§ 6.32 p.m.
§ Report of Amendments received.
§ Clause 1:
§ Basic definition of theft
§ 1.—(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of depriving the other of it; and "thief" and "steal" shall be construed accordingly.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM) moved, in subsection (1), after "intention of" to insert "permanently". The noble Lord said: My Lords, your Lordships will recall that the word "permanently" was removed during the Committee Stage, and that, at the first opportunity afterwards, in announcing the Government's intention to ask your Lordships to restore it to the Bill at a later stage, I suggested that we should consider the remainder of the Bill on the assumption that the word "permanently" was still in it. You readily assented to that procedure and I think we can all be satisfied with the fruits of the helpful co-operation which then ensued.
§ There are some 35 Amendments on the Order Paper in my name, and all except one are designed to meet assurances which I gave that I would consider points of criticism or objection raised during Committee. I think this is an example of the open-minded attitude which the Government have pursued with this Bill and proof, if proof were needed, that we wish the decisions to be made on the basis, not of Party, but of fact. It is on that basis that I ask you to consider the Amendment I am now moving which the Government regard as fundamental to the Bill.
§ My Lords, if it is accepted, its effect will be that a person will be guilty of theft if he dishonestly appropriates property belonging to another with the intention of "permanently" depriving the other of it. This means that, subject to certain exceptions dealt with later in the Bill, temporary dishonest deprivation will not be theft. Your Lordships' first thought may be that anything dishonest must be criminal, and any dishonest deprivation must be theft; and this indeed is the effect of the Bill as it now 1391 stands after the Amendment successfully moved in Committee by the noble and learned Viscount, Lord Dilhorne. I will endeavour to satisfy your Lordships that not all forms of dishonest deprivation ought to be treated as theft and that you would not wish them to be so treated. Certainly, this was the view of the Criminal Law Revision Committee in framing this fundamental clause; and certainly it is how the law stands at present.
May I remind your Lordships, first, what the law of theft now is. Section 1 of the Larceny Act 1916 defines theft thus:
A person steals who, without the consent of the owner, fraudulently, and without a claim of right made in good faith, takes and carries away anything capable of being stolen, with intent, at the time of such taking, permanently to deprive the owner thereof.
So "permanently" is in the existing law. This definition, including "permanently", did not start with the 1916 Act, because on that point that Act reproduced the old Common Law of theft. My first major point, therefore, is that it has never been theft in this country merely to take something temporarily, even if the taking is dishonest. My Amendment seeks to preserve that position; those who oppose it seek to destroy it. They thought that the Criminal Law Revision Committee had not gone far enough and that an even more drastic change in the law of theft was required.
§ Before I deal in detail with arguments on both sides, I ask your Lordships to address yourselves to a fundamental question which we must consider whenever we seek to extend part of the criminal law. That question is: what is the criminal law for? I am not competent, as you know, to deliver a lecture on jurisprudence. I am speaking as a layman to a majority of laymen, and I suggest that we devise, or revise, our criminal law, in order to protect society against types of conduct which are so offensive or serious that those who so conduct themselves should be liable to be punished or controlled by the State. We do not invoke penal sanctions to deal with everything that may be morally reprehensible or harmful or a nuisance, and we should debase the currency of the criminal law if we tried to do so.1392
§ Still less, with our empirical tradition of law-making, do we frame our criminal law to deal with theoretical mischiefs. I suggest that, in framing a particular provision of the criminal law, our task is to identify the real mischief, the conduct of which should be subject to penal sanctions and to relate our law to that conduct as closely as we can. If you accept that premise, my Lords, then you will agree with me that it is for those who desire a fundamental extension in the law to prove the need for such extension, not in terms of theoretical concepts, but in terms of hard realities. The onus lies on those who oppose this Amendment because they wish to see the word "permanently" kept out of this clause.
§ My Lords, the Bill acknowledges that there are some forms of temporary dishonest deprivation which are criminal and must be punished, and punished severely. For example in the new Clause 11, which I shall be moving later, we not only take care of offences like the taking of the Goya portrait of the Duke of Wellington, but protect a whole range of buildings to which the public are admitted to view the buildings or articles in them, either regularly or on occasions. And, again, in Clause 12 we deal with the most numerous of these offences; namely, the taking away of motor vehicles and vessels, and we go further and create a new offence of taking away pedal cycles.
§ It may be argued that these two clauses are complicated and that they could be dispensed with by keeping "permanently" out of Clause 1, but I do not think anyone will accept that this is a decisive argument for so extending Clause 1 that every form of temporary deprivation would be a criminal offence which would put perhaps a great number of citizens in this country at risk of prosecution and loss of liberty.
§ At this point I ask what types of conduct would not be criminal if my Amendment is accepted and "permanently" goes into the Bill. I can think of none which would be a cause for public concern. Some lawyers take the view that all dishonest borrowing should be stealing, but what evidence is there that that view is shared by any general body of public opinion? What evidence has the 1393 noble and learned Viscount, Lord Dilhorne, that people whose lawnmowers are borrowed by neighbours are demanding the prosecution of the neighbours and, if necessary, their fining and imprisonment?
§ VISCOUNT DILHORNE
My Lords, the noble Lord always omits the word "dishonestly". I have never suggested that borrowing a lawnmower should lead to a criminal prosecution. If the noble Lord persists in omitting the word "dishonestly", he is really misrepresenting the case.
§ LORD STONHAM
My Lords, I have no intention of misrepresenting the case, as the noble and learned Viscount knows very well. I certainly refer, and have referred at all times until this moment, to dishonest appropriation. I repeat my question. What evidence has the noble and learned Viscount that people whose lawnmowers are borrowed by neighbours are demanding the prosecution of the neighbours and, if necessary, their fining and imprisonment? I shall be interested to hear, because the onus of proof is on him.
If my Amendment is not accepted, it will be theft dishonestly to appropriate property belonging to another with the intention of depriving the other of it. Let us consider what that means. When my neighbour is out, I sneak into his garden and borrow his lawn-mower or garden roller or step-ladder, although he has told me that he does not like my borrowing them and therefore it is dishonest deprivation—theft, as the Bill now stands without my Amendment. I am allowed three books from the public library, but I sneak out a fourth without permission, intending to return it. That is dishonest deprivation. Or perhaps I am a student off to a dance; I borrow my room-mate's dinner jacket, without his permission, although I strongly suspect that he would not like my wearing it. Or perhaps a girl borrows a dance frock from her sister, knowing that she would not wish it. Do we really want these things to be theft, punishable with a penalty of up to a maximum of ten years' imprisonment? Those who oppose this Amendment have not only to explain what serious mischiefs they want the extended subsection to deal with, but also to defend making it a criminal offence with a ten-year 1394 penalty to do the sort of things I have mentioned. They may say that these trivial types of misbehaviour will not be prosecuted, just as trivial thefts ere not prosecuted now. Can they guarantee that? We all know only too well that dishonest borrowing is a frequent source of neighbour and family squabbles, which unfortunately sometimes go to bitter lengths. Do we really want these translated to the courts? As the noble and learned Lord, Lord Morris of Borth-y-Gest, said in Committee, do we want to give "theft" and "stealing" meanings entirely different from those which are understood by members of the public?
