OFFENCES

HC Deb 24 March 1995 vol 257 cc627-33

Mr. Peter Ainsworth

I beg to move amendment No. 9, in page 2, line 44, leave out 'two years' and insert 'one year'.

It may seem churlish at this advanced stage to start tabling new amendments, but the fact that the Bill is widely welcomed—I very much congratulate the hon. Member for Plymouth, Devonport (Mr. Jamieson) on his initiative—does not mean that it should not be properly and thoroughly scrutinised. We have already had an interesting debate on the armed forces, which threw up a number of new ideas that need to be advanced.

I should declare an interest. Like my hon. Friend the Member for Beckenham (Mr. Merchant), I am the father of young children. They are currently much too young to participate in activities likely to be covered by the Bill, although the climbing frame at the back of our house fills me with dread every time I see it used. Only this morning, I handed over £1.50 to my eldest daughter's school as she has just won a certificate for swimming 25 m—{HoN. MEMBERS: "Hear, hear."] The process is beginning. I spoke earlier about the formative experience that I had on the Brecon Beacons during an exercise known as arduous training—arduous it certainly was. We all have our own memories and experiences of such activities.

Amendment No. 9 deals with penalties. It aims to give the hon. Member for Devonport the opportunity to disclose the precise rationale behind his thinking on penalties as it appears in the Bill. In the light of the appalling tragedy at Lyme bay and the other distressing occurrences that we have heard about today, there will inevitably be a temptation to say that the penalties should be as high as possible and that no penalty can he high enough.

It is important to remember that the penalties proposed in the Bill have no direct relationship with penalties awarded in courts in circumstances such as the Lyme bay disaster, where gross negligence and manslaughter were involved. Such cases, and the terrible incident raised in Committee by my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) involving Hayley Hadfield, are dealt with under the existing legal system.

The Health and Safety at Work, etc. Act 1974 also has a bearing on the Bill. Although there is a strong temptation to whack on heavy penalties, we are considering a regime that presupposes no loss of life or personal injury but relates solely to failure to comply with regulations.

Mr. Waterson

Has my hon. Friend reflected on the prospects of double jeopardy? In a tragedy such as Lyme bay, it is feasible that a person could be pursued under the regulations and be convicted of manslaughter, yet also face claims for civil damages. Does my hon. Friend agree that the Bill's provisions should bear some relationship to the likely penalty under a criminal action?

Mr. Ainsworth

My hon. Friend is a distinguished lawyer and I am not, so I defer to his knowledge. He makes a good point, to which I shall return later.

Amendment No. 9 relates to anything for which a licence is required being otherwise than in accordance with that licence. The penalties envisaged by the Bill are a prison sentence of up to two years, an unquantified fine or both. It makes no reference to the defence that an operator had taken all reasonable steps to comply with the conditions of a licence.

In Committee, my hon. Friend the Member for Aylesbury (Mr. Lidington) and my hon. Friend the Minister said that detailed implementation would be best left to the framing of the legislation. The existence of such a defence would be an important safeguard against the effect of the regulations being unduly harsh.

It is perfectly conceivable—notwithstanding the remarks of the hon. Member for Devonport about rogue operators, who undoubtedly exist—that an owner or operator could be inadvertently let down by a member of his or her staff acting deliberately or incompetently, despite the owner or operator having made every effort to comply with the licence. I should welcome clarification of how my hon. Friend the Minister sees the legislation working in those circumstances. It seems that the Bill does not allow for mitigating circumstances and that the offence will be absolute. I doubt whether that was the promoter's intention, and I should welcome his thoughts.

Amendment No. 9 proposes a maximum prison sentence of one year instead of two years. In Committee, my hon. Friend the Member for Aylesbury suggested a maximum prison sentence of 10 years. The promoter said that my hon. Friend would have made a good hanging judge in days gone by and that 10 years was excessive. I share that view. We are dealing with a breach of regulations, not with an offence that might be indictable under criminal law. Does the hon. Member for Devonport feel that a maximum prison sentence of one year would be an insufficient deterrent against non-compliance?

One finds in any walk of life a minority of rogue operators who attempt to breach regulations and to run cowboy enterprises, but the majority of activity centre operators are responsible and conscientious people. The prospect of a prison sentence of almost any duration would be a sufficient deterrent to encourage such people to comply with regulations.

