§ 3.8 p.m.
§ Order of the Day for the Second Reading read.
§ THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the Criminal Law Bill be read a second time. This Bill has two main purposes. First to abolish all distinctions between felony and 505 misdemeanour, and second, to abolish certain ancient criminal offences which have become obsolete. The Bill is part of the process, which we all welcome, of modernising the criminal law. It implements recommendations made by two distinguished bodies. Part I follows the recommendations of the Criminal Law Revision Committee, under the chairmanship of Lord Justice Sellers; Part II of the Bill, which is new, follows the recommendations of the Law Commission under the chairmanship of Mr. Justice Scarman. Here I would say a word of grateful thanks for the excellent work which has been and is being done by these two bodies—together, in the civil field, with the Law Reform Committee under Lord Pearson—in their long term, exacting, but very necessary work of law reform. And a special tribute also for the painstaking way in which they approach their tasks, and for the care and thoroughness with which they examine the subjects under review, as illustrated by the two Reports which give rise to this Bill.
It has long been recognised that the division of criminal offences into felonies and misdemeanours has ceased to serve any useful purpose. Indeed, it is difficult nowadays to discover what the word "felony" really means. If you looked it up in a dozen different dictionaries and reference books you would probably get as many different answers. I believe that Dr. Johnson described it as a "crime denounced as capital by the law"—and perhaps this was apt in his day, because up to the nineteenth century felonies were generally punishable by death and the forfeiture of all property. As a legal term, the word "felony" seems to have been first used to describe what were once among the most heinous offences—those involving the betrayal of trust and faith between a man and his overlord; and in feudal times a felony signified any offence for which the offender was liable to forfeit his fief or land to the lord of the fee—though probably few of these offences would nowadays be considered crimes at all.
Eventually, "felony" came to be used to denote the gravest crimes, carrying the severest penalties, while "misdemeanour" was used to describe offences less than a felony. Special consequences, however, still attach to conviction for felony, and there are special procedures which must 506 be observed in trials for this class of offence, although to-day these differences have no real justification. Moreover, with the gradual development of the criminal law over the years, the creation of new offences, and changing attitudes towards different kinds of crime, the original distinction between felonies and misdemeanours has become blurred and many anomalies have crept in.
Just a few examples will show how absurd the distinction is. A person who commits the age-old crime of stealing, even if the article stolen is worth only a penny, is guilty of felony, but the swindler who commits the more modern offence of fraudulent conversion, involving perhaps many thousands of pounds, is guilty only of a misdemeanour. Rape is a felony; incest a misdemeanour. Possessing a firearm with intent to endanger life is a felony; using it with intent to resist arrest is a misdemeanour. It is a felony to destroy a burial register book; to solemnise a marriage outside permitted hours; unlawfully to vote for someone else at an election, or to embezzle from your employer, however small the sum involved. But it is only a misdemeanour to commit perjury, most forms of assault and indecent assault, and to obtain money by false pretences. Indeed, the whole calendar of crime is an indefensible mix-up of felonies and misdemeanours.
But, while it is easy enough to recognise that anomalies exist, it is far more difficult to decide how to remedy them. The Common and Statute Law on this subject is complex, and before abandoning a centuries-old distinction it was necessary to know what was involved. It was in these circumstances that the then Home Secretary, the noble Lord, Lord Brooke of Cumnor, referred the matter to the Criminal Law Revision Committee in March, 1964, and asked them to consider:Whether the present division of indictable offences into felonies and misdemeanours should be retained and, if not, what revision of the law should be made in consequence of its abolition.The Committee's Report—their seventh—was published in May, 1965. As might have been expected, they had no difficulty in deciding the first question put to them. They had no doubt whatever that the distinction between felony and misdemeanour should be abolished. The bulk of the Committee's Report—as of Part I of the Bill now before us—is concerned 507 with the adaptations of the law required as a result of the abolition. In general, these consequential provisions are intended to consolidate and clarify the existing law, but they also include some modifications, not directly arising from the abolition of the distinction between felony and misdemeanour.
