Lords Sitting of 8 April 1968

Preamble
The House met at three of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Truro.

SOUTH WEST AFRICA AND THE UNITED NATIONS
3.5 p.m.
LORD BARNBY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will instruct their representatives at the United Nations to throw the whole weight of United Kingdom influence against any threat of using force against the South African administration in South West Africa.]
THE MINISTER OF STATE FOR FOREIGN AFFAIRS (LORD CHALFONT): My Lords, Her Majesty's Government do not consider that the use of force is a satisfactory solution to the situation in South West Africa, and they will continue to exert their influence at the United Nations to obtain a peaceful solution to its problem.
LORD BROCKWAY: My Lords, in view of the fact that a mission from the United Nations is now seeking to enter South West Africa, may I ask my noble friend what alternative method Her
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Majesty's Government are suggesting to enable them to carry out the decision of the United Nations that the administration of South West Africa should pass to the United Nations?
LORD BARNBY: My Lords, may I ask the noble Lord who it is understood is paying for the exercise proposed by the United Nations?
LORD CHALFONT: My Lords, I fear that I know of no exercise or operation proposed by the United Nations The Security Council Resolution No. 246 has been passed, the South African Government has reacted to it, and it is now for the Security Council to determine what further action, if any, is necessary. I know of none.
LORD BARNBY: My Lords, in view of the recent statement by the noble Lord that the United Nations is £60 million in deficit, with over forty countries late in their payments, it would seem that the question I asked was justified. Would the noble Lord say whether he has had brought to his notice the deposition of Dr. Muller, the Foreign Minister of South Africa, dealing with the hostile actions of the United Nations towards South Africa, running into some 30 pages, a copy of which I have in my hand, because it would seem—
SEVERAL NOBLE LORDS: Question!
LORD BARNBY: I ask the noble whether he has had brought to his notice the deposition of the Foreign Minister of South Africa to the United Nations dealing with the matters which stimulate

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the proposal reported in the Press of a threat to South Africa? May I also—
SEVERAL NOBLE LORDS: Order!
THE PAYMASTER GENERAL (LORD SHACKLETON): My Lords, I realise that the noble Lord is dealing with a serious point, but the House would like him to ask a question for information. Perhaps he would do that. He is not twisting anybody's tail except that of the House by going on as he is.
LORD BARNBY: My Lords, may I ask the noble Lord the Leader of the House whether I may repeat the question—
SEVERAL NOBLE LORDS: No.
LORD BARNBY: It is of a sufficiently important character. I would then ask: is it not considered unwise at this stage for the United Kingdom's representative to appear insufficiently opposed to the risk of a conflagration in South West Africa, particularly when the South African Government has made clear that it would oppose it with all the force at its disposal?
LORD CHALFONT: My Lords, I think I can perhaps help the House by saying that my attention and the attention of Her Majesty's Government have been drawn to the deposition which the noble Lord has mentioned, but that there is no possible justification for the noble Lord's suggestion that Her Majesty's Government have not opposed, and do not oppose, the idea of the use of force as a satisfactory solution to the situation in South West Africa.
LORD OGMORE: My Lords, may I ask the noble Lord whether his attention has been drawn to the new Constitution which the South African Government has proposed for South West Africa, and to what extent this new Constitution affects the feeling of the United Nations with reference to the territory?
LORD CHALFONT: Yes, my Lords. My attention and that of Her Majesty's Government has been drawn to all these facts, but I repeat that it is now for the
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Security Council to determine what further action is necessary in this case in the light of South Africa's response to Resolution No. 246, if indeed any is required at all. I think it would be wrong of me to bind Her Majesty's Government to any course of action in a hypothetical situation.
LORD BROCKWAY: My Lords, may I ask my noble friend (and I am asking for information) in view of the immediately critical situation where a United Nations mission is on the way to South Africa, without advocating the use of force, what proposals have Her Majesty's Government to make in order that that mission may be successful?
VISCOUNT DILHORNE: My Lords, before the noble Lord answers that question, may I ask whether it has any retation to the Question on the Order Paper with regard to the threat of using force?
LORD CHALFONT: My Lords, I must on this occasion express a certain amount of sympathy with the view of the noble Viscount. I believe that my noble friend's question does go very wide of the original Question on the Order Paper. I can only say that, in the view of Her Majesty's Government, the action that is now needed in this case is action that I hope will be taken by the Security Council, and Her Majesty's Government are prepared for the moment to leave it to them.

U.N.C.T.A.D.: NEW DELHI CONFERENCE
3.13 p.m.
LORD BROCKWAY: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what conclusions were reached by the UNCTAD conference at New Delhi.]
THE MINISTER OF STATE, BOARD OF TRADE (LORD BROWN): My Lords, with permission I will answer this Question at a convenient moment after 3.30 p.m. by repeating a Statement which my right honourable friend is giving this afternoon in another place.

VIETNAM: PROPOSED PEACE TALKS
LORD BROCKWAY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what action is being taken to encourage talks between North Vietnam, the N.L.F., and the U.S.A. to bring about a cease-fire in Vietnam.]
LORD CHALFONT: My Lords, noble Lords will be aware that the United States and North Vietnam are engaged in arranging direct contacts between themselves. It is our hope that these will lead to a complete cessation of hostilities and a negotiated settlement of the conflict. Her Majesty's Government have welcomed the moves by both sides and have reaffirmed their readiness to co-operate in any measures which would advance the prospect of a settlement.
LORD BROCKWAY: My Lords, while thanking the noble Lord very deeply for that Answer, may I ask him whether the present negotiations might not be helped if, accompanying any decision by America to stop bombing the North unconditionally, there were a cease-fire which would have the effect of no more infiltration from the North; whether, following this, there might not be suggestions of a settlement on the basis of the Geneva Agreement which would give self-determination; and, further, whether Her Majesty's Government will act in these interests with the Russians for a solution upon these lines?
LORD CHALFONT: My Lords, I do not want to prejudge in any way the form or content of any negotiations that might take place. It is our hope that the first contacts between the United States and the North Vietnamese will lead to negotiations in which the legitimate aspirations of all the people in Vietnam will be realised. I would say to my noble friend that we stand ready to help in any way that seems practical, whether through the Geneva co-chairmanship or through the United Nations, or by any other means.

VARIABLE GEOMETRY AIRCRAFT
3.15 p.m.
THE EARL OF KINNOULL: My Lords, I beg leave to ask the Question which stands in my name on Vic Order Paper.
[The Question was as follows:
To ask Her Majesty's Government how soon now they expect to make a further statement on the future of the British variable geometry aircraft project.]
LORD SHACKLETON: My Lords, it is too early to say.
THE EARL OF KINNOULL: My Lords, while thanking the noble Lord for his very full reply, may I take this opportunity of congratulating him on his promotion? While not seeking particular information, may I say that I hope his promotion will not take him too much away from the House in the future. May I ask him, in regard to the Question, whether the revised operation of the variable geometry aircraft project has yet been settled; whether it is still intended that this plane shall replace the V-bombers, and whether the time of phasing-out of the V-bombers has now been extended due to the delay in ordering a replacement?
LORD SHACKLETON: My Lords, these questions are rather wider than the original one. Of course, the whole of our operational environment has yet to be studied, and it really is too early to answer any of these questions. I am not saying that they are not important, but I am afraid that I cannot answer them at this stage.
LORD ST. OSWALD: My Lords, may I ask whether Her Majesty's Government have made any contact with the Governments of Holland, Belgium and Germany, and I believe Italy as well, who have lately, I understand, formed a committee to study the possibility of evolving the successor to the F.104? I believe that the project comes under the name of "Hornet". Since I feel that the British Government's interest would be welcomed among those countries, may I ask NO ether any contact has so far been made?
LORD SHACKLETON: My Lords, first of all may I thank the noble Earl, Lord Kinnoull, for his remarks about myself. I am not sure whether it is a promotion or a sideways move, but I hope to be as attendant as ever. I fear that I cannot give very detailed answers to questions which are not on the Order Paper, but certainly the points which the noble Lord, Lord St. Oswald, has made are under active consideration, and contact is being held particularly at the moment with the German authorities at several levels.
LORD TREFGARNE: My Lords can the noble Lord tell us how far the British project has gone in its technical development? For example, is there yet any prospect of a prototype instruction?
LORD SHACKLETON: No, my Lords, there is no settlement yet, and that is why I am afraid it is too early for me to make any statement.

GIBRALTAR DISTURBANCES
3.18 p.m.
EARL JELLICOE: My Lords, I beg leave to ask the Question of which I have given Private Notice; namely—
To ask Her Majesty's Government whether they have any Statement to make about the recent disturbances in Gibraltar.
LORD BESWICK: My Lords, my noble friend Lord Shepherd will be answering this Question in the form of a Statement at a convenient moment after 3.30 p.m.

RENT BILL [H.L.]
Report of the Amendments received.

THEFT BILL [H.L.]
3.19 p.m.
THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM): My Lords, I beg to move that this Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 2:
"Dishonestly"
2.—(l) A person's appropriation of property belonging to another is not to be regarded as dishonest—

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, or that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or

(b) (except where the property came to him as trustee or personal representative) if he appropriates the property.

(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he pays for the property.
LORD AIREDALE LORD AIREDALE moved, to leave out subsection (1), and insert:
"(1).A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that

(a) he has in law the right to deprive the other of it on behalf of himself or of a third person; or

(b) he would have the other's consent if the other knew of the appropriation and the circumstances of it; or

(c) (except where the property came to him as trustee or personal representative) the person to whom the property belongs cannot be discovered by taking reasonable steps."

The noble Lord said: My Lords, this is an Amendment to redraft subsection (1) of Clause 2. I put it down after the Minister had kindly written to me to say that he was proposing to put down the Amendment which is No. 6. It occurred to me that if that were done the subsection would have the disadvantage that it would consist of three paragraphs, (a), (b) and (c), all of which would contain the long phrase:
"if he appropriates the property in the belief that".
It seemed to me to be preferable from a drafting point of view to put those words in before branching off into paragraphs (a), (b), and (c), and that in that

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way the subsection would be much clearer. I have taken the liberty of including in the redrafted subsection the words of Amendment No. 6, standing in the Minister's name. I trust that from a drafting point of view the subsection is more satisfactory in the form in which it now appears as Amendment No. 5. I beg to move.
Amendment moved—
Page 1, line 16, leave out subsection (1) and insert the said new subsection.—(Lord Airedale.)
LORD STONHAM: My Lords, I am grateful to the noble Lord, Lord Airedale, for attempting in a helpful way to redraft this Clause. There is certainly no liberty, as he put it, to include in his redrafted version the two Amendments which I hope subsequently to move and which embody suggestions that he, and also the noble Viscount, Lord Colville of Culross, made.
There is, of course, something to be said for avoiding the repetition three times of the words "if he appropriates the property in the belief". I think it is arguable whether there is not something to be said—and I think there is —for repeating those words in each of the paragraphs, but unfortunately in his redraft the noble Lord has failed to preserve the meaning and intentions of the clause because of the position' in which he has placed the words in brackets in paragraph (c). If your Lordships will bear with me I will repeat the relevant part of the subsection as it would read
"A person's appropriation of property belonging to another is not to be regarded as dishonest if he appropriates the property in the belief that
(c) (except where the property came to him as trustee or personal representative) the person to whom the property belongs cannot be discovered by taking reasonable steps."
In the clause as drafted the words in brackets are intended to provide, in effect, that it is immaterial that the person appropriating the property had the belief referred to in paragraph (c): that is, except where the property came to him as a trustee or personal representative. Those words ought to precede and not follow the word "that". Therefore the effect of placing the words in the way the noble Lord has placed them (inadvertently, I am sure) really would create a nonsense, because it would have
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to be part of the person's belief that except where the property came to him as a trustee or personal representative, the person to whom the property belonged could not be discovered by taking reasonable steps. That is certainly not what he intended.
I hope the noble Lord and your Lordships will appreciate that this Amendment is not viable. It does not carry out what the clause intends, nor, I think, what the noble Lord, Lord Airedale, intends. Therefore it is not acceptable, and as a corollary to that I trust your Lordships will agree to keep the subsection as drafted, subject to the improvements which I hope your Lordships will agree I should make when I move Amendment No. 6.
LORD AIREDALE: My Lords, I should never wish to continue a lengthy argument, and certainly not to divide the House, on a matter of drafting. No doubt there is substance in what the Minister has just said. I think it is a great pity that one cannot draft a subsection without having three paragraphs, each of which contains quite a long expression. I have done my best to avoid that situation. I have clearly failed, and therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD STONHAM: My Lord, as I have already foreshadowed, this Amendment has a twofold purpose. First, it meets a point raised by the noble Lord, Lord Airedale, in Committee, that paragraph (a) of the subsection was confusing because it contained two separate propositions. This Amendment meets that difficulty. Secondly, the noble Viscount, Lord Colville of Culross, suggested that the Bill should make it clear that, as established in the case of R. v. Williams in 1962, a belief in a right in law to deprive another of property can be a belief in such a right to deprive him of the property on behalf of another. While, in the view of the Government there is nothing on the face of the Bill to negative the decision in R. v. Williams, we have come to the conclusion that there would be merit in an Amendment to make the position clear, and that is achieved by the reference to "a third person". I beg to move.
Amendment moved—
Page 1, line 19, leave out ("or") and insert—
("on behalf of himself or of a third person; or
() if he appropriates the property in the belief").—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I should like to thank the noble Lord, Lord Stonham, for meeting the point I made, and I hope the House will approve this Amendment.
On Question, Amendment agreed to.
LORD STONHAM LORD STONHAM moved, in subsection (2), to leave out "pays" and insert "is willing to pay". The noble Lord said: My Lords, this Amendment meets objections raised by the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, Lord Wilberforce, on the ground that "pays" was a misleading expression as "payment" implied acceptance by a willing vendor, whereas the subsection is intended to meet cases where the thief takes property which he covets from a person who is unwilling to sell, but nevertheless the thief seeks to pay for it. The subsection assumes an "appropriation of property belonging to another", and for this reason I doubt whether the word "pays" would be misleading in its context, but the Government agree that it is right to put the question completely beyond doubt, and I believe the Amendment does put the intentions of the provision beyond doubt by directing the mind to the intention of the taker. If the subsection is amended in the manner proposed it will meet the case where the offender actually pays—that is, where he leaves or sends the money—because he will clearly have been "willing" to pay, and it is his intention that matters. I beg to move.
Amendment moved—
Page 2, line 5, leave out ("pays") and insert ("is willing to pay").—(Lord Stonham.)
VISCOUNT DILHORNE: My Lords, I rise to thank the noble Lord for moving this Amendment.
On Question, Amendment agreed to.
Clause3:
"Appropriates"
3.—(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), to leave out "come by" and insert "obtained possession of". The noble and learned Viscount said: My Lords, in Committee my noble and learned friend Lord Wilberforce drew attention to the use of the words "come by". He said then that he did not know where they had been brought from, and he found a considerable cause for stumbling in the phrase "come by". He did not know what it was intended to mean, other than to give a popular look to the clause. It seems to refer to having possession, or something of that sort, and he said that to him it was unattractive and not clear. I spoke in support of my noble and learned friend and said that in all the Bills I had had to read over the years I did not remember coming across that expression. I understand that it has been used in a number of Statutes, some of considerable antiquity, but the last Statute in which it was used was in 1875; so my statement that it was well before my time that the expression appeared in any Bill was correct. It seems to me a rather slangy expression, the meaning of which is rather uncertain. I am not very interested in the number of Statutes in which it has been used in bygone days, but if "come by" is meant to mean "obtained possession of" it seems to me that it would be much better to use those words. Therefore I have put down this Amendment. I do not think there is much in it, and I hope that the noble Lord, Lord Stonham, will accept it. I do not think myself that "come by" is a very happy use of words. I beg to move.
Amendment moved—
Page 2, line 8, leave out ("come by") and insert ("obtained possession of").—(Viscount Dilhorne.)

