CRIMINAL LAW BILL [H.L.]

HL Deb 24 November 1966 vol 278 cc392-471

5.4 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)

On Queston, Motion agreed to.

House in Committee accordingly.

[The Lord ARCHIBALD in the Chair.]

Clause 1 [Abolition of distinction between felony and misdemeanour]:

On Question, Whether Clause 1 shall stand part of the Bill?

THE LORD BISHOP OF CHICHESTER

I wish to make one small comment on Clause 1. Under Section 55 of the Ecclesiastical Jurisdiction Measure 1963, provision is made for specific action in the case of a clergyman who is sentenced to imprisonment on conviction in a criminal court for a felony. This section will undoubtedly be affected by Clause 1 as it stands now, since I think, perhaps by an oversight, this particular Measure has been excluded from the Schedule. I hope, therefore, that the Church of England may consider the effect of this and take an early opportunity to discuss the point with the draftsmen of the Bill, to see how best this quite technical but important point can be dealt with.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)

I am most grateful to the right reverend Prelate for pointing this matter out. As he is aware, I have not had any opportunity of considering it, but, as I understand it, under the Ecclesiastical Jurisdiction Measure the question of a felony arises, and, if so, an automatic penalty. Clause 1 abolishes the distinction between felony and misdemeanour, and obviously a different situation is created. I am not at all sure that there has been an omission from the Schedule. That is something I shall have to go into. Nor am I sure from what the right reverend Prelate has said that the matter could be put right merely by the insertion of another line in the Schedule. It may well be that the Ecclesiastical Jurisdiction Measure itself will have to be amended. But I will certainly look into this particular point, and will write to the right reverend Prelate to let him know the position as we see it. That will put him in a position to take whatever action is necessary by the Report stage.

VISCOUNT COLVILLE OF CULROSS

I wonder whether the noble Lord, Lord Stonham, would consider whether a point of this kind might be dealt with by enlarging the words in Clause 12, subsection (5), which is the general substitution of the word "offence" for the word "felony" where it occurs in Acts of Parliament passed before this Bill. I am not quite sure whether this would cover Measures of the Church of England, but, if it does, it may be that it would be all right. If not, there may be other Measures which ought also to be dealt with under that general provision in Clause 12.

LORD STONHAM

It may well be, as the noble Viscount says, that subsection (5)(a) of Clause 12 will cover the point, but I have not had an opportunity to consider it. I am grat[...] to the noble Viscount for the suggest [...] and will certainly look into it when the question raised by the right reverend Prelate is considered.

Clause I agreed to.

Clause 2:

Arrest without warrant

2.—(1) The powers of summary arrest conferred by the following subsections shall apply to offences for which the sentence is fixed by law or for which a person (not previously convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence; and in this Act, including any amendment made by this Act in any other enactment, "arrestable offence" means any such offence or attempt.

(2) Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, in the act of committing an arrestable offence.

(5) 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.

5.8 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), after "years" to insert the offences of riot and of making an affray,".

The noble Viscount said: Clause 2 of this Bill institutes the new, more serious form of offence, and, pace my noble friend Lord Conesford, for the moment I will continue to call it an "arrestable" offence. May I say, as a preface to the Amendment, that I still think it a pity that the clause does not do something more comprehensive in trying to set out with precision more of the law on the question of arrest, because, quite apart from the matters which were originally dealt with under the heading "felony", there is a mass of obscure law about who can and who cannot arrest for a breach of the peace and other matters. Indeed, there is statutory provision as well. I think the noble Lord, Lord Stonham, mentioned one of the sections in point during the Second Reading debate. There is a section in the Act of 1851 which allows a constable to arrest without a warrant anybody who is committing an indictable offence by night; and here, of course, is yet another distinction, because indictable offences may or may not be arrestable, and so some of this power is covered by the [...]isions of this Bill and some of it is [...]. The whole thing is in a great muddle.

The most notable omission from Clause 2 is the serious Common Law misdemeanour. It is perfectly true that there has not previously been power to arrest without warrant for misdemeanour; it applied only to a felony. But by the very definition of "arrestable offence" in this clause some of the more serious statutory misdemeanours are being brought within a rule which previously applied only to felonies. I think, therefore, it raises the question of whether or not some of the more serious Common Law misdemeanours should also be brought in. I have chosen in this Amendment two of them. One of them, causing an affray, is a matter not dealt with by any Statute and therefore is of one category; the other that I have put down is riot, which is misdemeanour in Common Law and one which has no fixed penalty, so is not within the terminology of Clause 1(1) but is dealt with by Statute. At the moment, there is a statutory offence of rioting, with, I think, a penalty of life imprisonment, under the Riot Act 1714. In the Schedule to the Bill the Riot Act 1714 is repealed, so in future we shall be left with only the Common Law for riot. There are these two categories.

In both the cases I have mentioned I have no doubt that almost always the power to arrest for breach of peace—a constable may do this and so, in certain circumstances, may other citizens—will cover the arrest. That is the prime purpose of Clause 2. But the definition of "arrestable offence" does not end there, because it is also the criterion under Clauses 4 and 5 for the new substituted offence, first of all being an accessory after the fact of felony, and secondly, the combined offence which used to be misprision and compounding. Taking the two Common Law misdemeanours I have chosen simply as examples, is it not worth while to consider whether there may not be a Common Law offence here, and that it would be very useful to have powers to indict and to try, and, if necessary, if the case is proved, to convict people for assisting in the way set out in Clause 4, and. for all I know, sometimes for other Offences under Clause 5? This is not cover[...] the Bill at all. Unless we deal with it at the beginning, the whole matter will go by default.

There are a number of other Common Law offences which could go into this list. I have chosen these two to raise the principle and to ask what is the policy of Her Majesty's Government about these matters. I hope the noble Lord, Lord Stonham, will be able to tell us about the policy and may also be able to go some way towards including the more serious of these misdemeanours expressly, if necessary, in the Bill. I beg to move.

Amendment moved— Page 1, line 20, after ("years") insert ("the offences of riot and of making an affray,").—(Viscount Colville of Culross.)

5.13 p.m.

LORD STONHAM

The noble Viscount, in moving his Amendment, made it clear that two offences mentioned in the Amendment are merely selected as examples, but he will appreciate that I must deal with the Amendment as it stands. It would have the effect of making the offence of riot and of making an affray arrestable offences. In our view this is unnecessary, because the power to arrest without warrant for these two offences exists at Common Law, since they involve an act in breach of the peace. Anyone may arrest a person to stop a breach of the peace and this power is preserved in Clause 2(7) which, as the noble Viscount is aware, reads: This section shall not affect the operation of any enactment restricting the institution of proceedings for an offence, nor prejudice any power of arrest conferred by law apart from this section. That is a preservation of existing powers. The fact that the operation of the statutory offence of riot under the Riot Act 1714 is proposed to be abolished by repeal under this Bill has no effect, in our submission, on the Common Law power of arrest in order to stop a breach of the peace.

If we agreed expressly to mention riot and affray in Clause 2 there are two respects in which it would widen the existing Common Law power of arrest. It would widen, first, the power under subsection (3) and subsection (4) to arrest after the event on suspicion of having taken part in it; secondly, the power of a constable under subsection (5) to arrest on reasonable suspicion that the person in question is [...] to start or take part in a riot or affray. In our view, there is no need to widen the existing powers of arrest in relation to these two particular offences. It may be that we should also have that view about the other several offences which the noble Viscount had in mind. But we think the case of a person about to commit one of them is sufficiently provided for by the Common Law power to prevent a breach of the peace.

No doubt the noble Viscount is aware that the law as to both these offences is being considered by the Criminal Law Revision Committee in the tenth reference relating to Common Law misdemeanours generally. But the answer I have to give the noble Viscount's request for our views and for the Government's policy on this particular issue is that it does not appear to us that there is any gap in the power of arrest which has to be closed. I hope that the noble Viscount will accept that view, and so agree that his Amendment is unnecessary.

VISCOUNT COLVILLE OF CULROSS

The noble Lord has answered only half the point I made. Perhaps I could try again to explain what I have in mind. At the moment, if you commit an offence against the Riot Act and somebody afterwards assists you, hides you, or does something which is considered as being an accessory after the fact of felony, there can be a prosecution for it, because, under the Riot Act, it is a felony and therefore the ordinary rule about accessory applies. In this Bill the Riot Act is being repealed, and the only thing that is being left in its place to deal with riots, as the noble Lord has said, is the Common Law offence.

I am not worried about the power of arrest: I quite understand that this matter can be dealt with under the breach of the peace provision in Common Law. I am concerned about the effect on Clause 4, because hereafter, if this matter is not dealt with now, and we are left only with the Common Law, there will be no power to deal with cases that were hitherto covered by the charge of being an accessory and there will be no power to deal with people hitherto guilty of misprision or compounding, if such a thing could possibly arise. This is all being swept away. By refusing to redefine "arrestable offence" in Clause 2 you are not only affecting the power of arrest; you are affecting all the subsidiary matters. I think it is necessary, if we are to be left with only the Common Law to cover matters hitherto dealt with by Statute, that some of the subsidiary matters arising out of it should be followed through. The noble Lord has simply not answered my points. I hope that he will give me some satisfaction in this matter.

LORD STONHAM

The noble Viscount will accept that this Amendment does not of itself cover all the offences about which he is in doubt. These ancillary powers, if I may use that expression, apply, in his view, to other offences, quite apart from riot and making an affray. I had understood that this particular point was fully covered by the present Bill; but I will certainly look at what the noble Viscount has said, and if I find that his views on this point are correct, I will certainly so inform him, and see whether we can meet the point at the next stage of the Bill.

VISCOUNT COLVILLE OF CULROSS

I am very much obliged to the noble Lord, Lord Stonham. I will return to this matter briefly when we discuss the Schedules. There are at least two other offences which would come into this category, and I think that this is a very important matter. But in view of what the noble Lord has said, and the assurance which he has been so good as to give, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD CONESFORD moved, in subsection (1), to leave out "arrestable" and insert "listed". The noble Lord said: I move the first of a series of Amendments in the name of myself and the noble and learned Lord, Lord Morris of Borth-y-Gest. I think that the noble Lord, Lord Stonham, and the Committee will probably think it convenient that we take with the present Amendment Nos. 4, 6, 8, 11, 17, 19, 21, 24, 30, 32 and 34.

LORD STONHAM

I agree that it would be most convenient to take the Amendments together, but I wonder whether I might suggest that we might, with the agreement of the noble Viscount, Lord Barrington, also include in the general discussion the Amendments down in his name on the same point, in which he suggests different words?

LORD CONESFORD

I had a word with the noble Viscount, Lord Barrington, as I thought it possible that the noble Lord, Lord Stonham, would make that suggestion, and we both entirely agreed with what he has just said, that we should take all these Amendments together.

During the Second Reading debate on November 1, I stated my objection to the expression, "arrestable offence". I objected to it on two quite independent grounds. The first was that it was illiterate, or nearly illiterate. That did not mean, of course, that I disputed the existence of the word, but I said that it could not bear the meaning that it was designed to bear in this Bill. My second objection to it was that it was clearly calculated to cause confusion. On both these grounds I was strongly supported by the noble and learned Law Lords who spoke on that occasion, Lord Denning and Lord Morris of Borth-y-Gest. The noble and learned Lord, Lord Morris of Borth-y-Gest, is associated with me in all these Amendments, but I understand there is a possibility that he may not be able to stay throughout this debate.

On the question of illiteracy, I do not think it necessary to add much to what I said on the last occasion, particularly in view of the sympathetic response to the points I made by the noble and learned Lord the Lord Chancellor. He said: …I have as much love of the English language as anybody else, and I do not like arrestable offence'."—[OFFICIAL REPORT, Vol. 277 (No. 61). col. 562; 1 /11 /66.] I am quite sure that is true. May I quote, in support of what I am now saying, a couple of sentences from the noble and learned Lord, Lord Morris of Borth-y-Gest? These were his words (col. 550): 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. What was said by the noble and learned Lord. Lord Denning, I will refer to a little later in my argument.

The noble and learned Lord, the Lord Chancellor. having stated how much he himself objected to the expression, proceeded with his usual skill to say that, though he objected to it, and sympathised with my objection, there were some precedents which he could pray in aid. He gave the example of "indictable" and "bailable". I should perhaps therefore inform the Committee that the term "indictable offence" has been in use for two centuries. It is mentioned in Blackstone's Commentaries and is older than Blackstone. Although I do not wish to go into it, on linguistic grounds it is also less objectionable than "arrestable", wrongly used. I should perhaps mention, in passing. the excellent intervention on this matter by the noble Lord. Lord Airedale, who pointed out that an indictable offence was an offence which could be the subject of an indictment.

"Bailable" was also mentioned by the noble and learned Lord, the Lord Chancellor. "Bailable", in the sense of admitting of bail, is even older. It will be found in Selden's Laws of England in 1649. So both the examples quoted by the noble and learned Lord, the Lord Chancellor, are very respectable precedents for those two words, but afford no precedent whatever for the use of"arrest-able"in the present connection, because "arrestable" itself is found as early as 1555, from which date it has always been used with the same meaning: "liable to be arrested." It is so used in a passage in Carlyle's French Revolution. So I withdraw nothing that I said before on the subject of the illiteracy of the word as used here, and I say that the two examples used as precedents by the noble and learned Lord, the Lord Chancellor, do not provide a very convincing "fig leaf"(if I may use the expression) for the nakedness of his defence.

Now I come to the further and separate point of the liability of the expression to cause confusion. This appears from a passage in paragraph 12 of the Criminal Law Revision Committee's own Report. I quoted it last time, and perhaps, in case any Member of the Committee has forgotten it, I should quote it again. The Committee said: 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 this will cause any confusion. I ask the Committee this simple question: What could cause more confusion than the existence of offences for which there is a right to arrest but which are not arrestable offences? I wait with interest to hear the answer to that simple question. For my own part I cannot improve on what the noble and learned Lord, Lord Denning, said about the expression "arrestable offence". He said: They are ugly words and they are most inaccurate and misleading. And in the next column, he referred to them as "ugly, hideous and inaccurate". I think that I have said enough to show that "arrestable offence" simply will not do.

The question therefore is what we should put in their place. I have suggested the word "listed", which has the merit of being short and also the merit of avoiding any attempted description of some common characteristic in the offences in question. Frankly, I cannot discover any such common characteristic. The only way to discover what are the offences in question is to look at what is said in Clause 2(1), which the Criminal Law Revision Committee describe as containing the definition of the offence. If the public and any student are not to be misled, they must refer to the list contained in that subsection. There is no other way of finding out what are the offences in question.

Should my Amendment be incorporated, it may be desirable at a later stage of the Bill to add in a Schedule a full list of the offences covered, but that is not necessary to make the Amendment viable. The definition is already there, in the subsection to which I am now moving an Amendment. It would be wrong, I think, for me to express my view of the word"heinous "until we have heard the noble Lord, who thinks it a better expression, give his reasons. I can only say that it would not meet the objections of my noble and learned friend and myself. We are seeking to provide an accurate description of these offences, which will enable anybody who wishes to find out what they are to do so. The insertion of any general description such as "heinous" will lead a man to think that he knows which offences are covered. He will know nothing of the sort. It will be quite as misleading as "arrestable", though I agree not so illiterate. I beg to move.

Amendment moved— Page, 2, line 2, leave out ("arrestable") and insert ("listed").—(Lord Conesford.)

5.34 p.m.

VISCOUNT BARRTNGTON

I am extremely grateful to the noble Lord, Lord Conesford, for suggesting what I think will be for the assistance of your Lordships, that I should be allowed at this point to put my argument for my Amendment—which is to substitute "heinous" for "arrestable"—so that the two may be discussed together. It will probably make it less embarrassing for your Lordships as well as for myself, because never in my worst dreams did I imagine myself, I think, alone in this House attempting to defend, as I shall do, against such a redoubtable advocate—redoubtable?—yes, I think that is the correct word—as the noble Lord, Lord Conesford, the case on the literary side, which of course is only one side of his argument, for the expression "arrestable offence".