The Government accept the Committee's recommendations and, indeed, a Bill to give effect to them was introduced in the last Parliament and given a Second Reading in another place, but, of course, that Bill lapsed with the Dissolution of Parliament. Part I of the present Bill is substantially the same as the earlier one, although we have made a few changes to meet points made in the debates at that time. But substantially Part I of the Bill is the same as before, and follows, with a few alterations, the draft Bill annexed to the Committee's Report.
I turn now to the Bill's particular provisions. Clause 1 carries out the main purpose of Part I of the Bill. It abolishes all distinctions between felony and misdemeanour and provides that, subject to various exemptions specified in later clauses, the present law and practice relating to misdemeanours shall apply to all offences, including piracy. It is necessary to refer specifically to piracy because that offence, although generally treated as felony, is sometimes treated as an offence of a separate class, and because the reference facilitates repeals.
Certain provisions of the criminal law at present dependent on felony are replaced, with suitable modifications, by the subsequent provisions of the Bill. But there are some matters which apply only to felonies and not to misdemeanours, including certain peculiarities in the mode of trial, which are not being replaced and will simply lapse with the abolition of felony. Details of these are given in paragraphs 58 onwards of the Committee's Report. They include the formal giving of the accused in charge of the jury, and the rule that for felony the accused must be in court throughout the trial: it is occasionally convenient for the trial to continue in the absence of one or more of the accused, particularly if the trial is a long one, and there are several accused, and this will now be permissible for all trials on indictment, but clearly the power would only be used sparingly 508 and only when it would not prejudice the defence.
Another peculiarity of a trial for felony which will disappear is the allocutus. This is the procedure by which a person convicted of felony is asked formally whether he has anything to say why the court should not give judgment according to law. The custom dates from the time when no felon was allowed a lawyer and no prisoner could give evidence for himself. Its purpose, in times when conviction of felony meant death, was to give the felon a chance to escape this fate by pleading "benefit of clergy" and being handed over to the ecclesiastical authorities, whose punishments, I am told, were more lenient. It is now a mere technicality and is often misunderstood. It does not allow the offender to make a plea in mitigation in the modern sense, and its abolition will in no way affect the present practice of the courts in giving the accused a reasonable opportunity to say anything he wishes to say in mitigation of sentence.
The present statutory disqualifications arising from conviction of felony will also disappear. By Section 2 of the Forfeiture Act 1870, conviction of felony resulting in imprisonment for over twelve months disqualifies the offender from holding office under the Crown, or various other offices; from membership of either House of Parliament; from voting at elections and from entitlement to a pension payable out of any public fund. No similar consequences follow from any conviction in Scotland, and the Government agree with the Criminal Law Revision Committee that these automatic disqualifications should not be continued.
In Clause 2 and 3 there are some very important consequential provisions arising from the abolition of felony. Clause 2 deals with powers of arrest without warrant. Subsections (1) to (6) create certain new powers of summary arrest to replace existing Common Law powers that are dependent on the crime being a felony, while subsection (7) preserves certain other existing powers of arrest. At present some of the most important powers of arrest, under Common Law, apply only where the crime is a felony. If we are to have proper enforcement of the law we must clearly preserve a power to arrest immediately, without warrant, persons who have committed, or who are 509 reasonably suspected of having committed, the most serious offences.
With the disappearance of felony it is necessary to establish a new criterion for identifying those serious offences to which a general power of summary arrest will apply, and this is done by Clause 2(1). In future there will be a general power of arrest, without warrant, for offences for which the sentence is fixed by law (that, for all practical purposes, means treason and murder); for all offences which carry a statutory maximum penalty of at least five years' imprisonment; and for attempts to commit any such offence. The offences covered by this general power of arrest will be known collectively as "arrestable offences"—a term which I believe will soon come to be understood and accepted. It should be at least as easy—indeed, I think easier—for the police, and anybody else who might have occasion to arrest a person without warrant, to remember which offences carry five years' imprisonment as to remember which offences are felonies.