GIBRALTAR DISTURBANCES
3.32 p.m.
THE MINISTER OF STATE FOR COMMONWEALTH AFFAIRS (LORD SHEPHERD): My Lords, with permission, I would now wish to reply to the Private Notice Question asked earlier by the noble Earl, Lord Jellicoe, in regard to recent disturbances in Gibraltar.
On April 4 a group of Gibraltarians signing themselves as "The Doves" published an open letter in the Gibraltar Chronicle suggesting a "positive solution to the Gibraltar question" to be embodied "in a contemporary AngloSpanish Treaty in substitution for the outmoded Treaty of Utrecht". There followed a number of detailed proposals which included one for the symbolical flying of the Spanish flag in Gibraltar along with the Union Jack, and they stated specifically that their proposals would not involve a transfer of sovereignty to Spain. The letter also said that its authors had been in direct touch with the Spanish Foreign Ministry. The Doves are a small group of professional and business men.
At about 11 o'clock on Saturday, April 5, a small crowd came to the Governor's residence and asked to see him. He saw three spokesmen who told him that the Doves did not represent the people of Gibraltar, had no right to negotiate with Spain and should he cautioned about their activities. The Governor said that he would take note of their representations but stressed that Gibraltar was a democracy and that freedom of thought and expression must be upheld. However, irresponsible elements in the crowd continued to incite public feeling against the Doves and their property. Before long the crowd had grown and were doing considerable damage including the overturning of a motor car and a bus. Two policemen were injured. At this point a small quantity of tear gas was used. The crowd then went to the Main Square where the Chief Minister, assisted by other elected members of the Legislative Council, attempted to speak to them. The Chief Minister talked with some of their representatives and pointed out the folly and danger of the crowd's action. With their help and that of his own colleagues he persuaded the crowd to disperse. Unfortunately, sections of the crowd led by
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a small group of hooligans began to ransack premises belonging to members of the Doves, and to overturn cars; and they also burnt a boat belonging to one of the Doves and innocent bystanders were assaulted. At this point the Governor decided, after informing the Chief Minister, to call out sufficient troops to assist in the protection of lives and property. The troops have not carried firearms but only pick handles and have been used mainly to guard points likely to attract demonstrators.
On Saturday evening the Governor spoke to the Gibraltarians on radio and television about these events. He reported yesterday, April 7, that all was then quiet in Gibraltar. Sixteen arrests were made on Saturday evening; and those accused were to appear before the magistrates' court this morning. The Governor is setting up a Commission of Inquiry under the appropriate local Ordinance. I am sure the House will join with me in deploring these disturbances, which are so uncharacteristic of Gibraltar.
EARL JELLICOE: My Lords, I am very grateful to the noble Lord for repeating the Statement being made in another place, and clearly we should await the report of the Commission of Inquiry before going into the details of this regettable incident. If I may express a personal opinion, I should like to say that in my view at least it is clear that the Gibraltar authorities, the Governor and Chief Minister, have acted with wisdom and with restrained firmness in their handling of what could have be en, or could still be, a difficult situation. Meanwhile, while having every sympathy for the people of Gibraltar in their present difficulties, and while believing in their right to determine their own destinies, I should like to echo what is said in the Statement about deploring this particular disturbance.
LORD GLADWYN: My Lords, will the Government see to it that all Gibraltarians have the right to express in a constitutional way their views, however unpopular, on the future of their country?
LORD SHEPHERD: My Lords, I am very grateful for what the noble Earl has said, and I will see that his views, which I share, are conveyed to the

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Governor and Chief Minister, who have acted with very great statesmanship in a very difficult situation. In reply to the noble Lord, Lord Gladwyn, I have not the slightest shadow of doubt what is the general view in Gibraltar, that democracy is there and that this means that people should be allowed to express their views no matter how unpopular they may be, and it is now up to all in Gibraltar to see that this can be maintained.
LORD MERRIVALE: My Lords, would not the noble Lord agree that these incidents took place in some measure through the sense of frustration and insecurity at present felt by the people of Gibraltar, due to the dilatory attitude of Her Majesty's Government, especially regarding their desire for a final Constitution since the outcome of the referendum many months ago, when they voted overwhelmingly to retain their link with this country?
LORD SHEPHERD: My Lords, I would not myself accept that as the reason behind this disturbance. I recognise the uncertainties that exist in the minds of many in Gibraltar, and we have done our best, and I thought we had succeeded, in putting at rest many of those fears. I think it would be wrong to presume what the Commission of Inquiry will find, but I would suspect that this is the activity, not of a political organisation but of hooligans.
LORD MERRIVALE: My Lords, may I ask one more question? The noble Lord referred to the proposals of these five Doves. Can the noble Lord confirm that there has been no change whatsoever in the Spanish attitude regarding sovereignty, and that therefore these proposals of the Doves are totally unacceptable to Her Majesty's Government?
LORD SHEPHERD: My Lords, I think the noble Lord's question goes a good deal wider than the Statement. There has been no departure whatsoever in the view of Her Majesty's Government in regard to Gibraltar and our own relations with Spain.
LORD MOYNIHAN: My Lords, would the noble Lord agree—he has often said in the past that one of the main reasons
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against a negotiated settlement with Spain was the lack of democracy in that country—that if one is now not able to express one's opinion in Gibraltar without threat of physical violence to oneself or one's property, Gibraltar is in danger of becoming no more democratic than Spain itself, and that they are doing a very great disservice to themselves and their case?
LORD SHEPHERD: My Lords, I would suggest to the noble Lord that he will have very great difficulty to find on record any statement by me that democracy does not exist in Gibraltar.
LORD MOYNIHAN: In Spain.
LORD SHEPHERD: I thought the noble Lord referred to Gibraltar. I think the noble Lord is going very wide of the Question. This is a Statement on disturbances in Gibraltar, and I think it would be wrong to go wider than the Private Notice Question asked by the noble Earl.

U.N.C.T.A.D.: NEW DELHI CONFERENCE
3.40 p.m.
LORD BROWN: My Lords, with the permission of the House, I should like to repeat a Statement made by my right honourable friend in another place.
"The Second United Nations Conference on Trade and Development began in New Delhi on February 1 and ended on March 29. The Conference covered virtually all subjects in the fields of trade, aid and development which affect the economic interests of the developing countries. It is too early to make a final judgment on the achievements of the Conference. But I believe that it did produce a number of positive results and in certain sectors laid the foundations for further advance.
"First, the Conference unanimously agreed on the early establishment of a system of general preferences on exports of manufactures and semi-manufactures from developing countries. This involves a major change in commercial policies as between developed and developing countries. Although this will require further intensive work, the aim is to settle the details of a mutually acceptable system in the course of 1969.

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"Secondly, the Conference made significant progress in respect of the aid target. The developed countries accepted a higher target than hitherto, namely, to try to transfer annually to developing countries resources of a minimum net amount of one per cent. of their gross national product at market prices. Previously donors had interpreted the target as one per cent. of net national income at factor cost. This new target offers the prospect of a substantial increase in the flow of resources to developing countries in the years to come.
"Thirdly, the Conference agreed that work should be put in hand to resolve the problems which still remain in devising a scheme for supplementary finance, and that measures should be worked out and presented to the Trade and Development Board next year.
"Fourthly, there was agreement on an international action programme on commodities.
"The Conference also adopted resolutions on a wide range of other topics including the terms and conditions of aid, various shipping questions, economic co-operation and regional integration among developing countries, and special measures on behalf of the least developed among the developing countries. The Conference did not, any more than did its predecessor, produce all the results for which the developing countries hoped. But it did produce certain positive achievements, whose importance in practice will now depend on the follow-up action to be taken. The British delegation played an active and indeed often a leading role in the Conference itself. Her Majesty's Government will be equally active in seeking to ensure that the detailed subsequent negotiations make a genuine contribution to the welfare of developing countries."
3.43 p.m.
LORD BROCKWAY: My Lords, while thanking my noble friend for that Statement, may I ask him whether, despite what he has said, the total effect of the Conference was not a disappointment, and did that not lead to a widening of the gulf in regard to good will between the "have" and the "have not" nations? Was not the only concrete decision that of increasing aid to one per cent. of the
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gross national product, which I recognise that this Government and this nation have already fulfilled? And did not the General Secretary say that that aid would be of little value unless the prices of commodity products were increased and preferences for manufactured goods achieved? Is this not left to the future? And will Her Majesty's Government seek to establish a ministerial conference next year which will enable these most urgent questions, which may lead to world hunger and great disruption in the world, to be settled before it is too late?
LORD BROWN: My Lords, the noble Lord is considerably too pessimistic. It has to be understood that the First UNCTAD Conference was at that time presumed as a once-for-all Conference. This second Conference is part of an ongoing series, and what that Conference has in effect done is to establish in prospect machinery that will deal with a number of the problems which over the years have been facing the developing countries. It is quite true that the high aspirations of the developing countries formed at the Algiers Conference have, to a large extent, not been met by specific decisions at this Conference, but the machinery which is going to be set up by resolution, will deal with a number of these measures this year and in the years to come; and a process has been started by this UNCTAD Conference which will lead to benefit to the developing countries in the future.
LORD DERWENT: My Lords, may I thank the Minister on behalf of noble Lords on this side of the House for repeating this Statement? I, too, am a little disappointed by the results of the Conference, but, unlike the noble Lord, Lord Brockway, I should have thought that this was a matter to be taken in stages. I personally am glad that Her Majesty's Government have taken a leading part in this effort, and perhaps they will be able to keep the continuing Conferences on the right lines.
LORD GLADWYN: My Lords, would the noble Lord say whether he thinks that there is any reasonable prospect of this country during this year, and perhaps next year, transferring, in the words of the Statement,
"annually to developing countries resources of a minimum net amount of one per cent. of their gross national product at market prices'"?
LORD BROWN: My Lords, I thank the noble Lord opposite for his remarks, with which I concur. In reply to the noble Lord on the Liberal Benches, may I say that we have accepted the one per cent. of the gross national product, which differs from the previous target, as a target, by about 25 per cent. All the developing nations have explained in conference that they cannot commit themselves to undertake this new target without drawing attention to the possible economic difficulties for them which arise from time to time. But it has been accepted as a target, and I think there is little doubt that, as a result of the acceptance of this target, many thousands of millions of additional pounds over the next few years will go in aid to the developing countries.
LORD BROCKWAY: My Lords, may I ask my noble friend whether, in further consideration, he will take into account the constructive proposals which were made in the Algiers Statement by 77 developing countries; and also the constructive proposals which have been made by the British Council of Churches in this country?
LORD BROWN: Yes, my Lords; we have taken that into account, and we shall continue to do so.