My hon. Friend the Member for Eastbourne (Mr. Waterson) may recall that the managing director of Active Learning and Leisure—the company involved in the Lyme bay tragedy—was convicted of manslaughter and given a three-year custodial sentence. Four young people lost their lives in that accident. In the light of that sentence, we must consider the penalties envisaged by the Bill for a technical breach of regulations. In relative terms, a maximum sentence of two years for a breach alone may seem a little harsh.

11.45 am

Mr. Nigel Evans

On Second Reading, it was said that 300 activity centres—about 10 per cent. of the total—may try to flout regulations even though ways of satisfying them are evident. In those circumstances, and given the risk of injury or death for young people, should not it be left to the courts to decide a maximum sentence of up to two years? Should not a judge decide the appropriate sentence?

Mr. Ainsworth

My hon. Friend makes a reasonable point. The question is whether a rogue operator would be deterred by a one-year sentence as much as by a two-year sentence. The individual concerned in the Lyme bay disaster, having been convicted of gross negligence and manslaughter, was sent down for three years. That has a bearing on the relative weight that we should give to a technical breach of regulations.

Mr. Waterson

My hon. Friend the Member for Surrey, East (Mr. Ainsworth) and I have known each other a number of years, but I do not agree with the purpose of his amendment. I hope that I may persuade him to reconsider.

The Bill's promoter rightly emphasised the fact that it has support in all parts of the House, and we should make it clear that we mean business. In the context of sentences, it is for Parliament to fix maximums within which the courts can operate. It is not for us to speculate on appropriate sentences in particular cases. It is our duty to set a maximum and for the courts to set a tariff. The Court of Appeal often issues guidelines on the tariff for certain types of offence.

Mr. Kilfoyle

Does the hon. Gentleman disagree with the hon. Member for Surrey, East (Mr. Ainsworth) that a new view should be taken of deterrence and that halving a potential sentence acts as a more effective deterrent? Would the hon. Gentleman propagate that view with the Home Secretary?

Mr. Waterson

The hon. Gentleman tempts me down another route; if I were to follow it, I am sure that the Chair would have something to say to me. Perhaps I can go this far: there is a more general problem with our criminal justice system. I refer to the system of tariffs. If, as they are, the penalties at the top of the range are limited, that fact tends to exert downward pressure on tariffs for other crimes such as burglary, and then on down to offences of the sort that we are considering today. As long as a life sentence can mean an average 12 years in prison, and as long as we do not have the death penalty at the top of the range, I can foresee problems with sentences for some of the more questionable types of manslaughter—they will tend to come low down the scale. I secured an Adjournment debate on that very subject a while ago. A constituent of mine was attacked without provocation and died as a result. His attacker got away with a very light prison sentence for manslaughter.

Presumably for this, as for other offences, a sort of tariff system will emerge, with the imprimatur of the Court of Appeal, to guide the courts on sentencing policy within the range between one year and two years, depending on the circumstances. We should also remember that the amendment relates only to offences taken on indictment. Under the framework of this Bill, I would expect the vast majority of cases to come before magistrates, where they can be dealt with summarily—presumably by a fine, which would be the end of the matter.

We should also bear it in mind that we are talking about what could be a wide range of offences. We are discussing a regulatory offence, but that can range from a trivial infringement of the regulations, warranting a modest fine in a magistrates court, right the way through to enormous breaches of the regulations that might result in death or serious injury. We must therefore allow the courts a wide range of penalties.

In the case of a gross breach or flouting of the regulations, the offence would almost certainly be taken on indictment, so the full rigour of a two-year sentence should be available. In the ordinary way the court will have to consider not only the circumstances of offences but the track record—possibly the criminal record—under these or other regulations of the accused.

Let us consider the example of a person with a long history of running an activity centre badly, recklessly, negligently or sloppily. If he is brought up for an infringement that did not in itself cause serious injury or death but which was one of a series of offences against the same regulations, that is another good reason for keeping a more serious penalty.

There should be a wide range of penalties, from fines to imprisonment. I can see the problem of what lawyers call double jeopardy—in the case of the Lyme bay disaster, triple jeopardy. It was clear that there was a lack of knowledge of local weather conditions, the equipment was wrong, there was inadequate liaison with the coastguard service and the rescue operation was mounted late and was based on information much of which proved to be inaccurate. Almost everything that could go wrong in that tragic incident went wrong. Rightly, the manager of the St. Albans activity centre and the managing director of Active Learning and Leisure were charged with manslaughter. In December 1994 the latter was convicted of manslaughter through gross negligence and given a custodial sentence of three years.