During the Committee stage the noble and learned Viscount, Lord Dilhorne, pointed out that an intention permanently to deprive is not part of the Canadian law of theft, and he challenged me to say whether the extension of Canadian law to temporary deprivation had had undesirable social consequences. He is quite right; the words "with intent to deprive temporarily or absolutely" have teen in the Canadian criminal code since 1892, and there is no evidence that then have had any undesirable social consequences. I discovered the reason why. The law has had no undesirable social consequences in Canada because there appear to have been no prosecutions—certainly there are no reported cases—for taking with the intention of temporary deprivation, except cases involving motor vehicles, which we are, of course, covering separately in this Bill and for which, indeed, the Canadians themselves have found it necessary to have a separate provision. In fact, except for such cases, the Canadian extension of theft to temporary deprivation seems to be a dead letter. Does the noble and learned Viscount want a dead letter provision on our Statute Book also? The provision also causes uncertainty in the Canadian courts. As recently as 1964, a young man, just for a joke, jumped into a police car and drove it round the block. He was charged and convicted of theft. The conviction was quashed on appeal, but only by a majority, and a dissenting judge held that, on the construction of the code, it was theft.
I continued my Commonwealth tour to New Zealand, because I found that their Crimes Act of 1961 retained the requirement of permanent deprivation. They, 1395 too, have had an expert Committee considering the criminal law over a long period. I am informed that they did not at any stage of the draft consider seriously the omission of the word "permanently" in the definition of theft. Apparently the question was raised in an academic way, but everyone thought that it would make such a serious change in the law that it would not be justified.
Finally, since some play was made of it in Committee, I must mention the draft criminal code prepared for Jamaica in 1877, which was referred to, in a different connection, in the Report of the Criminal Law Revision Committee. This code included a definition of dishonestly appropriating without the word "permanently". But the code was not enacted and to-day the law of Jamaica requires an intention permanently to deprive.
My Lords, under this Bill theft is essentially a violation of ownership, but it does not follow that every violation of ownership ought to be theft. I suppose that I might violate your ownership if I used your hairbrush, knowing that you would object to it; but you would not suggest that that conduct should be criminal. The requirement that there should be an intent permanently to deprive limits the concept of violation of ownership or dishonest appropriation just as it has always limited the concept of taking out of possession, and for the same reasons. This requirement has stood the test of time and is still apt.
There was an argument in Committee that keeping the word "permanently" involved difficulties in qualifying that concept by Clause 6 of the Bill. But Clause 6 does not introduce temporary deprivation by the back door: it simply gives a partial definition of "with the intention of permanently depriving the other of it" in terms which make clear that there is permanent deprivation (so that there may be theft), if what is done amounts to a complete usurpation of the property against the owner, even if the owner finally gets the property back. This, in effect, preserves for the purposes of the Bill the old Case Law about what is an intent permanently to deprive. It is desirable, because if the Bill is to be part, as we intend, of a criminal code, we 1396 want it to be as complete a statement of the law as is practicable. The sort of case which is covered by Clause 6 is for instance, one in which something is taken and abandoned in such circumstances that the possibility of its return to its owner is, to the taker's knowledge, extremely remote. It cannot be argued from this sort of extension of the notion of permanent deprivation that mere temporary deprivation ought to be theft; and, of course, that is not the intention of Clause 6. You may feel, my Lords, that these are all lawyers' arguments, and I would not disagree: but this is a lawyer's Bill.
So I will conclude my case with a layman's argument. I ask your Lordships to support my Amendment for three simple reasons which appear to me to be completely convincing. The first is that this provision, including "permanent", was devised after long and most careful consideration, which extended over a period of years, by a Committee of the most eminent lawyers of our day. They are completely firm about the desirability of having the word "permanently" in this clause. My second reason is that the inclusion in the clause of the word "permanently" preserves the substance of the law as it is and as it has been for centuries. Thirdly, it satisfies common sense by refusing to label as criminal all the little petty actions of which most of us at some time or another may be guilty. I ask your Lordships to support that common sense by voting for this Amendment. I beg to move.
Page 1, line 7, at end insert ("permanently"). (Lord Stonham.)
§ 6.53 p.m.
§ VISCOUNT DILHORNE
My Lords, I have listened carefully to all that the noble Lord, Lord Stonham, has said. I am sorry to disappoint him, but I remain entirely unconvinced that it would improve this Bill and the criminal law for the future to make the change in it that he now proposes. Before I deal with the arguments that he has advanced in any detail, I should like to say this. We discussed a great many questions in Committee. I think—and I hope the noble Lord will agree—that those discussions were worth while. I think that that is proved by the fact that after consideration of some of them the Government 1397 have tabled some 35 Amendments, some of them very important Amendments, including an entire redraft of Clause 11 and the insertion of a completely new clause, Clause 15A, to meet points raised. I should like to thank the noble Lord, Lord Stonham, for what he has done, and done, I am sure, after careful consideration of the arguments advanced.
I regret that it would not appear that the same consideration was given to the question whether or not the definition of "theft" and of "stealing" should include an intention permanently to deprive. We removed the word "permanently" on March 5. Two days later, on March 7, the noble Lord announced the Government's decision to seek to reverse the decision reached in Committee. The noble Lord cannot, therefore, have taken very much time in considering what had been said in Committee. Yet—and here I agree with the noble Lord—the correct definition of "theft" is of the greatest importance. It is fundamental, so far as larceny or theft is concerned, and as important, if not more important, than any of the questions arising on the Bill.
I hope that, despite the fact that I made a rather long speech in Committee, your Lordships will bear with me when I seek to refute the arguments now advanced and advanced in Committee for the inclusion of the word "permanently", and to explain the reasons why I think it is right and better that that word should be left out. First, I should like to say a word about the arguments advanced in Committee.
First, it was said by the noble and learned Lord the Lord Chief Justice, whom I am glad to see here:Who are we … in a matter of minutes to say that it would have been better if they"—that is, the Criminal Law Revision Committee—had recommended something else?"—[OFFICIAL REPORT, 5/3/68; col. 1307.]I should like to make it clear that the fact that I express a view in a matter of minutes (and I try to keep my speeches as short as I can) does not mean that I have not thought about the matter a good deal. Of course, one may come to the wrong conclusion. But I was, I must confess, somewhat astonished by the proposition that we in this House should not 1398 consider and move Amendments to a Bill produced by a Committee of such eminence as the Criminal Law Revision Committee. Anyway, that argument, which really amounts to claiming that we should delegate our functions and duties, now falls to the ground, for the Government, by the Amendments they have tabled, have recognised that we were right to raise the points on this Bill; and the Government have recognised, also, that there were defects in the Bill.
That has to be borne in mind when one considers the first of the three reasons the noble Lord advanced at the conclusion of his speech, when he said that this clause had been devised after long consideration by this eminent Committee. So had the whole of are Bill, apart from, I think, two clauses. Yet our action is now proved right by the fact that the Government seek to make no fewer than 35 Amendments to it. Apart from advancing that argument, the noble and learned Lord the Lord Chief Justice did not advance any argument against the Amendment in Committee, other than saying that he was not convinced that that Amendment was a good one. I shall still try to convince him. Then, in Committee, the noble Lord, Lord Stonham, based himself, as he has again to-day, really on the Report of the Committee. They dealt with the matter in one short paragraph to which I shall refer later.
