§ 4.27 p.m.
§ Debate on Second Reading resumed.
§ LORD CONESFORD
My Lords, this is a very important Bill and I do not think that anyone will question its main object. The reform of the law which the Bill embodies has been recommended by a powerful Committee, under the chairmanship of Lord Justice Sellers, and I would join with all others who have spoken in this matter in expressing our gratitude to his Committee. What is in fact proposed is the abolition of an archaism that unnecessarily complicates our law. Therefore with the main object of the measure I do not think there will be any disagreement.
There are, of course, as the noble Lord, Lord Stonham, explained, many consequential changes, some for re-stating the existing law in a way now rendered necessary by the abolition of the distinction between felony and misdemeanour. Some remove doubts which would otherwise exist, and some make actual changes 533 as a matter of policy. These make very important, and in some cases controversial, changes in the law—perhaps I should not say controversial changes, but, at any rate, changes that need a great deal of examination and careful discussion—and I should like to make a plea about the Committee stage. I do not myself propose to-day to deal with many of the points which could, I think, more usefully be raised during the Committee stage. I want to say only two things.
The first is how very useful I found, and I think others who wish to study this Bill will find, the proceedings in another place on February 9 of this year. They took place in what did not exist in my day in the House of Commons; namely, the Second Reading Committee. I think this is the first occasion on which it has been my duty or good fortune to study the proceedings in the Second Reading Committee of another place, and while I am sure that it would be improper to express any criticism of proceedings in another place, I hope that it is not improper for me to record my admiration in this case. It seemed to me that in one brief debate a number of extremely useful criticisms and suggestions were made, and I was pleased to hear from the noble Lord, Lord Stonham, that some had led to a difference in the Bill now before us from the Bill that was then before another place.
The other comment that I would make about our Committee proceedings is that I cannot believe there is any other Bill on which it would be more useful to be advised in Committee by the noble and learned Law Lords. I therefore hope very much that the Committee stage will take place at times convenient to the noble and learned Law Lords. I am very glad to see that two of them are to intervene in our debate this afternoon, and that alone, I think, would be sufficient to deter me from raising any difficult legal points. On the detail, therefore, I confine myself to saying that I think there will be a great many points which we shall wish to raise on the Committee stage but which I do not propose to go into this afternoon.
There is one point, however, that I regard as of very great importance and on which I hope to have the sympathy of the noble and learned Lord the Lord Chancellor. I think he is always quite kindly disposed when I venture to bring 534 forward considerations of language. My criticism of the Bill and of the Report, on which alone I am going to speak in detail this afternoon, concerns the phrase "arrestable offence". I am going to point out what appear to me to be very serious disadvantages of this almost illiterate expression. This is a lawyers' Bill. We are abolishing an historic distinction in English law. I think we are abolishing it for good cause. But I am horrified that what will be ascribed to noble and learned Lords Justices, Law Lords and others should contain something which will be an example in the schools of the illiterate use of English.
This expression, "arrestable offence", is also extremely inconvenient, as I hope to show. The clause in which the expression occurs is Clause 2, and the clause goes on to deal with the rights of arrest. Perhaps at this point I might give what I believe to be the answer to an intervention by the noble Lord, Lord Chorley, while my noble friend was speaking, when he said he thought that, whatever may be the shortcomings of the rights of arrest given in Clause 2, they were probably put right by what appeared in Clause 3. I should like to mention in passing why I do not think that can be quite the case.
§ LORD CHORLEY
I was dealing with the particular point, affray. I agree that it does not cover all the possible cases.
§ LORD CONESFORD
Perhaps what I am about to point out is what the noble Lord also had in mind. Clause 3 is concerned with the use ofreasonable force in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders",but what is lawful arrest will largely depend on the previous clause. First of all, what is the ordinary rule in English, or the ordinary practice concerning words ending in "able" or "ible"? If "able" or "ible" follows a transitive verb it normally means liable or requiring to be whatever the verb is in the passive. "Arrestable" would mean "liable to be arrested", and that is the only thing it could mean. To give a simple example, if you say, "Is the dog teachable?", you do not mean, "Is it able to teach?", you mean, "Can it be taught?". That is the ordinary rule in the English language about the use of "able" following a 535 transitive verb. Whatever else is true of such an offence, it is not capable of being arrested in the sense in which "arrest" is used in this Bill.
But there is another very astonishing fact which some noble Lords may not have noticed. They may think that at least the arrestable offences mentioned in Clause 2 are all the offences for which it is possible to arrest. But they are not; and the Committee realise they are not. Let me read a short passage in paragraph 12 of their Report. This is what the Committee themselves say about their expression:The term will not of course cover offences which are punishable with less than five years' imprisonment but for which there is a statutory power of arrest; but we do not think that this will cause any confusion.What optimists they are! They use an expression, a simple but simply illiterate expression, like "arrestable offence", and then they say that it will not cause any confusion, even if it does not include offences for which people can be arrested. I really am asking for the sympathy of the noble and learned Lord the Lord Chancellor and for the highly skilled assistance of the Parliamentary draftsmen.
Let me say at once that this is a matter in which the Parliamentary draftsmen are not themselves guilty, because they are simply carrying out the recommendation of this Committee. Therefore there is nothing, so far as I can see, to prevent the noble and learned Lord the Lord Chancellor and the Parliamentary draftsmen from putting their admirable brains together and giving us something better. And I think that this is necessary for the reputation of Parliament and for the reputation of the legal profession. I am delighted to know that I have the sympathy in this matter of at least one of the noble Lords and learned Law Lords who is to follow in this debate.
Perhaps I might deal with the three possible ways that occur to me of remedying the defect. Many others may occur to the Lord Chancellor. One is this—and it was indicated, I think, in the excellent speech of my noble friend Lord Colville of Culross. He said—and I rather think that the same point may be made by the noble Lord, Lord Chorley, who is to follow me—that Clause 2 is supposed 536 to give some guidance to members of the public in knowing what their rights are with regard to arrest. But they do not know what the maximum penalty is under various Statutes, and do not know, therefore, what will constitute the offences known as an "arrestable offence". They will have at some point to see a list.
One of the possibilities of dealing with this matter and it may be, in the long run, the most useful (I think something like it was suggested by my noble friend Lord Colville of Culross), is that there should be a list of the offences concerned, so that the public may have some idea of what their rights are. The noble Lord, Lord Stonham, for whose careful speech and explanation of the Bill I should like to express gratitude, said that it would not be too difficult for a constable to learn what is an "arrestable offence". I dare say the constable may be taught it; but it is rather rough luck on the public if they have no idea of what their rights are in the matter.
§ LORD STONHAM
My Lords, if the noble and learned Lord will allow me to intervene, I did not say that "it would not be too difficult"; what I said was that it would be as easy, if not easier, for the constable to know what was an "arrestable offence" as to distinguish between felony and misdemeanour.
§ LORD CONESFORD
My Lords, I think that I should cordially agree with that. I am sure that he could learn it. But I hope that the noble Lord, Lord Stonham, is not without sympathy with the point that I am making, that we should, if possible, try to be a little helpful to the public. I say that the clause as it stands, with this expression which I am attacking, does not help the public at all to know what is meant. So I suggest that one possible way of dealing with it is to say "listed offence", or something of that sort, and then have a list or a schedule. That is one possibility.