THEFT BILL [H.L.]
3.47 p.m.
Report stage resumed.
LORD AIREDALE: My Lords, if we are now returning to Amendment No. 8 to the Theft Bill, I should like to support this Amendment, which seeks to leave out the woolly phrase "come by" and to insert the much more precise expression "obtained possession of".
THE LORD CHANCELLOR (LORD GARDINER): My Lords, in the view of the Government this is an unnecessary and inappropriate drafting Amendment.
VISCOUNT DILHORNE: Order, order! With the greatest respect, surely, if the noble and learned Lord is speaking in reply to the debate, he should not do it from the Woolsack.
THE LORD CHANCELLOR: My Lords, I am much obliged to the noble and learned Viscount. I will move a few
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feet. Clause 3(1) defines the word "appropriates" in the basic definition of theft in Clause 1 as covering
"any assumption by a person of the rights of an owner",
and goes on to provide that
"this"—
that is to say, any such assumption—
"includes, where he"—
that is to say the thief—
"has come by the property (innocently or not) without stealing it, any later assumpion of a right to it by keeping or dealing with it as owner."
The object of these words is to make it theft when a person, having originally obtained property without stealing it, later does something which amounts to stealing. An example is where a finder of lost property intends at the time to return it to the owner, but later changes his mind and dishonestly keeps or sells it.
The words "come by" were chosen as a simple expression to convey the simple idea of a person's getting property by any means, other than stealing—for example, when it is given or handed to him, when he finds it, when he takes it to borrow it without intending to steal it, or however else it happens. The words "come by", your Lordships may think, seem just right to convey this idea. The noble and learned Viscount, Lord Dilhorne, said on Second Reading that this was a novelty. I know his, and Lord Airedale's, interest in words; and I think that the noble Lord, Lord Conesford, and I also have an interest in words. We do not so much like some of these modern American expressions, such as, "I guess", or "flapjack" or "to loan to" someone. But then one has to be a little careful, because if one looks into them one finds that "I guess" is straight from Chaucer; "flapjack" comes from Piers Plowman, and "to loan to" is a well-recognised Elizabethan expression. These are words and phrases which went to America with the Pilgrim Fathers, subsequently fell into some disuse here; and now from America they have come home.
The first instance of the use in a Statute of the expression "come by"—though its use in the English language may be much older—is in the Game Act 1692, which I hope is sufficiently old. It says:
"and if such person do not give a good account how he came by such hare, partridge,

21
pheasant, pigeon, fish, fowl or other game such as shall satisfy the said justice…"
and so on. This is exactly the sort of context in which the expression "come by" is used in the Bill that we are now discussing, and since the Game Act it has been used in at least a dozen other Statutes, the most material of which, perhaps, is the Larceny Act 1861. It is contained in Sections 14, 35 and 65, each of which deals with cases where property is found in a person's possession or on his premises; and the person concerned is liable to forfeit the property and be punished unless he satisfies the magistrate that he came lawfully by the same. This is just the sense in which the expression "come by" is used in Clause 3 of the Bill. Therefore I submit that it is a proper use of a well-known English phrase.
On the other hand, "obtained possession of" seems a less suitable expression. In the first place, why employ a longer and legalistic expression when a short and simple one will do? The Bill tries to use simple language, and has been praised for this, particularly by the noble Lord. Lord Foot, in the debate on the Second Reading; and there are objections to both "obtained" and "possession". "Obtained" suggests getting by doing something positive to get the property, as in obtaining by false pretences. It is hardly appropriate for where a person is mistakenly given something (as in the case of somebody being paid too much by mistake in a pay packet), and it is doubtfully appropriate to a case of finding, as it suggests obtaining from somebody. "Possession" is another legal concept, which it is unnecessary to bring in in this connection and which might give rise to argument, especially in the case of intangible property such as shares. In any event, in order that the provision should work, it will have to he understood as including "constructive" possession of the property in question—for example where a person gets the key of the place where that property is kept; and although the clause, if so amended, might well be construed in this way, there might be argument about it. Again it is legalistic: I do not suppose that anybody except a lawyer understands what is meant by "constructive" possession. On the whole, therefore, I would submit to the House that the phrase "come by" is a very
22
much more expressive and appropriate form of words.
LORD CONESFORD: My Lords, as one who has from time to time intervened on questions of language—and probably will do so again—may I declare that on this occasion I am emphatically of the same opinion as the noble and learned Lord the Lord Chancellor.
VISCOUNT DILHORNE: My Lords, I do not think that the moving of this Amendment has been a waste of time. I thank the noble and learned Lord the Lord Chancellor for dealing with it so fully. He has made it quite clear that one cannot "come by" something without being in possession of it—which to some extent elucidates the meaning of the phrase. I do not attach al1 that much importance to it. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 4:
"Property"
4.—
(4) Wild creatures, tamed or untamed shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either—
(b) he does it for reward or for sale or other commercial purpose.
LORD STONHAM: My Lords, your Lordships will recall that on the Committee stage the noble and learned Lord, Lord Wilberforce, suggested that the phrase "breach of trust" would lead to difficulties because in law it had a technical meaning and was distinguished from a breach of authority. In his view, it was the more general meaning which was required in this subsection. I agree that the word "trust" in the context of this subsection was meant to mean "confidence", and the Amendment removes any possible difficulty by substituting that word for "trust". I beg to move.
Amendment moved—
Page 2, line 27, leave out ("trust") and insert ("confidence").—(Lord Stonham.)
On Question, Amendment agreed to.
3.57 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved to leave out from the beginning of subsection (3)

23
to "other commercial purpose", and insert:
"Notwithstanding the provisions of the preceding subsections a person who picks wild flowers, mushrooms or other fungi growing wild and not cultivated or the fruits of plants growing wild shall not be guilty of stealing."
The noble and learned Viscount said: My Lords, we come now to the interesting topic of wild flowers, wild fruits and so on. Your Lordships will remember that under the clause as it now stands, subsection (3) lays down:
"A person who picks mushrooms growing wild on any land or who (without injury to the growth of the plant) picks flowers, fruit and foliage from a plant growing wild, does not…steal what he picks, unless he does it for reward or for sale or for other commercial purpose."
Last Thursday we were discussing whether dishonest appropriation should be treated as theft without proof of an intention permanently to deprive. The main argument advanced against that Amendment was that theft would then cover cases of a very trivial nature. The noble Lord, Lord Stonham, said that if he borrowed his neighbour's step-ladder when he knew that his neighbour would not like it, it would be theft, or that if he "sneaked" a book out of the public library without permission it would be theft. But nobody would accuse the noble Lord of conduct of that character in any circumstances.
He went on to give two other instances: the borrowing of a dinner jacket without permission, or the borrowing by a girl of her sister's dance frock, knowing that her sister would not like it. Then he posed a question which is pertinent to this subsection. He said:
"Do we really want these things to be theft, punishable with a penalty of up to a maximum of ten years' imprisonment?"—[OFFICIAL REPORT, 4/4/68, col. 1393.]
The noble and learned Lord, Lord Parker, took the same line. He instanced the borrowing by an au pair girl of her mistress's coat and asked whether it was proper to treat it as theft with a ten-year penalty.
I pose the same question now. Is it proper to treat the picking of a wild flower, or the picking of blackberries growing wild, as theft punishable with a maximum of ten years' imprisonment in any circumstances? The Lord Chancellor last Thursday pointed out how
24
very serious was a conviction for larceny, or theft as it now is to be called. Is it really right to expose anyone in any circumstances to the risk of prosecution and conviction for theft for picking a wild flower or blackberries, even if they are picked for reward, for sale or for commercial purposes? The police are occupied, as they should be occupied, in dealing with the really serious crimes, as was said by the Lord Chief Justice last Thursday, and I agree with him. He said that they should not have to deal with an au pair girl borrowing her mistress's coat. I ask, should the police have to deal with the picking of wild flowers?
The Criminal Law Revision Committee made the same point as the Lord Chief Justice in relation to dishonest borrowing. They said that it would be difficult for the police to avoid being involved in wasteful and undesirable investigations into alleged offences which had no social importance. Yet that Committee recommended that the picking of wild flowers should in certain circumstances be stealing. If they thought that occupying the time of the police in investigating the picking of wild flowers was not wasteful and undesirable, I beg leave to disagree with them; but I cannot see how they can contend that the picking of wild flowers has any serious social importance.
I should like to make one more quotation from the speeches last Thursday. The noble Lord, Lord Stonham, said—and I quote his words:
"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."—[OFFICIAL REPORT, 4/4/68, col. 1391.]
I shall look forward with some anticipation and keenness to hearing him argue that picking wild flowers, blackberries, and the like, is so offensive and so serious that, in order to protect society, those who do it must be made liable to conviction for theft and to a maximum of ten years' imprisonment.
I make no apology for relying on the arguments advanced by the noble Lord, Lord Stonham, and others last Thursday. Then we were discussing the dishonest appropriation of other people's property. Now we are considering a different question. We are considering whether wild flowers and blackberries, or wild plants and things of

25
that sort, should be treated as property at all, as property which can be stolen if, and only if, they are picked "for reward or for sale or other commercial purpose".
This is surely an extension, and an undesirable extension, of the criminal law, for I think I am right in saying that as the law stands at present a man cannot be convicted if he picks wild flowers, whether or not he does it for reward or for sale or other commercial purpose; that he cannot be convicted even of simple larceny, which carries a maximum of five and not ten years' imprisonment. Stealing means the dishonest appropriation of someone else's property. It seems to me illogical and wrong that wild flowers, mushrooms growing wild or blackberries, should be treated as someone else's property if, and only if, taken for sale, for reward or for a commercial purpose.
I have therefore tabled this Amendment to make it clear beyond doubt (this is the intention of the Amendment; I may be told that I have used the wrong languages; that I ought to have inserted something about how you "come by" blackberries or something of that sort) that the picking of wild flowers, mushrooms or other fungi growing wild and not cultivated, or the fruits of plants growing wild, cannot be stealing in the future, just as now it cannot be simple larceny. We do not frame our criminal law to deal with theoretical mischiefs, said the noble Lord, Lord Stonham. Is not this just what this Bill is doing here? Is the picking of a bunch of white heather by a gipsy on a moor, and picking it for sale to earn a few pennies, so offensive or serious that she must be liable to be convicted of theft under this Bill?
I would just remind the noble Lord, Lord Stonham, of one further thing he said last Thursday. He said (col. 1392):
"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 Bill here proposes an extension of the law. It is for the Government to prove that it is necessary in terms of hard realities. That was not, in my opinion, done during the Committee stage; nor was it done by the Criminal Law Revision Committee. They recommended the inclusion of this subsection (3), but it is, I
26
think, clear from their Report that it was a compromise and, as I fear is so often the case, a compromise that was not wholly satisfactory.
May I say what I envisage the position will be if this Amendment is carried, because it is somewhat important? So far as the picking of wild flowers, mushrooms or other fungi growing wild and not cultivated, and blackberries or the fruits of wild plants is concerned, that will not constitute theft. But of course the ordinary law of trespass will apply; that is to say, the occupier of the land can turn trespassers off it if he wishes. But if he does not do that, and people come on to his ground and pick blackberries off the hedges, it does not matter whether they do it to sell them and get a few pennies, or for any other purpose: They will not be liable to be prosecuted and convicted of theft, of stealing. It is the same in regard to picking mushrooms where they are not cultivated. If, in addition to this present law of trespass, some special provision is needed in relation to wild flowers, et cetera, then I feel it would be much better dealt with in a special Bill, and not in a Theft Bill such as we are now considering.
Your Lordships will note d at the words which I suggest should be inserted in place of the present subsection do not include the word "foliage", which appears in subsection (3) as it now stands. The omission is deliberate. As I understand it, the effect of Clause 4(2)(b), if it stands alone, is that if anyone comes on to land and dishonestly grubs up a Christmas tree, or cuts off the top of a tree to serve as a Christmas tree, he will be liable, if subsection (3) is omitted, to be convicted of stealing if he does it dishonestly. Similarly with holly and the cutting of boughs off trees. I know that few Christmas trees grow wild, but holly may do so. Would not that be the right solution? Would not that be the right answer? Is it not right that somebody who goes in for such conduct, cutting boughs off trees or cutting the tops off trees, whether they are growing wild or are cultivated, should be liable to he prosecuted for theft?
It is the same with holly. If someone comes and cuts holly off a holly bush or tree and takes it away, perhaps damaging the holly bush or tree a great deal, would it not be right to treat that as possibly

27
leading to a charge of theft? Is it necessary to distinguish, as the Bill does in its present form, between holly growing wild and other holly? Is there really any need to provide a special defence by subsection (3) of Clause 4—for that is what it amounts to—for the person who has taken holly which does not belong to him? It is a special defence if it can be shown that the holly bush is wild, and then it is necessary for the prosecution to show that the holly was taken "for reward or for sale or other commercial purpose".
Let me consider for a moment what will happen if a man is found taking holly out of a wood, and that is followed by a prosecution. As the Bill stands at present the prosecution, if they had no reason to suppose that the holly was not growing wild, would have to prosecute just for theft, and seek to rely on Clause 4(2)(b). But unless they could show that it was planted they would have to rely, in the alternative, upon subsection (3), in which case they would have to show the motive for which the holly was taken. In Committee we had considerable discussion about the provision that a taking should be stealing only if done for reward or for sale or other commercial purpose. The Lord Chief Justice was critical of that. He suggested that, instead of putting the burden of proof upon the prosecution, the Bill puts it on the defence. The fact that a person was found in possession of bundles of holly should be some evidence that it was for sale or reward. The noble and learned Lord the Lord Chancellor said that he thought that that was a very sensible halfway house and that he had some sympathy with the view—I quote his words:
"that in this particular kind of case it is difficult for the prosecution to be expected to discharge the onus themselves"—[OFFICIAL REPORT, 11/3/68, col. 36]
He added that he would like to consider the suggestion.
My Lords, I do not know what has happened about that suggestion. There is no Government Amendment down to deal with it. The only Government Amendment set down is one to take out the words "without injury to the growth of the plant"—words which were much criticised in Committee—with the result that, no matter how damaged the plant,
28
shrub or tree may be, it will not be theft unless it is done for reward, et cetera. While I would agree that liability to conviction for theft should not depend on whether injury is or is not done to growth, I also feel that it should not depend on the motive for the conduct. Motive is immaterial in the ordinary case of theft. That is made absolutely clear by subsection (2) of Clause 1. It seems to me, I must confess, illogical that it should be introduced in this special case.
So, my Lords, to sum up, I propose that the picking of wild flowers, mushrooms, blackberries, et cetera, shall not constitute theft in any circumstances, but that the ordinary law shall apply in relation to the taking of branches off shrubs or trees, and that, in that regard, while dishonesty and an intention permanently to deprive would have to be proved, it would not be necessary to prove that the taking was for reward, for sale or for a commercial purpose. I beg to move.
Amendment moved—
Page 2, leave out lines 42 to 47 and insert the said new words.—(Viscount Dilhorne.)
4.13 p.m.
LORD LEATHERLAND: My Lords, I am quite sure that the health of the noble and learned Viscount, Lord Dilhome, will be drunk in elderberry wine in every women's institute in the land, after the erudite speech which we have just heard. As my noble friend Lord Stonham knows, I am generally a supporter of the Bill, and I do not wish to intervene this afternoon between any views he may have on this particular clause and those which have been put forward by the noble and learned Viscount. I have troubles of my own, by way of something of a side issue to the main problem that we have been discussing. I am not concerned with the question of whether these flowers are picked for sale or reward, but I feel that some difficulty is likely to arise in the interpretation of either the clause as it now stands or the Amendment that has been moved by the noble and learned Viscount; that is to say, interpretation when this Statute-to-be is considered side by side with regulations which exist in various parts of the country.
I preside regularly in a magistrates' court which has to deal with malefactors who frequent Epping Forest. Those malefactors are necessarily of many kinds,