My noble and learned friend Lord Morris of Borth-y-Gest, whose speech has been quoted by the noble Lord, also opposed the Amendment. He opposed it on different grounds. He based his opposition on the ground that if an intent permanently to deprive was left out, the resultwould be to give the words 'theft' and 'stealing' not only meanings entirely different from those they have always possessed, but meanings entirely different from those which are recognised by members of the public."— [OFFICIAL REPORT, 5/3/68, col. 1313.]I think the noble Lord, Lord Stonham, quoted that passage. With the greatest respect to my noble and learned friend, I do not agree. Those of your Lordships who are not lawyers can judge of the matter. I doubt very much whether a member of the public would take the view that a person only stole something if he took it with the intention permanently to deprive. If that is how the 1399 word "permanently" is understood by the general public, then I suggest that the word is frequently misused.
The view I am expressing about the ordinary English meaning of the word is, I think, fortified by reference to the dictionaries. The word "steal" is defined in the Oxford English Dictionary as:To take dishonestly or secretly.Then follow the words:to take away dishonestly portable property, cattle, et cetera, belonging to another.A little later one finds the words:To take or appropriate dishonestly anything belonging to another.There is nothing I can find in that dictionary to support the proposition that in the ordinary meaning of the English language a person steals only if he intends permanently to deprive. And so, if the Bill is left as it is and this Amendment is rejected, the word "steal" will be defined in accordance with the meaning given to it in the Oxford English Dictionary and, I suggest, within the ordinary meaning of the English language. I wonder very much whether my noble and learned friend, before he started to read law, ever thought that a person stole only if he appropriated dishonestly with an intention permanently to deprive.
To-day again the noble Lord, Lord Stonham, has really based his argument on the grounds advanced by the Committee, and they dealt with it in one short paragraph, paragraph 56. There are pages of the Report dealing with subjects like stealing wild flowers and animals, but one short paragraph is devoted to this important subject. The Report says—and I quote the words—thatthe Committee generally are against extending theft to include temporary deprivation of property".I infer from the use of the word "generally" that some members of the Committee were in favour of that extension and that the Committee were not unanimously in favour of keeping in the word "permanently". The Report goes on to say that it seemed to the Committee wrong to extend it because—and I ask your Lordships to mark these words:an intention to return the property, even after a long time, makes the conduct essentially different from stealing".1400 I agree that it does, if you give the lawyers' interpretation to the word "stealing", but I pose this question—and it is really this question that I suggest the House has to consider. It is an important question of policy on which I would also suggest your Lordships are fully competent to pronounce and which should not be left to lawyers, however eminent, alone to decide—
§ LORD STONHAM
My Lords, would not the noble and learned Viscount feel it would be fairer if he read the next immediately following sentence in the passage he quoted?
§ VISCOUNT DILHORNE
My Lords, I am coming on to the next sentence; I cannot deal with it all at once. I am putting this question, if I may, which I think is the fundamental question for decision: whether it is right that a person who dishonestly appropriates property, who steals it, if the definition of the Oxford English Dictionary gives the correct meaning of that word, should not be guilty of a crime if he took it, and I quote the words of the Report,with the intention to return the property even after a long time"?The noble Lord, Lord Stonham, posed the question: What is the criminal law for? And he said, among other things, "to protect society". I agree. I have never suggested that the criminal law should extend to cover any dishonest conduct. But surely there are some forms of dishonest conduct which deserve the criminal sanction. Surely it is a man's conduct which should determine whether he should be convicted of a crime. If he dishonestly appropriates the property of another and keeps it for a long time, the effect upon society, upon the owner of the property, will not depend on whether there was an intention permanently to deprive, and I would suggest that the conviction of the taker should not depend on the prosecution's being able to prove beyond reasonable doubt such an intention.
It is, of course, a fact that in many cases no difficulty arises as to proof of that intent. But in some cases it does, and where there has been dishonest appropriation of something—we had one example in the Goya picture—it is necessary to prove that intent; and unless it is proved, as the law now stands there can 1401 be no conviction. I know that the Government seek to remedy this position by Clause 11 in relation to taking things from certain buildings. Surely that clause erodes the principle which the Government by this Amendment are seeking to retain. If you make that exception, if it is right to do that, why stop there? Why not apply the principle of Clause 11 to all property? And, again, the principle which the Government are seeking to restore to this Bill is eroded by Clause 12. There are two examples of erosion of this principle which has, as the noble Lord so rightly says, for long been part of the Common Law and the Criminal Law, and I know that the change I am suggesting is radical.
Then the Committee go on to say—and I think this is the next sentence to which the noble Lord, Lord Stonham, was referring—that the effect of the Bill as it is altered nowmight have undesirable social consequences".I posed the question to the noble Lord in Committee, and he said he would write and tell me as soon as he heard the answer, and has now said, for reasons I have not been able to examine, that although this requirement is not part of the Canadian Code, there are no prosecutions for temporary dishonest deprivation. It cannot he said, then, that there are any "undesirable social consequences". But then the Committee go on to indicate, as the noble Lord did to-day, what kind of consequences which are not desirable they thought might ensue. They say:Quarrelling neighbours and families would be able to threaten one another with prosecution".There is nothing to stop that now. So long as we have the present system in England, as opposed to the system in Scotland, subject to certain limitations anyone can institute a prosecution. And I really should not have thought that the possibility of a prosecution being instituted in unwarranted circumstances really is a governing consideration in considering what the law ought to be.
Then the Committee say:Students and young people sharing accommodation who might be tempted to borrow one another's property in disregard of a prohibition by the owner would be in danger of acquiring a criminal record.1402 Again, that was repeated by Lord Stonham to-day, when he said that they would be running the risk of prosecution and loss of liberty. Again I ask: Is that sort of argument really a compelling argument and an adequate reason for not applying the criminal law to a person who dishonestly appropriates—and I again use the words of the Committeewith the intention to return the property even after a long time"?Should students and young people be led to suppose that dishonest appropriation by them of property against the will of the owner is all right so long as they have no intention permanently to deprive? The reasoning in paragraph 56 of the Committee's Report should be contrasted with the reasoning in paragraph 47. There the Committee are dealing with stealing wild flowers and things of that sort, and they say this:It might he reasonable to let the law of theft apply in all cases. For in trivial cases (as in trivial cases of other kinds of theft) there might be a defence under Clause 2(1)(a) that there was no dishonesty: landowners and prosecuting authorities would presumably be sensible enough to prosecute only in the exceptional cases where this would be reasonable and cases would usually be tried summarily and only a minor punishment, if any, imposed.So it would be here, my Lords. If there was a prosecution for dishonest borrowing of a trivial kind and the court did not think the prosecution was warranted, the court would no doubt grant an absolute discharge.
Now I put this case to the House, and I should be grateful if, in due course, it could be answered. If this Amendment is not made, is not the position this: that the men who go to a man's house, attack him, beat him and tie him up to obtain from him the keys to a safe in art office building elsewhere, whose object is to obtain those keys to go to the safe and open it, will be liable, will they not? to be convicted of robbery? I believe that that kind of case does occasionally occur, and if the Amendment which the Government seek is made, then in such circumstances there could be no conviction for robbery, although the conduct of the accused would be the same, and the violence would be the same. There could be no conviction for robbery because of the absence of an intention 1403 permanently to deprive. They would take the keys only to open the safe; they would not want to keep them.