In practice the new powers of summary arrest will not differ greatly from the existing ones. They embrace all offences which are now felonies, with a few unimportant exceptions for which a power to arrest without warrant is unlikely to be required. For example, it is a felony carrying a maximum of two years' imprisonment for a bankrupt to abscond with £20 worth or more of property which ought by law to be divided among his creditors. This offence, which was "arrestable" as a felony, will not come within the new powers of summary arrest because the maximum penalty is less than five years. But the new powers also bring in the most serious misdemeanours, although generally these are offences for which it will seldom be necessary to arrest a person without warrant. The most important additions, for which the power of summary arrest may be useful, are the offences of obtaining property by false pretences and causing death by dangerous driving, both of which are at present misdemeanours carrying a maximum of five years' imprisonment.
Subsections (2) to (5) of Clause 2 define the circumstances in which the new power of summary arrest may be exercised. They embrace the powers of a private citizen as well as of a constable, and are of such importance that I think it right that I 510 should repeat their effect. There are four situations. First, any person may arrest anyone who is, or whom he reasonably suspects to be, in the act of committing any arrestable offence. Second, where an arrestable offence has been committed, any person may arrest anyone who is, or whom he reasonably suspects to be, guilty of the offence. Third, where an arrestable offence is suspected, a constable—and only a constable—may arrest anyone whom he reasonably suspects to have committed it. Lastly, a constable may arrest without warrant any person who is, or whom he reasonably suspects to be, about to commit an arrestable offence. Subsection (6) provides, in addition, that a constable may enter—if need be, by force—and search any place in order to arrest a person suspected of an arrestable offence.
Subsection (7) makes necessary savings with regard to the operation of any statutory restriction on the institution of proceedings for an offence and other powers of arrest not dependent on the offence being a felony. The Common Law power to arrest for the purpose of preventing a breach of the peace is preserved. So, too, are the powers under Section 11 of the Prevention of Offences Act 1851 to arrest any person found committing an indictable offence by night, and the many other statutory powers to arrest for particular offences, such as the power under the Licensing Acts to arrest persons found drunk and disorderly or drunk and incapable.
Clause 3, which makes statutory provision in a field hitherto left to the Common Law, allows the use of reasonable force in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders. I understand that this clause has given rise to a certain amount of concern, and that there is some fear that it may extend the law by giving general sanction for the use of extreme measures to protect land and property. We shall, of course, consider this in more detail in Committee, but I think it may be helpful to say a few words now about what is intended.
The Common Law on the matter is very obscure, but there is reason to think that it allows the use of force, where necessary, to carry out an arrest or to prevent crime, although it is possible that the extent of the existing powers may depend on whether the crime is a felony 511 or a misdemeanour. The clause has been included to prevent any argument that the law has been changed because of the disappearance of felonies. The intention is to place on a statutory basis what is probably the existing law on the matter. It would not be practicable to attempt to define what is meant by "reasonable force", but we do not think that the provision would be held to permit the use of force where no force is necessary, or to permit the use of more force than is required to effect the arrest or to prevent crime. We think that it would very likely be held that it would not be reasonable to use even the slightest force to prevent trivial offences.
Clause 4 replaces the present Common Law offence of being an accessory after the fact to felony—which will disappear with the abolition of felony. First, there will be a new general offence of doing acts intended to impede the apprehension or prosecution of offenders for arrestable offences. This will be generally similar to the present offence of being an accessory after the fact to felony. It will cover such conduct as driving a criminal away after a crime, providing a car for the purpose, hiding him from the police or destroying finger-prints or other traces of the crime. As a safeguard against unjustified prosecutions, and to secure consistency of prosecution policy, proceedings for this offence may be instituted only by or with the consent of the Director of Public Prosecutions.
