HC Deb 09 December 1991 vol 200 cc686-94
Mr. Sheerman

I beg to move amendment No. 1, in page 1, line 22, after 'place', insert 'by the accused or by another person incited by the accused'.

The First Deputy Chairman of Ways and Means (Sir Paul Dean)

With this it will be convenient to take the following amendments: No. 3, in page 1, line 23, after 'vehicle', insert `by the accused or by another person incited by the accused'. No. 5, in page 1, line 26, after 'vehicle', insert 'by the accused or by another person incited by the accused'. No. 7, in page 1, line 29, after 'vehicle', insert 'by the accused or by another person incited by the accused'.

Mr. Sheerman

To the cries of "Wrecker Sheerman", I argue that the amendments would not wreck the Bill. Indeed, they would vastly improve it. They would limit the new offence of aggravated taking to cases where the aggravating behaviour was carried out by the accused or by another person incited by the accused. That does not sound unreasonable to me, or, I am sure, to my hon. Friends.

The Bill makes passengers liable to the new offence because of aggravating behaviour by another person who was driving the vehicle. Those people will be liable, even though they were not ringleaders, did not incite, encourage, intend or foresee the behaviour. For example, a passenger screaming to be let out of the car will be guilty of the aggravated offence, if guilty of the original taking. A passenger who pleaded with the driver to stop would be equally liable, as would a younger passenger, influenced by older ringleaders.

I cannot understand why the Minister said that this was a wrecking amendment. A passenger will be liable to the aggravated offence, even though he or she was not responsible for the events that made the offence an aggravated one. That cannot be right; it offends all the normal canons of criminal responsibility. It is a bad law that will lead to miscarriages of justice, as Opposition Members said on Second Reading. If a young person is to be convicted of such a serious offence, rendering him or her liable to a lengthy term of imprisonment, there should be some element of fault in the aggravated behaviour.

We all know the negative effects of custody on young people. In their White Paper "Crime, Justice and Protecting the Public", the Government referred to custody as an expensive way of making had people worse. Some two thirds of teenage offenders leaving custody, and 80 per cent. of those under the age of 17, are reconvicted within two years of their release. It is patently daft to imprison for lengthy periods young people who are on the fringe of such activities. It is a recipe for turning delinquents into more serious criminals.

The amendments seek to ensure that the new offence of aggravated taking is linked much more closely to the individual's degree of personal responsibility for the offence. I cannot believe that that could be construed as wrecking the Bill; it surely improves the Bill, as it focuses it more on the people who took the car and the ringleaders, not those who were on the periphery.

Under the amendments, in order to be guilty an individual will have to have carried out the aggravated behaviour or incited another person to do so. That will not mean that the main offenders will get off. The amendments will also ensure that the prosecution has to prove the guilt of the defendant. They will remove the dangerous proposal to reverse the burden of proof, which would cause grave injustice and is of great concern to many practising lawyers in London.

The Bill as drafted is seriously flawed. The amendments will ensure that those at fault, not those on the periphery, pay the price.

Mr. Anderson

I rise only to adopt the arguments advanced by my hon. Friend the Member for Huddersfield (Mr. Sheerman). I shall not expand on them, because we have already given examples of how it would offend against common justice if someone were deemed to be guilty of the aggravated offence when he or she had not given assent to that offence, as aggravated.

I shall argue somewhat against myself by commending to the Government a possible amendment to weaken the defence. It is a purely legal point: a defence is currently provided for the person who can prove, on the balance of probabilities, that the relevant aggravating event occurred before he or she committed the basic offence or that he or she was not—this is the relevant part—in or near the vehicle when the aggravating event occurred.

The phrase "in or near" is relevant, because it makes it seem as though it is a solely geographical matter. That does not cover all relevant circumstances. It is not difficult to conceive of circumstances in which a person participated in the commission of the offence in that he or she encouraged it, without necessarily being geographically in or near the vicinity of the offence. Therefore, the Government may wish to consider strengthening the case for the prosecution by adding to the description of a person being in or near the vehicle when the aggravating event occurred, the following words: or did not otherwise participate in the commission of the offence".

Mr. John Patten

I thought that I was right. There is no doubt that the amendments are wreckers—what the hon. Member for Swansea, East (Mr. Anderson) has just said makes that absolutely clear.