Surely it is wrong that conduct of the kind I have described should not be treated as robbery. If this Amendment is not made it can be treated as robbery.
§ VISCOUNT DILHORNE
My Lords, the noble Lord says that he does not agree, but he has also said a good deal with which I am afraid I do not agree. If he will study it, he will find that what I have said is the case, because it cannot be said that merely taking the keys away to open the safe could be with the intention of permanently depriving the owner of those keys. The noble Lord will presumably have an opportunity of replying; unfortunately I shall not, but the mere fact that he says he does not agree with me does not establish that he is right and I am wrong.
The noble Lord, Lord Stonham, referred to Clause 6, and I listened with interest to what he said. I take the view that Clause 6 completely destroys the Government's case for this Amendment. It is a clause which the Government, despite the criticism made of it in Committee, are not seeking to amend. As the marginal note shows, that clause is intended to define the meaning of the words:With the intention of permanently depriving the other of it".Indeed, if one looks at subsection (3) of Clause 1, one is referred to Clause 6 to see what is meant by those words. One cannot read Clause 6 as if it was in some way subject to, and affected by, the inclusion of the word "permanently" in subsection (1), because it seeks to define what is meant.
I suggest to the noble Lord that subsection (1) and subsection (2) of Clause 6 read together surely mean that a person who appropriates property, intending a complete usurpation as against the owner of that property, is to be regarded as having the intention of permanently depriving the other of it. I can read that clause only as meaning that. Although by this Amendment the Government seek to retain the intention permanently to 1404 deprive, the operation of that clause would seem to me to provide that a person may be convicted of theft without it being proved that he had any such intention. All that it is necessary to prove under that clause is that he intended complete usurpation of the property, not that he intended to deprive the owner of it permanently. Do the words "complete usurpation" mean anything more than "wholly appropriates"? I should like to know. If I am right in my interpretation of Clause 6, then the retention of that clause by the Government fortifies my case for resisting this Amendment. If this Amendment is not carried, Clause 6 cannot, on any view, be necessary; nor will Clause 11, nor will Clause 12. So I think I can maintain that rejection of this Amendment will simplify our law.
I believe that the change we made in Committee was a change for the better. "Receiving", or as it is now called "handling" stolen property, is often regarded as more serious than the actual theft, and yet proof of that offence does not require proof of an intention permanently to deprive. Nor did the offence of criminal deception created by Clause 15(3) of the Bill, which we took out in Committee. Contrary to the belief that this would have undesirable social effects, I believe that not only will it greatly simplify our law but that in practice it would lead to the conviction of those who should be convicted but who now escape because it cannot be proved that, however reprehensible their conduct, there was an intention permanently to deprive.
I believe I have now covered most of the arguments raised. The case for leaving the Bill as it is at present is strong and, as I have said, in my view it is a question of policy that is involved. I entirely agree with the noble Lord that it is a fundamental question, and I cannot believe that if this change is made to abolish a principle which has been so substantially eroded, it will be followed by any serious consequences.
§ 7.16 p.m.
§ LORD PARKER OF WADDINGTON
My Lords, it would be a dull world if lawyers agreed. I came here with no intention of speaking, but the noble 1405 Viscount, Lord Dilhorne, has attacked me on what I said at the Committee stage. I said that this was the Report of what I called a really high-powered legal committee sitting for seven years. I said that because I thought the general presumption would be that they were right unless they were glaringly wrong, but I am sure the noble Viscount will acknowledge that I began my remarks by saying that we must get this right, and it is our function to get it right. I have put down an Amendment to a clause later in the Bill, and I say again that we must have this right.
Having said that, without taking up the cudgels one way or the other I should like to put to the House what really are the questions to be considered to-day. The first question is this: Is a case made out for what in effect is a new offence? It has always been the law of this country that there is no offence unless there is an intention permanently to deprive. I do not think reform is merely for the sake of reform; it must be only if a case is made out for it. Therefore ore asks oneself whether a case has been made out for creating what, for the first time, is a new offence. Is it necessary? Apart from motor cars, which are dealt with, and have been dealt with for some time, and now the possibility of pictures in a collection, is the case made out for the need for a new offence? I am not saying one way or another. I do not myself think that the case is made out for it, but if it is, so be it. The second question is this: If a case is made out for creating a new offence of, in effect, borrowing, is it a fit place to come in as theft?
With all due respect to the noble and learned Viscount I have always thought that dictionary meanings were the last resort of the lawyer. This is a Bill dealing with larceny—now called "theft"—carrying a penalty of ten years' imprisonment. Assuming the new offence is to be dealt with, is it right that it should appear as "theft"? Is the domestic servant, or perhaps the au pair girl who borrows a dress or a coat from her mistress to go to the local dance, guilty of theft carrying a penalty of ten years' imprisonment? The answer surely is, "No". If there is a case for finding her guilty of an offence, surely it is not of 1406 this offence of theft carrying a ten-year penalty.
To return to the first point, as to whether there really is a case for constituting a new offence, it rather appals me. The police are occupied, and should be occupied, in dealing with really serious crime, and they should not have to deal with the au pair girl borrowing her mistress's coat. It may be a case for dismissal, but is it a case for the police? That is the point I think the Committee have made. It is a matter for your Lordships. Has the time come when that sort of conduct is a criminal offence; and, secondly, if it has, is it proper to treat it as theft with a 10-year penalty?
§ LORD SOMERS
My Lords, may I add a few words apropos of the theft of cars? Let me put a case to the noble Lord, Lord Stonham. Imagine a man taking somebody else's ear with tie firm intention of returning it in five years' time. He might even go to the length of putting a note through the owner's door saying, "I have taken your car, but I will return it on the same date in 1973." By the time he brings fiat car back, provided he has used it fairly hard, it will be in a state of complete—
§ LORD STONHAM
My Lords, if the noble Lord will allow me to answer him straight away, I suggest that he reads subsection (1) of Clause 6 which says:A person is to be regarded as permanently deprived of property belonging to him by any dealing with it that amounts (or substantially amounts) to a complete usurpation …I should have thought that keeping somebody else's car for five years would amount to complete usurpation.
§ LORD SOMERS
I am prepared to accept the noble Lord's word for that, naturally, but I wish there was something in the Bill which made that clearer.
§ BARONESS WOOTTON OF ABINGER
My Lords, I know that it is inevitable that the criminal law should make assumptions about the secrets of the human heart which cannot in the nature of the case be validated, but I think it is desirable to keep those assumptions to a minimum. The assumption that we are asked to make here is that you can divine whether an intention is permanent or not. I should like, if I may, to quote one actual case which came within my knowledge. At a juvenile court 1407 of which I was then Chairman, a boy of 15 was accused of having stolen a book from the publishing house in which he was employed. The book in question gave the history of the firm, and the defence was that he intended to return it. A number of sentimental magistrates, headed by myself, fell for this picture of the ardent young apprentice looking forward to his future in the firm with which he identified himself, and he was acquitted. Unfortunately, the next three cases on the list were also boys from the same firm who had taken, and alleged they intended to return, books of a character very much more likely to appeal to the average young man of their age.