The second way is to have some different word altogether from anything incorporating the word "arrest". I do not pretend that I have thought of a good one, though one noble and learned Law Lord, if my memory is right, in discussing the matter with me, suggested for consideration a "holding offence". There may be difficulties about that, but 537 it might be useful to give to the noble and learned. Lord the Lord Chancellor any suggestion that he might find useful even in discussion.
But there is a third possibility, that the Government find it vital or necessary to use the word "arrest" in some form or other. Then I say still that an "arrestable offence" would be definitely wrong. Better than "arrestable" would be "arrest", treating it purely as an adjective. If the noble Lord will refer to Clause 4(6) in the Bill before him he will find there a reference to "an extradition crime". We do not say "extraditable crime"; we say "extradition crime". In exactly the same way you might use "arrest" as an adjective—an "arrest offence". I am not recommending it. I do not think it would be good, but I say it would be better than "arrestable". Then, thirdly, you might say an "arresting offence". That would be an offence for which, in certain circumstances, a man would be entitled to arrest. The one thing that seems to me quite intolerable is "arrestable offence".
I hope it will not be thought that this point is in any way frivolous or unimportant. I am putting it forward perfectly seriously, and it is meant to be helpful. I shall do the best I can on this Bill, of the main purpose of which I approve, whatever is done about the expression; but for the honour of Parliament and the reputation of the legal profession I shall fight with all the force I can the expression "arrestable offence".
THE MARQUESS OF ABERDEEN AND TEMAIR
My Lords, may I add one termination to what the noble Lord has referred to. In Clause 3 there appear the words:A person may use reasonable force in the prevention of crime.If a householder finds someone in his house whom he is reasonably confident is going to commit a burglary, is he able to use force against him without contravention?
§ LORD CONESFORD
My Lords, there is one point in my notes to which I did not refer, and perhaps I should. I do not want it to be supposed that I am so ignorant of the English language as not to be acquainted with the fact that the termination "able" or "ible" when it 538 does not follow a transitive verb may have a different sort of usage. The noble and learned Lord on the Woolsack may still be acquainted with the article of Fowler on the subject in his Dictionary of English Usage. There are three obvious examples; I could give many more. There is the word "laughable"; there is the word, perhaps more relevant to our present consideration, "actionable", with which the noble and learned Lord on the Woolsack is quite familiar; and there is another word familiar to the noble and learned Lord, "merchantable". But I say that these precedents are no sort of precedent, nor can any precedent be found, for the use of which I am complaining.
§ 4.47 p.m.
§ LORD CHORLEY
My Lords, we have had a most interesting debate on an important subject, and I should like to add some comments. I hope that your Lordships will excuse me if I do not stay until the end of the debate. When I put down my name to speak I was assured that this debate would end much sooner than it shows any signs of doing. Of course, we have had rather long discussions on other matters. They have been most valuable discussions, but they have taken up a great deal of time.
I entirely agree with everything that has been said this afternoon as to the value of this Bill, and I should like also to join my congratulations to those of other noble Lords to the noble Lord, Lord Stonham, for the extraordinarily lucid presentation of a most complicated Bill. The Bar lost a natural leader when Lord Stonham failed to join the profession. Lucidity in argument is possibly the supreme quality of a great advocate. The noble Lord has certainly shown that he possesses it.
I hope that the fact that this Bill is going to be followed shortly by another Bill dealing with the criminal law, which will undoubtedly arouse greater public interest, will not be allowed to obscure the great importance of the Bill before us this afternoon. Although it does not say so in express terms, for all practical purposes it has, I suppose, the effect of abolishing from our criminal law that particular type of crime which is called a felony. I for one am a little sorry that this is not done in express terms. For 539 several centuries the felony cast a black cloud over the whole social life of this country, and inflicting as it did the death penalty for numerous crimes which were really of but little importance, and resulting in the transportation of thousands of citizens to far distant colonies, it was really a terrible defect in our criminal law—perhaps the most terrible of all the defects in a criminal law which, into the early years of the nineteenth century, was perhaps the harshest in the whole civilised world.
Many of the worst aspects of the felony have now disappeared, but it still carries with it a terrible connotation. I should like to have seen it swept out of the vocabulary of the law, and I am sorry that the draftsmen of this Bill did not take the opportunity of bringing that about. Although the worst aspects of the felony were in fact eliminated in the 19th century with the abolition of the death penalty for almost all felonies, it has continued to hold a most anomalous place in our criminal law. For over a century nobody has had a good name for it, and almost every criminal lawyer, whether he be in a university or in practice, who has spoken about the matter has advocated that it should be abolished, or at any rate that the differences between it and the misdemeanour should be abolished. I think it is a reflection on the inadequacy of our methods of law reform that we have had to wait until this year, or it may be next year, before this Bill receives the Royal Assent in order to get rid of this stain on our criminal law.
One of the reasons for that is that the various points on which the felony impinges on the criminal law as a whole are so many that it is a complicated business to get rid of it. One cannot just eliminate it by a one-clause Bill. One has to follow up the various points at which it impinges on the criminal law as a whole, and that is what has been done by the Criminal Law Revision Committee under Lord Justice Sellers. I add my tribute to what has been said about that Committee in this debate and express my personal gratitude to the Lord Justice—an old colleague of my own on the Northern Circuit—and his colleagues. The North is accustomed to breeding great lawyers and capable business men, and I think this Report shows that the 540 Lord Justice has the qualities of both. It is a remarkable achievement, as my noble friend Lord Stonham pointed out, that this task was entrusted to the Sellers Committee in March, 1964, and that they presented their Report in April of the following year. One has only to read the Report and study this Bill to realise what a tremendous achievement that was. I am sure we are all greatly obliged and grateful to them for their work.
This Bill makes a substantial number of important reforms in the law. I counted seven or eight as the noble Lord introduced it, and not one of them was other than a substantial and important change, most of which affect the ordinary citizen. I do not want to discuss them all now for some are highly technical, but, as I say, there are several which are of substantial importance to the life of the ordinary citizen. This is particularly the case in regard to arrest, about which I should like to say a few words.
It was only a felony which gave the right to the citizen to arrest the felon, and indeed it imposes a duty on him to do so; though I do not think many citizens realise that that is so. But this right is almost a trap to the ordinary citizen, because there is no method by which anybody who is not a lawyer can distinguish a felony from a misdemeanour; and unless a felony has in fact been committed it is not enough to have every reason to suppose that a felony has been committed. It was held in a case in your Lordships' House not many years ago that in this connection a felony must have been committed, and that the man who did the arrest must have reasonable grounds for suspecting that the man whom he had arrested had in fact committed a felony. That is asking quite a lot. One may have good reasons for supposing that a felony has been committed, but in fact it may not have been committed. What has been done may not be a felony at all; although it is a serious crime, it may be only a misdemeanour. In some of these cases even a trained lawyer cannot know whether what has been done amounts to a felony or is only a misdemeanour.
In regard to the crime of receiving stolen goods—which is much wider than just stealing—what the man has done, and whether it is a felony or a misdemeanour, depends on the way the goods 541 were obtained in the first place. If it falls short of a stealing, then there is no felony, and any arrest, however reasonable it might be in all the circumstances, is not justified. The proposals in this Bill are an enormous improvement on that position. However, they certainly do not altogether tackle the problem, but it may well be insoluble.