What followed represented an interesting legal development. The company was found guilty of corporate manslaughter and fined £60,000. The charges against the manager of the centre were, I believe, dismissed. It is important to remember that the company was the first in English legal history to be convicted of homicide; and, according to the Library briefing, its managing director was the first director to be given an immediate custodial sentence for a manslaughter conviction arising from the operation of a business. When I was a student—and, indeed, until the issue arose in cases such as the Marchioness—it was always assumed that a company could never commit manslaughter because, unlike a person, it was not capable of the mens rea—the intent—necessary to commit that sort of offence.

There are three possible results of a tragic incident such as this one. First, there is a claim for civil damages. In this case, I am not aware of whether the families concerned have entered claims against the individuals or company involved. Secondly, there is the prospect of a criminal action for manslaughter being brought against those who are to blame—persons or corporate persons. Thirdly, the regulations we are discussing in this debate may come into play.

I strongly believe that we should leave it to the courts to express the community's outrage—or in lesser cases, its concern—at certain incidents. The courts should be able to deal not just with cases involving a death but with cases of serious injury or of children being placed in danger, even though they may mercifully have escaped injury or death. There are also other remedies; the courts should take account of what else is happening at the same time. They cannot deal with the regulations in a vacuum if a criminal action for manslaughter is also being brought. Ultimately, however, it is for the courts to take into account all the factors that I have mentioned, which also explain why I cannot support my hon. Friend's amendment.

Mr. Matthew Banks

I listened carefully to the arguments of my hon. Friend the Member for Eastbourne (Mr. Waterson). I managed to follow most of them, but like many of my hon. Friends I am not a lawyer. Much of the time I consider that an advantage; but I think that I speak for most people when I say that, in the context of regulations involving children, we need the toughest deterrents to turn people away from courses of action likely to put young people in danger. That is why I cannot agree with the amendment, or with the arguments in its favour advanced by my hon. Friend the Member for Surrey, East (Mr. Ainsworth). I agree with him on most occasions, but not this time.

My hon. Friend the Member for Eastbourne mentioned that this company was the first to be found guilty of corporate manslaughter—that is significant. Had the right legislation not been put in place some years ago, that important step forward would not have been possible.

Mr. Peter Ainsworth

In view of my hon. Friend's chilling remarks about my modest amendment I should be grateful if he told us why he believes that two years is the right length of prison sentence.

Mr. Banks

It is a question of balance. In this instance I think that the hon. Member for Devonport has got it about right. Progress has been made, and it should not be tampered with by the amendment.

My hon. Friend the Member for Surrey, East referred to an individual being sentenced to three years for manslaughter. I agree with my hon. Friend the Member for Eastbourne that the courts must be the arbiters of these matters. They must decide on the merits of the case. If such a case comes to court, the jury will no doubt decide whether a company or individuals are guilty of the offence. The judge will have a number of options at his disposal. The amendment is unnecessary and two years is about right. I think that my hon. Friend the Member for Aylesbury (Mr. Lidington) went slightly over the top in suggesting a penalty of 10 years. As I have said, I think that two years is about right. Those outside this place would not expect us to reduce the penalty from two years to one year.

12 noon

The amendment reminds me of the debates that took place on bail bandits. The House will be pleased to know that I shall not be going down that avenue this afternoon. All too often some of my hon. Friends sought to tinker too much with a measure that was making excellent progress. We do not want the amendment before us to be agreed to. We want to be able to make progress. I agree with my hon. Friend the Member for Eastbourne that two years represents the right balance.

Mr. Forth

My hon. Friend the Member for Surrey, East (Mr. Ainsworth) has had a bit of a battering from my hon. Friends: next, we shall be hearing from Opposition Members about a Tory split on penalties.

Mr. Jamieson

I missed that.

Mr. Forth

I am sure that that will not stop the hon. Gentleman making the assertion.

Clause 2(3)(a) provides that regulations under subsection (1) may provide defences to be available in proceedings for an offence". The provision was inserted in Committee for exactly the reasons that have been advanced. I hope that that covers the point.