29
but those with whom I wish to deal this afternoon are those who pick flowers in the forest's sylvan glades. This Bill and the Amendment which the noble and learned Viscount has moved run contrary to the Epping Forest Regulations which are issued under seal by the City Corporation of London. I remember, some months ago, taking my little granddaughter for a walk in the forest, when on a sunny bank she saw some violets. She said, "I'm going to pick some violets and take them home to mother". I had to be very stern; and, with all the authority that I could command—and, my Lords, you cannot command much authority with an eight-year-old grand-daughter—I said, "I must read to you Bylaw No. 5 of the Epping Forest Regulations, which reads as follows:
'A person shall not cut, lop, dig up, fell, burn, break or otherwise do damage to trees, underwood, shrubs, brushwood, grass, gorse, fern or other plant'."
That includes holly, it includes dog roses, it includes buttercups and daisies and it includes dandelions and violets.
After I had finished reading it, she said to me, "Grandpa, what does that mean?"—and that, more or less, is the question I am putting to your Lordships' House; because this By-law is contrary to the Bill. Which of them is to prevail? Am I, when I am sitting on the Bench, to apply the regulations, or am I to apply this Bill? And when I walk into the forest, am I to obey the regulations, or am I to obey the Bill? I hope we can have that point cleared up at some stage in our discussion.
LORD HURCOMB: My Lords, before the noble Lord, Lord Stonham, replies, may I put one point to him? Legal considerations (with which I am not competent to deal) entirely apart, there is a real point about wild flowers; and although I think I agree with everything that the noble and learned Viscount has said, we are already at a point where the wholesale picking of wild flowers has a social bearing. As we all probably know from our own experience, there are areas which at this time of the year are covered with a beautiful crop of wild flowers—daffodils, or whatever they may be. If, in two or three days' time, you go to the same place, you will find that every one of those flowers has dis-
30
appeared, and all the people who were looking forward to an opportunity to see them during the Easter holiday will be disappointed.
If I may say so, I agree entirely with the argument that the proper way to cope with this problem is not by trying to define what is or is not theft, or whether the picking is done for sale or reward or otherwise, because the people who go to pick these flowers may all put them in vases on their own chimney-pieces, and may not necessarily sell thorn in the neighbouring market. But the effect is just the same. It seems to me that, as has been said, the right way to deal with the problem is by a Wild Flowers (Protection) Bill, in which appropriate penalties and appropriate machinery could be laid down, and not by trying to deal with it by some definition of theft. I do not know whether Her Majesty's Government have consulted their proper advisers on this question, the Nature Conservancy, but if not possibly they could bear in mind the advisability of doing so before the Bill gets very much further in another place.
VISCOUNT COLVILLE OF CULROSS: My Lords, I want to say only one or two things in support of my noble and learned friend Lord Dilhorne. One of them is that I have so far been wholly unconvinced by anything that the Government have said that the test, the criterion which has been introduced in this subsection—that of picking for sale, for reward or for any other commercial purpose—is the proper way by which to make action of this type criminal. I have been wholly unconvinced that it is likely to be a practical test. It was said by one noble Lord that the value of the clause as it stands might be not so much to get the people who actually steal flowers, holly or whatever it may be, but to deal with those who receive it or, in the terms of the Bill, handle it, in that they buy it and then sell it to the public. In most cases those people would be dealt with by my noble and learned friend's Amendment, because they would be receiving or handling those stolen goods, mainly under Clause 4(2)(b). So there is no great difficulty there.
But what seems to me to be the convincing argument is when one looks at what the Criminal Law Revision Committee themselves said. They said in

31
paragraph 46, when dealing with this problem, that it could not quite be dealt with in the same way as land, because there were practical considerations which were different. They said:
"They appear to be these: on the one hand a person should not ordinarily be guilty of theft by taking wild flowers and the like."
That is what my noble and learned friend is saying. They go on to say:
"On the other hand it may be right that this should be theft in some cases."
Then they give three examples. The examples are:
"cutting holly at Christmas to sell…"
There they are in agreement with my noble and learned friend; that is what he, too, says. The second example is:
"and perhaps nicking flowers which the owner of the land wants to keep in order to make sloe gin…"
That is just as laudable as Lord Leatherland's elderberry wine. But that is not caught by the clause as it stands, because unless the gin or the sloes are going to be sold commercially, it is not theft. So there is one example not covered by the drafting. It may or may not be right; but it is not covered by the Bill as it stands.
The third example is:
"…picking wild flowers which he"—
the person who owns the land—
"is anxious to preserve for their beauty or rarity."
That, too, is not covered by the Bill as drafted—not unless they are picked to be sold. As I understand it, the real trouble about having a particularly rare or beautiful wild flower is not that it is usually picked or dug up to be sold, but that it is often taken by some collector of wild flowers, some amateur botanist, who finds out where it is growing and who takes it to try to grow it himself. That is the danger with the beautiful and rare flower; it is not a question of its being sold at all.
Therefore, out of three examples given in the Report of the Criminal Law Revision Committee, the majority, two of the examples, are not covered by the Bill, while the third is covered by the Amendment of my noble and learned friend. It seems to me, therefore, that this way of dealing with it—in conjunction with the advice (with which I agree) from the noble
32
Lord, Lord Hurcomb, that wild flowers should be dealt with by special legislation—is the right way in which the matter should be handled.
LORD STONHAM: My Lords, I agree with a great deal that has been said in this debate and with nothing more than than what was said by the noble Lord, Lord Hurcomb, that there is a very real point about real flowers. On this subject in general—using the term generically; speaking not only of flowers but of all wild fruits of the countryside—I think there is a virtual unanimity of feeling about the need to protect the countryside against vandalism, be it commercial vandalism or simply thoughtless vandalism, and against the destruction of beauty. But we are not dealing to-day with a wild flowers Bill; we are dealing with Amendment No. 10 to the Theft Bill, and I must concentrate my thoughts on that. I do not know whether the health of the noble and learned Viscount will be drunk in elderberry wine by every women's institute in the country; but I know they will not drink his health under any misapprehension that it lies in my power to remove. I am going to devote my remarks to the removal of misapprehensions which have been aroused in this debate.
First, I will remove one doubt from the mind of my noble friend Lord Leatherland; because the Bill, however it goes on this point, will not override by-laws provided they are lawful under the power under which they are made. I am afraid that that means that my noble friend's granddaughter will still have to leave the violets alone; but she is only eight and therefore is under the age of criminal responsibility.
LORD LEATHERLAND: But I should have been aiding and abetting!
LORD STONHAM: My Lords, that, too, would depend on the by-laws. The noble and learned Viscount asked the question—these may not be his exact words: Is it right to expose anyone to the possibility of conviction for theft for picking wild flowers even when it is done for a commercial purpose? He put a very powerful case to convince your Lordships that it is not right. As I listened to his very eloquent speech I was astounded, indeed exhilarated, because at no time in my ten years in your Lordships' House have I been so overwhelmed

33
by the effect of my own words, of my own arguments, made on a previous occasion. Because on the last occasion on which we debated this subject the noble and learned Viscount's arguments were quite otherwise. They were then in the opposite direction. The view that he put forward during the Committee stage was that it would not matter particularly if under the Bill the dishonest taking of wild flowers was in all cases theft; as it was—
VISCOUNT DILHORNE: My Lords, the noble Lord will forgive me, but I never said that. We were talking last time about the dishonest appropriation of other people's property. Wild flowers are not, so far as I know, anybody's property at this moment.
LORD STONHAM: My Lords, I will give the noble and learned Viscount his actual words: It he refers to Hansard of March 11, 1968, column 18, he will see that he said this:
"…I doubt whether it is really necessary to make any special provision in the Bill for wild flowers, et cetera. Those who go on another person's land to pick wild flowers or blackberries may be trespassers, but it is highly unlikely that there will be any prosecution."
He was then arguing not that the taking or picking of wild flowers in this way should never be theft, as is his present argument—
VISCOUNT DILHORNE: My Lords, I am sorry to interrupt the noble Lord again. If he will look at the speech, he will see that I was dealing with the position under Clause 4(2)(b) on the assumption that subsection (3) of Clause 4 was left out. If that happens, then anyone who severs anything from the land when he is not in possession of it will be liable to be prosecuted for stealing. I said that such prosecutions were unlikely. I think it better to make the position clear.
LORD STONHAM: My Lords, I have actually quoted the noble and learned Viscount's words. May I remind your Lordships that wild flowers, growing on a person's land, are his property. In this discussion we are merely talking about a kind of property the picking of which may or may not be theft. It must be within your Lordships' recollections that the arguments that we have heard to-day—and this is why they have astonished me—are directed to the opposite effect. The previous arguments
34
would have meant—and I pointed out this position to your Lordships myself—that the picking, the dishonest picking, would have been in all cases theft; and that this would have led to the possibility of many trivial prosecutions. The noble and learned Viscount argued that that was unlikely.
Now we are asked to consider the directly opposite proposition that in no case will such picking be theft. I am commenting—and I think fairly—that we have had in the short space of a week or so two directly-opposed arguments; and it is reasonable to suppose that the compromise in the Bill, which is that this dishonest picking shall not be theft unless it is done for a commercial purpose,is the right compromise. It gives this added protection. It can be argued that there may be times when it is difficult to establish commercial purposes; but there will be many times when it wilt not be difficult to establish commercial purposes; when, for example, somebody comes along with a lorry-load of Christmas trees or holly; or when, as the noble Lord, Lord Hurcomb, said, you see a beautiful countryside denuded of flowers and go to a local shop and there see all those flowers in the shop. There is the question of whether the charge of handling might not lie with the shopkeeper.
Basically what we are considering now, therefore, is the choice between two arguments. Shall this picking in no case or circumstance be theft—which would be the dishonest picking and which would be the effect of the noble and learned Viscount's Amendment, with which I have great sympathy—or should we have the safeguard (which is in the Bill) that it can be theft if it should be done for commercial purposes? I think this safeguard in the Bill protects the countryside and protects the owner of the land against the more extreme cases, the cases of commercial exploitation.
My Lords, I come to one or two other points which were raised. I understood the noble and learned Viscount, Lord Dilhorne (he will correct me if I misunderstood him) to say, in a reference to Clause 4(2)(b), that in his view it would not be theft to lop the top of a tree.
VISCOUNT DILHORNE: My Lords, I said that it would be: I said exactly the opposite.
LORD STONHAM: My Lords, I thought I must have misunderstood the noble and learned Viscount, because, of course, it certainly would be an offence, whether subsection (3) was in the Bill or not—
VISCOUNT DILHORNE: That is what I said.
LORD STONHAM: —because such would not be "picking", it would be "severing", which is provided for in the clause.
With regard to the number of trivial offences, we are not here making such a major change in the law as has been suggested. Commercial picking can be a serious mischief, and I think that it should be dealt with. But there are offences of malicious damage where the amounts are quite small and they will be continuing. For example, it could already be theft to pick a single cultivated flower, which does cover trivial cases; and there have been prosecutions. Even now the picking of a piece of plant to the value of a shilling, wherever it is growing, in an offence under the Malicious Damage Act. This would cover, and has covered, the case of the picking of white heather, if it is sold for a shilling. My Lords, it is not outwith the bounds of possibility that there would be prosecution.
VISCOUNT COLVILLE OF CULROSS: My Lords, I am sorry to interrupt the noble Lord, but the Malicious Damage Act has not been repealed and no difference is being made there. This has nothing to do with this Bill.
LORD STONHAM: My Lords, I know; but if the noble Viscount listened to the argument of the noble and learned Viscount, Lord Dilhorne, he will recall that the noble and learned Viscount made great play with the question of small prosecutions. I am saying that small prosecutions do take place, in analogous cases under existing legislation, which is a fair point to make in answer to the noble and learned Viscount. Therefore this is what we have to decide about this Amendment. If you are happy that in no circumstances will the offence, according to the words of this Amendment, be theft, all right. But would it not be better to have a condition which is analogous, and which is what is in the Bill now, plus the possibility of prosecution
36
where it is done for commercial purposes? This seems to be right and common sense. Why remove this additional protection as the Amendment would do?
Although I do not attach the greatest importance to this point the noble and learned Viscount's Amendment, as drafted, would lead to serious doubts and create quite remarkable anomalies. It would exclude from theft the picking of:
"…wild flowers, mushrooms or other fungi growing wild and not cultivated or the fruits of plants growing wild…"
It omits plants or shrubs, except for their fruits and flowers. "Plant" is defined in subsection (3) by the words, "includes any shrub or tree" which would be left in the Bill even though the Amendment was carried. But since the Amendment applies only to fruits or plants, and to blossom if that would constitute wild flowers, it would still be possible for the picking of a branch or twig, or of foliage from a tree to be theft.
It is difficult for me to see the object of such a distinction, if indeed the noble and learned Viscount intends it. It could be a deliberate attempt to exclude from exemption the picking, for example, of wild holly, which would be profitable, but it would not have this effect because the taking of the berries—,that is, the fruit of the holly—would not be theft; and on the whole, therefore, the distinction seems to be a quite impossible one to make. In my view, there is no difference in principle between, for example, taking fruit such as blackberries against the wishes of a farmer and taking foliage.
My Lords, it comes to this. The noble and learned Viscount is proposing that these acts should not be theft, and that would be the position if his Amendment were carried. The Government suggest, for the reasons which I have given, including the last one, that it is not viable; that it would be better to leave the subsection as it is, which does not ordinarily make these acts theft but does so when they can be proved to have been done for a commercial purpose. This was the middle view taken by the Criminal Law Revision Committee, after very carefully considering the matter, and I hope your Lordships will agree that it was the right view.
4.36 p.m.
LORD CONESFORD: My Lords, I am in the unfortunate position of not