I do not believe it is a waste of time to discuss these points on words. I think that the noble Lord has done a great service in raising this. Like him, I am not happy about the word "arrestable", but for different reasons. I think I should be right in saying that his linguistic objection is formal, and mine substantial; or, to put it less pedantically, I think that the noble Lord was not objecting in that part of his argument to what "arrestable" was trying to say, but was saying that, in his opinion it did not say it. I feel that a better case could be made out by somebody less inadequate than myself than so far has been made out, that it can quite clearly mean in English "an offence for which a person can be arrested".

We are going to take this unprecedented step—entirely rightly, as we have all agreed, but a very large step—of cutting out of English law a distinction to which the noble and learned Lord, Lord Denning, movingly referred in our last debate. He moved me, as he always does, when he said: …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— that is a beautifully chosen word, because though they may be revived, they are being put out of law— I cannot help feeling a passing tribute of a sigh."—[OFFICIAL REPORT, Vol. 277 (No. 61), col. 545, 1/11/66.] And he goes on to say: These words…are expressive words. They tell the people what they mean. I am not suggesting that "listed" is not an expressive word. I think that it is a highly colourable word, if that means that it is "capable of being coloured"; but at the moment it is colourless. I am not at all against anything that would tell people, laymen like myself, what is listed and what is not.

But on the question of whether "arrestable" is a legitimate word in itself, I should like to question some of the things the noble Lord, Lord Cones-ford, said. He was, as he always is, an invaluable authority on many questions concerning the English language, but I think that in this case he was also a little authoritarian (if I may use that word) in some of his pronouncements. He produced to-night a new argument that it had been used in a different sense to—

LORD CONESFORD

I certainly did not use any new argument to-day. I said that adding "able" to a transitive verb means that it is capable of whatever the verb says in the passive. Thus, "teachable" means "capable of being taught", and "arrestable" means "capable of being arrested". The example I gave to-day is precisely the same as what I said last time. That is the only meaning of the word.

VISCOUNT BARRINGTON

I apologise to the noble Lord. I should have said that he gave to-night an additional reason: because he did not mention the other day that arrestable has existed in this sense since 1500. I was not querying that if "arrest" is a transitive verb, there is not something to be said for the noble Lord's argument, nor that, if it is here used as a verb, it is a transitive verb. No doubt the noble Lord has a good reason for assuming this; that is, assuming that it is a verb and not a noun. But he has not given us a reason. The only other legal words, like "actionable" and "treasonable", which he quoted out of Fowler the other day, are applications of "able" at the end of nouns. This suggests that this is a line worth looking into because it does not have to he a particularly erudite or literary mind which knows that "arrest" is a noun.

I can remember reading, when I was young, in an illiterate periodical, if I recall the words rightly, some statement like, "'Stand back! Technically speaking, you are in irons!' was the curt rejoinder, what time his ears were stunned by the hideous thought 'You are under arrest!' ". "Arrest" there is a noun. It is a common noun. The noble Lord would probably say that in that case it ought to be pronounced "arr'estable"; but I do not know that it ought not. I will not go into that point at greater length, but I think that if it is going to be refused a hearing on that ground, then it should be considered on another.

I would, on the noble Lord's historical view, ask him about the word "questionable", which clearly has two distinct meanings, one of which arose many years after the other. "Questionable", I understand from the dictionary originally meant "to question a person". It is also now used in the sense of questioning a point of view. I am, for instance, certainly not questioning the noble Lord, Lord Conesford; I am questioning his statement; and that is done in quite another sense, in that I do not expect an answer from a statement.

If I may expand that a little, when a trustee rather unexpectedly emigrates to South America with all the trust funds, I think most of us would say that his conduct was "questionable" and his motives were "questionable", but whether he is "questionable" himself—meaning by that, of course, whether he could be as well as whether he should be questioned—depends upon whether he can be got back out of the New World into the Old Bailey. I think those are two different senses of the word; and one came much later. The first, the sense in which a person can be questioned, appears, according to the Oxford Dictionary in 1500 or thereabouts; and the second, oddly enough, not until 1806, I believe I am right in saying. In between those dates the word was used for various things like a "questionable place", which did not mean a place of doubtful repute—what democrats might have thought your Lordships' House to be; what it meant was a place where questions could be answered.

I believe that that is the way that words develop in this country. If one wanted to make an artificial adjective out of "arrest", not making it mean "arrestable", no doubt Milton could have done so. I suppose it comes from the French word arrêter—to stop—and if the word "fête" can produce "festive", I suppose the word "arrest" can produce "arrestive". "Arrestive" is indeed in the dictionary, meaning "leading to arrest". I do not believe that "arrestive" however, would be any more acceptable to your Lordships, because I think it is an artificial word. Whereas "arrestable" is not used, I believe there are very few people who would not know at once what it means. I was interested that even the noble Lord, Lord Conesford, himself, perhaps out of courtesy, when he read out the word "punishable" just now did not make any comment on it to the effect that an offence cannot be punishable as well as a person. He may perhaps say that in fact you can punish an offence; but I do not think you can punish an offence by death, as is mentioned in this Bill, in Schedule 2 on page 13— An offence punishable with death. It may be that Mark Antony was wrong and the noble Lord is right in saying that the offence dies with the offender, that the evil that men do does not live after them. But if this is so, you are still faced with "offences punishable with imprisonment". I think the noble Lord was quite right not to raise that point, because when he quoted again just now from his earlier speech he did not object to it. It is a hideous thought if what I might call the Conesfordian view is right and "punishable with imprisonment" means that the offence can be imprisoned; because it raises appalling problems for the noble Lord, Lord Stonham. Where are offences imprisoned? How many are imprisoned at present? Are male and female offences imprisoned in the same prison, or are all offences imprisoned in the same cells as these offenders? And, if so, what happens to an offender who has committed many offences? What is the position as to overcrowding? In view of a quite recent incident only two days ago, when luckily an attempt by a convict to escape with the aid of an arrow was foiled, what precautions are taken to see that sexual offenders do not get hold of Cupid's arrows? And so on.

I do not want to be frivolous, but I do not believe that this strict interpretation that "questionable" cannot mean what a man is questionable about, and that "punishable" cannot mean what a man is punishable for, will hold water if we look at it. I will not labour the point further, but I think those things are worth looking at closely. I think that "arrestable" is a useful word; I should say a serviceable word—and "serviceable" undoubtedly comes from the noun; I think it is preferable to a great many other alternatives.

My reason for moving the Amendment is not on grammatical grounds, because I do not think this word means that offences can be arrested and that very few people would suspect that it does. It seems to me—and this is the serious point I want to make—that if we are substituting for a word like "felony", which had rightly or wrongly the implication that some offences were more hateful, more dislikeable than others—apart from treason which is still existing—in the middle area, so to speak, between treason and misdemeanours, which are untouched, there ought to be a word which implies that some offences are more dislikeable, more hate able, than others, without the offender necessarily being so.

I suggested the word "heinous" only because no other word has yet been suggested. I do not for a moment suggest that a better one could not be found, but it seems to me to have certain advantages worth considering, even if one does not use it always. First of all, it is a ready-made word. In the Oxford Dictionary you will find it is defined as: Odious; highly criminal; infamous; used chiefly of offences and offenders; hence of the accusation or charge. Secondly, I think it has certain advantages for lawyers, first of all in that it is elastic to some extent, and we must remember that we are here clothing ideas not in fig leaves but in words that we are intended to wear. We also want something that will be able to breed. I can imagine lawyers getting from "heinous" the expression "a hein", corresponding to a felony; but they would not, I think, succeed in getting a word equivalent to "felon" without making themselves ridiculous. If they tried the word"heiner" they would very rightly be pounced upon by the noble Lord, Lord Conesford, and, if I may say so, in a subsidiary capacity by myself, pointing out that they had got it the wrong way round, and that it ought to be a "heenee" or a "hinee" or a "haynee"; and I do not think that any of those commends itself to the British public on very good grounds.

It also has the advantage for lawyers that it can be pronounced in three different ways, so that there is a slight legal privilege which some lawyers like to have. Barristers of different views can impart a slightly different flavour by pronouncing it "heenous", as some of your Lordships do—and that is perhaps the high Tory pronunciation, and, I think, the one in the dictionary; or "haynous", as I should incline to do myself; or I can imagine an extreme Left-wing council calling it "hyenous", and raising all sorts of different implications. In this way it is a fertile word: it is a word, that everybody knows; it is a word that lawyers use.

I am not saying anything whatever against "listing" offences, because I entirely agree with the noble Lord, Lord Conesford, on the idea that it would be excellent if we all knew a bit more about which offences were arrestable and which were not. I think perhaps in the old days of Saxon monosyllables they might have been divided into "stops" and "stop-nots"—after all, "arrest" means "to stop". The noble Lord, Lord Conesford, suggested that you could not arrest an abstraction; but he may by now be thinking about the phrase "arrested development", of which I am perhaps a case. I notice, too, that only the other day a Hungarian farmer performed the surprising feat of arresting an express train by lying on the lines, and when it stopped, as it did, asking for a light for his cigarette. "Arrest" means "stop", and surely when the cry of "Stop thief" goes up it implies to some extent "stop the theft". To help in "arresting" an offence by preventing its going further is a perfectly legitimate sense of the word.

I have talked a good deal too long, and I do not want to press this Amendment. I am putting it up only as a suggestion that it may be dangerous, I think, to take away something which has good and bad points—namely, the idea, which I believe, perhaps old-fashionedly, that some offences are more dislikable than others—without putting something of the kind in its place.

I have been talking about "arrest" as a noun. I only noticed a few minutes before I came here that there is a word in the dictionary "arete", spelt oddly enough with a circumflex accent which has a technical meaning, not the one referring to "the small bones of fishes", but A sharp ascending ridge or edge of a mountain especially used in Switzerland, now technical with climbers. That seems to me to suggest a slippery slope. I believe we are on a slippery slope if we substitute for a word which, rightly or wrongly, means something we all hate or ought to hate—without hating a person—a word like "arrestable" which is a useful word but is something for the convenience of the public and their safety—very easily may become the convenience of the Government. And I do not mean only the present Socialist Government or a past Conservative Government, or the future Liberal Government; but simply a Government. Every Government wants to arrest without too much trouble. And I think that is a dangerous precedent. On these grounds, I suggest "heinous" for your Lordships' consideration.

VISCOUNT COLVILLE OF CULROSS

Before the noble Lord replies, I too would join in suggesting that the word "arrestable" is likely to cause confusion. If the noble Lord, Lord Stonham, is inclined to accept "listed", I might have an ulterior motive in supporting it, because I cannot find any other suitable definition of the Common Law misdemeanours which would group them together, the sort which ought to be put in the definition, and those which should not. At least if we had a list we could put on the list the ones we wanted to and not others, and therefore there might be a practical use for having a list in this case.

LORD AIREDALE

I entirely agree. If "arrestable offences" in this clause means any offence for which a person could be arrested, I should be prepared to swallow it, because even though it is illiterate it would be a serviceable expression which would mean something. But since it does not mean that and, as the noble Lord, Lord Conesford, has so ably explained, it adds confusion to illiteracy, I cannot swallow it. Therefore, I support the Amendment of the noble Lord, Lord Conesford.

5.56 p.m.

Loan STONHAM

When I listened to the Second Reading speeches of the noble Lord, Lord Conesford, and the noble and learned Lord, Lord Morris of Borth-y-Gest, I knew that at Committee stage I was in for a difficult time on this subject. Now I am absolutely certain of it, because I am asked to contend on the question of literacy with the noble Lord, Lord Conesford, and at least by implication on questions of law with the noble Lord, Lord Morris of Borth-y-Gest. Both those things taken together, I should think, are certainly beyond the competence of any Member of your Lordships' House. I can therefore only do my best, taking comfort from the fact that though your Lordships are unanimous in agreeing that "arrestable" is wrong, you are by no means unanimous in agreeing what would be the right word.

The noble Lord, Lord Conesford, suggests "listed". The noble Viscount, Lord Barrington, suggests "heinous". It would not make it any more attractive to me if he called it "hi'nous" or pronounced it in any other way. What I have to be concerned about is whether, without addition, it covers what we have in mind and what we have in Clause 2 of the Bill. That is the important thing. I have had other suggestions, such as "specified" and "defined", and no doubt one could think of many other words. But what we have to try to find is a word which, without addition, using only Clause 2 of the Bill, will do the job we want it to do.

I do not claim now, and I did not claim on Second Reading, that "arrestable" is ideal. But I want to explain—and I hope your Lordships will bear with me while I do so—why I think that none of the other suggestions—"listed", "heinous", or others that have been suggested—are as good and do the job so well as "arrestable". The noble Lord, Lord Conesford—and I make no complaint about this—objected to "arrestable" and was proposing "listed". He objected to "arrestable" on the grounds, first, that it was illiterate, that it could not bear the meaning it was design to bear and, secondly, that in his view it was clearly calculated to create confusion. I am sure he will agree with me that the second of those two objections is the more important, but I hope he will bear with me if I deal first of all with the question of literacy. "Listed", despite the fact that the noble Lord, Lord Conesford, said he would rely on the clause, certainly conveys to me, and I think would convey to everyone else, that there is a list. There is no list.

VISCOUNT COLVILLE OF CULROSS

Hear, hear!

LORD STONHAM

The noble Viscount says, "Hear, hear!", but has he considered just what that list would be? He is far more familiar with Arch- bold than I am, and therefore he will know that Archbold lists no fewer than seventeen different offences of larceny alone, each carrying a maximum sentence of five years or more. Also listed in Archbold are 26 offences of malicious damage, carrying maximum sentences of five years or more. The list would be very long indeed, and it is not only a list. Many of those offences would require many words to describe them. You would not have to put down a list; you would have to describe them. I submit that most people, wanting to know whether a particular offence attracts the new summary powers of arrest in Clause 2, would find it simpler to look up the Statute creating the offence concerned, or an authoritative textbook.

We establish, first, the point that if you insist that there must be a list it has to be a long list and a very bulky list with a lot of explanations. I do not think it would be anything like as clear or convey anything like as much, to the person or the member of the public who would have to do the arresting as the term "arrestable offence".

LORD CONESFORD

May I put one point to the noble Lord? He will realise that a list in a Schedule, although it may be a possible sequel if somebody advocated it, is not part of the Amendment of my noble and learned friend and myself. We simply propose to introduce "listed" without providing any further list. There is already a list in the subsection to which I am moving this Amendment.

LORD STONHAM

It was perfectly clear—indeed, I acknowledged the fact, almost immediately I started speaking—that the noble Lord, Lord Conesford, was not accepting that a list was necessary.

LORD CONESFORD

A further list.

LORD STONHAM

I agree. And whatever I say I hope your Lordships will understand that I am not maintaining that this is an ideal solution. We want to get something better if we can, but something better has not yet turned up. What I am now doing is to make the case and say why I do not think it possible to accept either Lord Conesford's suggestion of "listed" or the noble Viscount's proposal for "heinous". Quite rightly, the noble Lord, Lord Conesford, has said that "arrestable" is illiterate because it is the offender and not the offence which is being arrested. I agree, and as he has reminded us, my noble and learned friend Lord Morris of Borth-y-Gest feared that the use of the expression would be to "murder the English language."

But it is not the case that adjectives consisting of a verb with the addition of "able" are so rare in English law. They are indeed regularly and correctly used with reference to something to be done to the offender and not to the offence. The noble Lord, Lord Conesford, has reminded us that my noble and learned friend the Lord Chancellor, almost off the cuff, referred to "indictable" and "bailable" offences. The noble Lord, Lord Conesford, has dealt adequately with those two cases, and I do not want to say anything more about them, but there are other expressions.

Another expression in common use is "extraditable offence". One does not say "extradition crime". According to the New English Dictionary "transportable" means either "capable of being transported" or "involving or liable to transportation". The noble Lord, Lord Conesford, quoted Blackstone with approval, so he will not mind if I use him also, because Blackstone was always thought to write pretty tolerable English. He used the expression, …the statute makes it a felony transport" able for seven years". In 1815, Miss Mitford wrote: It does not appear…that he ever committed any hangable or transportable offence". I have an authority in 1726—Ayliffe, who wrote: legacies out of lands are properly suable in Chancery". Your Lordships may regard these examples just from the 18th and 19th centuries as new-fangled, so I have one from the 15th century, from an Act of the first year of the reign of Henry VII, which provided that in certain circumstances an offence of unlawful hunting was to "be but….trespass finable".

