Lawrence
It is not as easy as that. The courts have to consider every element in a crime. Very seldom can they say that one element is not as important as another. They must consider whether there is sufficient evidence that a man believed or knew. It is not simply a question of the amount of anxiety or distress that has been caused. That is a different element. We must be careful to ensure that the legislation that we put on the statute book does not mislead anyone, least of all the courts. We must ensure that all the particular elements are properly worked out and considered for their value and importance.
My fifth concern relates to the fines. If someone has a really deep hatred that causes that person to produce very distressing and offensive matter that will cause great anxiety and upset to a former wife, former girl friend, someone who is resisting a strike action or someone whose religion that person despises, what on earth is the deterrent value of £400? Many people, especially if they have a hinge loose, may say, "I haven't got £400, so they will not be able to fine me £400." If someone has £400, it will be worth £10,000 for that person to send such matter.
If the armoury of deterrents is to be placed properly in the hands of the courts, we must not limit the level of the fine as low as £400. The Law Commission's proposal for the appropriate level of fine should be applied in the Bill.
§ Mr. Paul Flynn (Newport, West)
Will the hon. and learned Gentleman advise me whether some of the mail that I receive daily would come under the orbit of this Bill? I am referring to the non-replies that I receive from people who clearly have not read the parliamentary questions that I have tabled. I am afraid that the parliamentary answers that I receive to my parliamentary questions rarely, if ever, give me information, especially those from the Department of Energy. On occasions they have certainly caused me anxiety and distress.
§ Mr. Lawrence
I do not want to be in any way discourteous to the hon. Gentleman. However, he seems to want free legal advice from me. I can only tell him that free legal advice is not worth having. If I were to hazard an answer without looking up all the authorities and considering the matter fully, it would not be worth the hon. Gentleman's while to receive my advice. I hope that he will forgive me and not think that I am in any way being discourteous by not answering.
§ Mr. Greg Knight
Is it not the case that free legal advice is worth what one pays for it? However, in response to my hon. and learned Friend's comments about the Bill and about level 5, as I understand it, level 5 involves a maximum fine of £2,000. If my hon. and learned Friend is urging that that level should apply in the Bill, he will find many supporters on the Conservative Benches. Does he agree that the offence should carry imprisonment? That point was referred to in the Law Commission's report.
§ Mr. Lawrence
We want to avoid sending people on the borders of sanity to prison if we can at all help it. We should not rush into providing new offences for which to send people to prison when we are trying to keep the prisons as empty as possible instead of filling them up. I might change my view about that in a few years' time if the prison population falls, but at the moment I believe that imprisonment should not apply.
I have been trying to end my comments for the past three or four minutes. I believe that the Bill is necessary. It will be beneficial. I welcome it, but I ask that the various points that I have had the temerity to raise might be considered as the Bill passes through Parliament. If there is thought to be any merit in any of my points, and they can be incorporated in the Bill, the Bill might be improved. I thank my hon. Friend the Member for Sherwood for introducing the measure and giving us this opportunity to consider a very important gap that exists in the law at present.
§ Mr. Deputy Speaker
If the hon. Member for Sherwood (Mr. Stewart) has the leave of the House to speak again, so be it.
Mr. Andy Stewart
I shall be brief, because there is much business on today's Order Paper. The hon. Member for Mansfield (Mr. Meale) is anxiously awaiting the debate on his Bill, the Coal Mining Subsidence (Damage and Arbitration) Bill, which I support. I hope that business will proceed quickly to allow us to reach that item.
I thank all hon. Members who have contributed to today's debate. I am delighted that the debate has been so favourable. I thank all hon. Members who have voiced their support, particularly the 200 hon. Members who have written to me expressing their support and hopes that the Bill will soon be on the statute book. On Fridays the strength of support for private Members' Bills is judged, 656 not by the number of hon. Members here, but by the number who are absent. If they did not support the Bill, they would be here to vote it down. I remind the House that hon. Members who have supported me are today in their constituencies dealing with other important matters.
I thank my hon. Friend the Minister for his contribution and support during the debate and for his counsel in drafting the Bill. Hon. Members will know that I am a professional peasant farmer, experienced in handling some forms of muck, but not able to draft a technical Bill such as we require to deal with the types of muck that we have been discussing today. My hon. Friends in the legal profession have raised some important points about this complex Bill. I assure them that we will take those points into consideration when we debate the Bill in Committee.
The House also knows that the hon. Member for Sherwood is very modest. The fact that the Northern Ireland Office was consulted about the drafting of the Bill may have resulted from the fact that I did a phone-in with BBC Radio Ulster shortly after the Bill was published, thus perhaps showing the people of Ulster how advantageous it would be if they, too, were covered by the Bill.
I should like to deal with three points raised by hon. Members. First, my hon. Friend the Member for Derby, North (Mr. Knight) asked whether people requiring medical treatment could be ordered by magistrates to undergo such treatment. Unfortunately, under the Mental Health Act 1983, this is not an offence if it is not punishable by imprisonment. Secondly, the comments of my hon. Friend the Member for Derby, North to my hon. Friend the Member for Stafford (Mr. Cash) regarding computer software were entirely correct. Thirdly, my hon. Friend the Member for Hampstead and Highgate (Sir G. Finsberg) was right when he said that the common law of Scotland covers certain aspects of the subject. We shall be discussing other aspects in Committee. However, I have also noted the comments about the level of fines and whether it should be raised from level 3 to level 4. I cannot give any promises about that. We shall also consider the points about infected wood, which could cause serious anxiety.
My hon. Friend the Member for Stafford talked about newspapers. The Bill does not cover newspapers, but it raises the question whether somebody picking up and sending a newspaper could be offensive. We shall have to discuss that in Committee to see what steps can be taken under the law.
I hope that hon. Members will agree that we have had a good debate. I appreciate the fact that the House has listened to me and I hope that it will now give its full support to this measure.
§ Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).