The noble Lord, Lord Conesford, dealt with methods of bringing to the notice of the ordinary man what entitles him to effect an arrest. I do not think that putting a lot of crimes into a Schedule to a Bill will help him, for he cannot be expected to read Schedules to Bills. The ordinary man has a sort of idea that if he sees somebody committing a crime which seems to him to be a rather serious one, then as a good citizen it is up to him to hold the man until the police come. But that is a very dangerous assumption to make.
In my own county, only within the last few weeks, a peaceful man who was walking home from the cinema with his wife saw two young hooligans preparing to make off with a motor car. He advanced towards them to ask them what they were doing and to stop them if they were in fact taking the vehicle away. Taking away in these circumstances is an offence under the Road Traffic Act and is punishable with only one year's imprisonment. It is far from being a felony. One of these young villains took out a knife and stabbed the man, inflicting a serious wound in the chest, for which he came before the Assize Judge. A rather knowing member of the jury asked the Judge whether the victim was entitled to effect this arrest, and the judge had to say, of course, that he had not.
The Sellers Committee have just issued another Report in which they propose raising the punishment for going off with a motor car—"borrowing it", as it is in effect, because it is not stealing unless you intend to keep it for yourself. They propose to increase the punishment to three years' imprisonment. That would not bring it within this clause either. think that on the whole there is a case for putting down this five years at any rate to three years. A number of very serious offences are involved. It might even be well to extend it to all misdemeanours, or at any rate all misdemeanours involving any form of violence. This needs to be 542 looked at again. It is an important matter, and I am not completely satisfied with the proposals of the Sellers Committee.
I have a great deal of sympathy, indeed I am in agreement, with what Lord Conesford said about the phrase "arrestable offence". This term will no doubt be used in the profession instead of "felony". Everybody I have spoken to about it dislikes it very much. It is difficult to avoid this sort of thing. We talk about a summary offence. Well, there is no such thing as a summary offence; an offence cannot be "summary". It means an offence triable summarily, and really what we are dealing with here is an offence justifying arrest. I do not see why you should not put in the extra word, which would then get over many of these difficulties and would not really add very much to the Bill.
I think the next set of proposals, which deal with participation in crime and felony, in connection with which, again, there have been some quite ridiculous differences between the position of the misdemeanant and the felon in relation to those who are assisting him, whether before or after the offence, are exceptionally well thought out. This is highly technical and I do not want to say anything more about it.
On the proposal for displacing misprision of felony, the Committee and the Bill have struck a most happy compromise. Some years ago in your Lordships' House it was decided in the case of Sykes that the mere fact that you did not report to the police a felony of which you had come to have knowledge amounted to the offence of misprision of felony. I think everybody would agree that in the circumstances of that case it was just that that man should have been found guilty of a criminal offence, but it was a very sweeping decision. It meant, as was pointed out in a learned article in one of the journals, that any father failing—to use a colloquialism—to "split" on his son, or any son failing to "split" on his father, about a felony would be guilty of misprision of felony. That was very like the sort of situation which used to exist in Nazi Germany and which aroused in this country such scathing, and properly scathing, criticism of the Nazi regime. I think we should agree that this compromise is a good one. In 543 effect, it is only the man who accepts a bribe for not disclosing knowledge about a felony who is going to be guilty of an offence.
In the next clause—and all lawyers will be very glad to see that—we resolve the controversy arising out of the case of Manley; the lady who went to the police and said that a man had snatched her handbag. She gave a very detailed description of him, which the police circulated to all the police stations in London, and it was not until a suspicious sergeant accused her of inventing a cock-and-bull story that she admitted that that was so. As I think the noble Lord, Lord Stonham, said, she was prosecuted for a public mischief, which was a crime which had not been before the criminal courts for well over a century. But in cases where there had been indictments for public mischiefs, there had not been conduct resembling in any way this action on the part of Mrs. Manley. There was a great controversy at the time as to whether when what was in effect a new misdemeanour was created, it ought not to be done by Parliament rather than by the judges.
I think it was in the Newlands case that the then Lord Chief Justice, Lord Goddard, expressed some sympathy with that view, and said he hoped that this matter would eventually be put into a Bill. So here it is, and I am sure we ought to welcome it, but I should have liked to see it in rather wider terms, because I agree with those who say that it is now for Parliament to create new crimes and not for the judges. However valuable the work of the judges may have been in earlier centuries in relation to this, there is an element of feeling that when some new sort of mischief, which had not previously been brought before the criminal courts, is held to be a criminal offence, there is a very real danger of an infraction of what is one of the most fundamental principles of the whole of our criminal law—nullapœna sine lege; no punishment without a law which provides for it. If ex post facto it is held by a court that some sort of conduct, which previously had not been regarded as criminal, is in future to be criminal, surely that is an infraction of this basic rule. Therefore, I am glad that so far as this goes the Manley 544 case now comes into the Statute, and I hope that that will be followed by the same treatment of this sort of conduct.
The only other point which I wish to mention, and to say how much I am in agreement with it, is the fact that all those misdemeanours for which a sentence is not fixed by the Statute which creates them, are in future to receive a maximum of two years imprisonment. That was generally regarded as the Common Law punishment for a misdemeanour. Not so very long ago the Court of Criminal Appeal said that that was a mistake, and that, although no one would ever impose the punishment, a misdemeanour could be punished by a term of imprisonment however long, even up to a life sentence. This view was received with horror by very many lawyers. It may well have been historically well-founded, but I think that every liberal lawyer, and, indeed, most practitioners in the criminal courts, will be very glad to see that now in this type of case two years is again reestablished as the proper maximum punishment for a misdemeanour.
Those are the main points. Your Lordships will see from what the noble Lord, Lord Stonham, has said, and from what other speakers have said this afternoon, that this is a Bill which affects the life of the citizen at very many sensitive points. I hope there will be no difficulty at all about getting it on to the Statute Book before many further months are over.
§ LORD SOMERS
My Lords, before the noble Lord sits down, may I just say that I entirely agree with him that the ordinary public cannot be expected to read the Schedules of Bills. But I wonder whether the noble and learned Lord the Lord Chancellor would agree that here is a purpose for which television and radio could be put to some use. Surely they could appoint somebody with legal experience to explain—and, may I say, explain in terms which the ordinary man can understand—which offences are (I will not use the word to which my noble friend objects) subject to arrest by the public and which are not.
§ 5.7 p.m.
§ LORD DENNING
My Lords, I am sorry I was not able to be here at the earlier stages of this debate, but I should like to join the noble Lord, Lord Stonham, 545 in expressing appreciation of the work of the Committee. Indeed, two of my colleagues, Lord Justice Sellers over the whole Committee, and Lord Justice Winn over the sub-committee, have done most valuable work in preparing not only the Report but also the draft Bill which was incorporated in it.
But when I see that those two old "lags", if I may so call them, of felonies and misdemeanours are up for sentence and sentenced to be outlawed, I cannot help feeling a passing tribute of a sigh. Those words "felonies and misdemeanours" are expressive words. They tell the people what they mean. A felony is a serious crime worthy of condign punishment, and a misdemeanour is something less. You can arrest for a felony, if it has been committed and you have reasonable ground for believing it to have been committed, but you cannot arrest for a misdemeanour. Those distinctions have come down in the law. I agree they are out of date now, but I cannot help feeling a little sigh on seeing them depart after all these centuries.