I am beginning to come to the conclusion that Lord Conesford's objections to "arrestable" on pure linguistic, or even literary, grounds are unsustainable.

LORD CONESFORD

Before the noble Lord passes on from that point, he carefully explained that he talked about an "extraditable" but not an "extradition" crime. If he will look at Clause 4(6) of the present Bill he will find that"extradition" crime is exactly what he does say.

LORD STONHAM

I am quite aware that we do use the term "extradition crime" on occasion, but the noble Lord is also aware that far more frequently used, and certainly well understood, is the term "extraditable offence". That was the point I was making. We can be too conservative in resisting developments of the English language. One hundred years ago the word "reliable" was being denounced as "an ungrammatical Americanism"—and that was notwithstanding its respectable use by Coleridge. Indeed, the noble Lord, Lord Conesford, himself might have been in trouble in those days because during the course of the Second Reading debate he said that the Criminal Law Revision Committee "realised" that arrestable offences are not all the offences for which it is possible to arrest. This sense of "realise", as meaning to understand clearly, is referred to in the New English Dictionary as: In early use, chiefly American, and frequently condemned as such by English writers about the middle of the nineteenth century". The only substantial objection to "arrestable offence" seems to be the second, as I ventured to suggest to the noble Lord—that "realised" by the Criminal Law Revision Committee—that there are other offences for which a person may be arrested.

The noble Lord, Lord Conesford, quoted with considerable effect two sentences from paragraph 12 of the Report of the Criminal Law Revision Committee. On that I would say that the position with regard to "listed", if his Amendment were accepted, would be exactly the same in that regard as under "arrestable". I say again, we should have liked to find a better expression if we could, but we consider that the use of the expression "arrestable" appears to be justified on the ground that the expression will denote those more serious offences which Parliament will have decided will make a person subject to the wide powers of arrest under Clause 2, and should have the other consequences specified in the Bill. In the case of other offences, particular powers of arrest may be given, but they will not usually be as full as those given for arrestable offences. Moreover, the term has already come to be accepted because of its use in the Criminal Law Revision Committee's Report and in the Bill; in the subsequent references to it in legal journals, and the attention which has been focused on it in debates in your Lordships' House. For this we are indeed indebted to the noble Lord, Lord Conesford, and the noble and learned Lord, Lord Morris of Borth-y-Gest, for their public service.

I would say to the noble Viscount, Lord Barrington, that his proposal seems to have additional disadvantages to those which I have already mentioned in connection with "listed", because "heinous" would not by itself, just as a word, be understood to have the meaning given to it by Clause 2 of the Bill. To give it that meaning one would have to add other words—"a heinous whats-it", or whatever it is. It would need to have other words added to it, whereas we submit that the advantage of "arrestable" is that as it is not in general use for any other purpose, and as people know what "arrest" means, it is likely, in our view, in time to he accepted on its own as having the meaning given to it in Clause 2.

I have done my best to explain our reasons, and certainly I have not lightly rejected these words. We really should like to come to an agreement and even now, at a later stage, if a better proposal could be made, we should be pleased to consider it. We certainly have not at any time thought that this word was absolutely ideal, but it is the best we can suggest. I hope that the noble Lord will now feel able to withdraw his Amendment, and that the noble Viscount will not wish to move his.

LORD MORRIS OF BORTH-Y-GEST

May I be allowed to say just a word at this stage? I think that the Committee should be grateful to the noble Lord, Lord Conesford, for the way in which he has raised this matter, and, if I may respectfully say so, I thought that both grounds on which he advanced this Amendment or this series of Amendments had very great force. This, I recognise, is not an easy flatter and nobody has made a suggestion here lightheartedly or in any spirit of desiring to be obstructive. It was, I think, the spontaneous reaction of almost everyone, when reading the wording in this Bill, that the phrase "arrestable offence" was an undesirable phrase, and it was not only undesirable because it rather jarred on the ear but for the second reason given by the noble and learned Lord, Lord Conesford, which I still think has great force.

I fully appreciate all that the noble Lord, Lord Stonham, has said, and I am sure the Committee will be grateful to him for the trouble he has taken to look into this matter. He has cited certain instances of the use of other phrases in the past. I must say, speaking for myself, that as I heard those phrases they did not appeal very much to me. After all, this is a new Bill at the time of a new departure, saying farewell to the distinction between felonies and misdemeanours. Here is a Bill that in many ways is historic; and after all it is the Bill of the noble Lord, Lord Stonham. I think those who have made suggestions have made them in the hope that it would not be thought that the criticism was merely destructive criticism but that it was criticism that represented a serious point.

I wonder whether the noble Lord, Lord Stonham, will be able to give us some assurance that he will look into this matter again and think further, with all the resources at his disposal. As I say, it is the noble Lord's Bill, the words of the Bill are the words that he is sponsoring, and possibly even at this stage he may be able to hold out some hope of being able to offer a suggestion of a happier phrase. I am sure the Committee wishes to co-operate with the noble Lord to achieve progress in this matter. There is no desire to be in any way difficult or obstructive, and certainly I would not lend my support to anything of that nature. I agreed with what the noble and learned Lord, Lord Conesford, said were his reasons for bringing forward this Amendment, but it may be possible to get some further suggestion in the future.

6.14 p.m.

LORD CONESFORD

I am grateful to the noble Lord, Lord Stonham, for his reply to the case that has been made, and I say at once that I found it completely unconvincing as a defence of what is in the Bill. As my noble and learned friend points out, it is Lord Stonham's Bill or the Government's Bill. Before I deal with the more serious point, perhaps I might, in courtesy to the noble Viscount who spoke from the Liberal Benches, say that I was not unacquainted with many words ending in "able" where those letters do not follow a transitive verb, but in the case of "arrestable" they do. I had myself mentioned examples in my earlier speech—"actionable", "merchantable", and I think I also gave one that occurred to me not once but several times in the course of this debate, the not unknown word "laughable".

Now to come to the serious point, I think that the linguistic ground I put forward, or what my noble and learned friend referred to on the last occasion as the murder of the English language, is not unimportant. Belonging, as I do, to the legal profession. I hate the idea that a Bill that will universally be thought to mark a historic stage in the development of English law, and therefore to be a product eminently of lawyers, may also be a Bill which murders the English language. I consider that quite important. But the much more important point is the purely practical point, that this expression is misleading. To that there has been really no answer. It is misleading. "Listed" may not be ideal: "specified" is also possible; the noble and learned Lord, Lord Denning, on the last occasion gave another possible suggestion—I do not wish to adopt but it is a possible solution—"a five-year offence." The possibilities are very many. I think it does not much matter what you call it, provided it is something that refers all concerned to the subsection to find out what is meant. "Arrestable" does not. I agree absolutely with my noble and learned friend Lord Morris of Borth-y-Gest. I think this is so important that I shall certainly return to it, if necessary, at a later stage.

My suggestion to the noble Lord, Lord Stonham, is that he should respect the view, I think the widespread view in this House, that "arrestable offence" simply will not do, and that he should use the enormous resources of his office—I may say that I do not think there is anybody in either House of Parliament who has a higher opinion than I have of Parliamentary draftsmen—to consider this matter again; could he allow some of us to get together with his advisers to try to hammer out something better? I think it might be possible. I do not wish to delay the consideration of further Amendments by this Committee at this stage, but I should like to appeal for the co-operation of the Government in producing a better expression, and not leave it to such aged and rusty lawyers as myself to concoct.

LORD STONHAM

The noble and learned Lord, Lord Morris of Borth-y-Gest, mentioned destructive criticism. I am quite sure Lord Conesford does not think I regarded any criticism he made as destructive. That has not been my view at all. Certainly what he has now said has removed any possible doubt on that score. I am grateful to him for describing this in one sentence as "Lord Stonham's Bill" and in another sentence saying it marks a historic phase in English law. I must deny the first impeachment. As to the appeal the noble Lord has made, I cannot give any undertaking to produce a solution that would achieve something better, but I will give him an assurance that we will certainly try. I cannot at this stage say whether it will be convenient to foregather in the manner he suggested; I should have to consult other people about that. But certainly so far as I am concerned, speaking in my personal capacity, I should be very glad to have the privilege of discussing this with Lord Conesford or perhaps Lord Denning, and indeed, any others who feel that they can make a contribution on this matter. I hope that arising out of that we should be able together to find something which would meet the approval of the Committee.

LORD CONESFORD

Having regard to the friendly speech made by the noble Lord, Lord Stonham, and also the fact that I know that the noble and learned Lord the Lord Chancellor has some sympathy with the desire that so many of us have expressed in this matter, I beg leave to withdraw the Amendment. Perhaps it may save the time of the Committee if I say that I shall not move the others on the same subject.

Amendment, by leave, withdrawn.

VISCOUNT BARRINGTON had given Notice of his intention to move, in subsection (1), to leave out "arrestable" and insert "heinous". The noble Viscount said: I shall be very brief. I rise merely to say that I join with the noble Lord, Lord Conesford, and the noble and learned Lord, Lord Morris of Borth-y-Gest, in thanking the noble Lord, Lord Stonham, for his great courtesy. He listened to all that was said, and I hope he did not think it a waste of time. I believed, rightly or wrongly, that I was raising issues which were worth raising. Having aired these matters, I think that we are all clearer in our minds as to the points involved. May I take the opportunity of apologising for the second time to the noble Lord, Lord Conesford, if I gave an entirely false impression as to what he intended in his Amendment? I did not for one moment dispute the fact that "arrest" is a transitive verb. I was merely expressing it as a noun. I do not move the Amendment.

Amendment, by leave, withdrawn.

6.23 p.m.

VISCOUNT COLVILLE OF CULROSS moved to leave out subsection (5). The noble Viscount said: The provisions of subsection (5) of Clause 2 were, I think, the only part of the powers of arrest in this clause which were questioned on Second Reading. I should like to ask for a little more explanation as to how these matters came to be in the Bill and as to Her Majesty's Government's policy upon them. The Bill follows exactly the draft proposed by the Criminal Law Revision Committee, and they justify in paragraph 16 of their Report their reasons for putting these powers into the Bill. However the beginning of the paragraph looks a little ominous, for they say: There is some authority that any person may arrest without warrant anybody whom he reasonably suspects of being about to commit a felony. Not for one moment would I question whether that is a correct statement of law, but when they say that there is some authority for it I wondered what the authority was. If one looks in Halsbury's Laws of England, one finds it is a rather obscure matter, and the reference to the second volume of Hale's Keys of the Crowndoes not help greatly in elucidating what the powers may be.

Then I find—and this is another of the sections which is to be repealed—that Section 104 of the Larceny Act 1861 says: Any Constable or Peace Officer may take into Custody, without warrant, any Person whom he shall find lying or loitering in any Highway, Yard, or other Place, during the night and whom he shall have good Cause to suspect of having committed, or being about to commit, any Felony against this Act… If it was necessary in 1861 to legislate to give power to a constable to arrest a person on the grounds of having good cause to suspect him of being about to commit a felony, it seems to me that again it causes some doubt about the previous existence of this offence at Common Law. Therefore, in the first place I should be grateful if the noble Lord could say a little about the origin of this matter. It would also be useful if the noble Lord could say whether or not the Government are satisfied that there is a need to preserve the old Common Law situation. In fact, do the police want to keep it? I do not believe that this was one of the matters on which the Criminal Law Revision Committee were assisted by their two chief constable advisers.

A further tricky question which was mentioned on Second Reading concerned what the police do with a person whom they have arrested on suspicion of being about to commit an arrestable offence. It is said in the Report that they can take him before the magistrate to bind him over. But bind him over for what? He has not committed any offence. They are only suspecting him of being about to commit one. Therefore, in what sense of justice can he be "bound over" for that? Alternatively, it is said that he can be kept in some sort of custody until the danger of his committing an offence has passed. Again, is this fair? In some instances I should think it most unfair to arrest somebody simply because it is suspected that he is going to commit an offence. I feel that the Government ought to state their policy quite clearly on the matter and say whether they are prepared to accept all that may flow from this revised power to arrest. I do not say that it necessarily is wrong, but I should like to hear what the noble Lord has to say, particularly on the point whether or not the police feel that they require the power.

Amendment moved— Page 2, line 14, leave out subsection (5).—(Viscount Colville of Culross.)

LORD STONHAM

I am grateful to the noble Viscount for his explanation of the point which he has in mind. As I think he is aware, the Criminal Law Revision Committee deliberately confined themselves to considering the effect of the abolition of felony on powers of arrest, and suggested an appropriate way of replacing the existing powers. They said in paragraph 11 that: …consideration of powers of arrest in general falls outside our terms of reference". That is why in subsection (7) of Clause 2 of the Bill we say that it does not necessarily affect any other power of arrest conferred by law. We think that because of the great complexity of the subject this is the right decision.

A work of reference published this year, Devlin's Police Procedure Administration and Organisation, lists 75 different statutory powers of arrest which are exercisable in various circumstances, according to the nature of the particular mischief with which they are intended to cope. This provision—and I know this is what concerns the noble Viscount—caters for circumstances which fall short of an attempt to commit an arrestable offence. We provide that a person in the act of attempting to commit an arrestable offence may be arrested under subsection (2) of this clause, because by subsection (1) an attempt to commit an arrestable offence is in itself an arrestable offence.

I hope that the noble Viscount has moved to leave out subsection (5) only to get the explanation which I am now giving him. The point is that if we omitted this subsection the police would lose a power which they probably already have in relation to felony; and, indeed, we think that the subsection may already narrow the existing law. There is authority for saying that at present any person may arrest without warrant anybody whom he reasonably suspects of being about to commit a felony. But the Criminal Law Revision Committee thought it enough to confer the new power in respect of arrestable offences on constables only, and I think that is right.

Just before the end of his remarks the noble Viscount seemed to feel that it was not right to stop anyone who a constable thought was going to commit an offence. What is he to do with a man who he thinks is going to set fire to a haystack? He has seen him put the petrol on and the man has just lit a match. Is the constable to wait until the man has actually put the match to the petrol? I think not.

VISCOUNT COLVILLE OF CULROSS

That, surely, is an attempt. That is not just suspicion. Good gracious me! if you see a man with a can of petrol and a box of matches beside a haystack, that must surely be an attempt and not mere suspicion.

LORD STONHAM

Suppose a man is near a haystack and has not lit the petrol but is just going to light a match. The noble Viscount must accept that there are circumstances in which a police officer has reasonable grounds for suspecting that someone is about to commit or attempt a crime, and in such circumstances, if he has reasonable grounds for that suspicion, we want to give him the powers of arrest. If we accepted the Amendment and deleted this subsection, that would weaken the powers of arrest.

The noble Viscount asked me what would happen if the police arrested a suspect and took him before a court. Presumably the court would ask him to be bound over to be on good behaviour. That is one thing which the court could do with him because, according to the evidence that the police officer will give, he had reason to suspect that the man was about to commit or about to attempt to commit an offence. I think that is quite a reasonable power to give a police officer. and he should not have to wait until the crime has actually been committed. The noble Viscount asked me whether the police have been consulted on this matter. Of course they have been consulted, and we think it would be wrong to handicap the police by the deletion of this subsection, which would certainly happen if we accepted the Amendment. With that explanation, I hope the noble Viscount will agree to withdraw the Amendment.

VISCOUNT COLVILLE OF CULROSS

I am greatly obliged to the noble Lord for his explanation of this matter; and, indeed, as he thought, it was to get an explanation that I put down this Amendment. I wonder whether the noble Lord could just tell me this. He said that of course the police have been consulted, and that the Government thought it was right to have these powers. But did the police want the powers? Perhaps the Government think it is right, but do the police want them and; lave they, in fact, been using these Common Law powers in the past? Is it because they found that these powers were useful, and have been actually using them, that they now say that they want to go on having them, or is this merely a theoretical exercise in that they may have been there in Common Law and now, for the sake of safety, the Government think it right to keep them? I think this requires explanation.

LORD STONHAM

My explanation, as I endeavoured to convey in my speech, is that the police have the powers and are using the powers. The effect of the Bill as it stands without amendment would be not merely to define but, in our view, perhaps to narrow the powers as compared with existing practice.