37
being happy either with what is in the Bill or with the Amendment of my noble and learned friend Lord Dilhorne. I find myself in complete agreement with what was said by the noble Lord, Lord Hurcomb. What we are trying to do, I should have thought, is to deal with the evil of the despoliation of the land by the picking of wild flowers where the pleasure or the profit of the taking does not justify the injury done to the landowner or to the public through the deprivation of beauty. It has nothing whatever to do with whether there is a commercial purpose or not. If every bluebell in a wood is taken, a commercial purpose is very unlikely. People who took bluebells in this fashion used to take them away on the back of their bicycles. I do not know whether that particular form of taking is as common as it was. Bluebells taken in those circumstances have a very short life in the home of the picker. But the injury done, the mischief done, against which the criminal law is supposed to protect the public interest, has nothing whatever to do with whether there is a commercial purpose or not.
LORD STONHAM: My Lords, perhaps the noble Lord would allow me to say that the position he describes would be exactly the same under the clause as it is in the Bill now or if the Amendment of the noble and learned Viscount were carried.
LORD CONESFORD: My Lords, that is precisely the reason why I said I was profoundly unhappy with both. That was indeed the very first sentence of my speech. I do not like what is in the Bill, and I do not like my noble and learned friend's Amendment. What I support is the speech of the noble Lord, Lord Hurcomb, who said that what we really wanted was specific legislation dealing with a particular mischief; and I should have thought that that was right.
My Lords, my noble friend Lord Colville of Culross quoted from paragraph 46 of the Report of the Criminal Law Revision Committee. The Committee went on, in paragraph 47, to say something which is also relevant. But they never, it seems to me, give any justification for making commercial purpose the distinction. It may be that noble Lords opposite think that there is always something very terrible about having a com-
38
mercial purpose in any circumstances, but I do not find anything much worse in having a commercial purpose than in having a merely selfish purpose for injuring the public interest. If the public interest is injured by taking these flowers, I cannot see that is much worse if it is done for profit in the form of money than for profit in the sense of acquiring something temporarily beautiful for your own home. The point is that one is doing something which is injurious to the public, and it is with this that the criminal law ought to be concerned.
For these reasons, I am against what is in the Bill and I am against what is in my noble and learned friend's Amendment. Both of them, if read by pickers, would prompt them to go on with this unnecessary picking of wild flowers. I entirely support the noble Lord, Lord Hurcomb.
LORD ROYLE: My Lords, I am sure the whole House will agree that the most valuable contribution on this issue this afternoon has come from the noble Lord, Lord Hurcomb, and that ultimately his suggestion must be the solution to our problem. But we have before as two choices—the terms of the clause, as it is written in the Bill and the Amendment. In spite of all the things that have been said about other legislation, which makes complications for a layman like me, I find one issue before me—that is, whether or not the commercial aspect is a greater danger to the countryside than picking wild flowers by individuals. I would say that it is a much greater menace.
I was in one of our pleasant southern seaside resorts on Saturday afternoon, and in front of one of the shops was a group of gipsies with half-a-dozen, large baskets full of small bunches of primroses. Some wood in Sussex had been badly denuded to provide that commercial enterprise. I believe it is one thing for my wife, or anybody else, to go into a Sussex wood and pick a few primroses for a small vase in her own home, and quite another for people to despoil the countryside in this way. I am sure that a wood that looked beautiful with small yellow flowers at 10 o'clock on Saturday morning had lost a lot of its beauty by noon of that same day. Many people who had looked forward to going into the woods and enjoying their beauty had that beauty taken

39
away from them for commercial purposes. That is the issue. On this matter I take the opposite side to that taken by the noble Lord, Lord Conesford. I think that there is a big difference, and I am satisfied that on this issue the Government are perfectly right. Whether subsequently we shall find the solution of the problem in the suggestion of the noble Lord, Lord Hurcomb, I do not know. I hope so.
4.44 p.m.
VISCOUNT DILHORNE: My Lords, I entirely agree with the noble Lord, Lord Boyle, about the desirability of preserving the beauties of our countryside. I have lived in the countryside as much as I can, and I agree with the noble Lord, Lord Hurcomb, about that, and with all that my noble friend Lord Conesford has said. We are all united about that. But that is not the question now. We are not dealing with a Bill to preserve wild flowers growing in the woods. We are dealing with the provision of penalties for the criminal offence of theft. The only question for us to consider here is not whether it is desirable to preserve wild flowers but whether the picking of wild flowers should in any circumstance constitute the serious criminal offence of theft.
LORD STONHAM: My Lords, not in any circumstances—it is picking them for a commercial purpose.
VISCOUNT DILHORNE: My Lords, I have used "in any circumstances" only to avoid repeating the phrase I have used so often, "for reward or for sale or other commercial purpose." I am sure that the House understands why I am saying it, because at the moment such acts are not theft. If the noble Lord doubts that, I would refer him to paragraph 45 of the Committee's Report, in which they say, dealing with the stealing of "trees or plants, or their flowers, fruit or foliage, and mushrooms and other fungi":
"These are not the subject of simple larceny under 1916 s.2, because they are `attached to the realty' within the meaning of s.1(3)".
We are here proposing an extension of the meaning of one of the most serious criminal offences—theft.
The noble Lord, Lord Leatherland, referred to regulations made for the pro-
40
tection of Epping Forest. There may be regulations and bylaws all through the country for dealing with this problem in particular places, but that is beside the question, which is: what is covered by theft? For theft, someone's property has to be stolen. As regards wild flowers and plants, I am not at all sure that they are necessarily anyone's property. That is the point I am making. It may be wrong that gipsies should pick primroses and try to earn a little money by selling them. But that may be dealt with as a minor offence. The noble Lord, Lord Stonham, said that there were already small prosecutions. I pray in aid what he said in the last debate about bringing within the scope of the crime of theft what he described as "trivial misconduct". That is what the question is here.
The noble Lord said that, whether intentionally or not, my Amendment left gaps in that it did not deal with foliage and the picking of branches. I had said, but he could not have heard it, that intentionally my Amendment did not cover that, because picking foliage or breaking off a branch seems to me a very different thing from picking a wild primrose. I said that that would be dealt with under Clause 4(2)(b), and he confirmed that. But the argument which the noble Lord put forward really astonished me. He said that if anyone cuts off the top of a trree that would be severing it, not picking it, and therefore it came under Clause 4(2)(b), but that when anyone picked a primrose or daffodil he would not be severing it, only picking it. I do not think that that will do.
The noble Lord endeavoured to make some play with what I said on the previous occasion, but if your Lordships look at my speech on that occasion you will see that I was saying throughout that we should leave out subsection (3) entirely and was considering what the position would be if that were done. From what the noble Lord said, he agrees that if we left that out and said no more, we should remove the possibility of a prosecution under this Bill for picking primroses. That is why I have put down these words, to make it clear that in no circumstances can that be theft, whatever else it may be.
We had a long discussion last time about the impracticability of proving,

41
when someone is seen coming out of a wood with a bunch of flowers, that he has picked them "for reward or for sale or other commercial purpose". It is a most unsatisfactory compromise. I agree with what the noble Lord, Lord Hurcomb, said about regard for the beauties of the countryside, but I certainly do not think that we ought to expose to the risk of prosecution for theft people who go out picking blackberries from the hedges in the countryside with a view to selling them. The issues are clear. I do not know if any further debate will add to them, and I shall ask the House to express its opinion upon this matter.
LORD REA: My Lords, may I ask one point, purely for information? It is not a debating point. In the case of grass which is growing on a wild place—that is, not in a cultivated garden—would anybody be entitled to gather it in large quanties for the purpose of making hay? Secondly, in the case of branches which have not yet sprung into foliage, some of us like the chestnut branches, which have no berries on them at all, but which when put into water branch out very pleasantly. That is not fruit, flower or foliage. Can the noble Lord explain how he views this?
LORD STONHAM: My Lords, I do not think there is any difficulty about the last example. If you lop off a branch of a tree, or sever a branch, you are
certainly severing something from the property, and it does not matter whether or not it has leaves on it. You are severing it, and that is covered by Clause 4(2)(b). I was making the point that the proposal of the noble and learned Viscount, Lord Dilhorne, would still leave it an offence just to take the leaves off, which seemed to me to be absurd. With regard to the first point, grass is a plant, and again I suppose it would depend upon the question of commercial purpose. If somebody was going to make hay, no doubt it would be for a commercial purpose.
VISCOUNT DILHORNE: My Lord, with the leave of the House, as the noble Lord, Lord Stonham, has made a second speech on my Amendment, perhaps I may add one word. Of course, if you pick leaves by themselves it would not be protected by the Amendment; but people who usually pick leaves pick the boughs. There is no one I know—perhaps the noble Lord may know differently—who picks the berries off holly without picking the boughs, as the noble Lord suggested.
4.53 p.m.
On Question, Whether the said Amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 46: Not Contents, 55.

CONTENTS

Ailwyn, L.

Craigavon, V.

Jellicoe, E.

Airedale, L.

Daventry, V.

Lucan, E.

Albemarle, E.

Denham, L.

Merrivale, L.

Alport, L.

Derwent, L.

Milverton, L.

Asquith of Yarnbury, Bs.

Dilhorne, V. [Teller.]

Nugent of Guildford, L.

Auckland, L.

Dudley, L.

Redmayne, L.

Bannerman of Kildonan, L.

Effingham, E.

St. Helens, L.

Barrington, V.

Emmet of Amberley, Bs.

Sempill, Ly.

Bessborough, E.

Falkland, V.

Simonds, V.

Birdwood, L.

Ferrier, L.

Strange of Knokin, Bs.

Blackford, L.

Fleck, L.

Swinton, E.

Brock, L.

Greenway, L.

Thurlow, L.

Brooke of Cumnor, L.

Grimston of Westbury, L.

Tweedsmuir, L.

Buckton, L.

Howard of Glossop, L.

Wilberforce, L.

Carrington, L.

Ilford, L. [Teller.]

Windlesham, L.

Colville of Culross, V.

NOT-CONTENTS

Addison, V.

Collison, L.

Grenfell, L.

Beaumont of Whitley, L.

Douglass of Cleveland, L.

Hall, V.

Beswick, L.

Faringdon, L.

Henderson, L.

Blyton, L.

Fiske, L.

Hilton of Upton, L. [Teller.]

Bowles, L.

Gaitskell, Bs.

Jessel, L.

Brockway, L.

Gardiner, L. (L. Chancellor)

Kilbracken, L.

Buckinghamshire, E.

Garnsworthy, L.

Kirkwood, L.

Champion, L.

Granville-West, L.

Latham, L.

Leatherland, L.

Plummer, Bs.

Sorensen, L. [Teller.]

Lindgren, L.

Ritchie-Calder, L.

Stonham, L.

Llewelyn-Davies of Hastoe, Bs.

Robertson of Oakridge, L.

Strabolgi, L.

McLeavy, L.

Rowley, L.

Summerskill, Bs.

Mais, L.

Royle, L.

Taylor of Mansfield, L.

Mar, E.

Sainsbury, L.

Teynham, L.

Massereene and Ferrard, V.

St. Davids, V.

Vivian, L.

Mitchison, L.

Shackleton, L.

Walston, L.

Morrison, L.

Shepherd, L.

Wells-Pestell, L.

Moyle, L.

Silkin, L.

Winterbottom, L.

Phillips, Bs.

On Question, Amendment agreed to.