But what are we going to put in their place? When we hear of "arrestable" offences and "non-arrestable" offences, they may be meaningful words, but they are not expressive words. They are ugly words, and they are most inaccurate and misleading. There are a few arrestable offences here. There are those for which sentence is five years or over. But what about the hundreds of others for which we can arrest but which are not apparently to be called arrestable?
In my court, we are constantly having cases involving such powers of arrest. Take the case we had a little while ago, of the man who was charged with being unfit to drive his car through drink. A policeman can arrest a man he finds committing such an offence, yet that is not subject to a penalty of five years' imprisonment. Take the case, which I tried myself, of the couple who were kissing in a car and who were arrested by a policeman for committing an act of gross indecency in the street. That offence is not subject to five years' imprisonment. Or take the case of a man who does not pay his fare on the railway and refuses to give his name and address. He can be arrested, yet that offence is not subject to five years' imprisonment. To draw such a distinction between arrestable 546 offences and non-arrestable offences is quite inappropriate and quite misleading. I would really rather retain my old friends than have this; but if anyone can invent a new name, a name better than "arrestable" or "non-arrestable", I should like to hear it. I should even prefer what the noble Lord, Lord Chorley, suggests. I would rather have "an offence justifying an arrest", or "a five-year offence", or something of that kind, than the phrase "arrestable offences", which is ugly, hideous and inaccurate.
Seeing these old friends pass, I should like to touch, first, upon one or two procedural differences. In our old courts, a charge of felony produced dramatic effects. We have dropped many of them now, but, previously, if a felon was charged and he pleaded not guilty the clerk always asked him, "How will you be tried?", and he answered, "By God and my country". Then he was put in the charge of the jury, who were told, "He has put himself upon his country—which country you are." We have dropped all that now, but we have still kept the allocutus, as it is called, at the end, when the clerk says to the accused, "You stand convicted of felony. Have you anything to say why the sentence of the court should not be pronounced upon you?". That procedure is peculiar to felony, and is now to be dropped. Let it be dropped, perhaps, but, as a judge, I would always ask a man, "Have you anything to say?"
Another little procedural distinction is noted in this Report. In the case of a felony, the man has to be in the dock. In the case of a misdemeanour, he can be invited round to sit behind his counsel, or even beside his counsel. That is quite a good thing—I have done it myself. That distinction will go. If a misdemeanour is to be the same as a felony, as it is, he can be invited round in both cases. I shall still keep the man in the dock, though, where there is a bar, subject to any injustice being remedied by inviting him round, if need be. Those, my Lords, are some of the procedural differences between felonies and misdemeanours. As to arrest, once you get over the wording this is really just what we have had before in regard to felony. But I should like to mention two old crimes which 547 are now going by the board. I do not like to see any offences go by the board these days, when we are trying to keep track of these criminals.
Take the offence of misprision of felony. The noble Lord, Lord Chorley, rather indicates that this House was wrong to keep that offence in being. My Lords, take the case which we had in this House of the theft of arms from an American munition dump in Norfolk. They were stolen, and were on their way through to Ireland. They had got as far as Manchester when the police found the contact man who was seeking to get intermediaries to take them from Manchester through to Ireland, to the I.R.A. He was prosecuted for misprision of felony. He could not be charged with receiving stolen property because he had not received it; he was just the contact man. This House held that that was misprision of felony. He had concealed information which he had of the felony. He was found guilty, and was duly sentenced. Then, only a few weeks ago there was a case in which there was no evidence against a man except that after the robbers had been to the bank and had brought the money back to some place, he there helped count out the money and put it into bags. Was he guilty of any offence? The Court of Criminal Appeal held that he was guilty of misprision of felony.
My Lords, such a case is being taken care of (to use that Americanism) in one clause of this Bill, but there are other misprisions of felony which are not. One particular one comes from Australia, and is an instance of gang warfare. Certain members of a gang had maliciously wounded another, and the police asked the man who was wounded, "Who did this?" He said, "I am not going to tell you. If I did, I would 'cop it' all right. I will look after it myself." In other words, the gang were going to dispense their own gang justice among themselves, and he was not going to tell the police about it. The courts in Australia held that that was misprision of felony. So far as I can see, if this offence of misprision is abolished, that sort of behaviour will not constitute an offence here. I do not like doing away with offences in these days.
Then there is the offence of compounding a felony. Compounding a felony has for centuries been an offence. If a prose- 548 cutor tells a man or his relatives, "I will not prosecute if you will give me back the £500"—or whatever it was—"that you have stolen or taken", he commits the offence of compounding a felony. My Lords, I can understand the reason for the clause which says that it is no longer to be an offence for a prosecutor to say to a man or his relatives, "I will not prosecute you if you pay me back what you have stolen, or what you have taken", but it is altering the law a good deal. Furthermore, I wonder what will happen in our civil courts. Up to now, an agreement of that kind—an agreement to stifle a prosecution—has been unlawful, and the courts would refuse to enforce it. There are many such cases in the books, where a prosecutor who has said that a man has taken money from him has gone to a relative and said, "I will not prosecute if you will pay me the £500", or whatever it may be. Such action has up to now been unlawful. I am not sure, but it looks to me as though, under this Bill, it is no longer to be a criminal offence. I do not know what the impact of that will be on our civil law, but I think it ought to be made quite clear.
My Lords, those are just some of the consequences which flow from this Bill. Taking it generally, I think it is an excellent Bill; on the other hand, there are just one or two points that may need clearing up. With those observations, my Lords, I would say that I very much welcome the Bill and what is being done through it.
§ 5.19 p.m.
§ LORD MORRIS OF BORTH-Y-GEST
My Lords, having been engaged on the business of your Lordships' House in a Judicial capacity, I did not have the advantage and the pleasure of hearing the introductory speech of the noble Lord, Lord Stonham; and although I did not have the opportunity of hearing the opening stages of this debate, I hope your Lordships will allow me to offer just a few reflections. Like other noble Lords, I wish to express in general a warm welcome to this Bill. I should also like to add my tribute to the painstaking and scholarly work undertaken by the Committee and Sub-Committee, under the chairmanships respectively of Lord Justice Sellers and Lord Justice Winn. Sharing to a considerable extent that passing sigh which my noble and learned 549 friend Lord Denning uttered, with his usual eloquence, I feel that now the time really has come when we should say farewell to the distinction between felonies and misdemeanours. I think it has been generally felt in the legal profession for some time past that the distinction between the two no longer has any real value.
I share with my noble and learned friend Lord Denning a little regret that we shall no longer have the allocutus. If there has been a conviction for a felony the accused is "called upon"; he does not have to be called upon if it is a misdemeanour. Having been convicted of a felony, he is asked whether he has anything to say, why judgment should not be passed upon him according to the law. As we all know, that dates from the time when somebody might wish to plead benefit of clergy; it dates from the time when somebody might wish to move in arrest of judgment; but the accused to-day treats it as an invitation to add to a plea of mitigation that has already been made. It is often very effective. Something perhaps spoken from the heart by the man principally involved in the proceedings may carry more warmth and weight and power than even the words of the most skilled advocate. But as is pointed out in the Report upon which this Bill is based, it does not follow that because the allocutus will no longer be necessary, because we shall not have felonies, that any judge or recorder or chairman may not, if he thinks it apposite, invite the accused, even at the end, to add anything in his own words that he wishes to add.