VISCOUNT COLVILLE OF CULROSS

I am obliged to the noble Lord. Perhaps I may have a word with him afterwards about this matter, because if these powers have been used I think it would be valuable to see whether there are reported cases where the matter has been looked at by the magistrates and what they have done on those occasions. Perhaps, after some research, the noble Lord could tell me of one or two of these cases which I can look at. if he will be so good as to do that, I will certainly for the moment beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3:

Use of force in making arrest, etc.

3. A person may use reasonable force in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders.

6.36 p.m.

VISCOUNT BRENTFORD moved to leave out "reasonable force" and insert "such force as is reasonably necessary". The noble Viscount said: This may at first sight appear to be an insignificant or even trivial Amendment, but I can assure your Lordships that that really is not so and that this is a rather fundamental Amendment. Hitherto it has been the law, the practice, the custom and the tradition of this country that a constable or other person is not empower or entitled to use force unless it is necessary. The wording in this clause of the Bill denies that premise altogether and says that a person may use reasonable force.

If, for the moment, we suppose that the word "reasonable" is dispensed with and the clause reads, A person may use force in the prevention of crime", that rather enforces the point which I am seeking to make; that this provision in the Bill introduces for the first time the novel precept that a person is entitled to use force. That would be entirely foreign to the tradition of this country, as it has always been the tradition that a person may use force only if and when force is necessary, and that tradition is what I am seeking to reinstitute by the Amendment which I am moving. If the Amendment were accepted the clause would read: A person may use such force as is reasonably necessary in the prevention of crime et cetera. I am sure that by this clause the Government do not intend any change in the present practice, but I believe there is a very real and essential change in the effect which it will have.

Equally, it will be beneficial for constables and others, in that if they are limited to the use of reasonable force they may have very great difficulty in arresting a criminal who is seeking to get away and who himself uses force. Under the wording of the clause as it is drawn they are entitled only to use reasonable force. Now what is reasonable force? Obviously, reasonable force can only be force of a moderate character. But, in the circumstances that I have described, it may be necessary, in order to effect an arrest, for the constable to use force of a major character, or to use the maximum degree of force. In the circumstances, that force would be "such force as is reasonably necessary". Therefore I maintain that this Amendment is not only in the tradition of the law in this country, but is also for the benefit of the constables and those others who are seeking to make an arrest. I beg to move.

Amendment moved— Page 2, line 25, leave out ("reasonable force") and insert ("such force as is reasonably necessary").—(Viscount Brent ford.)

LORD STONHAM

The noble Viscount has clearly explained the purpose and effect of his Amendment. It would be to make the clause provide that a person may use such force as is reasonably necessary in the prevention of crime or in effecting or assisting in a lawful arrest, instead of providing, as the present clause does, that a person may use reasonable force for those purposes, which the noble Viscount, Lord Brentford, says implies that a person is entitled to use force. I think that sums up his objection, and is the real reason for suggesting an alternative form of words. Indeed, the Law Society made this suggestion last winter in correspondence with the Home Office after the Bill was first introduced in another place, but we advised them then that we preferred the clause to remain as it was drafted. Indeed, it is exactly as it is in the Criminal Law Revision Committee's draft.

In practice, of course, as the noble Viscount has said, the difference in substance between the two forms of words is not very great, but I agree with him that this is not a trivial point. He is quite right that it should be raised and should be carefully considered. I am bound to say at once that neither the noble Viscount's version nor our version would excuse a person who used force when it was not reasonable, or used an unreasonable degree of force. In neither case would that be so—and his Amendment does not get over either of those positions. But the point is that if we accepted the noble Viscount's Amendment then a person who used even reasonable and justifiable force would not be excused unless he could prove that the force was reasonably necessary. There are two things—reasonable and necessary. In the view of my Department, that would place too heavy a burden on a person who acted in a way reasonable in the circumstances at the time.

It is important to bear in mind the kind of case in which Clause 3 would be operating. There is a shout of, "Stop thief!"; you look up and see three men run from a bank and jump into a car and you pick up some heavy object and throw it at the windscreen. Or a man discovers a burglar in his house and tackles him by any means that occur to him. In neither case does he know of the existence of this particular provision; nor could he stop to think what his legal rights were. The important thing is that, in our view, the provision as we have it fulfils what is essential—that it should protect anyone who, on the spur of the moment, behaves in a common-sense and public-spirited way. In our view, it would not be right for the provision to give rise to nice, exact questions, argued with hindsight, after the event, in the sedate atmosphere of the law courts, as if whether the action taken was strictly necessary, or as to what alternatives there may have been.

In our opinion it is desirable to have a provision which is very short and simple, and we think that the clause as drafted, with the words as they are in the Bill, is the most suitable for the purpose. In our view—this is in contradiction to what the noble Viscount believes—it has the advantage over his form of words in that we use only one conception, reasonableness, whereas he, instead, uses two conceptions, reasonableness and necessity. For that reason we think it would be unwise to make the change which the noble Viscount suggests.

LORD CONESFORD

I am a little puzzled by the reply. I am afraid that I missed a few words of my noble friend's speech, but I understood the noble Lord, Lord Stonham, to say that even with his clause it would still be necessary, if this is to provide a defence, that it should be reasonably necessary. So the double qualification is there, admittedly, whichever form of words is used, if I have understood the noble Lord, Lord Stonham, correctly.

LORD STONHAM

What I said at that stage in my speech was that in neither case would a person be excused if he used force that was not reasonable, or used an unreasonable degree of force. In the Bill as it stands we are not using the word "necessary".

LORD AIREDALE

I am not at all happy about this. May I cite an imaginary example? Suppose there is a frail old woman who is a well-known shoplifter, and the store detective sees her shoplifting a loaf of bread. The detective knows her quite well: he knows her name, and knows where she lives. The only reasonable thing the store detective could do in the circumstances would be to say to her, "Leave the store", and if the old woman thereupon left the store there would be not the slightest reason for the store detective to lay a hand upon her. But suppose the store detective took hold of the old woman and led her out of the store. He could then say, "Under Section 3 of the Criminal Law Act 1966 I was entitled to do this because that section says that a person may use reasonable force in the prevention of crime, and that is what. I was doing". I do not believe that is intended, and I believe that we must still preserve the necessity for the use of force before it can be excused. I hope that that example will be considered, because I am not happy about this wording.

LORD STONHAM

If I may reply to that point directly, in the case of a frail old woman, or of any other individual, where, according to the noble Lord's description, no force is necessary, then no degree of force could be regarded as reasonable if in fact no force was necessary. I am putting this forward quite seriously. Indeed I think I said something of this kind with regard to this point on Second Reading; but certainly it has been in my mind all the time. In a situation such as the noble Lord has described, where by no stretch of the imagination did the detective have to use force, then he cannot argue, if he has used force, that it was reasonable.

VISCOUNT COLVILLE OF CULROSS

I understand the problem that arises by having a dual criteria—first of all, the reasonableness and, secondly, the necessity. I also understand the problem that has been raised by my noble friend Lord Brentford, that this clause as it now stands can be read in such a way that the reasonableness of the force is not related to the circumstances of the case but is merely an objective judgment of the amount of force in any circumstances.

LORD STONHAM

A reasonable thing to do.

VISCOUNT COLVILLE OF CULROSS

In order to avoid bringing in the word "necessity", could one say this—and I suggest the noble Lord might consider it: A person may use such force as is in the circumstances reasonable in the prevention of crime". et cetera. There is then no question of proving any necessity, but one does isolate the reasonableness and bring it to bear only on the circumstances of the case, rather than its being considered generally. I hope that may be a useful suggestion.

LORD STONHAM

I have written that down, and I was just reading it through again: A person may use such force as is in the circumstances reasonable… I do not think that form is as good as that which we now have in the Bill, although I appreciate the noble Viscount's point. Indeed, it is the whole basis of Lord Brentford's Amendment, and why he has raised it; and the noble Viscount, Lord Colville of Culross, has reiterated it. It is possible, they allege—and obviously it must be possible—to read it in that way. That, I think, would be the only justification for our looking at it again. Of course, I cannot give any undertaking that the form of words suggested by the noble Viscount—or, indeed, any other form of words, including of course, those of the noble Viscount, Lord Brentford—would be regarded as better.

VISCOUNT BRENTFORD

Might I just ask the noble Lord a further question on this? Can we get from the noble Lord an assurance that, under the words that appear in the Bill at the present time, if there is no necessity to use force, any force whatever is reasonable?

LORD STONHAM

That is directly contrary to the view that I have just expressed in answer to the noble Lord who raised that point. I expressed the view that in a case where no force is necessary, any force used would be unreasonable. That is certainly my view and I think that is what the Bill conveys.

There is one other point made by the noble Viscount, Lord Brentford, to which I did not reply. He said that he thought that the clause as it now stood would not protect a person who had to use extreme force because "reasonable" in his view means a moderate degree of force. This is not the case. In a crime of violence, particularly, it might be reasonable to use extreme force or even force leading to fatal consequences. For example, supposing a criminal shoots at a policeman. Then it is reasonable, if the policeman is armed, for him to shoot back. So that is another point I could not accept from the noble Viscount. I think we have had a reasonable discussion—

VISCOUNT COLVILLE OF CULROSS

In the circumstances.

LORD STONHAM

Without giving any kind of undertaking, I will consider what has been said on this. I want to make it clear that I am not convinced; I still think we are right. I will also consider the words suggested by the noble Viscount, Lord Colville of Culross, and whatever the outcome I will write to noble Lords.

VISCOUNT BRENTFORD

On the strength of that understanding, for which I am grateful, and in the hope that the noble Lord will realise, in respect of the last reply that he was good enough to give me, that he automatically introduced the necessity element of the two alternatives—one of necessity and the other of reasonableness—and in the hope that, bearing that in mind, he will give favourable consideration to the proposal of my noble friend, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

6.54 p.m.

LORD STONHAM

I beg to move Amendment No. 14. I am quite sure that noble Lords will welcome the fact that I am giving a very short breather at this moment by moving this Amendment, and will also give a particular welcome to it because this implements a valuable suggestion made by the noble and learned Lord, Lord Morris of Borth-y-Gest, during the Second Reading debate which I then promised to consider. I can explain it quite shortly. Clause 3 allows the use of reasonable force in preventing crime or assisting in the lawful arrest of offenders, as we have already discussed. The Amendment makes it clear that the power to use reasonable force is available in the case of lawful arrest of a suspected offender. I hope that that is clear and that this is acceptable. I beg to move.

Amendment moved— Page 2, line 27, at end insert ("or suspected offenders.")—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

I am quite sure the noble and learned Lord, Lord Morris of Borth-y-Gest, will be grateful to the noble Lord for accepting his suggestion.

On Question, Amendment agreed to.

LORD CONESFORD moved to add to the clause "or in preventing their escape". The noble Lord said: I put down this Amendment, frankly, as an exploratory one. It may be that the noble Lord, Lord Stonham, has already looked at this sufficiently to know whether this is required; but perhaps I may give him some examples of what I had in mind so that, if he has not fully considered it, he may do so before the next stage.

One set of circumstances is not unconnected with what my noble friend Lord Brentford said on a previous Amendment or, rather, with an example given by the noble Lord, Lord Stonham, in the course of his replies. I was thinking of the case where a man discovers a burglar in his house who may perhaps be in the act of going through a window to escape. There might be evidence of a very serious crime committed, such as a serious assault on a person in the house or a person being bound up or something like that, and the burglar might be trying to escape. It may be that the words "effecting…the…arrest" (which are already in the clause) would, arguably, be sufficient; but I am not certain whether there are circumstances here where some further words might be required.

The noble Lord will, I think, be familiar—I gather he is so, from what he said in an intervention on the previous Amendment—with the cases where even the infliction of death has been considered excusable in the protection of person or property. A number of cases can be found in paragraphs 2512 and 2513 of Archbold. I think it is desirable that the Minister should carefully consider what, if any, effect this clause, as drafted, has on those decided cases and what effect is desired.

Here is another example, which perhaps leaps more obviously to the mind. Suppose you were passing Wormwood Scrubs on one of the days, or at an hour, when one of the customary escapes was taking place. I suppose on the whole the Government would desire the citizen to intervene in some manner. If he were entitled to intervene because he was preventing an escape, I think he might be encouraged to do so; but I rather doubt whether the words already in the clause will in all cases be sufficient to cover the man. I have put down these words provisionally. I have no desire whatever to press them if the noble Lord does not like them. I hope he will think they are worthy of some investigation. I beg to move.

Amendment moved— Page 2, line 27, at end insert ("or in preventing their escape.")—(Lord Conesford.)

LORD STONHAM

I am sure that anything the noble Lord puts down is worthy of investigation. With regard to the "customary" escapes from Wormwood Scrubs, I will assure him that if he wants to prevent them he must be inside and not outside. That is from where we are preventing "customary escapes". It will be the exceptional one that is done from outside.

LORD CONESFORD

But if one were passing, what is one expected to do?

LORD STONHAM

We were not exactly sure of the whole of the noble Lord's mind on this. We thought of two examples. There is an offender fleeing from arrest. Then the words that the noble Lord suggests, "or in preventing their escape", are not necessary because the use of force will be for the purpose of effecting the arrest. That is all right.

If you were thinking of a bystander trying to stop a bank robber from making his getaway, the use of force again would be for that purpose and for the purpose of "the prevention of crime", or both, and therefore that is already covered. The case of the bystander or person walking by a prison who sees a chap getting over the wall and uses force to arrest him is again covered because the person would be using reasonable force in effecting or assisting in the lawful arrest of the offender; and he is an offender, and it is lawful to arrest a person who jumps over the prison wall because he is committing an offence. Therefore again it is covered by the clause. Frankly, I would have been prepared, had the noble Lord suggested things which were not covered, to ask whether he would withdraw the Amendment and say that we would look at it again; but in this immediate discussion the noble Lord has not suggested anything which is not covered and would therefore justify the Amendment, so that I shall have to leave it to his judgment.

7.1 p.m.

LORD CONESFORD

I have certainly no intention of pressing the Amendment, but I hope that the noble Lord will look into the class of cases that I have mentioned in Archbold to see whether he is satisfied with this clause, and the effect that this and other clauses in the Bill have on the authorities there quoted. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved to add to the clause: ( ) Any rule of law which does not accord with the provisions of the last foregoing subsection shall cease to have effect.

The noble Viscount said: It is only necessary to say a few words about this Amendment. When on Second Reading I asked the noble and learned Lord the Lord Chancellor whether the Common Law rules in this matter were superseded by this Bill, he said, as I understood his answer, that they were not. The Criminal Law Revision Committee describe this matter in Paragraphs 20 to 23, and they make the point that the authorities on the Common Law side are very obscure. The last thing we want is for somebody who has misused the powers, which we think are right, to seek to use, or resurrect from the dead, in order to protect himself some extraordinary Common Law rule which is of the greatest obscurity. If there are these immense obscurities I suggest that it is better to make quite sure that the Bill provides the only proper way to deal with the matter, and there should be no other rule still in existence.

Amendment moved— Page 2, line 27, at end insert the said subsection.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount reminded us that he raised this point on Second Reading, and by his Amendment he wishes to make clear that Clause 3 supersedes the Common Law. It says no more, in effect, than that the clause overrides any rule inconsistent with it, and leaves open to argument that the present law remains operative on any point where it gives wider protection than the clause to a person using force. Our view is that the clause as it stands has the effect of replacing the existing law and that it would be unnecessary to add words saying so. But having said that, we have no objection in principle, if the Committee feel that it should be done, to considering before Report whether a suitable Amendment can be drafted; but in our view it would have the effect only of saying again what we believe the clause says already.

VISCOUNT COLVILLE OF CULROSS

As I understand it, the noble Lord thinks that the clause itself supersedes the Common Law and would like it to do so. My Amendment, as is usual with all Amendments drafted by myself, does not have the right effect, and for that I beg forgiveness. Nevertheless, when one looks at Clause 2(7) which expressly deals with and preserves Common Law rules I think there may be a distinction which might be drawn when Clause 3 is silent on the matter. I should therefore be very grateful if the noble Lord, Lord Stonham, would look at this point again and make sure that this argument cannot arise. It would be so easy to get the right form of words and the whole thing would then be settled. If the noble Lord will do that. I shall be very happy to ask leave to withdraw the Amendment.