5.0 p.m.
LORD STONHAM LORD STONHAM moved, in subsection (3), to leave out "(without injury to the growth of the plant)". The noble Lord said: My Lords, as drafted, subsection (3) prevents a person from being guilty of theft by dishonestly picking flowers, fruit or foliage from a plant growing wild on land, without injury to the growth of the plant, unless he does so for reward or for sale or another commercial purpose. Thus, the picker may be guilty of theft if he injures the growth of the plant, but not otherwise, unless he has a commercial purpose. That is the clause as it stands at present.
During the Committee stage there were criticisms from the noble Viscount, Lord Colville of Culross, the noble and learned Viscount, Lord Dilhorne, and others, of the whole approach in Clause 4 to the taking of wild flowers, and it was suggested that in any event criminality ought not to depend on whether or not the picking of flowers, fruit and foliage resulted in injury to the plant. The noble and learned Viscount suggested that there could be room for differences of opinion as to whether picking involved injury to a plant's growth. Having considered these criticisms, the Government have come to the conclusion that it would be reasonable to simplify subsection (3) to the extent of leaving out the words in the Amendment, and its effect, if accepted, will be that the picking of a plant cannot amount to theft, even if the growth of the plant is injured, unless of course the picking is for a commercial purpose. This Amendment slightly widens the exception to subsection (2) of the clause made by subsection (3), but the change is not thought likely to make a great deal of practical difference, and we think it worth making in order to simplify the requirements of the clause. I beg to move.
Amendment moved—
Page 2, line 43, leave out from ("who") to ("picks").—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I would simply say that I think the removal of these words is among other things going to avoid a great deal of botanical evidence at quarter sessions. I do not like the subsection as it is, but it is an improvement to take out at any rate this part of it.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (4), to leave out,
"Wild creatures, tamed or untamed, shall be regarded as property; but".
The noble and learned Viscount said: My Lords, I think it would be for the convenience of the House to take Amendments Nos. 12, 13 and 14, together. They all relate to the same subject matter. We had considerable discussion on this subsection during the Committee stage, and the noble Lord, Lord Stonham, said that he would consider all the points raised. I thought that formidable criticisms were advanced, but he has not tabled any Amendments to meet the points raised, and so we are left with the subsection as it was in Committee.
The Criminal Law Revision Committee say this in paragraph 48 of their Report:
"Whether wild creatures should be the subject of theft is a difficult question of policy. When at liberty they are not the subject of larceny, because they have no owner."
That, of course, is to say that they do not belong to anyone; they are no one's property. Now the Bill proposes to change that. It provides that:
"Wild creatures, tamed or untamed, shall be regarded as property".
Of course it is necessary to say that to make a prosecution for theft ever get on its feet at all, because you cannot be convicted of stealing unless you steal

45
someone else's property. So one understands why for the first time it is enacted that wild creatures are to be regarded as property. But of course it is not enough just to say that they are regarded as property. Under Clause 1, which defines "stealing", you have to be guilty of taking property belonging to another, and the first question I put to the noble Lord, Lord Stonham, here is this: To whom under this Bill are wild birds to belong? That question does not appear to me to be answered in the Bill at all. Clause 5 deals with belonging to another, and Clause 5(1) says:
"Property shall be regarded as belonging to a person having possession or control of it".
No one has possession or control over a bird flying through the air; nor does anyone have "any proprietary right or interest" in it, which is dealt with in the other part of Clause 5(1).
Here, again, we have proposed an extension of the existing law, and much of what I said on the last Amendment is equally applicable to this. I shall not repeat what I said, except to say again, with the authority of the noble Lord, Lord Stonham, that it is for those who seek to change the law to show that the change proposed is necessary. We have our laws for the preservation of wild birds; we have our poaching laws. Are they so inadequate that it is now necessary to extend the law of theft to cover wild creatures at liberty? I have no doubt that any changes proposed in our game laws would be most closely examined, and not least by the Party opposite, but here we have the Government proposing, in all seriousness, that a poacher should be liable to conviction as a thief, and to a maximum sentence of 10 years, if it can he proved that he has poached for reward, for sale, or for some other commercial purpose. We had a lot of discussion in Committee about the proof of motive. It will be just as difficult to prove in relation to wild animals as it would be in relation to wild flowers, and the Lord Chancellor recognised the difficulty in that connection.
I really do not think that this subsection will do in its present form. It is quite illogical, surely, that the man who poaches 50 pheasants and stores them in a deep freeze should not be liable to be convicted of theft if he uses them for
46
his own consumption or to give them to his friends, but that the man who poaches two pheasants and sells one to his neighbour shall be liable to have a conviction for theft recorded against him and be branded as a thief.
The effect of my first Amendment is to take out the words:
"Wild creatures, tamed or untamed, shall be regarded as property".
Those words are necessary only if you are going on to define whose property they are; and that is not defined. My third Amendment takes out the Words:
"or … he does it for reward or for sale or other commercial purpose".
So, if the three Amendments are carried or accepted, we are left with the clause reading as follows:
"a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession".
I suggest that the words in paragraph (a) really mean, and are intended to mean, that one cannot be convicted of stealing unless the wild animal has been reduced into possession, or is about to be reduced into possession and so belongs to someone, or is about to belong to someone. That is the right test. It does not seem to be right to extend the whole scope of the criminal law in relation to theft by saying that wild creatures, tamed or untamed, shall be regarded as property. I beg to move.
Amendment moved—
Page 3, line 3, leave out from beginning to first (a) in line 4.—(Viscount Dilhorne.)
5.11 p.m.
LORD STONHAM: My Lords, the noble and learned Viscount put a direct question to me when he asked to whom, under the Bill, do wild birds belong? For the purposes of the Bill, they belong to the person or persons who have the legal right to kill them, that is, the landowner or the person with the sporting rights. This is because that person has a proprietary right or interest in the birds within the meaning of Clause 1(5).
I am grateful to the noble and learned Viscount for reading to your Lordships how the clause would read with the three

47
Amendments. I hope your Lordships will not mind if I commence my speech by again reading how the clause would read if these three Amendments were accepted. It would read:
"A person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession."
The effect of these three Amendments is that it would be possible to steal a wild creature only in the limited circumstances at present described in subsection (4)(a), that is to say, if it had been
"reduced into possession by or on behalf of another person and possession of it had not since been lost or abandoned."
In effect, this would reproduce the existing law relating to the theft of wild creatures which have been reduced into possession. But the Bill would not extend the law, as proposed by the Criminal Law Revision Committee (I know the noble and learned Viscount objects to this) to make it theft to take a wild creature, even if it is at liberty, for reward or for sale or other commercial purpose.
In his speech to-day, as he did in Committee, the noble and learned Viscount cited the theoretical case that it would be possible for someone to take a quite large number of pheasants, but that if he put them in the deep freeze and kept them for his own consumption and did not sell them, he would not be committing a theft under the Bill, whereas a person—a poacher, if you like—who took a single pheasant and sold it would be committing theft as defined in the Bill. If may say so, I think that is an extreme example, but nevertheless I confirm that that would be the effect, and unquestionably anomalies of this kind might occur. But I do not think there is any doubt that in practice most cases of dishonest taking of wild animals on a large scale will be done for reward, sale or other commercial purpose. It seems better that a person who takes a single pheasant, or one or two pheasants, for a commercial purpose should be guilty of theft (even though another person could steal them for his own eating and get away without liability for theft), than that the Bill should not attempt to deal with large scale poaching
48
operations at all, except where they come within the limited circumstances covered by paragraph (a) of subsection (4)—circumstances which the noble and learned Viscount would preserve in his Amendment—or where they are within the scope of the special provisions relating to deer in enclosed land and fish in private waters, which are separately dealt with in Schedule 1 of this Bill, which, with minor modifications, reproduces the existing provisions of the Larceny Act 1861 relating to the poaching of deer or fish.
An indirect advantage, but I think no small one, of retaining paragraph (b) of the subsection, which the noble and learned Viscount would delete, is that where poaching is done to supply a shopkeeper, the shopkeeper will, if he knows that the animal has been stolen, be liable for handling stolen goods. This may have the valuable effect of deterring some poaching by blocking the market for the goods. The noble and learned Viscount also has the same objection to the commercial test, which we discussed on a previous Amendment. Again, while it may be difficult to prove that some borderline cases were for a commercial purpose, I believe that with animals or birds it would be far easier to prove than with flowers or foliage.
The noble and learned Viscount has argued that this matter should virtually not be in the Bill—at least, not in its present form—but should be left to the game laws. Certainly the Government will keep in mind the question of Amendments to other legislation, but they can give no kind of assurance at present on this matter. Meanwhile, just as in the previous case—but I think here even more strongly—it would be right to keep the commercial purpose; it would be right to keep paragraph (b), which the Amendment proposes to delete, so that we may have a chance of getting at the shopkeeper as well, and so stopping up the market for these goods. Therefore, I hope the noble and learned Viscount will feel able to withdraw this Amendment.
BARONESS EMMET OF AMBERLEY: My Lords, before the Minister sits down, may I ask him a question? I am rather confused about the position. If I were to run over a pheasant on the Queen's highway and I picked it up and took it home, should I be committing an offence if I

49
sold it to the local butcher but not if I ate it myself?
LORD STONHAM: My Lords, the noble Baroness is quite right.
VISCOUNT MASSEREENE AND FERRARD: My Lords, I am afraid I cannot agree with the noble and learned Viscount, Lord Dilhorne, in regard to this Amendment. Admittedly, rare birds are covered by the Protection of Wild Birds Act. I have come across instances in Scotland where people have stolen eaglets and falcons out of their nests. Although such action is covered by the Wild Birds Act, anything that can be done to strengthen the law in regard to the protection of wild birds ought to be encouraged.
Leaving the question of rare birds, there are quite a few people who trap common birds for commercial purposes. They trap game birds, also. Some unscrupulous people will trap hen pheasants and partridges, and they will trap common song birds and sell them. That is extremely cruel, of course. The noble and learned Viscount said we cannot control the birds that fly in the sky over our land. Of course we cannot: but we can control them if they are nesting on the land. As I have said, any law that can be enacted to protect wild life I most heartily endorse, and that is why I cannot agree with the noble and learned Viscount in this Amendment.
LORD HURCOMB: My Lords, I am not sure that I followed what the noble Lord, Lord Stonham, said about the position of wild birds: that they are the property of people who have a right to shoot them. It seems to me that here again one wants to distinguish between the protection of wild birds as such and the birds which are covered by the game laws. I am not at all clear that anyone has a proprietary right to shoot any bird except a game bird. But the opening words of this paragraph seem to me to give rise to wider difficulties, because it talks about "wild creatures". Zoologically, "wild creatures" certainly covers the whole animal creation, vertebrate and invertebrate, and I assume that that is what they must also mean in law, but on that point I may be quite wrong.
50
At first sight, I feel there is force in what the noble Lord, Lord Stonham, has argued, that one is giving greater protection to wild life by declaring it to be someone's property. In the past that may have been so, when the land generally was owned by the great landowners. They regarded themselves, I think, not as owners of the wild life on their land but as custodians of it, and indeed as trustees for the country as a whole. Circumstances have changed and the ownership of properties has changed, and I am rather apprehensive that a certain number of people, If they are told that the wild creatures on that land are their property, will say, "They are mine and I shall do with them whatever I please, and if I like to catch every butterfly and exterminate it or sell it, that is my affair and no one else's". Though we have wild birds protection Acts and game Acts and fisheries Acts, and though I hope we may have a wildflowers Act, it will be a long time before we get general protection for all the rest of wild creation.
My mind is torn between two arguments. Is there not a risk that we may encourage unreasonable treatment of wild life by people who say, "It is my land and they are mine, and I shall do what I like"; and, on the other hand, there is the argument—rather a different point— that one strengthens the law by making it a grave offence to steal certain parts of it? Perhaps the noble Lord will explain what the first line in this paragraph is really intended to mean and what its effect is. And may I again suggest that while this no doubt has been very carefully considered from a purely legal point of view by lawyers, some of these classes, and this one in particular, has some wider reactions; and before the Government finally decide on how the Bill should be left or put through another place they should consult their advisers on scientific subjects?
5.24 p.m.
LORD WILBERFORCE: My Lords, I was going to make very much the same sort of points as the noble Lord, Lord Hurcomb, has made. I was glad, and interested, to hear him say that no doubt this has been very well thought out from the legal point of view, though perhaps not from the wider angles. But it still

51
puzzles me from its legal aspects, because I do not really understand what the first part of this subsection (4) is trying to do. Most of the discussion has concerned pheasants but, as has been pointed out, this clause is not about pheasants; it is about, "Wild creatures, tamed or untamed", and it starts by saying they "shall be regarded as property". Very well, I take that to mean larcenable; but it does not say so. It does not say whose property; it just says property.
However, you cannot steal something unless it is property belonging to another—that is Clause 1(1). Therefore, you have to find out, in the case of these wild creatures, whether they are property belonging to another. I understand the contention to be that in relation to game animals they are regarded by virtue of Clause 5(1), as property belonging to another. That may or may not be so: I am not concerned with that point at the moment. But of course there are a great many other wild creatures—some of those mentioned by the noble Lord—which are not game animals, and which, so far as I know, are not at Common Law, or by anything in this Bill, made anybody's property. Take butterflies. I know no theory which says that a wild butterfly is the property of the owner of the land, and Clause 5(1) does not seem to say so. Yet this subsection (4) seems to say that if you capture a butterfly and do it "for reward or for sale or other commercial purpose" you are committing an offence—in other words are guilty of theft. And that applies to any other animal throughout the whole range of creation. Of course, in the case where it is "reduced into possession" or is going to be "reduced into possession" that is not difficult: it is covered by paragraph (a) and would be left by the Amendment of my noble and learned friend Lord Dilhorne. But there remain the cases where it has not been reduced into possession, where it is simply a wild creature and where it is taken "for reward or for sale or other commercial purpose"; and I, like the noble Lord, quite fail to see the implications of this.
Another consequence which I think has not been discussed, though it may have been mentioned on the Committee stage, is in regard to fish, which are the subject
52
of a separate provision—I cannot think why—in Schedule 1. They are put in Schedule 1, whereas the rest of the wild creatures are left in this Clause 4. What about the case of fish which are taken "for reward or for sale or other commercial purpose"? That does not seem to be met in Schedule 1. Even if you do it in daytime it seems you are liable not merely to the modest penalty there for angling in the day time; if the fish taken is regarded as something in which someone has a proprietory right or interest, which would be so in the case of a private fishery, it comes within subsection (2) and you are liable to the full ten years' imprisonment. I find it very puzzling to relate this clause to the other matters discussed; on the one hand, the game law, about which there is a good deal of anxiety, and, on the other, the position of fish and every kind of creatures and animals which may be on the land. I do not understand it, and I am glad to note that I am in distinguished company in not understanding it.
VISCOUNT DILHORNE: My Lords, I think we have had a most interesting discussion on this Amendment. I wish that the Government had explained more fully what they wanted to do by this particular clause. As I understood the noble Lord, Lord Stonham, he was really saying: "We want this clause to make large-scale poaching theft." The whole emphasis of his speech was on poaching, and he added as an argument that then it would he possible, if you could prove it, to "run in" the shopkeeper who had received the poached game.
In my opening I suggested that this was a curious way to strengthen the poaching laws, by branding the poacher as a thief, but it may well be that that was the prime motive of the Committee behind this clause, because I see that they said that they were themselves in favour of making all wild creatures in respect of which sporting rights exist the subject of theft like other property; that is to say, if you like, game birds. The clause goes much further than that. That was the point to which I was directing my attention when I asked: To whom do they belong to, the wild birds that fly? Take the example of the noble Viscount, Lord Massereene and Ferrard. There may be a golden eagle or two in Mull—I do not know. But if a golden eagle