I listened with particular care to what the hon. Member for Huddersfield (Mr. Sheerman) said about the workings of the group of amendments. I did so because, when they appeared on the Notice Paper, I was at a loss to understand how the Opposition spokesmen could reconcile them with their public stance of support for tough new measures against such people. The answer is now clear: they cannot. The amendments are about negating, not creating, a new offence of vehicle taking. The amendments would emasculate the offence. Their net effect would be to leave the law fundamentally unchanged in practice.

I see that my hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman), who is learned in the law, nods in agreement. The amendments would erect around each of the what the Bill describes as aggravated circumstances of the basic Theft Act offence considerable and unnecessary evidential difficulties. Should the amendments have their way, it would never be enough for the prosecution to prove that there was danger, damage or death. To the contrary: it would never be enough to say, as the Bill states, that the events would not have occurred if the vehicle had not been taken in the first place. Instead, the prosecution would have to prove the existing basic taking offence.

I am grateful to the hon. Member for Swansea, East for his ingenious suggestion on how to improve the prosecution's lot. The prosecution would also have to prove exactly who did what damage at what time, what injury occurred, who was driving and why. The clock would be turned back to the pre-existing law.

As my right hon. Friend the Home Secretary explained, so-called joyriding is habitually accompanied by dangerous driving, damage, injury and sometimes, tragically, death—all of which are already covered by criminal law. The difficulty lies in proving an offence such as criminal damage against one member of a gang, when it is often not clear who has done what or even who was in the driving seat at a certain time. The evidential difficulties are fiendishly complex and trying for the prosecution. There is not only a strong practical case, but a strong moral case, for saying that everyone is equally to blame—exactly as the Theft Act 1968 does in section 12(1).

I understand that there may be a worry that we are tipping the scales of justice against defendants and that the aggravated offence is an erosion of traditional legal standards—a point made by my hon. and learned Friend the Member for Burton (Mr. Lawrence) on Second Reading. I hope that I satisfied him on that matter then. Such concern is misplaced; the new offence is justified not merely on pragmatic grounds but also on grounds of principle and precedent. I refer the House to the arguments that I deployed on Second Reading.

Someone who takes and drives away a car and then aggravates that by damaging, injuring or killing is not justified in then saying that he did not mean to do it. The law will say, "You had no business doing it in the first place." So if someone decides to commit the basic offence, he must accept responsibility when things go wrong, and he has no one to blame but himself.

Defences are provided for people who can show on the balance of probabilities that they had no connection with the aggravating offence. The hon. Member for Swansea, East referred to geographical proximity and to other ways of judging the issue.

I must tell the hon. Member for Huddersfield that either he does not understand his amendments or he must know that, if they were agreed to, the Bill would be completely wrecked and the law would return to where it was. I urge the Committee to resist the amendments.

9 pm

Mr. Sheerman

Far from trying to wreck the Bill, we have been trying to improve it by means of these amendments, on which we have consulted the finest legal opinion. I should like a guarantee at this late stage that the Minister of State and the Home Secretary will consult the Law Society and the Criminal Bar Association before the Bill emerges from another place. We are not trying to torpedo the legislation; we are trying to reflect a view widely held by lawyers. I ask the Minister for such a commitment.

Question put, That the amendment be made:—

The Committee divided: Ayes 40, Noes 149.