My noble friend Lord Stonham asked what evidence there was that the public regard temporary appropriation as stealing. I should have thought there was a good deal of evidence in regard to certain articles. I have heard a great many people say "Someone has stolen my car". I have never heard anybody outside a court say, "Someone has taken and driven away my car." The public, certainly in relation to motor cars, does not distinguish between "taking and driving" and "stealing".
The noble and learned Lord the Lord Chief Justice said that if we do not have the word "permanently" in the clause we are really making a lot of new offences. I would submit that we are obliged to make other new offences if we have "permanently" in. We have been obliged to make a new offence of taking and driving a car. We are still in some difficulty about bicycles. We are also making a new offence of removing pictures from a public building where they are displayed, and it seems to me that we shall have to go on making new offences to cover cases where there has been deprivation but not with the intention that the deprivation should be permanent.
May I say in passing that I find something very odd in this Bill. It says that stealing is dishonest appropriation, and "dishonesty" is nowhere defined; all that is defined is what "dishonesty" is not. It seems to me a very curious omission. I should like to ask one question about the wording of this clause which seems to me 1408 ambiguous. In the Larceny Act 1916, it was made perfectly plain that the intention to deprive permanently must be coincident in time with the taking. The words "at the time of taking" appear in the relevant section. Those words have been omitted, but as the Bill now reads it seems to me not at all clear whether this condition still obtains.
A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of depriving the other of it permanently. That is how it would read if this Amendment were accepted. If I take, without her permission, my neighbour's necklace to wear at a particular dance, meaning to put it back when this occasion is over, and when I get it home I think it is rather attractive and decide to keep it, does that mean I have stolen it or not? Under the present law, I think I am right in saying that I have not stolen it, but as the Bill would stand if this Amendment were accepted it seems to me quite ambiguous whether the depriving permanently and the taking must be coincident in time or not. I hope this point may be clarified.
§ 7.27 p.m.
§ LORD CONESFORD
My Lords, I thought that the noble Lord, Lord Stonham, in his speech this afternoon put the case most fairly, and he pointed out what I think is true, that this House has to make a difficult decision. I agree with a great deal of what he said, but I still support the action taken by this House when it was in Committee on the previous occasion. May I mention one passage in the actual words used by the noble Lord, Lord Stonham, that seemed to me to show how far he was from facing the actual problems that we have to face? He talked about the Amendment that this House made in Committee as if it dealt with some theoretical mischief. Well, whatever the truth may be, that cannot be true. We now know from the Goya case that this is not a merely theoretical mischief. The words to describe what happened appear in the Committee's Report, at page 28:A striking recent instance is the removal from the National Gallery of Goya's portrait of the Duke of Wellington. The portrait before being returned was kept for four years, during which there was evidence that the man who took it tried to make it a condition of his returning it that a large sum should be paid to charity.1409 As the noble Baroness, Lady Wootton of Abinger, has put a question to the representatives of Her Majesty's Government, perhaps I can put one, too. Is the noble Lord under the impression that What now appears in Clause 6, had it then been the law, would have been sufficient to enable the man who took the Goya portrait to be prosecuted to conviction? If he does not think that he could, then I suggest that the law still has a great gap. If, on the other hand, he thinks the effect of Clause 6 is that the man who took the Goya portrait could have been prosecuted to conviction, had Clause 6 then been part of the law, that strongly supports and strengthens the case made by my noble and learned friend Lord Dilhorne. Whatever we do, we are not dealing here with some theoretical mischief. We are dealing, as we all know, with an actual and growing mischief. I will deal in a moment with my allegation of a growing mischief. I thought that it cast ridicule on the law of this country when the man who, in the circumstances that I have described, took a valuable acquisition of the National Gallery could not be convicted of the criminal offence. It proved the urgent need of a revision of the law.
§ LORD PARKER OF WADDINGTON
My Lords, would the noble Lord allow me to intervene? Does he not think that almost any jury would have convicted? And are we not dealing with just the odd case where a jury, perhaps perversely, refused to convict? I do not think that from that one can say that it was the law of this country that there was no offence. It was just that that jury did not convict.
§ LORD CONESFORD
Well, if my noble and learned friend the Lord Chief Justice says he was surprised by what happened in that case, so was the public and so, I think, was all Europe. But I think it brought the law of England into considerable disrepute. Anyhow, he was acquitted because of this requirement of the law which my noble and learned friend Lord Dilhorne has succeeded in eradicating, and which it is now proposed to restore.
The other matter to which I would draw attention is that the Committee itself, in I think the last sentence of paragraph 56, said: 1410If cases of temporary deprivation should become common, or if it should become too easy a defence to a charge of theft that the intention was to return the property in the end, it might be necessary, notwithstanding these formidable difficulties, to create an offence of temporary deprivation with a high enough maximum penalty for serious cases.I say that there is every indication that cases of temporary deprivation are becoming very common indeed. I happen to know from my own experience of the sufferings of certain public libraries and libraries of scholastic institutions, in schools and universities, where the losses of books are quite appalling. If we can so change the law in this first clause as to impress upon the public that this is a serious matter, I think we shall have done something most valuable.
The noble Lord, Lord Stonham, and indeed the Committee, have said that if we restore the word "permanently" we shall have to have such special pro visions as are made at present in Clauses and 12. But I am influenced in favour of the Amendment which your Lordships in Committee put in and which the Government now seek to reverse, by the extraordinary convolutions through which Clause 11 has passed. Clause 11 was wholly unsatisfactory in the way in which it came before the Committee. I must not deal in detail with the clause in advance, but I think it is still unsatisfactory after all the attention which the Government have now given it.
There is one matter raised, both by the Criminal Law Revision Committee and by my noble and learned friend the Lord Chief Justice, which I should mention. If one were going to make temporary deprivation an offence, it is arguable, of course, that it should be a separate offence. But I think it is for the Government, if they take that line, to prove it. I admit, of course, that we are making a proposal of sufficient novelty, and sufficiently radical, for it to be possible that there will be consequential changes which the Government will have to introduce to guard against trivial and unnecessary prosecutions. But I support my noble and learned friend and what was said by the noble Baroness, Lady Wootton, who, after all, has great experience as a magistrate. Ancient though it is, I believe that this requirement of an intention permanently to deprive is today productive of considerable mischief.
§ 7.38 p.m.
§ LORD RAGLAN
My Lords, I venture to say a few words about this matter before all these legal experts, not to make a legal point but rather a neutral, historical one. But I would say, with great diffidence and respect to the noble and learned Lord the Lord Chief Justice, that even if the word "permanently" goes back into the Bill, I think a boy who steals an apple will still be liable to a sentence of 10 years. The Criminal Law Revision Committee devote an interesting couple of pages to the sentencing policy of our courts. On the question whether "permanently" should be left out of the Bill, I do not think that that would make trivial crimes liable to heavy penalties in the courts.