53
nests on property on Mull, does the landowner claim that the golden eagle belongs to him? I should not have thought that he would have the proprietary rights in a golden eagle under this or any other Bill. Therefore you have that defect in the first part of this clause to which the noble Lord, Lord Hurcomb, and my noble and learned friend drew attention. All wild creatures are made property, and the property of someone. When I asked the question "Whose property?" the answer I received from the noble Lord, Lord Stonham, was "The property of those who have proprietary rights to shoot them". I think I have quoted him correctly, but if I have not I am sure he will forgive me.
So we are not really covering the wide field; there has been no justification for the wide scope of this clause. I personally think that it will have little practical effect, if it is passed in its present form, because I cannot believe that in the vast majority of cases where you catch poachers you will ever be in the position of being able to establish that what they did was for reward or for sale or for any commercial purpose. I do not believe that at all. The burden will be on the prosecution to prove it. The noble Lord can bring up all sorts of theories about how they can be pursued back to the shopkeeper and caught in the act of handing over. But it is not very likely.
The noble and learned Lord the Lord Chancellor, when we were discussing this same point in relation to wild flowers, said that he appreciated the point made by the Lord Chief Justice on this and would like to consider it. The noble Lord will remember that a question was raised whether the onus of proving that it was not for reward, or not for sale, or not for a commercial purpose, should be placed on the defence. The Lord Chief Justice produced what I think the noble and learned Lord the Lord Chancellor described as "a very sensible half-way house"; namely, the fact that they were in possession—he was talking of holly or whatever it may be—"and the fact that they are found, should be evidence, by which I mean some evidence, that it was for sale or reward." If the noble Lord would take that evidential burden here and put that on the defence this extraordinary subsection would have a little
54
more practical value. Although I did not raise that question on the earlier discussion, we have not as yet had any observations from the noble and learned Lord the Lord Chancellor about why he was unable to accept, or the Government were unable to accept, the suggestion made by the Lord Chief Justice about that which he thought was "very sensible". I really cannot say any more upon this particular provision. I think the answer we have had, with the greatest respect to the noble Lord, is most unsatisfactory. I do not myself propose, however, to divide the House en this Amendment.
Amendment, by leave, withdrawn.
Clause 5:
"Belonging to another"
5.—
(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
5.35 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (2), to leave out all words after "to enforce the trust". The noble and learned Viscount said: My Lords, this is a short point, and it would be convenient to take Amendments Nos. 15 and 16 together. There are three points I want to make, and I can take them quite shortly. The first is that this clause deals with what is meant by the expression "belonging to another". To my mind, it is quite inappropriate that it should contain in it anything that interprets the meaning of the words "intention to deprive". We shall shortly be coming to Clause 6. If we must have the special interpretation of "an intention to deprive", it ought to be included in that clause and not in the clause dealing with the meaning of "belonging to another". So my first point is that that part of subsection (2) which deals with what is an intention to deprive and that part of subsection (4) which also deals with an intention to deprive, are both in the wrong place. It is a mere drafting arrangement, but the interpretation could be redrafted and put in the next clause or in a separate clause.
The second point I put to the noble Lord, quite shortly, is: what is the significance of the omission from subsections (2) and (4), of the word "permanently"? Is it the case that "an intention to defeat the trust is to be regarded as an intention "permanently" to deprive? Again, I ask in this, my third point, what exactly is meant by the words "intention to defeat the trust"? My noble and learned friend Lord Wilberforce commented on those words last time, but I do not think we have any clear explanation of what they are intended to cover.
If I may come back to the second point that I made, under subsection (4) an intention not to restore property to its owners amounts, it would seem, to an intention permanently to deprive him of his property. But it seems to me that the omission of the word "permanently" from both these subsections may be given added weight and significance because of the emphasis of the word "permanently" in the following clause, if it remains in the Bill. I find myself in some difficulty in understanding what is the need for defining so closely an "intention to deprive" when the real object is to interpret the phrase "an intention permanently to deprive". I beg to move.
Amendment moved—
Page 3, line 19, leave out from first ("trust") to end of line 21.—(Viscount Dilhorne.)
LORD WILBERFORCE: My Lords, I should like to say a few words on the first Amendment about subsection (2) with reference to "the trust". I still remain in the dark as to exactly what these two and a half lines are meant to do. We start with subsection (1), which talks about property as belonging to someone if he has possession or control or proprietary right or interest; and it is to be assumed (though I am not sure the assumption is right) that that does not in itself deal with equitable interest under a trust. We then come to subsection (2), which apparently is meant to bring within the definition of "property" and the words "as belonging to any person" property subject to a trust, and no doubt also to bring within it property held on a charitable trust where there are no ascertained beneficiaries.
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I understand the first two and a half lines as bringing within the definition of "property" and of the persons who own the property, either the beneficiaries under the trust or, in the case of charitable property, someone who can enforce it. So far so good. But then what about the two and a half lines? From the fact that subsection (2) uses the word "accordingly", one gets the idea that it is merely carrying out the first two and a half lines of the subsection and not adding anything new. If so, then I think they can be dispensed with. But if it is intended to introduce something new, to add something to the first part of the subsection, I wonder what it is that these words are trying to add. One is then thrown on to the words "an intention to defeat the trust", and one asks what they mean.
There are many cases where there may be an intention to defeat a trust which relate simply to breaches of trust. For instance, there is the case where a tenant for life has some oak trees on the settled property and he cuts them down—that is an intention to defeat the trust so as to prevent the remainderman from getting the trees—or any case where specific property is held for life and then for somebody else, and where somebody may decide to sell the property to prevent the remainderman from getting the property, contrary to what the trust says. That is a breach of trust which has its appropriate remedy. But is that brought within the words,
"an intention to defeat the trust shall be regarded as an intention to deprive"?
I find those words singularly opaque in their meaning, and I thought there was merit in the noble and learned Viscount's suggestion to remove them as merely a gloss on the first part of the paragraph or, if they are not a gloss, as adding an element of which one does not appreciate the scope. As at present advised, I would support the Amendment.
5.42 p.m.
THE LORD CHANCELLOR: My Lords, subsection (2) is needed to deal with cases, admittedly comparatively rare, which sometimes arise under foreign trusts or under charitable trusts where the beneficiaries have not yet been ascertained and in which the beneficiary has in law no interest in the trust property.

57
When this was referred to on the Committee stage the noble and learned Viscount, Lord Dilhorne, said that he had no objection to the first part of the subsection, but he saw no need for the second part—that is to say, that covered by the proposed Amendment. I submit to the House that the words which it is sought to omit are needed.
The opening words of the subsection secure that a person having a right to enforce a trust is a person to whom property which is the subject of the trust "belongs" for the purpose of the definition of theft in Clause 1(1). For theft to be committed under that subsection there has to be an intention to deprive the owner of the property, and it is desirable to make clear in the Bill that an intention to defeat the trust in the circumstances covered by subsection (2) of Clause 5 amounts to an intention to deprive. This is achieved by the second limb of that subsection, and is a necessary or at least highly desirable consequence of the first part of the provision. It is true that this part of the subsection goes beyond what strictly amounts to a definition of "belonging to another", but it hinges entirely on the first part of the subsection and it would do nothing to make the Bill clearer to shift it elsewhere, solely on the ground that the clause can be argued to go rather wider than its side note. Precisely the same arguments apply to the concluding words of subsection (4) of Clause 5, which make it clear that when someone gets, by another's mistake, property which is to be regarded, for the purposes of the Bill, as belonging to the person entitled to restoration, an intention not to make restoration should be regarded as an intention to deprive that person of the property.
The noble Viscount, Lord Dilhorne, questioned the omission of "permanently" from the relevant words of subsection (2); and the same point arises on subsection (4). The word "permanently" is unnecessary in these provisions which operate, in effect, on the meaning of "depriving" in Clause 1(1). Assuming that "permanently" is in that subsection, it is still necessary to show an intention permanently to deprive for a theft to be committed in the circumstances envisaged by subsections (2) and (4) of Clause 5.
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The noble and learned Lord, Lord Wilberforce, asked what the phrase "defeat the trust" means. It means to frustrate a trust in the sense of causing it to fail to achieve its object; or, one might say, to cheat the trust by putting the property out of reach of the trust. The noble and learned Lord may feel that the fact that the expression Tray not be known to equity lawyers is not necessarily a disadvantage in this Bill where people are trying to use ordinary words.
This is not a matter of enormous import. It would be applicable only to a relatively small number of cases. It is not any brilliant idea brought forward by the Government. The clause is exactly as it was drafted by the Criminal Law Revision Committee. The Government would ask the House to reject the Amendment on the ground that, although it is not of enormous importance, it is better to have the words in the Bill than to leave them out. I am quite prepared to consider again whether it would be more appropriate to have them in some other place. There is something to be said for the view that the wording of the clause goes goes rather wider than the side note, but I respectfully ask the House not to accept the Amendment.
VISCOUNT DILHORNE: I am grateful to the Lord Chancellor for what he has said. I have never questioned the first part of subsection (2) but, despite the explanation which we have had, I still feel some qualms about the later words. I feel that, bearing in mind the wide compass of these words, any breach of trust might lead to a prosecution for theft. I do not see any limitation. If the words "intention to defeat the trust" have the wide scope mentioned by the Lord Chancellor, it would seem to me to follow that any breach of trust might fall within the purview of theft. I cannot think that that is intended. I may be wrong but I feel that this matter ought to be given a little more thought. I would make clear to the noble and learned Lord that in criticising the Bill I am not concerned to find out who is responsible for drafting a particular provision. I am merely putting forward criticisms where I think they are justified, or where the matter calls for explanation. Such an approach may be significant, since one sees that the next clause which we are coming to was not one which was recommended by the

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Criminal Law Revision Committee. In view of the fact that the Lord Chancellor has said he will give further consideration to this matter, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 6 ["With the intention of permanently depriving the other of it"]:
LORD AIREDALE LORD AIREDALE moved, in subsection (1), to leave out "amounts (or substantially amounts)" and insert "substantially amounts". The noble Lord said: This is an Amendment to Clause 6, which explains the meaning of "permanent deprivation". It mentions any dealing with property
"that amounts (or substantially amounts) to a complete usurpation …"
If we leave the subsection as it is, it will be apparent that Parliament has not made up its mind what it means. Does it mean "amounts" or does it mean "substantially amounts" to a complete usurpation? The word "amounts" is surely a more all-embracing word; and once you have said "amounts" you have included the idea of "substantially amounts". When the courts have to decide upon and interpret the meaning of this subsection, surely they will say: "It is sometimes hard enough for us to interpret a meaning which Parliament has done its best to make crystal clear, but here Parliament simply has not made up its mind what it means. What is the purpose of us, the courts, going into refinements of the distinction between what 'amounts' and what 'substantially amounts', when this is going to be of no practical importance because Parliament has used both expressions in the same subsection?"
I should have thought it imperative that before this subsection reached the Statute Book Parliament must have made up its mind what it means and intends. I imagine that the Government mean and intend the expression "substantially amounts". Therefore I am moving to leave out the words "amounts or", but I should be just as happy to have it the other way round. If for the Government's purpose the word "amounts" is enough, then clearly there cannot be any useful purpose in going on to say "or substantially amounts". All it will do
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is confuse the courts, and we must not set out to do that. I do not mind which way round we amend this subsection, but we must make our intention clear. I beg to move.
Amendment moved—
Page 3, line 40, leave out ("amounts (or substantially amounts)") and insert ("substantially amounts").—(Lord Airedale.)
VISCOUNT BARRINGTON: My Lords, I had not intended to speak but I should like, as a layman, to support very warmly my noble friend's Amendment. If we are talking about financial matters, there is a difference between an "amount" and a "substantial amount". If we are talking in legal jargon, I do not know what is the difference between "amounts" and "substantially amounts", and I should very much like to hear what is the difference, if there is one. If there is no difference, then I should like to support what my noble friend has said; that the Government mean "substantially amounts", and wish to emphasise the fact that it is something important. But if the word "amounts" itself means something important, then that will be enough. As a layman, I cannot see the object of these two meanings being put in one clause.
LORD STONHAM: My Lords, the noble Lord, Lord Airedale, suggested that without his Amendment Parliament would not have made up its mind. In my view, he is quite wrong in thinking that Parliament will not have made up its mind if the clause stays as it is, because the clause literally says that if it either "amounts" or "subtantially amounts" then the clause applies. There is no question of us not making up our minds as to the circumstances in which the clause applies. The noble Lord also argued, I think quite reasonably, that "amounts" would, as it were, include "substantially amounts", the greater including the not quite so great. While not dissenting from that argument, to put it the noble Lord's way would lose the flavour, as it were, of the subsection and give it a wrong emphasis. Its primary purpose is to deal with conduct which amounts to a complete usurpation, and the parenthesis after "amounts" conveys that there may in addition be circumstances falling short of a complete usurpation in an absolute sense, which nevertheless the clause is intended to cover.