LORD STONHAM

I am quite willing to do that.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4:

Penalties for assisting offenders

4.—

(3) A person committing an offence under subsection (1) above with intent to impede another person's apprehension or prosecution shall on conviction on indictment be liable to imprisonment according to the gravity of the other person's offence, as follows:— (a) if that offence is one for which the sentence is fixed by law, he shall be liable to imprisonment for not more than ten years;

(7) For the purposes of section 33 of the Larceny Act 1916 and of any other enactment relating to receivers or receiving a person shall he treated as receiving property if he dishonestly undertakes or assists in its reten- tion, removal, disposal or realisation by or for the benefit of another person or if he arranges so to do.

VISCOUNT BRENTFORD moved, in subsection (3), to leave out "with intent to impede another person's apprehension or prosecution". The noble Viscount said: This is really a drafting Amendment. In Clause 4(3) we read: A person committing an offence under subsection (1)"— of Clause 4— with intent to impede another person's apprehension or prosecution—. and so on. If we turn to Clause 4(1) to see what is the offence to which subsection (3) refers, we see that the offence is that a person without lawful authority or reasonable excuse…with intent to impede his apprehension or prosecution… The necessity for the offence being with intent to impede the apprehension or prosecution is already in Clause 4(1). Therefore it is quite unnecessary for it to be repeated again in subsection (3). Purely on that drafting point I seek to delete those words.

Amendment moved— Page 2, line 42, leave out ("with intent to impede another person's apprehension or prosecution").—[Viscount Brentford.]

LORI) STONHAM

As the noble Viscount has said this is a drafting Amendment, but unfortunately it is not an acceptable one. I remember that on Second Reading he referred to the words that he now seeks to leave out as "otiose and unnecessary". They are unnecessary only in the sense that to leave them out would not change the effect of subsection (3). But they are far from otiose because they make subsection (3) easier to follow, which is something usually welcome in Acts of Parliament.

If the words were omitted as the noble Viscount wishes, the subsection would read: A person committing an offence under subsection (1) above shall on conviction on indictment he liable to imprisonment according to the gravity of the other person's offence as follows… Then, as the noble Viscount says, to see who is the "other person" it is necessary to go back to the beginning of subsection (1). The point is that the words refer to "a person" in the first line of the subsection, and not to "any other person" in the second line, as it might seem at first sight, but for the words which we have put in and which the noble Viscount wants to leave out. The words we want to leave in show at once who the "other person" is. Therefore, with all respect to the point about drafting, we think that the words are necessary and not otiose; and unless the noble Viscount objects too strongly, which I hope that he will not, we should like to leave them in the clause.

VISCOUNT BRENTFORD

With that explanation, with which I do not agree from either the beginning, the middle or the end of it (I think, with all respect to the noble Lord, it is one of the weakest explanations I have ever had the privilege of listening to), I will, with the leave of the Committee withdraw my Amendment.

Amendment, by leave, withdrawn.

7.10 p.m.

VISCOUNT BRENTFORD moved, in subsection (7), to leave out "receivers or receiving" and insert "the offence of receiving as therein defined". The noble Viscount said: This is a more serious Amendment than the last one. The difficulty about this clause is that it creates a specific offence under Section 33 of the Larceny Act 1916. It introduces these vague and undefined words "receivers or receiving". We are exceedingly anxious lest these words should be misconstrued, because they are not defined anywhere at all. The word"receiver" is not subject to legal definition. If one looks up the index of Halsbury, one finds that it is used in a number of contexts of a non-criminal character as well as contexts of a criminal character. Apart from that, it is a word which is commonly used in the English language in a non-legal context. We feel that it is desirable that this should be more clearly defined, and suggest that it can be adequately and simply defined by the proposal in the Amendment which I am now moving—namely, to delete the vague words "receivers or receiving" and to insert in lieu "the offence of receiving as therein defined", which means as defined in Section 33 of the Larceny Act 1916. I beg to move.

Amendment moved— Page 3, line 35, leave out ("receivers or receiving") and insert ("the offence of receiving as therein defined").—(Viscount Brentford.)

LORD STONHAM

Clause 4(7) provides that the extended meaning of receiving is to apply for the purposes of Section 33 of the Larceny Act 1916 and also for those of "any other enactment relating to receivers or receiving". The noble Viscount's Amendment would substitute for the words "receivers or receiving" the words "the offence of receiving as therein defined". In our view, this would limit the subsection in a way which would take away part of its purpose. For Section 33 of the 1916 Act, although it contains the principal offence of receiving, does not create the only offence of this kind. It applies to receiving stolen property and property obtained in any other way amounting to a felony or misdemeanour with knowledge that the property was stolen or so obtained. The words "or any other enactment relating to receivers or receiving" will cover, first, enactments which create other offences of receiving and, secondly, enactments containing ancillary provisions relating to the offences.

The most important of the other offences of receiving is that created by Section 54 of the Post Office Act 1953, of receiving stolen mail bags and postal packets, but there is also a summary offence under Section 97 of the Larceny Act 1861, of receiving property got by a summary offence under that Act. An example of an enactment containing ancillary provisions relating to receiving ((ii) above) is the provision in Section 38 of the Pawnbrokers Act 1872 that, if a pawnbroker is convicted of receiving stolen goods knowing them to be stolen, the court may direct that his licence shall cease to have effect.

I appreciate that the noble Viscount may feel that the expression "other enactments relating to receivers or receiving" is too vague. The Law Society indeed expressed that view in correspondence they had with my Department, but, unfortunately, they did not respond to an invitation we addressed to them to mention any enactments in which they thought there can be any doubt whether the clause would apply.

It seems to the Government that although different words might have been used, the words that the noble Viscount wishes to change, since they stand in juxtaposition to the reference to the main offence of receiving contrary to Section 33 of the 1916 Act, show clearly that the reference is to offences consisting of receiving property stolen or come by otherwise unlawfully. If the language is to be altered, the Amendment would have to go wider than the noble Viscount proposes, because this Amendment would leave out of account the enactments creating other offences of receiving, although it would cover ancillary provisions, such as that in the Pawnbrokers Act so far as they apply to the offence under Section 33 of the 1916 Act. It appears to the Government that it would be a pity to complicate the Bill in order to define the offences in what would seem perhaps unnecessary detail, especially as the subsection is intended to be temporary only and to be repealed by the Theft Bill, annexed to the Criminal Law Revision Committee's Eighth Report, if that Bill is accepted by Parliament. That is my view. I can see the noble Viscount's intention, but it seems obvious to us that the Amendment does not go so far as he would wish it to go in doing what he seeks to achieve. For that reason, he might like to think about it again.

VISCOUNT BRENTFORD

I was interested in what the noble Lord said with regard to this being a temporary provision, subject to the revision of the law as a result of the Report of the Law Revision Committee. On Second Reading, the noble and learned Lord the Lord Chancellor said that a complete revision of the law on theft was to take place and that the Committee said in their Report that these paragraphs—I understood him to be referring to the paragraphs in this Bill—were part of what is going to be the new code of law, if accepted by Parliament. If that is so, then there will not be any revision of this Bill by a subsequent Bill, and what we are doing is seeking to legislate in anticipation of what is going to be the law when another Bill is introduced. I think this is a dangerous line to pursue.

Having said that, I should like to have an opportunity of giving closer attention to what the noble Lord has said than was possible while he was actually talking; and in that anticipation, and with the possibility that I may come back to this on a later stage, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

VISCOUNT BRENTFORD moved, in subsection (7), after the first "if" to insert: knowing it to have been stolen or obtained in any way whatsoever in circumstances which prior to the enactment of this Act would have amounted to a felony and misdemeanour". The noble Viscount said: I was tempted to put this Amendment down because of what the noble Lord in charge of the Bill said on Second Reading, when he was paraphrasing this particular clause and he came to the words in line 37: shall be treated as receiving property if he dishonestly undertakes or assists in its retention".

The noble Lord said: if knowing the property to be stolen he undertakes or assists in its retention… That is exactly the purport of what I desire to see in the Bill: that instead of this rather vague and ambiguous word "dishonestly", we should have the words, "knowing that the property was stolen": because if the word "dishonestly" is retained, it is wide enough to include the disposition of property even though it was not stolen or was not unlawfully obtained. We therefore consider that the old and perhaps rather more traditional words, "knowing the property to have been stolen or unlawfully obtained", are better than the admittedly briefer but vaguer word "dishonestly". I beg to move.

Amendment moved— Page 3, line 36, after ("if") insert the said words.—(Viscount Brentford.)

LORD STONHAM

I am grateful to the noble Viscount for that explanation, but I am bound to tell him that in our view the Amendment is unnecessary and does not wholly fit the present law. We think it is unnecessary because the offence under subsection (1) of Section 33 of the Larceny Act depends on the receiver knowing that the property was stolen or obtained in one of the ways mentioned. Subsection (7) of Clause 4 in the present Bill merely extends the idea of receiving without altering the other ingredients of the offences, in particular, without altering the requirement as to the receiver's knowledge of the way in which the property was obtained. Further, the Amendment would not fit the important offence under subsection (4) of section 33,consisting of receiving in England property obtained abroad in circumstances which would have amounted to a felony or misdemeanour if the property had been obtained in England.

We do not think it would be an appropriate reform to make it necessary to consider whether an obtaining which took place after the commencement of the Act would have amounted to an offence under the present law. For this reason, I cannot accept the Amendment, and I hope that, with the explanation I have given, the noble Lord will feel able to withdraw it.

VISCOUNT BRENTFORD

Again, I think this is something that I should like to think about, because I still do not see why "dishonestly" is going to meet the point any better than the words which I recommend, and in my view it is wide and vague. Perhaps I may be permitted the opportunity of considering the matter and possibly coming back to it again at a later stage. But for the time being I will withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question: Whether Clause 4 shall stand part of the Bill?

VISCOUNT BRENTFORD

May I call the attention of the noble Lord at this stage to a matter which I mentioned on Second Reading—namely, the marginal note to this particular clause. The marginal note says: Penalties for assisting offenders. and the clause itself goes on to create all sorts of offences and, by so doing, to create offenders. I should like to draw the attention of the noble Lord in charge of the Bill to the fact that the marginal note is totally irrelevant, completely misleading and ought to be amended.

LORD STONHAM

I am grateful to the noble Viscount for that vigorous presentation, and I will certainly look at what he says.

Clause 4 agreed to.

Clause 5 [Penalties for concealing offences or giving false information]:

7.25 p.m.

VISCOUNT COLVILLE OF CULROSS moved to leave out subsection (1) and insert— (1) Where a person has committed an arrestable offence, any other person who, knowing or believing that the offence or some other arrestable offence has been committed—

1. (a) conceals or procures the concealment of, or
2. (b) accepts or agrees to accept any consideration for not disclosing any information relating to

that offence, or that other offence, as the case may be, shall he liable on conviction on indictment to imprisonment for not more than two years: Provided that, in a case falling within paragraph (b) of this subsection it shall not be an offence to accept or agree to accept such consideration as constitutes:—

1. (i) the making good of loss or injury caused by the offence, or
2. (ii) the making of reasonable compensation for that loss or injury."

The noble Viscount said: This is a most important Amendment and I am sorry it should have come up at this time of the evening, when the Committee is so thin and when none of the noble and learned Law Lords is here. It was, as your Lordships will probably remember, raised by both the noble and learned Lords, Lord Morris of Borth-y-Gest and Lord Denning, in the Second Reading debate. Clause 5 is a sort of omnibus substitute for two sorts of offences that at present exist in Common Law. The first is misprision, and the second compounding a felony. The Criminal Law Revision Committee's Report described misprision as: concealing or procuring the concealment of a felony known to have been committed", and compounding as: an agreement not to prosecute a felony in consideration of the return of the goods or other award. The Committee decided to do away with both those long standing offences and to replace them by a very narrow offence that is newly created by Clause 5(1). Various noble Lords asked whether this was acceptable policy.

I should like the noble Lord, Lord Stonham, to explain why it is that the Government are satisfied that the old offence of misprision of felony is no longer necessary. I know that it has had a chequered history, but the last time that it came before your Lordships' House sitting in its Judicial capacity was in the case of The Queen v.Sykes. This was referred to on Second Reading as well. This was a most serious case, where arms had been stolen from a United States Air Force base in Norfolk and were in process of transmission to the I.R.A. in Ireland. The accused in the case had had nothing to do with the original offence, but he knew that the arms had been stolen and he was, I believe, acting as a go-between between the people who had the arms and possibly the I.R.A. or their agents.

The interesting thing about that case, when you read it, is this: that the prosecution thought about and rejected the idea of charging Sykes with being an accessory after the fact of felony, because, I have no doubt, they felt that the facts would not justify such a charge. He was charged with a variety of other offences, but in the end the only one that stuck was the offence of misprision of felony, and it was upheld in your Lordships' House that this was an extant offence, and his conviction was also upheld. Here was a most serious crime which had been found out and on which the offender had been convicted; but apparently there was no other way of dealing with it.

The noble and learned Lord, Lord Denning, also quoted other cases, one I think from Australia, and a recent one where this old crime of misprision of felony had been usefully employed. Now that it is to be abolished, there is nothing in Clause 5 to take its place. Clause 4 is no help in the type of case exemplified by Sykes, because there is little difference between the offence created by Clause 4 and the old offence of accessory after the fact. I do not think the facts of the Sykes case would have come within Clause 4 either. What is the Government's justification for abandoning this offence? Are they satisfied that there are already powers elsewhere to deal with these offenders? Are the police so satisfied? Can the noble Lord tell me that?

I have also in my Amendment, as well as trying to restore the old offence of misprision of felony, kept what the Criminal Law Revision Committee recommended for compounding. I believe that they can be put together quite well. But I would suggest, also, that the way in which I have drafted the Amendment—though I am sure it will be said to be defective—has at least one advantage: that by putting in the proviso that the acts there set out are not an offence it clarifies the position about what the civil law can do on these matters. This was another point raised by the noble and learned Lord, Lord Denning. I should have thought that it was a good idea to make it perfectly clear that not only was it a defence to be able to say what the Bill now says, but to set out quite clearly that that sort of knowledge is not an offence at all. I am perfectly certain that this is not a matter which can rest here to-day. I will not press this Amendment, for obvious reasons, but if the noble Lord. Lord Stonham, can explain the Government's position on this matter he will be doing a great service indeed.

Could I say one thing? So far as misprision of felony is concerned, there was some doubt in the Committee's mind about the effect that the retention of this crime would have upon the liability of relatives. Under my Amendment the matter is subject to the consent of the Director of Public Prosecutions, as indeed are offences under Clause 4, where the same problem arises. I do not believe, therefore, that there should be any greater difficulty here than under Clause 4. Furthermore, in case anybody should object that this would lead to petty and ridiculous prosecutions on occasions which are not at all justifiable, not only have we the Director of Public Prosecutions to prevent this, but we must remember what the noble and learned Lord, Lord Goddard, said on one of these cases, that nowadays the law is administered with dignity and common sense. I do not think it is a matter to be feared. I look forward to hearing what the noble Lord, Lord Stonham, has to say, and I am sure that what he says will be most carefully studied by noble and learned Lords who are most interested in this matter. I beg to move.

Amendment moved— Page 3, line 39, leave out subsection (1) and insert the said new subsection.—(Viscount Colville of Culross.)

LORD STONHAM

I am grateful to the noble Viscount for his careful explanation of his Amendment and of its effects. So far as we can see—and no doubt he will agree—the only substantial effect of the Amendment would be to add to subsection (1) of Clause 5 an offence of knowingly concealing or procuring the concealment of an arrestable offence. As he made clear, this would be intended to cover the loss, as it were, of misprision of felony. As the noble Viscount knows, the exact extent of the offence of misprision is obscure, but it seems certain that it applies in some cases to mere disclosure. The Criminal Law Revision Committee reviewed the law on misprision in consequence of the abolition of felony. The elements of that offence, and of compounding, which they thought it desirable to retain, are covered by the existing subsection (1) of Clause 5, which makes it an offence to accept a consideration for concealing information about an arrestable offence. The conduct covered by the offence of misprision of felony might in some cases be covered by subsection (1) of Clause 4, which makes it an offence to do any act with intent to impede the apprehension or arrest of a person who has committed an arrestable offence, and it covers such conduct as hiding the offender or concealing evidence of the crime.