Subsection (2) of Clause 4 provides, however, for the case where an offender is on trial for an arrestable offence but it appears on the evidence that he has committed only the new offence of assisting the main offender. In these circumstances, he can be found guilty of the assisting offence without its being necessary to start fresh proceedings against him or to obtain the consent of the Director of Public Prosecutions. Subsection (3) makes important changes in the penalties for assisting offenders. At present, the maximum penalty for being an accessory after the fact to a felony other than murder is two years' imprisonment. This penalty is substantially increased, and will in future depend on the gravity of the main offence. For example, if the main offence carries a maxi- 512 mum of under 10 years, the maximum penalty for assisting the offender will be 3 years, but if the maximum for the main offence is 14 years or over, the maximum for assisting will be 7 years. I am sure that noble Lords will agree that in these days of planned crime these increases in penalties for accessories are to be welcomed.
The other substantial change to be made in consequence of the disappearance of accessories to felonies is in subsection (7) of Clause 4. This extends the present offence of receiving stolen property to cover dishonestly undertaking, or assisting in, its retention, removal, disposal or realisation. There are various activities in connection with the disposal of stolen property which ought to be punishable, but which are not at present covered by the law relating to receiving. The extension now proposed will stop this gap. It will, for example, penalise those who knowingly convey stolen property to any place after a theft, those who take charge of it and keep it on their premises or hide it on the approach of the police, and those who negotiate for its sale.
I turn now to Clause 5 of the Bill, which deals with two further forms of obstruction of the enforcement of the criminal law. First, there is a new offence of accepting reward for not disclosing information about an arrestable offence. This will replace the existing offences of misprision of felony and compounding a felony. Secondly, it will be made a statutory offence deliberately to waste the time of the police by giving false information. This will apply not only to false information about the commission of offences, but also to any false story giving rise to apprehension for the safety of persons or property. It will bring in such cases as the bomb hoaxer, if he can be caught. Cases of this kind cause serious loss of time for the police, and may throw suspicion on innocent people. Offenders were at one time prosecuted for public mischief, but in a case in 1954 the practice was critised by the Court of Criminal Appeal, which suggested that there should be a specific statutory offence aimed at this kind of conduct. Proceedings for these obstruction offences may be instituted only by or with the consent of the Director of Public Prosecutions. Again this is intended to ensure consistency of 513 prosecution policy and to prevent prosecutions for trival offences.
There is one other provision arising from Part I of the Bill to which I should like to draw particular attention. It is paragraph 9 of Schedule 2, and it deals with the powers of the courts to require an offender to pay compensation to his victim—a subject which has aroused keen public interest. At present, Section 4 of the Forfeiture Act 1870 empowers a court to award compensation of up to £100 for loss of property arising from a felony. The disappearance of felony makes it necessary to amend this section and the opportunity is taken to strengthen the power of the courts substantially. By this amendment they will be able to award compensation on conviction of any offences triable on indictment, and to award compensation for damage to property as well as for loss of property. The maximum limit on the amount that can be awarded is also increased from £100 to £400.
I think I have covered the most important provisions of Part I of the Bill. In addition, it contains many other detailed and consequential amendments and, I hope, improvements of the law. They include provisions relating both to the trial of offences and to the courts' powers in dealing with offenders. Generally they represent a clarification and restatement of the existing law, with suitable adaptation to take account both of the abolition of felony and of modern needs and circumstances.
I turn now to Part II of the Bill, which abolishes certain obsolete offences, which to-day's Guardian, in an excellent leading article, describes as "a huge pile of legislative deadwood…for a parliamentary bonfire". Included among them it alleges, will be laws written in language which sometimes breaks into the region of poetry. I am sadly conscious of the lack of poetry in what I have been saying, but I am confident that we shall have much better, more just and more workable laws.
One of the items in the first programme of the Law Commission was a review of certain ancient crimes. The Commission completed their review earlier this year and their findings were published in a Report laid before Parliament on June 21. The Government have 514 accepted the Commission's recommendations, and Part II and Schedule 4 to the present Bill give effect to them. The offences being abolished—some of them statutory, some at Common Law—as the Law Commission explain in their Report, are now wholly obsolete. To mention just a few, we are abolishing the Common Law misdemeanour of issuing a challenge to fight.