Division No. 24] [9 pm
Anderson, Donald Jones, Barry (Alyn & Deeside)
Ashton, Joe McFall, John
Barnes, Harry (Derbyshire NE) McKay, Allen (Barnsley West)
Bennett, A. F. (D'nt'n & R'dish) McMaster, Gordon
Bermingham, Gerald McNamara, Kevin
Boyes, Roland Mahon, Mrs Alice
Callaghan, Jim Marshall, Jim (Leicester S)
Cummings, John Michie, Bill (Sheffield Heeley)
Darling, Alistair Pike, Peter L.
Dixon, Don Powell, Ray (Ogmore)
Duffy, Sir A. E. P. Prescott, John
Eadie, Alexander Quin, Ms Joyce
Eastham, Ken Redmond, Martin
Ewing, Harry (Falkirk E) Sheerman, Barry
Flynn, Paul Skinner, Dennis
Foster, Derek Smith, Andrew (Oxford E)
Godman, Dr Norman A. Wilson, Brian
Grocott, Bruce Young, David (Bolton SE)
Hattersley, Rt Hon Roy
Hood, Jimmy Tellers for the Ayes:
Illsley, Eric Mr. Frank Haynes and
Ingram, Adam Mr. Jimmy Dunnachie.
Alexander, Richard Douglas-Hamilton, Lord James
Amess, David Dunn, Bob
Arbuthnot, James Emery, Sir Peter
Ashdown, Rt Hon Paddy Fallon, Michael
Baker, Rt Hon K. (Mole Valley) Fearn, Ronald
Beaumont-Dark, Anthony Fenner, Dame Peggy
Bottomley, Peter Fookes, Dame Janet
Bottomley, Mrs Virginia Forsyth, Michael (Stirling)
Bright, Graham Franks, Cecil
Burns, Simon French, Douglas
Burt, Alistair Gale, Roger
Butler, Chris Goodlad, Alastair
Carlile, Alex (Mont'g) Grant, Sir Anthony (CambsSW)
Carlisle, John, (Luton N) Greenway, John (Ryedale)
Carrington, Matthew Gregory, Conal
Carttiss, Michael Griffiths, Peter (Portsmouth N)
Cash, William Hamilton, Rt Hon Archie
Chalker, Rt Hon Mrs Lynda Hamilton, Neil (Tatton)
Chapman, Sydney Hampson, Dr Keith
Chope, Christopher Hanley, Jeremy
Clark, Dr Michael (Rochford) Hargreaves, A. (B'ham H'll Gr')
Clark, Rt Hon Sir William Harris, David
Clarke, Rt Hon K. (Rushcliffe) Hawkins, Christopher
Conway, Derek Hayward, Robert
Cope, Rt Hon Sir John Hill, James
Couchman, James Hind, Kenneth
Cran, James Howarth, G. (Cannock & B'wd)
Currie, Mrs Edwina Howell, Ralph (North Norfolk)
Davis, David (Boothferry) Hughes, Robert G. (Harrow W)
Dorrell, Stephen Irvine, Michael
Jack, Michael Rathbone, Tim
Janman, Tim Redwood, John
Jessel, Toby Roberts, Rt Hon Sir Wyn
Jones, Gwilym (Cardiff N) Rowe, Andrew
Jones, Robert B (Herts W) Ryder, Rt Hon Richard
Kellett-Bowman, Dame Elaine Sackville, Hon Tom
Kilfedder, James Shaw, David (Dover)
King, Roger (B'ham N'thfield) Shaw, Sir Giles (Pudsey)
King, Rt Hon Tom (Bridgwater) Shaw, Sir Michael (Scarb')
Kirkhope, Timothy Shelton, Sir William
Kirkwood, Archy Shepherd, Colin (Hereford)
Knapman, Roger Shersby, Michael
Knight, Greg (Derby North) Skeet, Sir Trevor
Knight, Dame Jill (Edgbaston) Smith, Sir Dudley (Warwick)
Knowles, Michael Speed, Keith
Knox, David Stern, Michael
Latham, Michael Stevens, Lewis
Lee, John (Pendle) Stewart, Allan (Eastwood)
Lester, Jim (Broxtowe) Stewart, Andy (Sherwood)
Lightbown, David Taylor, John M (Solihull)
MacGregor, Rt Hon John Tebbit, Rt Hon Norman
MacKay, Andrew (E Berkshire) Thompson, D. (Calder Valley)
McLoughlin, Patrick Thompson, Patrick (Norwich N)
McNair-Wilson, Sir Michael Thorne, Neil
Mans, Keith Thornton, Malcolm
Maples, John Thurnham, Peter
Marshall, Sir Michael (Arundel) Twinn, Dr Ian
Martin, David (Portsmouth S) Vaughan, Sir Gerard
Maxwell-Hyslop, Robin Viggers, Peter
Mayhew, Rt Hon Sir Patrick Wakeham, Rt Hon John
Mills, Iain Walden, George
Montgomery, Sir Fergus Walker, Bill (T'side North)
Morrison, Sir Charles Waller, Gary
Moss, Malcolm Wells, Bowen
Nicholls, Patrick Wheeler, Sir John
Norris, Steve Widdecombe, Ann
Onslow, Rt Hon Cranley Wilshire, David
Page, Richard Winterton, Mrs Ann
Paice, James Winterton, Nicholas
Patnick, Irvine Wood, Timothy
Patten, Rt Hon John Yeo, Tim
Peacock, Mrs Elizabeth Young, Sir George (Acton)
Porter, David (Waveney)
Powell, William (Corby) Tellers for the Noes:
Price, Sir David Mr. Nicholas Baker and
Raffan, Keith Mr. Tim Boswell.
Raison, Rt Hon Sir Timothy

Question accordingly negatived.

Mr. Sheerman

I beg to move amendment No. 2, in page 1, line 23, after first 'the', insert 'reckless'.