The noble Viscount mentioned the case of Sykes. In our view, Sykes would be caught on a charge of receiving under subsection (7) of Clause 4 in the Bill which says that: For purposes of section 33 of the Larceny Act 1916 and of any other enactment relating to receivers or receiving a person shall he treated as receiving property if he dishonestly undertakes or assists in its retention, removal, disposal or realisation by or for the benefit of another person or if he arranges so to do. Therefore, had this Bill been law Sykes would have been in a different position. In our view the Amendment the noble Viscount has proposed to some extent duplicates subsection (1) of Clause 4, as well as subsection (1) of Clause 5 as it stands.

The aspect of the offence of misprision at which the noble Viscount's Amendment is aimed—that is, that part of it which is not being replaced by the Bill—seems to relate to the withholding of information from the police. I think that is what he is mainly concerned about. When the Criminal Law Revision Committee considered this, they thought there were not enough grounds to retain this as an offence. That is found in paragraphs 37 to 42 of their Report. They said there were obviously objections to making a person criminally liable for not reporting to the police any minor offence of which he may happen to know, and with that view the Government agree.

There is one point of drafting. Although, as the noble Viscount knows, I never make any point of drafting in objecting to an Amendment I think I should point it out. The new subsection which is proposed in the Amendment would give rise to difficulties of interpretation, because it is not clear how paragraphs (a) and (b) of subsection (1) of the Amendment would fit together. The proviso to the subsection provides a special defence for cases falling within paragraph (b): that is, cases where a person has accepted a consideration for not disclosing information relating to an offence. Yet an offence under paragraph (b) would apparently also be an offence under paragraph (a) to which the proviso does not apply.

This is a comparatively minor point, but because the noble Viscount is dealing with questions of principle and importance I thought he would want me to point it out. The answer is that we consider—and in this we agree with the Criminal Law Revision Committee—that in subsection (1) of Clause 4 and in subsection (1) of Clause 5 the points that the noble Viscount has in mind are covered, and the side case that he mentioned which caused concern would be caught by subsection (7) of Clause 4.

VISCOUNT COLVILLE OF CULROSS

I am very much obliged to the noble Lord for that answer, which I think is most constructive, and certainly adds in a helpful way a great deal to what has previously been said on this subject. I am particularly grateful for the explanation, which I had not thought of, of the way in which a Sykes type of case could now he dealt with. I hope the noble Lord has looked at the other cases which were referred to by the noble and learned Lord, Lord Denning—I fear that I have notmyself—and has made perfectly certain that, where misprision has hitherto filled a gap in the criminal law, there will equally be coverage of that gap under the provisions of the Bill. I will continue my researches into this subject, and if I am still not happy, or if other noble Lords are not happy, we will pursue it at the next stage of the Bill. Meanwhile, I beg leave to withdraw the Amendment.

LORD STONHAM

I can assure the noble Viscount that I have looked at these cases. I had a note to mention them, but I did not want to make my speech too long.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 [Trial of offences]:

7.38 p.m.

VISCOUNT COLVILLE OF CULROSS moved to add to subsection (5): Provided that nothing in this subsection shall preclude the Court of Appeal from the exercise of its powers under section 5 of the Criminal Appeal Act 1907.

The noble Viscount said: This, again, is an Amendment to draw attention to a point rather than to achieve any precise wording. I think the point is probably all right, but I should like an assurance from the noble Lord, Lord Stonham. Under Section 5 of the Criminal Appeal Act 1907, the Court of Appeal has power to substitute the conviction on one count for a conviction which had been given on another count, and to sentence the offender accordingly. This probably applies only where there was a plea of not guilty, followed by trial. Therefore it is probably not concerned with the circumstances set out in subsection (5) of Clause 6, which I believe supposes that there has been no trial but a plea of guilty which was dealt with immediately by the court. If that is so, then I am sure that no Amendment is necessary, but I should be grateful if the noble Lord would confirm that there will be no prejudice to the powers of the Court of Appeal under subsection (5) of the 1907 Act, because I believe it is a useful safeguard when an offender might be in danger of getting away on a technicality. We do not wish to do anything in this Bill to stop that sort of remedy from being applied. I beg to move.

Amendment moved— Page 5, line 26, at end insert the said proviso.—(Viscount Colville of Culross.)

LORD STONHAM

I think I can give the noble Viscount the assurance for which he asks, but I should like to do so in some detail and then he can come back if my reply is not sufficiently complete. The Amendment proposes that nothing in subsection (5) of Clause 6 should preclude the Court of Appeal from exercising any of its powers under Section 5 of the Criminal Appeal Act 1907. In our view the Amendment is unnecessary because nothing in Clause 6(5) could have this effect.

Clause 6(5) provides that, where a person charged with one offence pleads guilty to a lesser offence included in that charge, and his plea is accepted, so that he is not dealt with for the offence charged, his conviction of the lesser offence resulting from his plea of "guilty" shall operate as an acquittal of the offence charged. Section 5 of the 1907 Act, I am advised, deals with entirely different situations. Subsection (1) relates to a case where a person has been convicted on more than one count in an indictment and the Court of Appeal consider that he was wrongly convicted on one but rightly convicted on another. The subsection enables the Court to pass the appropriate sentence.

Subsections (2) and (3) relate to verdicts of the jury, whereas subsection (5) of Clause 6 is concerned only with cases where there is a plea of guilty and no question of a verdict of a jury arises. I hope that meets the point raised by the noble Viscount.

VISCOUNT COLVILLE OF CULROSS

Again I am grateful to the noble Lord. This appears to be a point which caused some disquiet in certain quarters where criminal law has some importance and is studied. Those fears appear to be allayed, and therefore I beg to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clauses 7 and 8 agreed to.

Clause 9 [Pardon]:

7.42 p.m.

LORD AIREDALE moved after "but a pardon" to insert "or exoneration". The noble Lord said: I think the Minister will recognise in this Amendment an old hobby-horse of mine which I have smuggled into the Chamber not for the first time. This clause deals with the granting of a pardon under the Royal Prerogative, and I think it is quite accepted that the effect of a pardon under the Royal Prerogative is not of "pardon" in the sense in which we use that word normally nowadays, meaning "forgiveness", but rather "exoneration", whereby the person pardoned is put in the position of never having been accused of the offence at all.

Why do we therefore use this rather misleading expression "pardon" in this sense? I believe it is for an historical reason. I think I am right in saying that before the beginning of the last century our ancestors thought it unwise publicly to admit the possibility that there could be a miscarriage of justice, because they thought that such a public admission would undermine the authority of the courts and undermine the administration of justice, but of course they knew in their hearts that sometimes a miscarriage of justice had occurred and so they employed this fiction of granting the convicted person a pardon under the Royal Prerogative so that it could be said, "The decision of the court stands but the offender is pardoned".

We have grown up since those days. We now publicly admit that occasionally a miscarriage of justice occurs, and we do not think any less well of the courts for that. We recognise that the courts, being human institutions, can err, just as humanity in any field in which it operates can err. So why must we cling to this expression "pardon" when what we really mean is "exoneration"?

It may be said that most people understand that a pardon under the Royal Prerogative operates as exoneration. I daresay they do, but I am quite sure there are some people who do not understand this; perhaps humble people—the boy who delivers the milk to the offender who has been pardoned may not understand that this does not mean that the man has been convicted and forgiven. A person receiving a pardon is surely entitled to know that everybody who is acquainted with him—humble people in his village and so on—completely understands what has happened, and if exoneration is what has happened then exoneration should be published. Admittedly "exoneration" is rather a long word and the milkman's boy may not understand what it means, but he can look it up and find out. At least let him not be misled by the use of the word "pardon".

I believe this matter has been under consideration in the Home Office for about the last sixty years, but apparently no Home Secretary so far has plucked up enough courage to recommend to Her Majesty an exoneration under the Royal Prerogative rather than a pardon. It looks as though Home Secretaries are waiting for Parliamentary approval before they will take this step. If we introduce the word "exoneration" into this clause in the place that I have suggested, that will surely denote Parliamentary approval for the use of this word, and it will embolden Home Secretaries in the future to recommend exoneration where now they recommend pardon; and I believe this will be nothing but a good thing. I beg to move.

Amendment moved— Page 7, line 17, after ("pardon") insert ("or exoneration").—(Lord Airedale.)

LORD STONHAM

I suspect if it be true that successive Home Secretaries for the last sixty years have had this problem put to them and have lacked the courage to enact the alteration their experience must be very much like mine, because as the noble Lord is aware he and I had discussions on this point outside the Chamber many months ago, before there was any possibility of this Bill coming into existence, and no doubt like the Home Secretaries in the last six decades I found the argument appealing, as indeed I have found it again now. However, when we look at the matter both historically and legally the proposal loses its appeal, unless of course the whole case, as perhaps the noble Lord will say, rests on a choice of words, or rather the meaning that most people attach to two different words. I think this is a case, as is said in Alice, of, "Words are going to mean what I say they will mean".

I want to put the position as we see it, and that is that strictly a pardon done under the Great Seal has the effect of wiping out the offence entirely, and in this Bill the purpose of Clause 9 is to provide that the grant of a pardon by the simpler method under the sign manual shall have the same full effect as a pardon under the Great Seal. In other words, it wipes out the offence entirely. Clause 9 replaces an existing provision in Section 13 of the Criminal Law Act 1827 which is to the like effect and relates to pardon in the case of felony.

I know that it is not an answer to the noble Lord's case, because, unless he is too polite, he can tell me I am merely repeating what has been said for a great many years. But I thought it right I should emphasise that the use of the Great Seal or the alternative method proposed in Clause9 does have the effect of wiping out the offence entirely. The word "pardon", as the noble Lord has said, in modern everyday use means forgiveness for a wrong done, and it is therefore inappropriate in cases where the person concerned is altogether cleared of all blame. But in Clause 9 we are using the term "pardon" in its existing legal sense which extends to any wiping out of a conviction under the Prerogative of Mercy, and we suggest it would be inappropriate to amend the clause by the addition of the words "or exoneration", which would suggest that a pardon did not amount to exoneration, and "exoneration" had a legal meaning where none exists.

The point I am making is that a pardon does amount to exoneration and to add the word "exoneration" would imply that a pardon does not. Although I am aware of the force of the arguments put forward by the noble Lord and the meaning attributed to words, it is the case that a pardon granted under the Great Seal is taken and accepted as, and is in fact, a complete exoneration, a complete wiping out. Therefore, it would certainly be unnecessary, and we think would weaken the present position, if we added the words "or exoneration".

LORD AIREDALE

I am grateful to the Minister for having taken so much trouble over this and answering me so fully, and it may well be that this clause of this Bill is not the place in which to effect this piece of law reform. But I think the Minister has sympathy with the view that this piece of reform needs carrying out some time somewhere. I will of course withdraw this Amendment now, but in view of the thinness of the Committee at the present time I will not undertake not to put the Amendment down again on Report, because this is a matter which I feel should command the attention of noble Lords. However, the hour is late, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clauses 10 to 14 agreed to.

Schedule 1 [Lists of Offences falling, or not falling, within jurisdiction of quarter sessions]:

LORD STONHAM

This is a drafting Amendment which leaves out an unnecessary reference to Section 16 of the Malicious Damage Act 1861. I beg to move.

Amendment moved— Page 10, line 6, leave out ("sections 16 and") and insert ("section").—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM

This Amendment is consequential. I beg to move.

Amendment moved— Page 10, line 7, leave out ("crops and stacks") and insert ("stacks of corn etc.").—(Lord Stonham.)

On Question, Amendment agreed to.

VISCOUNT COLVILLE OF CULROSS moved to leave out from the offences excluded from jurisdiction of all courts of quarter sessions: "Bigamy and offences against the marriage laws". The noble Viscount said: This is another absurdity which I hope the noble Lord will help to clear up. In paragraph 76 of their Report the Committee talk about the jurisdiction of Quarter Sessions and they say that the Quarter Sessions Act 1842, will require amendment. They say: Moreover, the law as to the jurisdiction of quarter sessions is complicated, in particular by the fact that courts when presided over by legally qualified chairmen have wider jurisdiction than other courts, and has to be sought in a good many Acts in addition to the 1842 Act."— How right they are!— It will therefore be convenient to restate the law completely in the Bill. This will make it easier to find out quickly whether an offence is within the jurisdiction of quarter sessions. Let us see how easy and quick it is. Let us see whether bigamy is within the jurisdiction of quarter sessions or not, and let us see whether an attempt to commit an offence under Section 6 of the Sexual Offences Act 1956 is within the jurisdiction of quarter sessions or not. You start off with List A, Division II, in Schedule 1, and you find, under paragraph 6(a), that bigamy is within the jurisdiction of quarter sessions; and so, under paragraph 6(b), is an attempt under Section 6 of the 1956 Act. So you think "Good; jurisdiction in quarter sessions is there." Then, if you turn over the page and look at List B, you find included under the heading "Offences excluded (subject to List A) from jurisdiction of all courts of quarter sessions" bigamy and attempts to commit offences under Section 6 of the 1956 Act. There are others. I chose those two at random.

Is the situation this: that List A, Division I, contains a list of offences which can be tried by all courts of quarter sessions whether or not they have legally qualified chairmen; that List A, Division II, contains some offences which can be tried by quarter sessions with legally qualified chairmen or by assizes, and List B some offences which can be tried only by assizes? If that is so, ought we not for the sake of clarity to have four lists: first of all, the ones for quarter sessions without qualified chairmen; secondly, the ones for quarter sessions with qualified chairmen but not also triable by assizes; thirdly, offences triable either by assizes or quarter sessions with qualified chairmen; and fourthly, offences which can be tried only by assizes? If that were done, I think it would provide clarity and quickness and ease. But I feel that the particular method adopted does not add to the clarity of the law. I should be obliged to the noble Lord if he would confirm whether I have got it right, and secondly, whether we might not improve it. I beg to move.

Amendment moved— Page 12, line 20, leave out line 20.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount is absolutely right. Under the existing law only quarter sessions with legally qualified chairmen have power to try these offences. Clause 8 and Schedule I are intended to preserve the existing law, and we achieve this only if the offences are included both in List A and in List B. If we took them out of List B (which I know the noble Viscount does not wish to do), it would have the effect of enabling all courts of quarter sessions to try the offences under Clause 8 of the Bill as it now stands, and that would be a change in the law for which there is no justification—or, if there is, it has not been advanced. We certainly think it would be undesirable to make changes in jurisdiction pending the work of the new Royal Commission on Assizes and Quarter Sessions.

We have reached the point where we are in complete agreement. I now come to the point as to what to do about it. The noble Viscount almost said that this was a bit of a mess; that they are in both lists, and you have to look at one and see whether it is in the other, and then make up your mind. I confess that I myself had no difficulty, but I am a layman and a simple kind of fellow, and perhaps would not have found the same difficulty as would the more erudite. I confess that I did not find the noble Viscount's other suggestion very attractive, but he put it rather quickly. May I leave it that I will read it tomorrow and let him know if I see any value in it? So far, at least, it seems to me that the way we suggest here, with a List A and a List B and with some appearing in both, is the better way to do it and it does not take very long to find out which is which.

VISCOUNT COLVILLE OF CULROSS

I am grateful to the noble Lord. My defence in this case is that it was someone who was a great deal more erudite than I who drew this to my attention and who was finding enormous difficulty in following it. I suggested four lists. I am sure that the OFFICIAL REPORT will have taken down the contents I suggested for each, and I should like to leave it to the noble Lord to consider. I beg leave at this stage to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM

I beg to move Amendment No. 42, which is a drafting Amendment to preserve the present rule of the Sexual Offences Act 1956, that an attempt to procure the commission by a man of an act of gross indecency with another man is triable by a court of quarter sessions with a legally qualified chairman but not by other courts of quarter sessions. I beg to move.

Amendment moved— Page 12, line 25, at end insert ("and attempts to procure the commission by a man of an act of gross indecency with another man.").—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM

Amendment No. 43 is a drafting Amendment to preserve the present rule that endeavouring to conceal the birth of a child is triable by a court of quarter sessions with a legally qualified chairman, but not by other courts of quarter sessions. I beg to move.