§ LORD STONHAM
I am quite sure that my noble friend will be happy about that. It dates from the efforts to suppress duelling. We are also abolishing the offence of being a common night-walker; that is, being out and about when decent folks are abed.
§ LORD DERWENT
My Lords, I take it that it is still an offence for noble, as opposed to common, night-walkers.
§ LORD STONHAM
My Lords, I was speaking about Common Law, and of course "common" includes nobles.
Among the statutory offences which will disappear are those under the Profane Oaths Act 1745—which makes it an offence to profanely curse, or swear; and grades the penalty according to the status of the offender: 1s. if you are a day labourer, or a common soldier or seaman; 2s. if you are any other person under the degree of gentlemen, and 5s. (noble Lords may be sorry to hear) for gentlemen and above. I have no doubt that that is the origin of the phrase, "a rich oath".
One question which may arise here is why we are limiting our repeal of obsolete offences to those mentioned in this Bill. It may well be asked whether there are no other offences which are now completely out of date and ripe for repeal. My Lords, I have little doubt that there are others. But the review of the law is a long-term process, and experience has shown that even an apparently simple change can have wide implications. This Bill alone makes it clear that the apparently simple matter of doing away with the wholly unnecessary and obsolete distinction between felony and misdemeanour has widespread ramifications which could not have been fully realised without the careful consideration given to the matter by the Criminal Law Revision Committee. It is therefore essential that before steps are 515 taken to repeal old laws, a thorough examination should be made of all that this entails, so that we can fully consider whether the old law is completely obsolete or whether some new law should be put in its place. This is a continuing process and even now further reviews are being made. For example, the Criminal Law Revision Committee are at present undertaking a review of Common Law misdemeanours. I am sure the House will agree that it would be wrong to wait until the whole review is completed before making changes in the law, and I hope noble Lords will also agree that we should not go beyond the scope of the recommendations which have been made so far. This Bill, then, implements two valuable Reports, proposes a major clarification and modernisation of the law, and advances in no small way the simplification of the Statute Book. I hope that the House on those grounds will welcome it as an important step forward. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Stonham.)
§ 3.39 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, the full description of this Bill which has just been given to the House by the noble Lord, Lord Stonham, will, I think, have been of the greatest assistance to those who might on first looking at the Bill consider it rather complicated—indeed, the further they go with it the more complicated it appears to become. The value of the two Reports on which the Bill is based is undoubted. I should like to join with the noble Lord, Lord Stonham, in expressing gratitude to those who have taken so much time and trouble in preparing the matter which now forms the provisions of this Bill. Indeed, in this case I think it was no mean task, because the consequential provisions of the abolition of the distinction between felony and misdemeanour go into the most unexpected realms of the law. My Lords, I think this is the most difficult Bill that I have seen for a long time about which to make a Second Reading speech, because if one accepts, as I do at once, that it is a good idea to abolish the distinction between felony and misdemeanour, almost all of the rest of the subject becomes a matter of detail. Therefore I will try not to make too long a speech 516 at this stage; although I believe that there are certain matters which we ought to consider as a House in Committee later on. It is perfectly true, also, that the matter had a Committee Second Reading in another place in the last Session and various useful comments which were made there I understand have been to some degree incorporated in the present draft.
Having abolished the distinction between felony and misdemeanour, the Bill follows the recommendations of the Criminal Law Revision Committee in setting out in statutory form the alternatives in those matters, like the crime of being an accessory after the fact of felony and misprision, or compounding a felony, which otherwise would have fallen to the ground and require to he replaced. Again as a matter of principle I cannot believe there is anybody in the House who would object to a replacement being provided for those offences which otherwise would disappear. Whether, again, the details of them are altogether acceptable is a matter which I do not think it would be right to consider at this stage. Nevertheless, there are one or two points which I should like to raise on the Bill as it stands and at this stage. First of all, looking at Clause 2 we find the first appearance of this new expression "arrestable offence". I will leave it to my noble friend Lord Conesford to make his representations upon the phraseology, and for the purpose of my speech I will continue to use the phrase "arrestable offence" until it is altered by him or by anybody else.