When the noble and learned Viscount originally moved his Amendment to delete this word from the Bill I thought what a curious word it was, because, for the reasons given by the noble and learned Viscount and my noble friend Lady Wootton of Abinger, permanent appropriation is not quite the common conception of theft. If one of your Lordships went outside this House and found someone, in the words of the Bill, "dishonestly appropriating" a bicycle, he would not cry out "Stop, borrower!", or "Stop, temporary depriver!". He would cry out, in a rather old-fashioned way, "Stop thief!" And if the thief was not stopped, he would go down to the nearest police station and report the bicycle as having been "stolen". In other words, although permanent deprivation is the Common Law it is not, I think, common usage. If one reported to a policeman that one's bicycle had been borrowed, I think he would probably wonder what all the fuss was about.
So I wondered when it was that the word "permanently" was introduced into the Common Law. I looked it up in a legal dictionary which gave it as being first used in a case in 1837. When I looked up that case I found that the word actually used was not the word "permanently" but the word "wholly". So I looked at the evidence then given before the Joint Select Committee on the Larceny Bill of 1916.
I will not take up your Lordships' time by quoting from that evidence, but according to my understanding of it the 1412 word derives from a saying or a ruling by Mr. Justice Manisty somewhere in the 1870s. The suitability of the word was questioned and criticised by members of the 1916 Committee, but the matter does not seem to have had the amount of threshing out in regard to the very important qualification which it imparts to the definition. However, it was included in the 1916 Act because it was the Case Law.
If the Government feel that some qualification is needed, perhaps they would ask their experts to consider further whether "permanently" is really the right word, or whether the old term "wholly" would not be better. It might mean redrafting the sentence, but it seems to me to be most important that the law should be codified so that its meaning is nearer to the common conception and the common usage.
§ LORD GOODMAN
My Lords, I had not intended to participate in this debate, but this matter is almost irresistible to a lawyer. I apologise to the House, but I did not hear the speech of the noble Lord, Lord Stonham, in moving this Amendment. My speech is largely directed at making an inquiry of him. I consider that principle is strongly against this Amendment. I speak as one who was trained in the Roman law and in the English law. So far as Roman law is concerned, this is a decided issue. The Roman law avoided the necessity of a complete catalogue of other crimes so far as the principle is concerned. One had one category of "dishonesty" which covered every aspect of the matter. As a matter of principle that seems to me to be right.
Nobody could fail to be affected by what was said, with characteristic humanity, by the Lord Chief Justice about the possibility that by rejecting this Amendment one is going to allow an alteration to the law whereby au pair girls and such people will be subject to a penalty of ten years' imprisonment for borrowing the gowns of their mistresses. I would regard it as a serious matter if that change came about. I am not sure that her mistress, wearing her underclothes and frenziedly searching for her ball gowns, would regard it as such a serious crime or that ten years' imprisonment was necessarily an adequate penalty, and if we were to introduce a change of 1413 this kind by chance I think that it would be wrong.
I am not sure that in this Bill we have not already made this change. I wonder whether Clause 6 does not achieve precisely that effect. This is really where I address my query to the noble Lord. If one reads Clause 6, it is true that the words "permanently deprived of property" appear there, but later on the definition of "permanent deprivation" makes it clear that it need not be permanent in any temporal sense, because the loss of the actual property is not a requisite. It need only be permanent in the sense that there is a complete usurpation of the property. This appears to suggest that it is sufficient if there is such a usurpation at any point of time. If I see somebody at Ascot wearing my grey silk hat at the moment when I precisely need it, that is a classic example of a complete usurpation of my silk hat, and this would come clearly within the terms of this particular definition. I venture to think that if we have already done this, this argument goes by default; and that unless one can be persuaded that this definition does not produce precisely the result about which the noble Lord is arguing we ought not to permit this Amendment, but to accept what in principle appears to me to be the right course.
§ 7.45 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, the observations of the noble Lord, Lord Stonham, about the law of Canada interested me very much. I am quite certain that nobody who wishes to oppose this Amendment, or anybody else in the House, has any idea in their mind that they want the law under this Bill to be a dead letter. I do not think that is in issue at all. If the law of Canada, without the adverb "permanently", is not very unsatisfactory, then I suppose that it may well be that it is because the police in Canada, or private prosecutors, if there be such in Canada, use their common sense and do not bring ridiculous charges for minor and insignificant offences. That may be one explanation why the noble Lord, Lord Stonham, finds nothing in the Law Reports. One wonders whether it is better to have the law of Canada where by a majority on appeal the boy who took the police car round the block was acquitted, although the law could have convicted him—
VISCOUNT COLVILLE OF CULROSS
The conviction was quashed on appeal—they let him off in the end. Or is it better to have the law of England where the person who took the Goya could not be convicted of taking it at all. The only thing of which he could be convicted is of taking the frame. To deal with that situation, the best that can be done—I do not criticise it, because now that it has been considered it may have been put right—is to produce ad hoc new criminal offences for each one of these things which are found to be outside the law and particularly shocking to the public.
The noble Lord said that those who want to make a fundamental extension of the law in the way that we have done, who have tried to justify leaving out the word "permanently", must in fact justify it; but I doubt whether the argument over the word "permanently" is really the crux of the matter. Such researches that I have been able to make leave me in the most extreme doubt as to what the word has turned out to mean in English law. I am certain that if this Amendment is carried all the case lam, about what "permanently" has been thought to mean will have to be resumed and carried on as before.
I entirely agree with the nobly Lord, Lord Raglan, that this seems to be a fairly novel word to find in the definition of "larceny". I think that "wholly" came in about 1815 in a case involving a gentleman who rejoiced in the name of Mr. Cabbage; and I think that "permanently" was first used in 1848 in the case of Holloway, but I may be wrong. At any rate, it is not much more than 100 years old in the judge-made definition of larceny.
VISCOUNT COLVILLE OF CULROSS
Yes, but I think it was said at one stage that it went hack into the dim and distant past and has always been part of the Common Law definition of larceny. I do not believe that this is so. What really worries me is what it means. Looking at some of the Case Law, it is very 1415 strange indeed. The noble Lord said that those who oppose this Amendment are saying that any dishonest deprivation must be theft, and that never has theft in this country consisted of taking something temporarily even if the taking was dishonest. I should like to tell the noble Lord about the case of Cockburn. This was a case that was decided on December 19 last year in the Court of Appeal.
It involved a man who took some money out of the till in the shop where he worked—something which he apparently did quite frequently. What he used to do was a put a chit or a note into the till and then replace it with a cheque, if he did not immediately put in the cheque. And his daughter used to give him cheques to put in, and sometimes he used to pay those in as well. He did this for quite a long time, and on the occasion in question he was caught before he had put the cheque back. Lord Justice Winn said this:If coins, half a crown, a 10s. note, a £5 note, or whatever it may be, are taken in all the circumstances which I have already indicated with the intention of spending or putting away somewhere those particular coins or notes "—and these are the important words—albeit not only hoping, but intending and expecting reasonably to be able to replace them with their equivalent, nevertheless larceny has been committed because, with full appreciation of what is being done, the larcenous person has taken something which he was not entitled to take, had no claim of right to take without the consent of the owner, and is in fact trying to force on the owner a substitution to which the owner has not consented.What is the difference between borrowing those coins or notes and borrowing the noble Lord's step-ladder? I have been able to think of only one difference, and that is that in this case Cockburn did not put back the same coins or the same notes; whereas in the case which the noble Lord used as an example, that of the step-ladder which was taken while the neighbour was out and which the neighbour had said was not to be taken in those circumstances, it was the same step-ladder that was put back. This is a very fine distinction and this is what "permanently" has turned into under the present law. Therefore, if we put it back we are perilously close to the situation 1416 where theft in this country is to take something temporarily and dishonestly, and exactly the contrary of what the noble Lord said.