But this old structure is now to go. If you have a very old structure that has lasted for centuries, one to which there have been additions and alterations, and if you find the time has come when a few old beams are thought to be no longer serviceable or useful and you take them away, you find that there are all sorts of parts of the structure that will then need propping up and re-constructing. So I think has been the case once the decision was made to part with the distinction between felonies and misdemeanours. It was very easy to say: "This is now archaic; there are many historical origins for all this which arc of great interest but they no longer have value." With that I think we all agree; 550 but it did become necessary, because of the abolition of felonies, to restate the law with regard to some matters: the law of arrest, the law relating to misprision, the law relating to compounding.
In restating the law concerning arrest we find these words which I felt sure would not escape the eagle eye of the noble Lord, Lord Conesford. I felt he would swoop down on that phrase and fight once again the sort of battle he fights with such distinction and success in this House for pure and good English. When I saw those words in the Bill I thought to myself, adapting a famous phrase, "I do not know what effect this phrase will have upon the offender, but it frightens me". The law states itself to be against murder. Need we, in a Criminal Law Bill, murder the English language? I endorse to the full all that was said by the noble Lord, Lord Conesford, and the noble and learned Lord, Lord Denning. It is, of course, easy to criticise and not so easy to suggest a replacement, but there have been some suggestions almost any one of which I respectfully think would be less unpleasing to the ear than the phrase we now have.
In regard to Clause 2 of the Bill, there is just one subsection which I would mention and about which I should like to ask a question. It is subsection (5), which says:A constable may arrest without warrant any person who is, or whom he, with reasonable cause, suspects to be, about to commit an arrestable offence.I am sorry to have to use the phrase which I dislike, but we know what it is intended to mean. Are we really sure that we need to give this power to the police? We should all wish to arm the police, especially these days, with every reasonable and proper power, and I am one of those who have supreme confidence in and admiration for our police force. But is this power reasonably necessary? What does the constable do with the man when he has arrested him?—arrested him not for having committed any offence but because he suspected that he was about to commit an arrestable offence?
The Report of Lord Justice Sellers' Committee says this:There is some authority that any person may arrest without warrant anybody whom 551 he reasonably suspects of being about to commit a felony.I have no doubt that that is so. The Report goes on:It seems to us enough to confer corresponding power on constables in relation to arrestable offences.Then it says:If the arrest is made before the person in question has committed or attempted to commit the arrestable offence, the constable will be able to bring him before a magistrates' court with a view to his being bound over to keep the peace and, if necessary, provide sureties.Is it satisfactory to bring a man before a court and ask that he be bound over to keep the peace, when you start by saying he has not committed any offence? The Report goes on:Alternatively the constable could release him, when the danger of the arrestable offence being committed or attempted has passed, on the analogy of the power of a constable to detain a person temporarily in order to prevent the commission of a felony or breach of the peace.I should like to pose the question, possibly for consideration or discussion, of whether we are happy that it is right to give this somewhat vague power to the police. Do they want it? Is it really desirable'?
I will not refer to a point which is perhaps more appropriate for the Committee stage; but in passing may I raise the question as to whether in Clause 3, which saysA person may use reasonable force in the prevention of crime, or in effecting or assisting in the lawful arrest of offendersit would be desirable to include the words:or suspected offenders."?If a constable has any suspicion that an offence has been committed and he arrests somebody on that reasonable suspicion, he is doing a proper thing. If he uses reasonable force he is doing a proper thing. If, however, the man is ultimately acquitted, could he say, "Well, force was allowed only in the lawful arrest of offenders. I have been shown not to be an offender"? Is it possible that the clause would be a little improved by the addition of "suspected offenders"?
I should like to say a word in regard to Clause 5 of the Bill; and here may I say that my line of thinking has coincided 552 very closely with that expressed by my noble and learned friend Lord Denning. May I add at once that we have not collogued in any way. I did not know what he was going to say; indeed, I wondered whether he was even going to be here. I share some of the anxieties he has expressed in regard to Clause 5. Reference has been made to the case decided in your Lordships' House of Sykes. My noble and learned friend presided in that case, and I had the pleasure of sitting with him. The noble and learned Lord, Lord Goddard, was another Member of your Lordships' House who sat in that case. I will not embarrass my noble and learned friend by quoting what he said, but may I just quote a few words from the speech of the noble and learned Lord, Lord Goddard? He said:Misprision of felony is to-day an indictable misdemeanour at Common Law and a person is guilty of a crime if, knowing that a felony has been committed, he fails to disclose his knowledge to those responsible for the preservation of the peace, be they constables or justices, within a reasonable time and having a reasonable opportunity for so doing.My Lords, is there anything wrong with that? Do we not wish to retain that? The noble and learned Lord, Lord Goddard, added this:It is very easy to poke ridicule at the offence and say that it obliges people to inform against a boy stealing an apple. The law is nowadays administered with dignity and common sense.Suppose somebody had the misfortune to be an eyewitness of the commission of a brutal murder. Suppose he saw who the murderer was. Suppose he knew who he was, and could identify him. Ought he not, as a duty to the State, to disclose his knowledge? Suppose that the murderer is one who may strike again. Suppose he is a killer who may slaughter a child, or slaughter somebody else, and there is somebody who has knowledge of who is the missing man. Ought he not to owe, and ought the law not to say that he does owe, a duty to the State? Are we right to take away that content from the present armoury of the law? It may well be that one could have a provision that there be a prosecution only at the instance of the Director of Public Prosecutions; but, as the Bill now stands, the sort of person whom I mentioned would be committing no offence, provided he had no sort of contact with the culprit, the murderer.
553 Another part of Clause 5 has been touched on by my noble and learned friend and that is the question of compounding. By Clause 5 it is specifically provided that compounding is to disappear. The wording is:The compounding of an offence other than treason shall riot be an offence otherwise than under this section.There is no specific provision in regard to the misprision of felony, but I think the inference is that as felonies are to go, there cannot be misprision of felony, and there never has been misprision of misdemeanour. To return to the topic of compounding, here is a matter which often disturbs citizens. Suppose that somebody has cheated and robbed and has perhaps done the cheating and robbing in many places. The culprit is known, and somebody who has been defrauded is in touch with the culprit; and the culprit says, "If you don't inform about me, I will pay you back the money that I took from you." As I read Clause 5 it would not be an offence at all. The person concerned might go about the countryside repeating the cheating and false pretences that led him successfully in the particular case to take money which he is then willing to return.
My Lords, I do not suggest that if the office boy steals a few shillings from the till it is the public duty of the employer to inform; but are we sure that we are giving the right kind of guidance by this present clause to citizens who often are profoundly worried as to what their public duty is if they find themselves able to inform against somebody in regard to an offence but yet would be able themselves to have complete recompense in regard to all taken from them? I again just raise that as a subject that I submit merits a little further consideration.
May I add one other matter? There are many topics in this Bill that I am sure will need future discussion, but may I just refer to a provision that is, I think, on page 15 of the Bill? It provides for an amendment to the present Section 4 of the Forfeiture Act 1870. It is set out that that. Act allows a court, on a person's conviction for felony, to award compensation not exceeding £100 for the loss of property occasioned by the felony; and that £100 limit is to be raised. I welcome that. Although traditionally 554 there has been great reluctance in criminal courts to deal with matters that may be the subject of civil remedies, I think it is increasingly happening in our criminal courts that there would be scope for making some financial order against accused persons. There is a provision in the Criminal Justice Act—I think it is Section 11—which provides that if somebody is placed on probation, or if there is a conditional or absolute discharge, the court may order that he pay compensation for injury or loss. This is a different provision, and I welcome this change.