The distinction now being introduced is a new division of the criminal law to replace the division which used to take place between felony and misdemeanour. It is not just a question of nomenclature, because a number of matters follow from it, as was said by the noble Lord, Lord Stonham. In the first place, it sets out the circumstances where either an ordinary member of the public or a police constable may arrest, and these specifications of the law apply only to arrestable offences. Secondly, it sets out the whole system of dealing with what had previously been accessories or misprisions or compounding a felony. Therefore it seems to me important to make quite sure that the crimes which are in future to be arrestable offences cover the 517 whole spectrum of those which ought to be included. The noble Lord, Lord Stonham, confirmed what I thought to be the case, that when Clause 2(1) says that an arrestable offence shall be one where the sentence is fixed by law or, by virtue of any enactment, as a term of five years or more, the Common Law department of this is really confined to treason, murder—if that is still a Common Law offence at all—and manslaughter.
There are Common Law offences of a serious nature for which, so far as I know, the penalty is not fixed in that way. In other words, it is not a life penalty. Perhaps the most important of them is causing an affray. As I understand the drafting of this Bill, causing an affray would not be an arrestable offence. There are others. There are certain matters in conspiracy; there are matters of sedition and seditious libel. So far as the latter two are concerned, I do not suppose it will very often be the case that a member of the public, or indeed a police constable, will wish to arrest offenders without a warrant and thereby bring into play the provisions of subsections (2) to (5) of Clause 2.
§ LORD STONHAM
My Lords, may I interrupt the noble Viscount? My noble and learned friend the Lord Chancellor, when he winds up the debate, will be dealing with any points that are raised, but I should not like the point which the noble Viscount has just made to go by without challenge. I think that if he looks at Clause 2(7) he will find that this must be covered; and, indeed, in my speech I referred to offences likely to cause a breach of the peace, or injury, and I should have thought that an affray would have been likely to cause injury and therefore would still be arrestable.
VISCOUNT COLVILLE OF CULROSS
My Lords, I suppose this may well be so; but if that is the case, the difficulty would then arise that we have serious offences where we have not, after all, set out, as I had hoped we should have done, the rights of the public and of the police so far as powers of arresting are concerned in this Bill. The noble Lord may be right about this, but I thought that one of the merits of this operation was that, having abolished this distinction, with all the uncertainties of law which flowed from it, we should at any rate state in 518 statutory form what were people's rights, and that the only thing we should require them to remember was whether or not the penalty was five years set down by Statute or life by Common Law. If the noble Lord is saying that the matters with which I have just been dealing are, after all, going to come within a third category, it would seem to me, since my study of Archbold shows there are very few of them, that there might be a case for seeing whether we cannot bring them within the scope of the Bill instead of leaving them to some rather vague statement or interpretation of subsection (7). I make this point because the offence of causing an affray was one which was resuscitated quite recently to deal with certain offences and was found extremely useful, and one, I should have thought, eminently suitable for arrest by both members of the public and by constables; and I think that members of the public and the police force ought to know where they are. I therefore commend this for further study.
§ LORD CHORLEY
My Lords, would not the noble Viscount agree that almost all of these cases would come under Clause 3? I thought of the same point as he has thought of. Clause 3 is a very valuable clause and I think it would cover most of them.
VISCOUNT COLVILLE OF CULROSS
My Lords, the noble Lord, Lord Chorley, has suggested yet another interpretation of the law. If the noble Lord is right, this may well be the answer, but what I had hoped to find in the Bill was a clear statement of what the public might do and the circumstances in which a member of the public might effect an arrest without a warrant, and similarly in the case of police constables. The moment one suggests the Common Law offence one immediately gets a barrage from those who say, "It is perfectly all right; it is covered by something else". The opportunity is here to get it straight in the Bill and make it perfectly apparent to all. The point I am making is that I think the House should consider whether this is done or not.