How does Cockburn compare with what the Criminal Law Revision Committee said in paragraph 56? They said:The former course"—that is, to take out the word "permanently"—seems to them wrong because in their view an intention to return the property, even after a long time, makes the conduct essentially different from stealing.But it was found by Lord Justice Winn in Cockburn's case that the accused not only hoped but intended and reasonably expected to be able to put the money back. The only difference was that it was not the self-same note or coin. So we have gone a very long way from the purity of permanence which the noble Lord was talking about.
Then take the other cases in which "permanently" is used as a defence. The Goya case, mentioned by my noble and learned friend Lord Dilhorne, was one of them; but there was another. There was a man who took some despatches from a Government office where he had a friend. They were despatches of secrecy concerning the Ionian Islands, when those were a British Colony, and he wanted to get them into the newspapers. So he sent them to a newspaper. It was completely dishonest; the despatches were in due course published and, so far as I can make out, he left them with the newspaper. The rule of the court was that the documents were clearly the subject of larceny. The only question which the jury had to decide was whether the evidence established to their satisfaction that at the time the prisoner took the documents away from the Colonial Office he intended to deprive that Office of all property in them, and to convert them to his own use. The jury said that he did not, and they acquitted him.
Those are very remarkable cases, and one would think it a strange law which allowed people to use "permanently" as a defence in situations of that sort. But it does. On the other hand, as I have tried to tell your Lordships, when it comes to insisting upon proving the degree of permanence, on the borderlines, on the 1417 margins of what one would expect it to mean, the law manages it. I think that the noble and learned Lord the Lord Chief Justice was saying the same when he suggested that in the Goya case many a jury might have found the necessary degree of permanence in the intention, and might have convicted. So it is really a very strange word, as the noble Lord, Lord Raglan, said, and it may be that we ought to be considering not the question of whether "permanently" should or should not be there, but whether we ought to have some other concept altogether.
May I just touch upon the question of Clause 6? I, too, should like the noble Lord, Lord Stonham, to answer the question put by my noble friend Lord Conesford, but perhaps in a slightly different way. If Clause 6 does not cover the Goya case—if we leave out Clause 11 for the moment and assume that it is not there—I would ask: why not? It is interesting to look at a work written on this matter by one of the members of the Criminal Law Revision Committee, Professor Glanville Williams, in 1961. It includes the reckless taking, which he describes as the foresight of a possibility that the chattel may not get back into the hands of its owner, which he says is not generally sufficient to larceny, and compares it with what I think Lord Stonham said Clause 6 was for, which was to cover cases where someone takes property and abandons it in circumstances in which it is unlikely that the owner will get it back.
The extraordinary thing is that this Bill does not make this clear. In his book, Professor Glanville Williams expressly mentioned this as being one of the things that a redraft of the criminal law ought to get clear, and I refer the noble Lord, Lord Stonham, to paragraph 32 of that book. Incidentally, the other point which he said the new Bill ought to get clear—and it does not—is the one raised by the noble Baroness, Lady Wootton of Abinger. Yet one of the members of this distinguished Committee said as long ago as 1961, when no doubt he was engrossed in this very matter, that the Bill ought to make it clear. Nor, I think, is "usurp" a new word. It was used in Holloway's case, in 1848. I think the noble Lord, Lord Stonham, must deal with this.
1418 Is he prepared to face that, if we put back the word "permanently", it is going to be followed with all the Case Law? (I have mentioned Cockburn, and, of course, there is Thorpe which has to be specially covered in Clause 6), and that all these gradations of permanence will have to be brought up again? Would he not rather try to get away from all the tremendously difficult and controversial legal and academic difficulty which arises out of the use of this word? The other question that I should like the noble Lord to answer is this. If he says that Cause 6 is somehow overruled by the use of the word "permanently", not only in Clause 1 but in Clause 6 itself, how on earth does he suppose that this is going to cut down the width of Clause 6 so that it does not knock the bottom out of the word "permanently" altogether?
§ 7.57 p.m.
§ THE LORD CHANCELLOR
My Lords, if I may reply on behalf of my noble friend Lord Stonham, he said that he was addressing the House as a layman, but now that he is a Doctor of Laws I hope we shall not let him get away with that. So far as I am concerned the position is this. It is common ground that for over a hundred years it has been one of the ingredients of our law of larceny that there must have been at the time of the taking an intention permanently to deprive the owner of it. As your Lordships know, there is no Member of your Lordships' House who is more keen on law reform than I am, but not, I think, simply to change things for the sake of change unless if ere is something wrong which ought to be put right.
Dishonest borrowing has never constituted larceny, so I asked myself, "During the hundred years has experience shown that there is a form of dishonest conduct which is not criminal, but which amounts to such a public nuisance that it ought to be made criminal?"; and I answered that question, "Yes". It has been found from experience that young men take cars for joyrides and then bring them back. This became such a serious public nuisance that it needed to be a criminal offence, and so it was made in the Road Traffic Act—not larceny, but a separate criminal offence.
Then I asked myself, "Is there any other class of actions which in the last 1419 hundred years has grown to be such a social nuisance that it ought to be treated as a criminal offence? "; and I said, "Yes; the Goya." I am not at all an enthusiast about the Goya class. It seems to me quite unnecessary, and I agree with the noble and learned Lord the Lord Chief Justice. Why on earth the jury "fell for" the accused's explanation, I cannot think. We have had pictures in museums for the last hundred years. If anybody "pinches" a picture from a museum, what does he do it for unless it is to "flog" it and get the money? He does not do it in order to take it back. We have managed perfectly all right for a hundred years without a special law for Goya cases. The only trouble with the Goya case was that, as sometimes happens, the jury acquitted when they ought to have convicted. There are differences of opinion about Clause 6. I personally regard Clause 6 as unnecessary. I consider that the cases for which it will provide would be covered even if we did not have Clause 6. But there is a difference of view about this among the lawyers, and if that is so, no doubt it is sensible to cover it.
My noble friend Lady Wootton of Abinger asked at what time the intention had to be formed. From a reading of Clause 1, I suggest that it means that the intention must be there at the time of the appropriation and, with great respect, I should not have thought that it could be read in any other way. The noble Lord, Lord Conesford, said, "There is a growing public nuisance in the stealing of books." This may be so, but I do not know whether, if it is so, it is because the owners cannot catch the thieves or because, although they prosecute them, they cannot prove an intention permanently to deprive.
The noble and learned Viscount, Lord Dilhorne, put a theoretical case in which, if I understood it rightly, some men break into a house, beat up the owner and gag him for the purpose of taking the keys of his safe. I wonder why they take the keys of his safe if they do not intend to use them. Of course, on the facts as the noble and learned Viscount told them, if what they did amounted to grievous bodily harm they could be prosecuted for that; and, if not, for an assault. I should not have thought that they would give the keys back to the owner, 1420 having robbed his safe. I should have thought that burglars like keeping safe keys, and that there would have been no difficulty in proving a charge of burglary.