The section of the Forfeiture Act does, however, provide that the court shall act upon the application of any person aggrieved. It will often happen that at the end of a trial a person aggrieved, who has been a witness, is not present. It is very unlikely that he will know of this provision. I do not know whether it is the duty of the court to bring it to his notice and ask whether he wishes to make an application. May I suggest for consideration that possibly there should be a further alteration to give that power to the court, irrespective of there being an application by the person aggrieved? May I suggest further that it is not necessary to limit this provision to compensation for any loss of property? The law has always been jealous of property, and this section limits this payment of compensation to property. Would it be possible or desirable further to amend this Act by making the compensation payable in cases where there has been some physical injury? I know that there are provisions which have recently been introduced, as the result of which victims of crimes of violence may be compensated out of public funds, but this is a provision for making an order against a person who has been convicted. I think we ought now in our criminal courts to make greater use of any powers of ordering financial payments to be made by a convicted person. I hope that the few points I have mentioned may he of some value for discussion some time. I repeat that I give a general warm welcome to this Bill.
§ 5.40 p.m.
§ VISCOUNT BRENTFORD
My Lords, if I may detain your Lordships for a few moments, I should like to join noble Lords who have commended this Bill to 555 your Lordships' House, particularly because I think that to introduce clarity and simplification to the law is not only of benefit to the profession but also of benefit to the public generally. It is always a great pleasure to have an opportunity of following so many distinguished noble and learned Law Lords, because it gives one the opportunity of agreeing with them in everything they have said, and one cannot go wrong in so doing.
The points which I want to bring to your Lordships' attention may in the ordinary way be considered to be Committee points, and I am tempted to bring them forward now only because, in his opening speech, the noble Lord, Lord Stonham, touched on several points which I have in mind. The first one is with regard to Clause 3, which provides that a person may use reasonable force in the prevention of crime. According to the note which I made, the noble Lord indicated that at the present time the Common Law permits the use of reasonable force where necessary and that the phraseology used in Clause 3 is not such as would permit the use of force where it is not necessary. I am advised that this is an incorrect interpretation of the wording, and that the provision that a person may use reasonable force is an indication that force may be used even if it is not necessary. I believe this to be an alteration in the present state of the law, and if the wording read that a person "may use such force as is reasonably necessary" that would indicate that the use of force is not permitted if it is not necessary. I would commend these observations to the noble Lord in charge of the Bill in the hope that he will introduce some Amendments on Committee stage and save me the trouble.
On the next clause, I would call attention to the marginal heading which says "Penalties for assisting offenders". In fact, the clause introduces the offences and goes a long way beyond dealing simply with the penalties. Clause 4(3) says thatA person committing an offence under subsection (1) above with intent to impede another person's apprehension or prosecution…".In subsection (1) it states…with intent to impede his apprehension or prosecution…556 I would submit to the noble Lord that the repetition of these words in subsection (3) is otiose and unnecessary. In Clause 4(7) we have the words:For purposes of section 33 of the Larceny Act 1916 and of any other enactment relating to receivers or receiving…".These words are very vague. "Receiver" is a term not subject to any statutory or other definition, and I am informed that in the law it has half a dozen different connotations. I would ask the noble Lord, Lord Stonham, to reconsider these words with a view to making them clear.
Likewise, in Clause 4(7) we meet the word "dishonesty", in the phrase:…a person shall be treated as receiving property if he dishonestly undertakes or assists in its retention…".The noble Lord, Lord Stonham, interpreted that during the course of his remarks as "knowing that the property was stolen". That would be a very satisfactory conclusion and I wonder if it could be written into the Bill, instead of using the word "dishonestly", which is too wide and vague and implies that a person who was properly in possession of property but disposed of it dishonestly would be guilty of the offence even though he neither knew that the property was stolen nor was it stolen.
My Lords, those are the only remarks which I would make, save to express, like my noble and learned friend, Lord Denning, a passing sigh, not so much at the elimination or outlawing of felonies and misprisions, but at the removal of the offence of being a common scold. I wonder if the noble Lord could tell us when a prosecution last took place for that offence.
§ 5.48 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, even in a bad dream I never imagined that it would fall to poor little me, with no professional legal training, to speak in your Lordships' House on a matter much of which is lawyers' law, sandwiched between two noble and learned Lords, the noble Viscount, Lord Brentford, and the noble and learned Lord the Lord Chancellor. It is an esoteric subject, as all non-lawyers among your Lordships will agree, I am sure, and I know that I should find myself quickly in deep water if I entered upon any criticism of the details of what the noble 557 and learned Lord, Lord Denning, described, at the end of a critically nostalgic speech, as "nevertheless an excellent Bill".
On detail, I would follow up only one point, raised by the noble and learned Lord, Lord Morris of Borth-y-Gest, whose authoritative and weighty speech we all listened to with great respect. This concerns paragraph 9 of Schedule 2 with respect to compensation. That is founded on paragraph 78 of the Report of the Criminal Law Revision Committee, which said that the provisions about compensation, which go back to the Forfeiture Act 1870, were to be considered by the Royal Commission on the Penal System, which was sitting at the time this Report came from the Committee, and their recommendation for increasing the limit of compensation from £100 to £400 was in these circumstances clearly an interim one. In fact, it would appear to be not much more than an adjustment based on the altered value of money over the years.
But this matter of compensation is very important, as the noble and learned Lord said. It certainly came forcibly to my attention when, as Home Secretary, I had to deal with the violence and rioting of the "Mods" and "Rockers" at Bank Holiday weekends in 1964. Now that the present Government have, for reasons of their own, disbanded the Royal Commission, I think it is reasonable to ask whether the Government are proposing by any other means to give further study to the question of compensation, which is an important matter of policy and not by any means a narrow point of law.
Time is getting on, and I promise your Lordships a short speech from me this afternoon. I am, in fact, the person responsible for inflicting this whole debate on your Lordships, for it was I who some two-and-a-half years ago asked the Criminal Law Revision Committee to consider and report on the division of indictable offences into felonies and misdemeanours. Something like nine-tenths of this Bill derives from their painstaking and admirable Report. I should like to express my own special thanks to Lord Justice Sellers, Lord Justice Winn and their colleagues, both for this and for all the other careful work which they undertook at my request.
558 I seem to recollect a member of the Government, shortly after they came into power in the autumn of 1964, saying that it was hard for them to make a quick enough start on law reform because they found so little waiting for them from the work of the previous Conservative Government. They found little waiting for them in draft form because we had already acted on every one of the Reports that we had received from the Criminal Law Revision Committee and already put the reform measures that the Committee had recommended on to the Statute Book; all, that is, except one Report which was received so near to the end of that Parliament that there was literally no time to implement it before the Dissolution.
There were also at the time of that Dissolution several matters under consideration by the Criminal Law Revision Committee, which had been referred to them by me or by my predecessor, who took the vital step of setting up that Committee some seven years ago. One of these matters was the far-reaching question about felonies and misdemeanours, which I had referred to the Committee in March, 1964. I made that reference deliberately, and I believe I got the priorities right, because I cannot help thinking that to tackle this ancient division between felonies and misdemeanours was an essential preliminary to a great deal of other clearing up of the criminal law.