Amendment moved—

Page 13, line 6, at end insert— ("( ) Offences against section 60 of the Offences Against the Person Act 1861 (1861 c. 100) (endeavouring to conceal birth of child).").—(Lord Stonham.)

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Supplementary Amendments]:

9. Section 4 of the Forfeiture Act 1870 (which allows a court on a person's conviction for felony to award compensation not exceeding £100 for loss of property occasioned by the felony) shall have effect as if the references to felony included any offence tried on indictment, as if the reference to loss of property included damage to property, and as if the reference to £100 were a reference to £400; and section 34 of the Magistrates' Courts Act 1952 (which confers the same powers on a magistrates' court) shall have effect accordingly, but with the substitution for the word "felony" of the words "an indictable offence".

8.3 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in paragraph 9, after "£400" to insert and the words 'upon the application of any person aggrieved' shall cease to have effect.

The noble Viscount said: This is a suggestion which was put forward on Second Reading by the noble and learned Lord, Lord Morris of Borth-y-Gest. The limit up to which the court can give compensation upon the conviction of any person under Section 4 of the Forfeiture Act 1870 has been amended, but the noble and learned Lord pointed out that the court can award this sum in compensation only upon the application of a person aggrieved. He suggested that there might be cases where the person aggrieved was not there or did not know that he had to apply or did not know that he could apply, and that thereby this extremely condign penalty was not being used. This may well be so, because many a person pleads guilty at quarter sessions and all that happens is that the prosecution presents the facts of the case, the policeman and/or the probation officer is called to tell the court what is known about the prisoner, and no witnesses, let alone the person aggrieved, are there at all. In those circumstances, which are very common, there will be nobody to make application for the award of the compensation. But, the person is being convicted and that would be the time to do it.

There may be cases where a person ought to come and apply, but if one leaves out these words in the Act, that does not mean to say that the court will inevitably and always give an award under this section, even if somebody does not apply. I think they would have sufficient sense to choose the right occasion and to exercise their power accordingly. There seems to be a restriction here, and I should like to know whether the noble Lord thinks that it now could be removed.

Amendment moved— Page 15, line 17, after ("£400") insert the said words.—(Viscount Colville of Culross.)

LORD STONHAM

I recall the noble and learned Lord, Lord Morris of Borth-y-Gest, raising this matter on Second Reading, and I am grateful to the noble Viscount for bringing it forward again. As he made clear, the argument for the Amendment is the requirement that the person aggrieved should have made an application and that that is an unnecessary obstacle to the exercise of the court power as it may be inconvenient for that person to be present or represented in court. In simple cases I agree that it might sometimes be an advantage to do away with the requirement, but on the whole it seems to us better that we should not do so.

First, the person aggrieved may be unwilling that the criminal court should decide, in his absence and without his being able to argue the question, whether he is entitled to compensation as a result of the offence and the amount of the compensation which should be awarded. These may be quite difficult questions. Secondly, an order by a criminal court may have repercussions on the right of the person aggrieved to take proceedings for damages for the wrong. Whether a person who accepted an order in his favour in the sense of acquiescing in it or accepting payment would be held to have waived his civil rights may be a difficult question. In any event, he might be embarrassed in the civil proceedings by a decision by the criminal court as to the amount of compensation which should be ordered. He might also be embarrassed, in a case where the loss or damage was caused by joint offenders, by a decision that each should pay part of the compensation. In civil proceedings all could be made liable for the whole amount, and the victim could enforce a judgment against any of them to the full amount, provided that he was not compensated twice over.

If the requirement that the person aggrieved should have made application were to be abolished, it would seem necessary or at least desirable to include a provision as to the effect of an order on the civil rights of the person aggrieved. We feel that this would complicate the Bill. It is true that the exercise of the power under Section 11(2) of the Criminal Justice Act 1948 to make an order, in conjunction with a probation order or a discharge, that the offender should pay damages or compensation for loss, does not require an application by the person aggrieved. But the law as to compensation in criminal cases is in need of review, and it seems better to defer the question of going beyond the amendments to the 1870 Act which the Bill proposes until this review is undertaken. I hope that the noble Viscount will feel that we have gone carefully into this matter and that the advice which I have given is correct.

LORD AIREDALE

I feel sure that if the noble and learned Lord, Lord Morris of Borth-y-Gest, were here the first question he would now ask would be: when may we expect that the promised review will be forthcoming? If it is going to be forthcoming and something is to be done in what we call "the near future", no doubt the noble and learned Lord, the Lord Chancellor, may be satisfied about it, but unless by the next stage of the Bill we can have something fairly forthcoming from the Minister as to the timetable for this promised review, I hope that this matter will be raised again.

VISCOUNT COLVILLE OF CULROSS

I have another idea, which might be a halfway house. The section says: It shall be lawful for any such court, if it shall think fit, upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to make an award…". I see the difficulty the noble Lord has pointed out about the prejudice to the person's rights, but why cannot we take out the words "and immediately after the conviction…? This could be done by Amendment at a later stage. If at the stage of the conviction, the court sent a notice, if it felt like it, to the person who it knew had been harmed by the crime, saying, "If you apply we will give attention to the idea of giving you certain compensation in this matter", and, at the same time as the conviction was being given to the accused, told him that they had this in mind, then there would be a stop-gap measure until this review comes along. The immediacy would not then remain in the law, and I think we might have something which is at any rate saisfactory for the moment and would not involve anything very fundamental in the way of change. Would the noble Lord look at that before the next stage of the Bill?

LORD STONHAM

Most certainly; I shall be very glad to do so. With regard to the point raised by the noble Lord, Lord Airedale—a very pertinent point—I assure him that the Government recognise the need to review the question of compensation in the context of a wider review of the question of reparation by offenders generally. My right honourable friend the Home Secretary has been giving urgent consideration to how such a review might best be undertaken, and he hopes very shortly to be in a position to make an announcement on the subject.

VISCOUNT COLVILLE OF CULROSS

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM

This Amendment is consequential on the provisions in the Bill relating to alternative verdicts. I will deploy the case if noble Lords wish it, but if not I will move the Amendment formally.

Amendment moved—

Page 17, line 3, at end insert— ("(2) For section 241(5) of the Road Traffic Act 1960 (which provides in effect that the requirements of section 241(2) as to notice of intended prosecution shall not prevent a person's conviction of reckless or dangerous driving under the provision made by section 2 of the Act for alternative convictions of that offence or other charges) there shall be substituted:— '(5) Where a person is prosecuted on indictment for an offence to which this section does not apply, subsection (2) of this section shall not be taken to prejudice any power of the jury on the charge for that offence, if they find him not guilty of it, to find him guilty of an offence against subsection (1) of section 2 of this Act.' ").—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM

This is a technical Amendment concerning the choice of court to try an indictable offence committed outside England and Wales. It is quite a complicated affair, which I know the noble Viscount, Lord Colville of Culross, and I fully understand. I hope, therefore, that he will agree if I move this Amendment also formally.

Amendment moved— Page 17, line 23, leave out ("the United Kingdom"), and insert ("England and Wales").—(Lord Stonham.)

On Question, Amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Repeals (General)]:

Part I: Repeals of Obsolete or Unnecessary Enactments.

8.13 p.m.

VISCOUNT COLVILLE OF CULROSS moved to delete from the enactments to be repealed: Chapter 25 of the Statute of Westminster the First. The noble Viscount said: I am now in danger of becoming extremely unpopular, but I hope that the Committee will bear with me. I shall be as quick as I can on this collection of Amendments in Schedule 3, but, believe me, your Lordships will not have, listening to me, a third of the tedium that I had going through these matters and trying to find out what was involved. So at least I can plead that as some sort of mitigation.

I did not know, when I put down Amendments 47, 48, 50 and 51 that the Law Commission were going to report last Tuesday. But they did, and I also gather, from paragraph 8 of their Report, that these repeals which relate to champerty and maintenance were put in Part I of this Schedule on their own recommendation. This now appears to be the case, and of course the whole matter now makes sense, in that the Commission have also published a draft clause which abolishes the Common Law offences of champerty, and maintenance as well. That being so, the matter has some completeness. Before that was done, of course, it was ridiculous to abolish the statutory provisions which set out these two ancient offences while at the same time leaving the Common Law offence untouched.

I should like to ask the noble Lord, Lord Stonham, this question. If at the Report stage I put down an Amendment to put into the Bill the first subsection of the draft clause now suggested by the Law Commission, so that we may complete the criminal part of the repeal of maintenance and champerty, will he be in a position to give some consideration to that course? If so, we may then be able to give rather rapid implementation to the Law Commission's views. It may be necessary to think a little about it, but an Amendment at that stage would at any rate give us the opportunity. I beg to move.

Amendment moved— Page 17, line 34, leave out ("25").—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount is referring to subsection (1)(a) in the draft clause of the Report of the Law Commission. The position, as he is aware, is that the Report was published only on Tuesday. We have not had time fully to consider the matter, but we are giving immediate and urgent consideration to this Report, and certainly have in mind the possibility of implementing it in this Bill. It would therefore be our hope that we could make progress. I am not in a position—I hope the noble Viscount will understand this—to make a firm commitment on this to-night, but I hope it will be possible to do what he asks so that the implementing of this Report, or such part of it as the Government are prepared to accept, does not have to await separate legislation.

VISCOUNT COLVILLE OF CULROSS

I am obliged to the noble Lord. If that is the way in which we can try to deal with maintenance and champerty, I shall be quite content. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved to delete from the proposed repeals: Article 14 of the Great Charter, and the whole of the Acts of Statutum de Conspirator bus; Champerty and Maintenance. The noble Viscount said: I am afraid that I have to say a word on this, because although three of the ancient Statutes to which this repeal refers deal with maintenance and champerty, one of them does not and that is Chapter 14 of Magna Carta. It is all very well for people to try to clear up ancient and probably obsolete law, but, at any rate on the first occasion when this Bill is discussed in Committee, we ought to know why the Government want to repeal a part of Magna Carta.

It is a perfectly harmless part of Magna Carta. I do not suppose it has any effect whatsoever, because it deals with amercements, which are not the same, I understand, as fines, but were somewhat similar when they were available. Incidentally, it says that Earls and Barons shall not be amerced by their Peers and after the manner of their offence", and I feel that this is a matter which your Lordships should take very seriously indeed. If the noble Lord wants to repeal Chapter 14 of Magna Carta, will he tell us why? I beg to move.

Amendment moved— Page 17, line 36, leave out from beginning to end of line 43.—(Viscount Colville of Culross.)

LORD STONHAM

I think the noble Viscount is quite right. It would have been wrong for two reasons not to discuss this matter thoroughly and have a full explanation; first, for the obvious one of history, which he mentioned; and, secondly, because I have a perfectly good explanation, which is this. As the noble Viscount is aware, this repeal is not directly connected with the abolition of felony, but derives from the general review of existing enactments about punishment and the possible impact on them of the provisions of the Bill. In addition to the provisions mentioned in the earlier part of Schedule 3, we have the one deal- ing generally with the power to fine a person convicted on indictment.

Article 14 of Magna Carta is wholly concerned with the now wholly obsolete penalty called "amercement". The term "amercement" was sometimes loosely used to cover any pecuniary penalty including a fine, but the Article deals only with amercements in the strict sense. This was a pecuniary penalty exacted in mediæval times, and later on a variety of occasions when a person was for one reason or another "in mercy". That is the derivation of the term.

Whereas a fine was always discretionary and imposed by the court (perhaps originally by way of commutation of the liability to imprisonment), an amercement was in general automatic, but the amount was or ought to have been assessed by a jury or its equivalent, as provided for by this Article of Magna Carta, reaffirming the Common Law. But I understand the Article soon came to be disregarded in the case of Peers, for whom there appears to have been a fixed tariff of £100 for an Earl and 100 marks for a Baron—though different authorities gave different tariffs. Amercements were the appropriate penalty for a number of usually trivial offences, mostly dealt with in local courts now obsolete, such as the sheriff's tourn, as well as for things that do not now rank as offences. For instance, an unsuccessful plaintiff in a civil action was "in mercy for his false claim": and, in view of the fixed tariff for Peers, Coke in his Note on this Article of Magna Carta recommends that when a nobleman is plaintiff it is policy rather to discontinue the action than to be non-suited.

This, of course, is now of historical interest only, since amercements have entirely disappeared out of the law; and though the provisions of this Article of Magna Carta (that an amercement should be proportionate to the fault, and should leave a freeman with his freehold, a merchant with his merchandise and a villain with his wainage; and the amercement on a clergyman be based on his lay property and not on his ecclesiastical property) were no doubt wholesome in their time, it is pointless to keep them on the Statute Book as operative law. For that reason, we propose to delete Article 14.

LORD AIREDALE

May I ask the Minister just this question? What does he suppose the British people would say if his noble friend Lord Shackleton were to come before Parliament with a proposal to scrap Nelson's flagship on the ground that it is not a very satisfactory warship at the present time?

LORD STONHAM

I think they would be very annoyed and would defeat it; but, then, Nelson's flagship is a working model. This section of Magna Carta is not.

VISCOUNT COLVILLE OF CULROSS

I think we should consider the weighty words uttered by the noble Lord. It occurs to me that we have got on extremely well for a very long time with Article 14 of Magna Carta, and I really do not see why we should not go on getting on very well with it. I would suggest that the Home Office should have a heart and should leave out this repeal, because I honestly believe this is the sort of thing which really does not make any difference one way or the other. However, I will consider it, and I might put the Amendment down again. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.42 p.m.

VISCOUNT COLVILLE OF CULROSS moved to leave out The Statute of Northampton. The noble Viscount said: This is a matter of another incredibly ancient Act, called the Statute of Northampton. The only reason I raise it is that, ancient though it may be, it was used in 1903 to effect the conviction of a gentleman who had had rather too much to drink in Bangor and went around the streets letting off a revolver to the peril of the populace. It appears that there was nothing else with which they could charge him, so they went back to the Statute of Northampton of 1328 and convicted him or riding in the street armed to the peril of the population. His counsel could say nothing in his defence except that it was a very old Statute; but, again, it shows the efficacy of these Statutes. I should like to know whether the noble Lord is perfectly satisfied that there is still not some life in it yet before we finally repeal it. I beg to move.

Amendment moved— Page 17, line 44, leave out from beginning to end of line 45.—(Viscount Colville of Culross.)

LORD STONHAM

As the noble Viscount is aware, the Criminal Law Revision Committee looked at a number of ancient Statutes, and, as he will know—in fact his next following Amendment deals with it—they decided it would be advisable to repeal the Riot Act of 1714. Equally they saw no more reason to continue the Statute of Northampton, which, as I think the noble Viscount said, dates from 1328. As he said, though the case he mentioned was not quite that of a man riding about on the cobbles in armour, this Act makes it an offence punishable with life imprisonment to wear armour or display force except in the areas and at the times appointed for holding tournaments—that is, the medieval equivalent of military manæuvres. This proposed repeal is in part connected with the general consideration of the Statute Law about riots, but it also derives in part, like the repeals dealing with champerty and maintenance, from the effect on existing statutory misdemeanours of the provisions of the Bill about arrest in Clause 2, maximum punishment in subsection (1) of Clause 7 and jurisdiction of quarter sessions in subsection (1) of Clause 8.

The Act was used as recently as 1903—I thought that was a delightful touch, because 1903 was the year in which I was born, and to hear the year in which I was born now referred to as being recent gives me some pleasure—when it was decided to prosecute a man for firing a revolver in the street; but he was also charged and convicted, in respect of that same conduct, of an offence at Common Law; and the carrying of firearms and other weapons, of course, is now dealt with by more recent Acts. The Statute of Northampton can only be used for any modern purpose by stretching its terms, and then only for mischiefs that are covered by other provisions of the law. For that reason, we thought there was no case at all for retaining it.