The noble Viscount, Lord Colville of Culross, said—and these things are no doubt a matter of opinion—that there was no real difference between borrowing somebody's stepladder and stealing money, and then saying, "Oh, well, I really intended to replace it by some other money". I should have thought those were two entirely different kinds of things. Then the noble Viscount mentioned a case about despatches in which the jury apparently acquitted. Nobody can stop juries acquitting, and they sometimes acquit when they ought to convict.
I am not very good at theory—I am a practical man—and when, at the end of the day, I came back to asking myself the question, "Dishonest borrowing never having been larceny, have certain forms of it grown to such a serious extent that there are forms of dishonesty which ought to be criminal?", I will tell your Lordships what I did. I went and had a long talk with the Director of Public Prosecutions, because he is the man who obviously knows. If the Commissioner of the Metropolitan Police or any of the chief constables of counties find that there is some growing malpractice for which there does not seem to be any possible prosecution, and if they think there ought to be, then the Director, of course, is the man to whom they go. So I asked him how many representations he had had since he had been in office to the effect that our law of larceny was not wide enough, that it was too restrictive because of the necessity to prove an intention permanently to deprive, and he said that he had never had any such representations made to him at all.
Where does this come from? I would respectfully agree with the Committee that, while dishonest borrowing is wrong, it is really something which most people would think quite different from theft. Take, for instance, the case which has been given, that of four girls in a flat and of one borrowing another girl's dress to go out with her young man for the evening, she not having asked permission because she knew jolly well that if she asked she would be told, "No". This is wrong; this is not the right thing to 1421 do; this is dishonest conduct. But I do not think any ordinary person would say, assuming the dress was back on its peg later that night, "That girl stole the dress—this is larceny".
In general, I believe two things, if I may say so. First of all, larceny always has been, and I think rightly, very serious. And, of course, when one is thinking of dishonest borrowing, one has to include sons and daughters, and perhaps grandsons and granddaughters. If one of them is convicted of larceny, they are not likely to get into Parliament, they are not likely to be able to enter any of the professions, they will not get elected to a West End club, and all their lives they will find it very difficult to get insured. I remember a family company which had a very large burglary and where the insurers repudiated on the ground that one of the directors, a quarter of a century before, when he was at university, had been convicted of stealing something. I had to decide this as arbitrator, and I was bound to decide that, in law, the insurers were right. The company could not say that they did not know, because one of the other directors was the father and another a brother. So, of course, the company knew about this conviction. The insurers said, "We never insure any company where any of the directors has been convicted of larceny, and we should never have taken the risk if we had known."
§ LORD RAGLAN
I am sorry to interrupt the noble and learned Lord, but may I ask him this question? What about the case of a boy stealing an apple? Does he not deprive the owner of it permanently? Is he not subject, theoretically, to a sentence of ten years?
§ THE LORD CHANCELLOR
Yes, I think theoretically that is quite so. But I do not think this is in itself a good reason for extending this provision to unlawful borrowing. The other thing which affects me particularly is that this is very largely a difference of view between, on the one hand, theoretical cases—very properly so, but cases which are thought-up-and, on the other hand, the practical experience of seven of our most experienced criminal Judges on this Committee. There was also the Director of Public Prosecutions, himself a member; the Chief Magistrate; and the noble and learned Lord the Lord Chief Justice—who, if I may respectfully remind the House, has been a Judge for 17 years and has been Lord Chief Justice for about 10 years, during practically the whole of which time he has been either trying crime at first instance or hearing it on appeal. For my part, while I am perfectly prepared—and more prepared than most—to change the law if there is something wrong with it, I should have thought that when you have had a particular law for 100 years there was a very strong onus on those who say it ought to be changed, particularly when, for the first time, it is going to make criminal something which, however morally wrong it may be, has not been criminal in this country so far. For those reasons, I would respectfully ask the Committee to support the Amendment.
§ 8.8 p.m.
§ Their Lordships divided: Contents 39; Not-Contents 37.1423
|Addison, V.||Granville-West, L.||Phillips, Bs.|
|Beswick, L.||Hall, V.||Rowley, L.|
|Birk, Bs.||Hill of Wivenhoe, L.||Sainsbury, L.|
|Bowles, L. [Teller.]||Hilton of Upton, L. [Teller.]||Shackleton, L. (L. Privy Seal.)|
|Brockway, L.||Hughes, L.||Shannon, E.|
|Brown, L.||Iddesleigh, E.||Shepherd, L.|
|Collison, L.||Leatherland, L.||Silkin, L.|
|Delacourt-Smith, L.||Lindgren, L.||Sorensen, L.|
|Fiske, L.||McLeavy, L.||Stonham, L.|
|Gaitskell, Bs.||Milner of Leeds, L.||Stow Hill, L.|
|Gardiner, L. (L. Chancellor.)||Noel-Buxton, L.||Strabolgi, L.|
|Garnsworthy, L.||Norwich, V.||Tangley, L.|
|Geddes of Epsom, L.||Parker of Waddington, L.||Winterbottom, L.|
|Amory, V.||Drumalbyn, L.||Oakshott, L.|
|Baldwin of Bewdley, E.||Falkland, V.||St. Aldwyn, E.|
|Barrington, V.||Ferrier, L.||Sandford, L.|
|Beaumont of Whitley, L.||Foot, L.||Sandys, L.|
|Brentford, V.||Fortescue, E.||Selkirk, E.|
|Chelmer, L.||Goodman, L.||Sempill, Ly.|
|Colville of Culross, V.||Gray, L.||Somers, L.|
|Conesford, L. [Teller.]||Grimston of Westbury, L.||Strange of Knokin, Bs.|
|Cork and Orrery, E.||Horsbrugh, Bs.||Teynham, L.|
|Craigavon, E.||Lucan, E.||Vivian, L.|
|Craigmyle, L.||Monson, L.||Wakefield of Kendal, L.|
|Denham, L.||Moyne, L.||Wolverton, L.|
|Dilhorne, V. [Teller.]|
On Question, Amendment agreed to.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ LORD STONHAM
My Lords, I hope it will suit your convenience if with Amendment No. 1, I speak to the two following Amendments which are consequential. These Amendments propose minor alterations to subsection (2). They would make it read:It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.During the Committee stage the noble and learned Viscount, Lord Dilhorne, suggested that the subsection as originally drafted gave room for argument, contrary to the intention of the subsection, that it was material, in order to establish theft, to show that the appropriation was made with a view to gain or for the thief's benefit. Although the Government think it doubtful that such a construction could be put on the subsection, I am moving the Amendments so as to remove any doubt that there might be upon this point. I beg to move.
Page 1, line 10, leave out ("that") and insert ("whether").—(Lord Stonham.)
§ VISCOUNT DILHORNE
My Lords, I rise to thank the noble Lord. I do not think this makes a very important change. It may be that subsection (2) is not strictly necessary; but I think the language is an improvement.
Page 1, line 10, leave out ("not").—(Lord Stonham.)
Page 1, line 11, leave out ("not").—(Lord Stonham.)
§ LORD STONHAM
My Lords, other business is to come. There was general agreement through the usual channels that, once through Clause 1, we should adjourn consideration of the Report stage of this Bill. I would suggest that we do so now.