Let me, of course, make clear to your Lordships that, in saying this, I am in no sense disparaging either the value or the importance of the Law Commission that has subsequently been set up. But I think that this Bill, which the noble Lord, Lord Stonham, in his opening speech himself described as a really important step forward, is in itself a tribute to the Criminal Law Revision Committee and to the use which was made of that Committee by successive Conservative Home Secretaries.
§ 5.54 p.m.
§ THE LORD CHANCELLOR
My Lords, I, too, should like first to pay my tribute to the work done by the Criminal Law Revision Committee and the Law Commission in relation to this Bill. It is, I venture to think, a happy joining together of the work of those two bodies in a closely related field. I know from 559 service on one of the Law Reform Committees that this work does take up a great deal of time, and the question with which the Criminal Law Revision Committee were concerned was perhaps not altogether an easy one.
I remember being told, in my Bar examinations, that all this about felonies and misdemeanours was absolute rubbish; that there had been a time when the standard punishment for all felonies was death, and there had been a time when the standard punishment for all misdemeanours was flogging at the cart's tail; but that now that stealing 6d. was a felony, and defrauding somebody of £500,000 was a misdemeanour, the whole thing was nonsense. But it had been nonsense for a long time, because when anybody proposed to abolish it, it was said: "How will the police know when they can and when they cannot arrest people." And when people tried to put this on paper, it was found that to abolish felonies involved many other problems. Nobody has really got down to it before, and I think we all owe a debt, not only to the previous Government and Home Secretary who referred this matter to the Committee, but to the Committee themselves for the work they have done.
A number of points have been raised, and if I do not mention them all they will certainly all be considered before the Committee stage of the Bill. The noble Viscount, Lord Colville of Culross, asked whether these arrestable offences (if for the moment I may use that expression) were intended to be inclusive. Of course, they are not. The object of the Bill is to suggest new general powers of arrest to replace the powers of arrest for felony. The specific powers preserved by Clause 2(7) will be additions to these general powers. It was not the business of the Criminal Law Revision Committee to consider possible additional powers of arrest for specific offences; and it may be thought that the Bill would not be a suitable vehicle for it. Nevertheless, there may be something to be said for having a list, so to speak, in the Bill simply as a matter of convenience.
The statutory powers do not supersede the Common Law—which was the next question which the noble Viscount asked, 560 That, I think, is clear from Clause 2(7), and also from paragraph 18 of the Report of the Committee. I do not think that any change is made in the law so far as affrays are concerned. There can be an arrest while an affray is taking place as a breach of the peace. But an affray, as a misdemeanour, was not an offence for which there could subsequently be an arrest. As to the effect of this Bill on the civil law, I do not think it will in fact make any change.
Then the noble Viscount was a little concerned about some parts of the Schedules to the Bill. It is, of course, important to appreciate which parts of the Schedules deal with which parts of the Bill. Clause 10 says:The enactments mentioned in Schedule 2 to this Act shall be amended in accordance with the provisions of that Schedule.(2) The enactments mentioned in Schedule 3 to this Act (which includes in Part I certain enactments connected with matters in this Part of this Act but already spent, obsolete or redundant apart from this Act) are hereby repealed to the extent specified in the third column of that Schedule.The Law Commission's part of the work does not really start until one gets to Schedule 4. So far as Section 61 of the Juries Act is concerned, I think the position is that this simply repeats the powers already existing at Common Law to deal with embracery and are therefore not necessary; and as parts of that section refer to criminal informations, which will now no longer exist, it would seem desirable to get rid of it altogether.
Most of the reasons, so far as Schedule 4 is concerned, are themselves included in the Report of the Law Commission. I hope that I have not got a mania about maintenance. I have sometimes used it simply because the reason it exists to-day, as the noble Viscount knows, is that in the middle ages the barons used to have on their staffs people called maintainers, and the sole job of the maintainer was to start frivolous litigation against the baron's opponents. I have always thought what fun it must be to be a maintainer. This is what led to its being not only a tort, but a criminal offence. But, while I am not a great authority on the social habits of the aristocracy, so far as I know no Barons have maintainers on their staff now, and it has always seemed to me that it was about time we got rid of it.
561 As to the Maintenance and Embracery Act, the noble Viscount will find that the Law Commission's Report, in paragraph 6, points out—referring to Section 3—that:The original purpose of this section was to introduce as an alternative to a criminal prosecution an action by a common informer for certain types of interference with the course of justice in proceedings concerned with the title to land. Such common informer actions have now been converted into summary prosecutions by the Common Informers Act 1951and, so far as the offence is a live one at all, there is no sense in having a special rule in actions concerned with land. The abolition of the section does not affect proceedings on indictment at common law for maintenance (the procurement by financial assistance of another person to institute, carry on or defend civil proceedings without lawful justification) or for embracery (attempting by any corrupt means to influence or instruct any juryman.)So it is on any view unnecessary at the present day.
VISCOUNT COLVILLE OF CULROSS
I am afraid I have not made my point clear to the noble and learned Lord. I entirely appreciate the object of repealing Section 3 of the Maintenance and Embracery Act 1540, which appears in Schedule 4. What I was talking about was the repeal of Sections 1, 4 and 6, which appear in Schedule 3, and, I think, raise entirely different points.
§ THE LORD CHANCELLOR
I can only say, on the authority of Clause 10(2), if it is telling the truth, that this is an Act which isalready spent, obsolete, or redundant apart from this Act.Being in that Schedule it is not, of course, an obsolete Act which has been dealt with by the Law Commission, and I cannot say that, in the case of all those set out in the first three Schedules, I have been through the history of every Act. But we will certainly look at the point before we get to the Committee stage.
It is perhaps noteworthy that under the Schedules we shall, on the day this Bill receives the Royal Assent, have 33 fewer Acts of Parliament: 33 whole Acts, apart from parts of Acts, will be re- 562 pealed. How long it will take this Government to make another 33 to take their place, I do not know. But for once, anyhow, we shall be gaining ground rather than losing it.
The noble Lord, Lord Conesford, dealt with the question of the words "arrestable offence." I must say that I have as much love of the English language as anybody else, and I do not like "arrestable offence." It suggests that it is an offence which is going to be arrested, whereas, of course, it is the offender. In a sense it is not the proper use of language. In saying that, I do not intend to criticise the Committee; they had to find the best phrase they could. The only thing I say is that either you must have some alternative two or three words or, whenever you are dealing with what is called in the Bill an "arrestable offence," you must have a very long phrase, such as "an offence upon the commission or the believed commission of which the offender can lawfully be arrested." You have to repeat that every time instead.
I am very doubtful, if I may say so, whether the alternative suggested by the noble Lord, Lord Conesford, or any other noble Lords, is really an improvement. A holding offence is not really what one is talking about. One is not talking about holding somebody, but arresting him. An arresting offence sounds to me rather an attractive one, and that would not, I should have thought, been wholly appropriate. Of course, one has to remember that there are precedents. After all, one of the most familiar expressions in this field is an indictable offence. But you do not indict the offence: you indict the offender. To a considerable extent this is an exact parallel. One would have to use a great many more words if one did not have the expression "indictable offence", but it is open to the same objections. And what about a bailable offence? You do not bail the offence, you bail the offender.
§ LORD AIREDALE
My Lords, may I suggest to the noble and learned Lord that an indictable offence is an offence which may be the subject of an indictment. By that token, an arrestable offence would be an offence which can be the subject of arrest. So, with the greatest respect, the indictable offence is not a 563 justification for introducing an arrestable offence.