We are back in familiar territory. It is right for the House to seek to determine the appropriate penalty for a particular offence. As our expert colleague, my hon. Friend the Member for Eastbourne (Mr. Waterson), has said—he was muttering about sending me a bill, and I hope that on this occasion he might waive his fee for the advice that he has made available to the House—we are dealing with terms-not-exceeding provisions to give the courts discretion.

It is a well-known phenomenon that the term set out in the proposed legislation will be seen by the courts as a guideline. Sentences will tend to be set in response to the level at which the guideline is set. Some of us may regret that penalties all too rarely meet the maximum—I for one would like to see the maximum penalty exercised more often by the courts—but signs are given to the courts that reflect the penalties that we believe should be imposed.

In setting penalties levels, I suspect that the hon. Member for Plymouth, Devonport (Mr. Jamieson) decided to pitch them at about the same levels as are set for other health and safety offences. To take a more prosaic governmental view, we think it important that there should be consistency in setting penalties for broadly similar offences. It is important that the Bill is broadly consistent with the Health and Safety at Work, etc. Act 1974.

All in all, we have penalties that are much related to those that are provided for in the 1974 Act. When set against the offences with which the Bill seeks to deal, they are about right. It is my instinct to leave the wording, the levels and the penalties much as they are, and certainly not to reduce them. As some of my colleagues wanted dramatically to increase the penalties when they were considered in Committee, and as my hon. Friend the Member for Surrey, East (Mr. Ainsworth) thinks that they are a little excessive, I suspect that probably they are about right. I hope that on reflection my hon. Friend will feel able to withdraw the amendment.

Mr. Jamieson

One of the curious consequences of the Bill is the number of alliances that it has created across the Chamber and the number of differences that it has highlighted. I was far too cautious, of course, to mention a split in the Tory ranks; the Minister has kindly highlighted it for me. I heard the scurry as journalists left the Gallery to change their headlines for tomorrow. It may be that this moment will be looked upon in future as the turning point for the Government. It may be seen as the critical moment—the split too far that caused the Government's demise.

The hon. Member for Surrey, East (Mr. Ainsworth) seeks to reduce the penalty from two years to one year. There was an interesting debate on the matter in Committee, the report of which I am sure the hon. Gentleman read carefully before tabling his amendment. The hon. Member for Aylesbury (Mr. Lidington)—I call him the hanging judge—wanted the penalty to be increased to 10 years, which I found rather excessive. Such a penalty is comparable to that which faces someone who has caused the death of another person.

When I hear that some hon. Members think that the penalty should be increased and then hear that others think that it should be reduced, I suspect that two years is about right. It is worth reflecting on the sort of offence that would attract a sentence of two years' imprisonment. As the hon. Member for Eastbourne (Mr. Waterson) said, bringing his expert legal knowledge to the Chamber, it would be for the courts to decide the length of the sentence. The offence would be, as is set out in clause 2(1)(b)(i), to make a statement to the licensing authority … knowing it to be false and in (ii), to recklessly … make a statement to the licensing authority … which is false in a material particular. If a centre, in the process of being licensed, recklessly made statements that it knew to be false, I would say that such conduct should attract a sentence of possibly up to two years, depending on the severity of the offence. There are some who might think that such an offence should attract an even more severe sentence. My original view was that such conduct should attract a slightly longer prison sentence. We are seeking to deal with someone who undertakes recklessly to try to mislead the licensing authority about matters that relate directly to children's safety.

In Committee, however, we meshed more closely the Bill with the 1974 Act. That was an important function of consideration in Committee and it now represents the strength of the Bill. The Bill is now aligned with other legislation on health and safety. As the Minister has said, the 1974 Act makes provisions in similar circumstances for a two-year sentence. I justify the provision on those grounds although my natural instinct is for more severe punishment for someone who tries to mislead the licensing authority.

Mr. Peter Ainsworth

It is a wonderful thing to unite the House but I did not intend to unite it so solidly against me. I tabled a probing amendment, and the issues raised by it have been well and truly probed extremely thoroughly. I am unrepentant for moving it. It is important to consider whether the proposed penalties are appropriate. We have had the opportunity to do so, and I thank the hon. Member for Devonport and my hon. Friend the Minister for their responses. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.