The First Deputy Chairman

With this, it will be convenient to discuss also the following amendments: Nos. 4, in page 1, line 26, after 'the', insert 'reckless'.

No. 6, in page 1, line 29, after 'was', insert 'intentionally or recklessly'.

No. 8, in page 2, line 28, leave out paragraph (a) and insert— '(a) it is driven in such a manner as to create an obvious and serious risk of causing physical harm to another person; and'.

Mr. Sheerman

This class of amendments makes the intention of recklessness a necessary ingredient for the aggravated offence. The thrust of the amendments is common sense. They make an offence an "aggravated offence" when that was the intention.

Clarifying the legislation is an important priority for us. As currently drafted, the offence of unauthorised taking would become aggravated if dangerous driving occurred. That is fair enough, and we would agree with the Government on that. However, under sub-section 2(b) and (c), the offence would be aggravated also if, owing to the driving of the vehicle, an accident occurred that caused injury to a person or damage to property. The driving would not have to be dangerous or reckless in itself.

In other words, if a car is taken and the driver is driving carefully but another car is recklessly driven into it, an aggravated offence will have taken place. I know that I am going over some of the ground that we rehearsed on Second Reading, but I shall be brief. If the car is stationary at traffic lights and another car hits it, the aggravated offence will still have occurred. Similarly, if a person runs in front of the car when it is being driven carefully and even if the driver cannot avoid hitting that person, the aggravated offence will have taken place. I asked the Minister about this important point on Second Reading, but he did not mention it in his reply.

Subsection 2(d) also raises an anomaly. The aggravated offence is committed when damage is caused to the stolen vehicle, but there is no requirement that that damage should have been caused intentionally or recklessly. The defendant will be guilty if someone else damages the car after he has left it but when he is still in the immediate vicinity or if he cannot prove that he had left the vicinity.

The amendments seek to ensure that the car must have been driven recklessly, that there must have been some fault on the part of the defendant and that the defendant should not be guilty of a serious criminal offence if the events that make that offence aggravated and serious lie outside his or her control. Similarly, damage to the stolen car must have been intentional or reckless. Without those safeguards, the Bill will be unjust and will be seen by many members of the public as unjust.

The public are worried about young people taking cars and driving them in a reckless fashion down the streets, causing mayhem. We had some graphic descriptions of that on Second Reading. That is altogether different from some of the examples that I have described which will be caught by the clause.

We believe that it is wrong for young people to be held responsible for a serious criminal offence when they were not at fault beyond the original offence of taking a car, for which they will be punished and will be liable under the ordinary legislation. What is at issue here is whether the offence is aggravated. That is what we seek to clarify in the amendment.

The amendments arise from the real anxiety in the legal community that the Bill will create great difficulties. I hope that the Government will consider the amendments without prejudice.

9.15 pm
Mr. John Patten

One travels hopefully in legislating. I had hoped that, after my crystal-clear exposition of the wrecking element in the first group of amendments, the hon. Member for Huddersfield (Mr. Sheerman) would have had a quick look and seen that what he was attempting to do in the second group was again to wreck.

The amendments ask the Committee to turn the clock back to the legal position on reckless driving, before the thorough review of the subject by the principal of Jesus college and the consequent decision of the House in the Road Traffic Act 1991 during the previous Session of Parliament to substitute a new concept, that of dangerous driving, with a new statutory test to go with it. That report and the subsequent legislation were welcome.

The amendments also invite the Committee in effect to convert our objectively determined aggravating circumstances all over again into subjectively determined acts committed by a particular person. The amendments are misconceived and wrong-headed. It is as plain as a pikestaff that, if we return to subjectivity, the central core of the Bill will be completely wrecked and the vessel will be sunk.

I had better go on to explain that it is important to recall why we took the decision in the Road Traffic Act 1991 to change the reckless driving offences—"reckless" is the word that the hon. Member for Huddersfield used. In the words of the principal of Jesus college, the Welsh college in Oxford, the background was the widespread dissatisfaction with the present state of the law on reckless driving". That dissatisfaction was rooted in the difficulty in securing convictions in England and Wales under the then reckless driving offences. Professor North's committee had put its collective finger on the problem: that reckless driving as previously defined by the courts referred to the accused's state of mind—whether he was reckless—and therefore required some proof of the state of mind of the offender to bring a successful prosecution.

Professor North recommended that the offences should be based much more firmly on the observable standard of driving, not the state of mind of the person who committed the offence. We should focus on the nature of the conduct, not the state of mind of the person involved. The nature of the conduct is the dangerousness of the driving, not the recklessness shown by the driver.