§ THE LORD CHANCELLOR
I suggest that we have comparable phrases at the moment with that and "bailable offence". It may be objected to, as to all three, that they appear to be applied to the offence when they really apply to the offender. That would seem to me to be really applicable to all of them. We will certainly consider the matter before the Committee stage, and if any noble Lord has any subsequent brilliant suggestion and would be good enough to let us know, we shall be delighted. I do not myself like "arrestable offence", but the question is whether we can find anything as short which would be an improvement.
The noble Earl asked whether a householder could use force against a burglar. The answer is, of course, that he can. The noble Lord, Lord Chorley, was mistaken in thinking that the effect of the Act is to make two years the maximum sentence for any misdemeanour; it is only for statutory misdemeanours. Then I think he complained that taking a car away would not be—If I may still call it so—an arrestable offence. But that, I suggest, is not so, because if he looks at Clause 10(3) of the draft Theft Bill he will find that it follows from that that it will be an arrestable offence.
Then the noble Lord, Lord Chorley, and other noble Lords, made what I appreciate is a very good point: that unless you set out all the other non-statutory arrestable offences in the Bill, how will the public know what their rights of arrest are? This is a perfectly good point, but the answer is that they will not know. They never have; they will not, and they never will. How any policeman ever learnt when he had a power to arrest somebody and when he did not, I could never understand. I hope it will be rather easier for him now. But whatever you do, the law, owing to the number of different offences there are, will be such that it will be absolutely impossible for any layman to know, if one is to be practical. I quite appreciate, as was subsequently suggested, that if they can be told on television, that is a help. We cannot order people to go on television and tell them, but we know that there are several helpful programmes 564 when the law on simple points is explained to the public. But I should have thought that this vast list of what are arrestable offences and what are not is about the last thing that members of the public would in practice ever learn, and I see no answer to it.
The noble and learned Lord, Lord Denning, regretted the departure of the allocutus, as I think several of your Lordships have, but I think we shall all share in feeling that the time has come when probably we ought to say farewell to it. As to an agreement not to prosecute, again I do not want to take up time, and the Committee's view was fully set out in paragraph 43 of their Report as to why they thought that no further powers were necessary.
Then, as the noble and learned Lord said, one of the consequences of getting rid of felony is that, subject to the court, nobody now need sit in the dock. I must say that I am doubtful whether the existence of a dock is really consistent with a civilised country. In America, for example, there is no dock; a prisoner sits behind his lawyers where they can readily communicate with him; and this occurs in a murder case or any other kind of case. The Law Society have recently published a cogent memorandum urging the abolition of the dock. It is idle and unrealistic to suppose that it does no psychological harm with a jury to have a man sitting in the dock. So far as identity is concerned, a witness to identity is solemnly asked, "Would you look around the court and see whether you see him here"; and of course the witness looks at the dock, and there the man is. I have never thought that this practice was right, and I hope that I shah at some time consider with my right honourable friend the Home Secretary whether it is in fact necessary in our courts to retain the dock.
Apart from that, it is difficult for counsel to get instructions from his client. Occasions are bound to arise where a witness says something unexpected. Defending counsel does not know whether his client's case is that what has been ing over to the dock and having a said is true or untrue—and I may say that I was never very good at the art of walk-whispered conversation in tones sufficiently loud for the accused to hear 565 but not sufficiently loud for the jury to hear. And even if one managed it oneself, the prisoner's reply was usually loud and devastating.
The noble and learned Lord, Lord Morris of Borth-y-Gest, referred to Clause 2(5), and clearly we must look at that again in relation to what other noble Lords have said. This was as to the constable and the use of reasonable force. If I may respectfully say so, I thought the noble and learned Lord went a little far when he suggested that the extended laws which there are in this Bill, creating offences about not sufficiently helping the police, ought to go further and that there ought to be a law that if a person sees a murder committed he must tell the police. This has never been our law. Of course the whole history of capital punishment would show that one could not divide murders for that purpose. I say that only because the noble and learned Lord said, "Suppose it was an awful murder committed by a maniac; he might do it again". I must say quite frankly that if this had been the law in the time of capital punishment, nothing would have induced me to go and report it to the police, whether it was contrary to the law or not; because I do not believe in turning one murder into two, and I think that a law which made it a criminal offence not to report to the police any crime one sees would be going too far.
I remember a libel action against somebody who had said of a member of a club that he was the man who gave away to the police the fact that there were fruit machines in the club. It was quite untrue; he had not done anything of the kind. But the result was that he was shunned by everyone else in the club, who thought that if a fellow clubman went and told the police that they had fruit machines in the club it was the limit. Is it really to be said that whenever a member of a motoring club sees a motor car travelling at more than 30 miles an hour in a restricted area he must go and report it to the police? I would respectfully suggest that is going too far. Again, as to agreements not to prosecute, I think that is covered by paragraph 43 of the Report.
A question was also raised by the noble and learned Lord, Lord Denning, 566 and others as to the width of some of the clauses about receiving and dishonestly disposing of goods. I think it appears from the Report itself that the reasons for this are, first, the difficulty of catching and convicting receivers, and it is said in the Report that they are also considering—and I know they have now reported on—a complete revision of the law in regard to theft. The Committee say in their Report that these paragraphs are a part of what is going to be, if accepted by Parliament, their new code of the law and are purposely drafted in that way.
The noble Lord, Lord Brooke of Cumnor, asked whether it was proposed to give further study to the question of compensation. I think at the moment we are really waiting to see how the compensation board set up by the last Government progresses. So far it appears to be progressing well and to meet with satisfaction. Whether that should be extended will no doubt be primarily a matter for my right honourable friend the Home Secretary.
§ LORD BROOKE OF CUMNOR
My Lords, if I might interrupt the noble and learned Lord the Lord Chancellor, I was not thinking so much about compensation for crimes of violence, where there is now compensation for personal injury and the like, but rather about the question whether the present law, as it will be amended by this Bill, in relation to compensation for loss or damage to property was satisfactory.
§ THE LORD CHANCELLOR
I am much obliged to the noble Lord. I have always been in favour of a more extended use of ordering people to make good what they have done, because that in a sense is the natural form of punishment, and we shall certainly consider this question again before the Committee stage. I appreciate that there are limitations to property, and it may well be that provisions ought to be extended to injuries to people. Of course prima facie that would involve some duplication of the work of the compensation board, but I quite agree that the field is one which certainly repays study.
It was paragraph 36 to which I intended to refer so far as the disposal 567 of property is concerned. Here the Committee say:We are proposing in our forthcoming report on larceny and related offences to recommend that the offence of receiving stolen property should be extended to include undertaking or assisting in its retention, removal, disposal or realisation or arranging to do so. If this recommendation is accepted, the cases mentioned will be covered; but in case Clause 4of the draft Bill becomes law before the proposals in our other report, we suggest that Section 33 of the 1916 Act should be amended so as to widen the present offence of receiving stolen property to cover the other kinds of conduct mentioned; Clause 4(7) provides accordingly. If legislation is introduced to give effect to the proposals as regards larceny in our other report, it could repeal what is now Clause 4(7) of the Criminal Law Bill.My Lords, if there are any points to which I have not referred my right honourable friend the Home Secretary will nevertheless, I am sure, give them the closest attention; and I am sure that he, and indeed the Government, are grateful to your Lordships for all the points which have been raised in this interesting debate.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.