VISCOUNT COLVILLE OF CULROSS

I am much obliged to the noble Lord. That is, I think, a very satisfactory explanation; but he will agree that when these old Statutes are revived and appear to be the only way of dealing with a matter then it is certainly worth while making quite sure they are redundant. I am grateful to him for his explanation. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved in Part I to delete "The Treason Act 1543". The noble Viscount said: This is an important matter, I think, and it relates to the Treason Act 1543. Surprisingly enough, treason, when it is corn-mined overseas, is still tried under the Treason Act 1351. That was so in the cases of Lynch, Casement and Joyce. But the important matter is that in the report of the Casement trial (or, rather, in one of the appeals in that case)—and, whatever one may think of the case, that is not the point here—in Volume 1 of King's Bench Reports 1917, I found what the Attorney General and the Solicitor General said about the Treason Act 1543. They said that, according to the old authorities, until that Act was passed there was great doubt as to how and where high treason committed overseas could be tried, and that it was not until that Act was passed that the matter was clarified. I was more alarmed still to find that the noble and learned Lord, Lord Reading, the then Lord Chief Justice, said in his Judgment: It is by virtue of this Act", and other Statutes that followed it, that this court has jurisdiction in the matter". Now, it is all very well to repeal the Treason Act 1543, but are we certain that the Bill replaces it with something that gives the court jurisdiction? There is a provision in the Bill about treason which comes at the end, but it deals with procedure only and not with venue; and, as I understand it, what the court was saying was that the Treason Act 1543 gave jurisdiction as to venue. I should like an explanation of this point, because I believe that, rare though these dreadful cases are, we must be perfectly certain that the law is properly equipped to deal with them and that we are not repealing something which is essential to the whole of cur process. I beg to move

Amendment moved— Page 18, line 24, leave out line 24.—(Viscount Colville of Culross.)

LORD STONHAM

I agree that this is an important matter which should be discussed, and again I recall that this is a matter which the noble Viscount referred to on Second Reading, when he mentioned the Lynch case. Of course, until 1925 we had to rely on the Treason Act; it was used in such cases. But Section 11 of the Criminal Justice Act 1925 gave us the general provision that a person charged with any indictable offence may be proceeded against, indicted, tried and punished in any county or place in which he has been apprehended or is in custody on a charge for the offence or has appeared in answer to a summons for the offence.

Many Acts besides the Treason Act 1543 deal with the trial of offences committed outside the country. They are mainly concerned with offences committed on the high seas but also with offences on land by persons in Crown Service, murder by British subjects, and other cases. They came under consideration in connection with the Bill because many are in terms of felony; and because of special difficulties in connection with piracy, which is often referred to as if it were a class of offence distinct from felonies or misdemeanours. It is all bound up with the question of whether offences committed within the jurisdiction of the Admiralty and originally triable according to the rules of the Civil Law and not the rules of the Common Law could, properly speaking, be felonies at all, a felony being a concept of the Common Law.

These difficulties are no longer material for any purpose, but they are reflected in the language of the old Acts. They make it virtually impossible to tidy them up. Unless, therefore, they are still genuinely needed, in our view the right course is to get rid of them. Any Act making things done abroad criminal under our law must be kept; but, since the passing of the Criminal Justice Act 1925, the Acts dealing specially with the place and manner of trial of these offences, beginning with the Admiralty Jurisdiction Act 1391 and including the Treason Act 1543, have had no substantial effect.

Such effect as they have is reproduced in subsection (2) of paragraph 15 of Schedule 2 to the Bill. As a result of this, some dozen Acts or more can be repealed in whole or part, instead of their having to be laboriously amended in a way which, for the reasons I have given, will be difficult if not impossible. I do not say that there is any special need to repeal the Treason Act; but equally there is no need to keep it. To make it the one exception from the general rule of the repeal of old Acts dealing with the trial of offences committed abroad would be pointless and would lead to confusion.

VISCOUNT COLVILLE OF CULROSS

It is a little alarming when one finds in the most up-to-date versions of Archbold that this is the Act which regulates all the procedure in treason trials when these acts were committed overseas and that this is going to be repealed. I should like to study what the noble Lord has said, particularly his complicated reference to Schedule 2 which I cannot take in at speed. For the moment, therefore, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS moved to delete from the enactments repealed The Prison (Escape) Act 1742. The noble Viscount said: I beg to move Amendment No. 53. This goes back to the point I was making earlier about Common Law offences. The reference here is to the Prison (Escape) Act 1742. Section 3 provides that it is an offence for any person to aid or assist any prisoner to attempt to make his escape from the custody of any constable or anybody else who has lawful charge of him in order to carry him off to gaol—in other words, for somebody to try to rescue a prisoner on his way to prison. There is another offence which is created by the Prison Act 1952, Section 39, as amended by the Criminal Justice Act of 1961 in the Fourth Schedule, about assisting somebody to escape, but I think that is only an escape from prison and not on the way there. If I am right about that, there is going to be repealed one of the statutory offences which would be, I think, either that of an accessory to an escape or something of that nature. I think we should then be left with the Common Law offence only. If that were so, then whereas the 1742 Act made a felony of this offence subject to seven years' imprisonment, we shall now have to deal with such cases by Common Law.

The effect of subsection (1) of Clause 2 will be that this will cease to be an arrestable offence and there will therefore no longer be any possibility of charging anybody under Clause 4 with being what was previously an accessory to this felony. This is one of the two or three most important cases where we are doing away with what previously was available to the police in the form of charging people with being accessories after the fact of felony. I want to know that the noble Lord and his Department have fully discussed this matter and are absolutely certain that in doing away with the statutory offence, which carried more than five years' imprisonment, they are not depriving the police of powers to deal with accessories under Clause 4; because this is the important matter I want to raise on this and a few other cases later on. I beg to move.

Amendment moved— Page 18, line 56, leave out from beginning to end of line 57.—(Viscount Colville of Culross.)

LORD STONHAM

I confess I have not viewed this with anything like the seriousness which the noble Viscount attaches to it. I will certainly look carefully at what he has said. Section 3 of the 1742 Act is the only operative section now in force; it makes it a felony, punishable by seven years' imprisonment, to help a prisoner unsuccessfully attempting to escape when taken to gaol on a warrant of commitment for treason or felony. Apart from the 1742 Act, aiding and abetting an unsuccessful escape in these circumstances would be a Common Law misdemeanour, as I believe the noble Viscount appreciates. I am quite sure that the original purpose of the Act was to secure a sentence of transportation; but this has now become converted into a sentence of imprisonment.

In our view, the Act—or the section of it which still is left—is pointless and will become even more so with the abolition of felony, particularly if it were left to apply only to aiding unsuccessful escapes by those committed on a charge of treason. This is another of the cases where the Criminal Law Revision Committee preferred outright repeal of what they regarded as an unnecessary enactment rather than its adaptation to make it fit the abolition of felony. Having said that, and having been advised that that is right, I will certainly read what the noble Viscount has said to see if we can take that view and to see if it is necessary to do anything. If not, I will tell him so.

VISCOUNT COLVILLE OF CULROSS

I think there is a point here because, if I may say so, the matter with which the noble Lord was, I think, supplied as an answer to this Amendment does not in any way cover the point I was making. At the moment, I believe that the public are worried about escapes from prison and attempts to get people out of custody. Here we have what will, if left alone, be an arrestable offence; and, because of one of the provisions at the end of the Bill, it will not apply just to treason because felonies are converted to offences by an amendment by this to this Bill. There it would be; and there would be the possibility of getting accessories under it, which will not otherwise obtain if we simply leave it to Common Law. I believe that this point may have been overlooked. I should be grateful if the noble Lord would consider it. Meanwhile, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

8.40 p.m.

VISCOUNT COLVILLE OF CULROSS

This Amendment, to delete the repeal of what remains of the Rescue Act 1821, is on the same point, but in this case I think it is worse, because we are here dealing with rescue. The repeal proposed includes Section 1 of the Rescue Act 1821. That again, although it is a most unsatisfactory section, provides in some circumstances for a term of imprisonment for somebody who tries to rescue, or does rescue, a prisoner from prison, and a term which would in fact result in the need for an arrestable offence. If we repeal this, we have only the Common Law on which to fall back, so again it would no the possible to charge anybody with being an accessory after the fact of what is now a felony under this Act, because a Common Law offence would not be an arrestable offence. Clause 4 will not apply. I believe this to be another important matter which should be considered as a matter of policy, and I beg to move.

Amendment moved— Page 19, line 37, leave out from beginning to end of line 38.—(Viscount Colville of Calross.)

LORD STONHAM

Again, and even more on this occasion, my advice is quite other than that of the noble Viscount, Lord Colville of Culross. Section 1 of the Rescue Act (although I understand it is still referred to in some textbooks) has been inoperative since 1827. When it was operative it provided for a penalty of seven years' transportation for people guilty of rescuing from custody a person charged with, or committed for, felony.

As I understand it, the section had effect only where the rescuer, on being convicted of felony for the rescue, was entitled to benefit of clergy and therefore liable only to a year's imprisonment which could, under the Act of Elizabeth, be imposed on felons claiming the benefit of clergy. This was abolished generally in 1827 and the Act was repealed at the same time. Since then Section 1 of the Rescue Act of 1821 could not operate, except perhaps where the rescuer was a Peer. It is possible that Peers remained entitled to the benefit of clergy, at least for some purposes, as late as the year 1841. They were then deprived of it by the Felony Act 1841. So, unless my information is wrong, this section has been dead for virtually 140 years, and there would be no case against its repeal. I will certainly look at what the noble Viscount has said and let him know if I find that I am wrong.

VISCOUNT COLVILLE OF CULROSS

I thank the noble Lord. If he looks at the latest edition of Archbold, paragraphs 3443 and 3444, he will find the Statute set out there, and although I have the greatest confidence in the information given to the noble Lord, I also have confidence in the editors of that most notable book. If they say that under the heading of "Rescue" there are only this Act and the Common Law, I am inclined to pay some attention to it and think that the matter ought to be checked again. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT COLVILLE OF CULROSS

This Amendment, to delete the repeal of Section 61 of the Juries Act 1825, goes with Amendment No. 57 and concerns the offence of embracery, which has been put in statutory form by Section 61 of the Juries Act 1825. It is intended to repeal the whole thing and leave it to the Common Law. This has a strange effect, because if the Juries Act were to remain in force another provision of this Bill would have the effect (since there is no set penalty for this offence in the Act) of imposing a penalty with a maximum of two years. If the offence under this Act is repealed, it reverts to Common Law and there is no limit whatever on the penalty. I do not know whether there is any great merit in having a penalty of more than two years, but at any rate that is the effect of the law as it now is under the Statute and under the Bill; and, so far as I know, the only reason why the repeal was included was because of the reference to criminal information which I propose to leave out by my Amendment No. 57. This is a matter which again I believe the Law Commission are going to look at, as they say in their latest Report. Would it not be better to take out this repeal and leave it for another occasion when the Law Commission have considered it? We could deal then with embracery as a whole. I beg to move.

Amendment moved— Page 19, line 39, leave out line 39.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount is, I am sure, aware that his proposal would be out of keeping with the general line taken by the Committee at page 57 of their Report. They prefer to recommend a straight repeal, rather than an adaptation under the enactment, which in their view was unnecessary; and the reason why the Bill put forward by the Criminal Law Committee did nothing about Section 61 of the Juries Act 1825 is that the reference in it to criminal information was not drawn to their attention. The reference came to light in connection with the Law Commission's proposals to which effect is given by Part II of the Bill to repeal Section 3 of the Maintenance and Embracery Act 1540, both sections being concerned with the offence of embracery or the corruption of jurors.

But whereas Section 3 of the 1540 Act creates an offence which is not triable summarily, Section 61 of the 1825 Act is a mere saving for the prosecution of embracery at Common Law. This saving can have been wanted in the 1825 Act only out of an abundance of caution to make it clear that the Common Law offence was unaffected by the abolition in Section 60 of that Act of the old writ of attaint against jurors for the giving of a false verdict. The saving, strictly speaking, was always unnecessary, and in our view has become doubly pointless since the repeal of Section 60 of the Statute Law Revision Act in 1888. For the present Bill to make a partial repeal of Section 61 of the 1825 Act would suggest that this Parliament still thought that Section 61 had some value. In our view the only possible procedure is to repeal the section outright.

VISCOUNT COLVILLE OF CULROSS

It will, as I say, have the effect of taking off any limit of penalty; and so long as the noble Lord is satisfied with that situation, so be it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 3: Part III [Other General Repeals]:

VISCOUNT COLVILLE OF CULROSS

This is the last Amendment I propose to move. It relates to the proposed repeal of the Riot Act 1714. Here, again, is one of those cases where we are proposing to repeal the only statutory offence dealing with this matter. The Riot Act lays down a penalty of life imprisonment, I believe as it now is, after amendments of the law. Therefore, as it stands it would be an arrestable offence under the provisions of Clause 2(1). Accordingly, if there is a riot and people assist the rioters afterwards, they could be accessories and charged as such. If this Act is repealed, we shall be left with the Common Law and there cannot be accessories, because under Common Law it is not an arrestable offence. This is another case which I hope the noble Lord will look at and make sure that it is satisfactory. I beg to move.

Amendment moved— Page 22, line 18, leave out from beginning to end of line 19.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount mentioned this Act earlier when we were discussing another Amendment. Our view is that we have taken the right decision. The Riot Act makes it a felony, as the noble Viscount said, punishable by life imprisonment, for twelve or more persons to remain tumultuously assembled for an hour after the reading of the statutory proclamation under the Act—popularly called "Reading the Riot Act". Those who are guilty of an offence under this Act are already guilty, before the reading of the proclamation and before the expiration of the following hour, of a Common Law misdemeanour carrying the same maximum punishment. The only effect of preserving the Act is to preserve two identical offences, of which one can and the other—the offence under the Riot Act—cannot he prosecuted at quarter sessions, because it carries a statutory punishment of life imprisonment. The Act includes a provision to require everyone to assist in dispersing a riot and to indemnify those called upon to do so for injury caused by the use of force for the purpose.

This provision has proved more embarrassing than otherwise, since it only reproduces the Common Law, which led to the belief that steps cannot be taken to disperse a riot before the reading of the Riot Act. It is not thought that the Act is ever relied upon these days, but it places an obligation on justices of the peace, sheriffs and mayors to read the Riot Act whenever there is occasion to do so, and in theory they can be prosecuted for neglecting this obligation. Indeed, the Lord Mayor of London was prosecuted in 1781 for failing to read the Riot Act at the time of the Gordon Riots. The fact is that the Act ceased to be wanted with the establishment of modern police forces, and it has become doubly pointless with the abolition of felony. However affectionate and historical a regard we may have for the Riot Act, it has no point to-day and in our view serves no useful purpose. We should prefer it to remain a memory and that the only person to "read the Riot Act" would be a wrathful wife to a recalcitrant husband.

VISCOUNT COLVILLE OF CULROSS

I hear the Chief Whip murmuring that it should go into Standing Orders instead—that might be very suitable. I think the noble Lord has made one mistake. He suggested that the Common Law offence carries a penalty similar to that imposed by Statute. My information is that the Common Law offence carries only a penalty of an unlimited fine or imprisonment, and therefore it would not be an arrestable offence, as it would if the penalty had been life imprisonment. Therefore I think that what I am saying about accessories applies; and whatever other considerations may apply I think that we ought to look at it on the basis of whether we ought not to retain the offence in order to keep its arrestable character, so as to be able to deal, if necessary, with accessories afterwards. If the noble Lord would look at it again, I should be much obliged.

LORD STONHAM

I will look at it again, though it is unlikely that I will change my mind. I think the noble Viscount understandably misunderstood something I said. What I said was that those guilty of an offence under the Act are already guilty, before the reading of the proclamation and before the expiration of the following hour, of a Common Law misdemeanour, carrying the same maximum punishment. I think he interpreted that as punishable with life imprisonment. I was referring to the Riot Act and the subsequent Common Law misdemeanour.

VISCOUNT COLVILLE OF CULROSS

This is another complicated matter and I should like to study it again. Could I say at this stage how grateful I am to the noble Lord for his half of our dialogue for the last hour or so? He has been most helpful in clearing up these extremely obscure matters, and I am sure that I and anybody else interested in the Bill will be grateful for his assistance on it. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Schedule 3 shall be agreed to?

LORD AIREDALE

The noble Viscount has gone through this Schedule with a fine tooth comb, and if there are to be no fruits of his labour when we come to Report, then the Home Office will have done their whole work magnificently. But I have a puckish, secret hope that Homer will be found to have nodded just once or twice.

On Question, Schedule 3 agreed to. Schedule 4 agreed to.

House resumed. Bill reported with Amendments.