The other subsidiary point, which arises, I think, on Clause 2 and on Clause 3, is whether or not this supersedes the Common Law. I am sure that I shall be told by the noble and learned Lord, 519 the Lord Chancellor, that, as a matter of drafting, this is apparently so; even though it does not say so in the Bill. But if we are attempting to replace the existing law of the country in realms where it is extremely dubious with clear statutory provisions, there should be no room left, where a matter does not appear to be covered by the Bill, for a reliance on doubtful cases of Common Law. I suggest again that, as a matter of principle, the House might like to consider whether we hope to repeal any rules of law previously enforced and replace them quite clearly with what this Bill says.
In another place a point was raised on Clause 4 about the position of a husband or wife who might have been doing something which would be an offence under subsection (1) of the clause, and a certain plea for compassion was made that this should not be affected by this new offence as a substitution for being an accessory after the fact of felony. I have studied this point and I believe that here the policy in the Bill (because I think that this is a matter of policy) is one which ought to be supported. First of all, I cannot believe that anybody would lack confidence in the decision of the Director of Public Prosecutions under subsection (4) whether or not to prosecute in a case. Secondly, it does not, so far as I can make out, affect the position of a husband or wife being an accessory before a fact or inciting to crime. This is not touched. Thirdly, I understand it does not prejudice in any way the defence of coercion which is set up under Section 47 of the Criminal Justice Act 1925—in other words, the wife, even though committing an offence technically under subsection(1), can still plead that she did so only because she was coerced by her husband, and this is a statutory defence. Therefore I am happy with this, and I think that the Government have reached the right conclusion. I believe that subsection (7) will be a useful addition to the criminal law and one that will hold the fort until such time as the whole law of larceny and subsidiary matters is reconsidered.
I would make just one other particular point before coming to the later stages of the Bill. The point was raised in another place about the civil consequen- 520 ces of the abolition of the distinction between a felony and a misdemeanour. Most of them have been dealt with, but one on which no comment was made is one which I think is of some importance. There is a rule that no person, by a will or intestacy, may take advantage of a death which has taken places as the result of his own felony. This is perfectly sensible so far as murder and manslaughter are concerned. Obviously one can see the public policy for it. However, the abolition of the distinction leaves the civil court in some doubt about whether this distinction, the arrestable offence, can be adapted to the previous rule for a felony. If so, does this mean that if two members of a family are involved in a motor accident, for which one of them is prosecuted and convicted for causing the death of the other by dangerous driving, which is an arrestable offence, as the noble Lord told us, then he will not he able to profit by the other's will I may not have put this very well, but the person who may profit by a felony may have killed the person in the motor car and I wonder what would be the consequences in a civil action as a result of the new clause.
On Clause 6, I should be grateful if the noble and learned Lord, the Lord Chancellor, would clear my mind on two points. The first arises on subsection (3) where we have the provision set out that on a person's trial on indictment for any offence other than treason or murder a jury may find him guilty of another offence which would have been included in the charge for which he was originally indicted. This has to be tied up with the provision in Clause 4(2) whereby even if he is not found guilty of any of the actual charges he can still be found guilty under Clause 4(1) of being what is at present an accessory after the fact. If the noble and learned Lord can tell me how in practice this can work in a judge's summing-up and in what a jury is to consider, he would be doing a considerable service to the class of legal practitioners who are worried about it, because the Solicitor General did not deal with this matter on Second Reading in another place and it is an important point. I hope express directions will not have to be given in the summing-up, and express decisions given by the jury whether or not they are going to 521 find a prisoner guilty in the whole series of offences or attempted offences, simply as a result of the provisions of this Bill.
Under subsection (5), when the new Criminal Division of the Court of Appeal deals with a case where there have been two indictments, will the result of the new provisions of an automatic plea of not guilty be to debar it from sentencing the appealing prisoner on one of the counts on which, under this particular subsection, he appears now to be given an automatic acquittal merely by pleading guilty to one of the lesser charges in the indictment? This may be in some way a limitation on the powers of the Criminal Division which at the moment they do not have, and I do not think it has been considered by the Criminal Law Revision Committee.