Mr. Sheerman

Will the Minister give way?

Mr. Patten

I give way to the hon. Gentleman. I hope that he has understood.

Mr. Sheerman

I have understood. I should like to bring the Minister down to earth and ask him to consider not states of mind but what happens when such crimes are committed. Will he answer on the point which worries us?

A person may not have taken part in any reckless behaviour. He may merely have driven a car without doing so recklessly. He may have stolen a car and then stopped or even parked the car and got out of it. If the car is damaged, whether severely or not, after they have left the car, what will be the position? Could such a person be guilty of reckless driving? Under the Bill, he will be considered to be reckless when at no stage did he take part in any reckless behaviour.

It is not the state of mind but what the person did that will count. The person took a car without the owner's permission. Yes, that is against the law, and the law will have him for that. If he drives the car for three miles and when he stops at the traffic lights someone crashes into the back of the car, will he be guilty of reckless driving? I should appreciate it if the Minister would confirm that.

Mr. Patten

I should appreciate the chance to do so after that intervention, which was longer than normal from the hon. Gentleman, who is usually succinct.

It is clearly the intention of the Bill that a man, or more rarely a woman, who takes and drives away a car and as a result causes injury or damage, can be tried for the aggravation of the offence, and that anyone travelling in the car with them should be tried in exactly the same way.

There are two defences in the Bill that a person can use, and it is up to the courts to decide whether those defences are valid.

To complete my argument, we should focus on the nature of the conduct—the dangerousness of the driving —not the degree of recklessness shown by the driver. The new offences in the Road Traffic Act 1991 follow that form. They will allow more drivers who drive badly to be convicted of more serious offences with proper punishment, and quite right too.

Subsection 7 of the new section 12A of the Theft Act, 1968—which would be inserted by clause 1 of the Bill—follows the concept and definition of dangerous driving in the Road Traffic Act. Therefore, having heard my exposition of what the amendments would do to the Bill, I believe that the hon. Member for Huddersfield will seek to withdraw it immediately from the consideration of this Committee.

Mr. Sheerman

We shall withdraw our amendments in the hope that they will emerge somewhere else and be debated more fully.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Donald Anderson

I hope that the Minister can help with clarification of one matter. Perhaps he will set on record why the words "mechanically propelled vehicle" are used and not the word "conveyance", as in section 12(7) of the 1968 Act. Would he confirm that the definition, as set out, is sufficient to cover speedboats? In many of our coastal resorts, there is a problem because young people, in particular, take boats and drive them to the danger of people who are bathing or who are in those waters. Will the Minister give an assurance that the term as used is sufficiently wide to include speedboats?

Mr. Patten

I suppose that the advice given by a senior and ancient Home Office or ex-Home Office Minister, or a Department of Transport or ex-Department of Transport Minister to a junior Minister just taking up his or her post would be, never to forget to cover oneself for the old skateboard question—does this piece of road traffic legislation deal with skateboards? I never go into the arena in this place without that information.

Luckily, thanks to the excellence of those who advise me, I am fully conversant with the speedboat issue, which is a derivation of the skateboard question, but is a serious issue. The hon. Member for Swansea, East (Mr. Anderson) is right—boat theft has been a problem. People have been using twin-screwed diesel boats, which are very powerful and are used for towing water skiers, in an extremely dangerous fashion.

This stand part debate is useful to discuss subsection 1(a) of the Bill, which provides that the new aggravated offence arises in relation to "mechanically propelled vehicles", as the hon. Member for Swansea, East pointed out. That term, which is used in road traffic legislation, has a wide meaning and covers tractors, mechanical plant, mobile cranes, bulldozers, as well as motor cars and motor cycles. However, it is narrower in meaning than "conveyance", as defined in section 12(7) of the Theft Act, 1968, which I dare say the hon. Member for Swansea, East has in front of him. "Conveyance" includes non-mechanically propelled vehicles, such as rowing boats and horse-drawn carriages.

Ultimately, the question whether "mechanically propelled" covers speedboats is for the courts to decide. My view is that it does not, for Theft Act purposes. Certainly, the policy with which I have been concerned in drawing up this Bill relates to motor vehicles on roads. That was the policy impetus behind the Bill. Therefore, the legislation as drafted would probably not be of much use for speedboats, but I undertake to consider the hon. Gentleman's point if he is happy with that undertaking.

Mr. Anderson

indicated assent.

Question put and agreed to.

Clause I ordered to stand part of the Bill.

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