Much of the rest of Part I of the Bill is detailed and I do not think it necessary to say anything about those clauses at this stage. So far as Part II is concerned, we are grateful to the Law Commission for studying this matter, and particularly for their assurance that the abolition of these offences is not in any way going to prevent or hinder the battle against the more sophisticated types of crime which, in an amazing way, can so often still be charged under medieval Statutes. Their references to the modern practice of "bugging" and the use of other listening devices is very important. If, indeed, it cannot he claimed to be an offence under the ancient law of eavesdropping, it would be perfectly justifiable to abolish that offence; but I am hoping, all the same, that we shall take the opportunity to have another look at this matter and see whether there is not room for the creation of a new offence to deal with this matter.
There is only one other point which I should like to put to the noble and learned Lord the Lord Chancellor. For some time he has been making speeches about this matter. I hope he will not take this amiss, but he has almost an obsession about maintenance and champerty. The noble and learned Lord said last week that he had just received a report from the Law Commission proposing sweeping changes in the law relating to maintenance and "charity"—I think that he meant champerty but the OFFICIAL REPORT got it wrong—though I should not be too abusive of 522 charity, because we may all be dependent on it before very long.
In Schedule 3 there are a number of repeals which I would suggest have nothing whatever to do with the distinction between felony and misdemeanour. Among matters of most remarkable historic interest, we find that the second Statute (the Statutum de Conspiratoribus) in Part I is about champerty, and so are the Statutes, 28 Edw. 1. c. 11, and 1. Edw. 3., and 3 Edw. 1. Chapter 25 (The Statute of Westminster the First); but the Bill does not appear to go on to repeal 33 Edw. 1., which gives the definition of champerty. There are a number of other matters about champerty and maintenance in this Schedule. On page 18, there is 1. Ric. 2. c. 4. and 32 Hen. 8. c. 9, both of which relate to maintenance and champerty. I agree that some of these matters should have been looked at, and I understand that the Law Commission have been doing so; but why in this Bill do we choose to deal with this particular matter?
Rather worse than that, there is a certain amount of alteration in this Schedule from that which was proposed by the Criminal Law Revision Committee. Your Lordships will see that on page 19, at line 39, there is the repeal of Section 61 of the Juries Act 1825. Perhaps your Lordships may think that is not a particularly notable affair, but I would tell your Lordships that this is not one of the repeals suggested by the Committee—perhaps with justification, because this is what it says:Provided always, that, notwithstanding anything herein contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and he punished by fine or imprisonment, in like manner as every such person and juror might have been before the passing of this Act.I do not think that this has anything to do with the main part of this Bill at all. It was not recommended by the Committee. And I suggest that this matter of embracery should be left out of the Schedule and Repeals altogether, to say nothing about the series of offences under the Act of Edward I, not mentioned by the Committee, and I dare say not so important.
523 There is one other matter in these Repeals. The Treason Act 1543 is also being repealed. I appreciate that the Bill has gone on the basis that it is trying to assimilate the crime of treason with that of murder. On the other hand, according to Archbold, that very ancient Act gives the only jurisdiction to the courts of this country for trying a prisoner who has committed treason outside the jurisdiction. It is not anything like as obsolete as might be thought, because the case of R. v. Lynch in 1903 was founded on this Act and dealt with treasonable activities which led up to the South African War. Again, I do not insist that this Act is necessary or that it should not be replaced, but it does not seem to me that changes of this nature not explained by the Committee ought to be accepted by the House without further ado. I would ask that when it comes to Committee stage noble Lords should look at these matters with some care in order to see whether these repeals are entirely necessary in the present form.
These, of course, are matters of detail, and I should not wish to press them at the moment except to say that they are not within the realm of the general principle that we are discussing. The general principle is one that I most heartily welcome, and I hope that the Bill will be given a Second Reading this afternoon and that we can look forward to many fascinating discussions about these details at a later stage of the Bill.