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The point is a nice one, as are most of the points which the noble Lord, Lord Airedale, raises. But the intentions of the clause are better effected, in the Government's view, by the form of words which are now adopted in the subsection. The noble Lord is making a verbal point and is seeking the highly commendable course of reducing the number of words used. But, in my view, clarity is even better than brevity. Language, after all, consists not just of words but of phrases and sentences, and the phrase "amounts or substantially amounts" is perfectly simple. It is the kind of phrase one would use to convey the idea in ordinary writing or conversation, and in our view it conveys precisely to the courts what the Government's intention is in this clause.
VISCOUNT DILHORNE: My Lords, I listened with great interest to that reply, but I do not think it is in the least degree satisfactory. This is not just a verbal point. The noble Lord talks about clarity, but seldom have I seen in a criminal Statute such vague and imprecise language. The noble Lord must bear in mind that this is not just a question of the Bill implementing, in language the Government like to use and choose for themselves, their intention. This particular clause will have to be considered in probably nearly every case where there is a charge of theft, and it will be for the jury to consider whether what has happened substantially amounts to complete usurpation. Complete usurpation is one thing. I suppose that is clear language which the noble Lord thinks is precise. But when you say that it "substantially amounts" to complete usurpation, you mean that it
is something less than complete usurpation. So you are faced with the choice. Either it amounts to complete usurpation, or it is something less than complete usurpation. Then the question immediately arises: how much less will suffice? But on that no guidance whatsoever is given in the Bill.
Because of the reply which fin noble Lord, Lord Stonham, gave I was tempted to rise to my feet to speak in support of the noble Lord, Lord Airedale. My next Amendment seeks to remove the whole clause, and I hope that noble Lords who have heard the reply to this Amendment, and who have heard the debate will bear them in mind when considering whether Clause 6 should remain in the Bill.
LORD AIREDALE: My Lords, I have received very powerful support indeed from that last speech. This is an important subsection, because it is a definition subsection. It is a subsection which defines theft, and it must be clear and plain. This is a criminal Statute, and words in a criminal Statute which define a crime must be absolutely plain. To use words which are alternative to each other—"amounts (or substantially amounts)"—in such a subsection will merely create confusion for the courts. I am sorry to say that, having heard the Minister's reply, I could not possibly withdraw this Amendment.
6.3 p.m.
On Question, Whether the said Amendment (No. 17) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 44.

CONTENTS

Airedale, L. [Teller.]

Denham, L.

Milverton, L.

Albemarle, E.

Dilhorne, V.

Mountevans, L.

Asquith of Yarnbury, Bs.

Effingham, E.

Napier and Ettrick, L.

Auckland, L.

Emmet of Amberley, Bs.

Norwich, V.

Audley, Bs.

Falkland, V.

Oakshott, L.

Bannerman of Kildonan, L.

Ferrier, L.

Redmayne, L.

Barrington, V. [Teller.]

Greenway, L.

St. Helens, L.

Beaumont of Whitley, L.

Grenfell, L.

Strange of Knokin, Bs.

Bourne, L.

Grimston of Westbury, L.

Strathclyde, L.

Brooke of Cumnor, L.

Ilford, L.

Teynham, L.

Carrington, L.

Jellicoe E.

Thorneycroft, L.

Colville of Culross, V.

Jessel, L.

Thurlow, L.

Conesford, L.

Lambert, V.

Tweedsmuir, L.

Cork and Orrery, E.

Lucan, E.

Vivian, L.

Craigavon, V.

Massereene and Ferrard, V.

Wilberforce, L.

Daventry, V.

NOT-CONTENTS

Addison, V.

Granville of Eye, L.

Phillips, Bs.

Beswick, L.

Granville-West, L.

Plummer, Bs.

Birk, Bs.

Henderson, L.

Ritchie-Calder, L.

Bowles, L. [Teller.]

Hill of Wivenhoe, L.

Rowley, L.

Brockway, L.

Hilton of Upton, L.

Royle, L.

Burden, L.

Kilbracken, L.

St. Davids, V.

Champion, L.

Latham, L.

Shackleton, L.

Collison, L.

Leatherland, L.

Shepherd, L.

Delacourt-Smith, L.

Lindgren, L.

Sorensen, L. [Teller.]

Douglass of Cleveland, L.

Llewelyn-Davics of Hastoe, Bs.

Stonham, L.

Faringdon, L.

Lloyd of Hampstead, L.

Strabolgi, L.

Fiske, L.

McLeavy, L.

Summerskill, Bs.

Gaitskell, Bs.

Milner of Leeds, L.

Taylor of Mansfield, L.

Gardiner, L. (L. Chancellor.)

Mitchison, L.

Wells-Pestell, L.

Garnsworthy, L.

Moyle, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
VISCOUNT DILHORNE: My Lords, before I move the next Amendment, which I shall do as shortly as I can, I think the noble Lord, Lord Beswick, wishes to say something.
LORD BESWICK: I am much obliged to the noble Viscount. For various reasons, for the convenience of the House it is proposed that at around 6.30 we should have a short adjournment for three-quarters of an hour. I would propose, therefore, that at about that hour we should adjourn during pleasure, and then see if we cannot, after that time, get through this Bill this evening.
VISCOUNT DILHORNE VISCOUNT DILHORNE moved to leave out Clause 6. The noble and learned Viscount said: My Lords, as to the last part of the noble Lord's remarks, may I say that I do not think we are delaying matters at all, but there is a lot more to discuss. However, I shall move this Amendment as shortly as I can, because the substance of it has already been discussed a good deal. Of course, if I were naughty and wished to misbehave a little I would not move this Amendment at all, because this clause as it stands entirely destroys the effect of the reinsertion of the word "permanently" in Clause 1. The object of the clause is to define the meaning of the words,
"With the intention of permanently depriving the other of it".
Clause 1, subsection (3), makes it clear that it would be nonsense for anyone to contend that Clause 6 must be read and interpreted in any way as subject to Clause 1. If that argument is put forward, it will be the weakest argument that has been put forward at any time in
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our debates on this matter. If one looks at subsection (1), one sees that it provides:
"A person is to he regarded as permanently deprived of property … by any dealing with it that amounts (or substantially amounts) to a complete usurpation as against him of the property, …"
One question which I asked in Committee and which has not yet been answered is: what precisely is meant by the words "complete usurpation" in this subsection? Do they mean any more than depriving the owner of his rights in the property? I do not think they do. The phrase, "substantially amounts to a complete usurpation", as I said just now, must mean that something less than complete usurpation will suffice.
Subsection (2) provides:
" … a person … intending such a usurpation is to be regarded as having the intention of permanently depriving the other of it,"—
and I ask your Lordships to note these words at the top of page 4—
"whether or not he intends the other ultimately to have the property".
If those words mean anything, they mean that a person can be found to have an intention permanently to deprive when in fact he has not got that intention at all.
Now, subsection (2) uses the words, "intending such a usurpation". Unlike subsection (1), it does not refer to "any dealing"; nor does it contain the words, "amounts (or substantially amounts)". On any view, I cannot myself see the need for subsection (1). It appears to me to be likely to give rise only to confusion. If, in subsection (2), instead of saying, "such a usurpation", one had the words, "a complete usurpation as against that

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other of the property", the clause would operate without subsection (1). Assuming that "complete usurpation" means depriving an owner of his rights in the property, does not subsection (2) provide that anyone who takes and drives away another's car without his consent can be convicted of stealing without its being proved that he intended to deprive the owner of his car permanently? It would appear to me to be clear beyond all shadow of doubt that that is the effect of subsection (2). Would there not then be a "complete usurpation" of the rights of the owner? In the Goya matter, was it not a complete usurpation of the rights of the National Gallery? If so, and if this clause remains in the Bill, there is no need for Clauses 11 and 12, and the effect of this clause would be much better comprehended and achieved by once again deleting the word "permanently".
My Lords, the whole of this clause is a departure from the principle that there must be an intention permanently to deprive. This clause, I ask your Lordships to remember—those of you who were here; for many come in when a Division is called—was criticised by the noble and learned Lord the Lord Chief Justice, who said that he could understand many people reading "amounts (or substantially amounts) to a complete usurpation" as covering the borrowing of a bicycle or the taking of a picture or the taking of a motor car. It was criticised also by my noble and learned friend Lord Morris of Borth-y-Gest, who thought that its wording might lead to a great deal of confusion. He, too, asked what the words "amounts (or substantially amounts) to complete usurpation" meant. My noble and learned friend Lord Wilberforce also criticised the clause. Last, but not least, the noble and learned Lord the Lord Chancellor said last Thursday that he personally regarded the clause as unnecessary. So for once all the lawyers who spoke about this clause, both those in favour of the word "permanently" and those who were against it, agree that this clause is not one which is loved by anyone. If you are going to have the word "permanently" in the Bill, then I think it can make sense only if this clause goes out. I beg to move.
Amendment moved—
Leave out Clause 6.—(Viscount Dilhorne.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I want to say just a few words in support of my noble friend. When I was doing some research for the purpose of seeing whether "permanently" should or should not be in the law, it seemed to me that it was extremely difficult to see where the line was drawn. It is drawn, as I understand it, according to the facts of the case. This is usually the only criterion one can get. On the Committee stage the noble and learned Lord the Lord Chancellor—and I think the noble and learned Lord the Lord Chief Justice agreed with him—said that it was a question of drawing a line. That may be so; but no line is drawn by Clause 6. It seems to me to go completely as far as my noble and learned friend has said it goes; it seems to undo all the point of putting "permanently" in Clause 1. As for getting rid of reliance on old Case Law, it appears to me to be likely to lead to just as much new Case Law. I can see no object at all in having it in the Bill.
6.14 p.m.
LORD STONHAM: My Lords, both the noble and learned Viscount, Lord Dilhorne, and the noble Viscount, Lord Colville of Culross, have expressed a view, although not in the same words, that Clause 6, if it remains in the Bill, virtually removes the whole value of "permanent deprivation" in Clause 1. If they are right about that, I find it remarkable that they should be so anxious to get the clause out of the Bill, because we had a great fight to get the word "permanently" put back. Both noble Lords voted against putting the word "permanently" back in the Bill. Now their prime argument is that this clause, in effect, is useless—
VISCOUNT DILHORNE: My Lords, I could save the noble Lord time—
LORD STONHAM: My Lords, I can scarcely say two words without the noble and learned Viscount interrupting I should like to try to finish a sentence.
VISCOUNT DILHORNE: My Lords, I am sorry if the noble Lord takes that line. At the beginning of my speech I said that if I had wanted to be naughty, I would not have moved this Amendment. But having got the word "permanently" back, I accept that for the time being. Therefore I argued, and still

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argue, that this clause has to go out in consequence.
LORD STONHAM: My Lords, I still feel it is remarkable—
VISCOUNT COLVILLE OF CULROSS: It is consistent.
LORD STONHAM: I still feel it is remarkable that we should have this debate after the debate on Thursday.
I think it desirable to deal with this subject at some length and to explain as well as I can the Government reasons, first, for drafting the clause and, secondly, for saying precisely why we want it in the Bill and why it should stay in the Bill. In considering it, I think it is necessary to consider two issues: whether the intentions underlying the clause are right and whether it fulfils its intentions—because I think the intentions have been very widely misunderstood. The noble and learned Viscount said that there was complete unanimity among the lawyers who spoke in this House on the Bill. That is something I have never known achieved before. Therefore it is remarkable, if for no other reason than that it has achieved this unanimity among the lawyers.
The clause has its origin in certain special cases in which, under the existing law of larceny, there has been held to be theft because the offender has intended to do something with the property he has taken which, for practical purposes, amounts to "permanent deprivation" although it does not literally amount to permanent deprivation. That is the first reason. The Criminal Law Revision Committee were aware of those cases, wished them to be covered, and thought of including a provision of this kind in their draft Bill. But, in paragraph 58 of their Report, they said:
"We thought of including a provision in the Bill to bring in cases of these kinds expressly; but the view of the Committee generally was that this would be unnecessary. It would also be difficult to frame a provision which would certainly cover all the cases without being elaborate".
They put the case perfectly fairly. They thought there would be merit in framing a clause of that kind. The difficulty which Clause 6 has caused suggests that the Committee's fears about the difficulty of framing a provision were only too well justified. But when it came to preparing
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the Bill for presentation, the Government decided, for reasons which were explained during the Committee stage by my noble and learned friend the Lord Chancellor, that after consulting the Chairman and several members of the Criminal Law Revision Committee an attempt to draft the provision should be made.
Briefly, my Lords, the two reasons were, first, to make the Bill as complete a statement of the law as is practicable, bearing in mind the decision, reached since the Criminal Law Revision Committee reported, to have a comprehensive criminal code; and, second, to meet doubts expressed whether the Committee were right in their view that the previous Case Law would be applied to the Bill so as to give the reference in Clause 1 to permanent deprivation the same interpretation as the corresponding reference in the Larceny Act 1916. It is quite right that if the Committee had thought their intention would have been entirely covered by the fact that Clause 1 excluded "permanently" this Clause 6 might well not have been necessary. But in the Government's view it is not by any means absolutely certain that the courts would so interpret it.
In the same paragraph of their Report, paragraph 58, the Committee gave examples of the type of case which Clause 6 is intended to cover. Typical cases are where the taker intends to abandon the property in such circumstances that the possibility of its return to the owner is, to his knowledge, extremely remote. This is the kind of case which would substantially amount to complete usurpation where he intends to return it only after using it in such a way that it becomes useless to the owner—for example returning a railway ticket after travelling on it, or where he intends to sell the article back to the owner as being the taker's own property. The noble and learned Viscount will recall the case of the smelter who was employed to smelt ore. He took a furnace and an axle belonging to his employer, smelted it down and sold it back as ore. This is a case in Case Law, and I could read out a good many other such cases, on precisely the kind of subject which Clause 6 would cover, so obviating the reference to Case Law, but which without Clause 6 might well not have been regarded as theft.

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It has been said that in seeking to keep this clause in the Bill we have been inconsistent with our insistence on retaining the word "permanently". It hope I have made clear from the class of cases I have mentioned that we have not been inconsistent in our intention. Clause 6 is in no way intended to remove, but only to qualify, the need for an intention permanently to deprive. All it does is to preserve in substance the principles of the present law, that there may be an intention permanently to deprive notwithstanding that the offender may not positively intend the owner to lose the actual physical thing.
It will substantially amount to complete usurpation, and therefore there will be permanent deprivation, even though the actual deprivation may not be permanent. Such an act will still be theft, and that is what Clause 6 says and makes clear. An example is where the intention is to abandon a thing somewhere where the owner is only remotely likely to get it back, or even may be intended to get it back, perhaps by buying it back from the offender. Provided that Clause 6 fulfills this intention, it will be only in exceptional cases that the requirement of permanent deprivation, in the literal sense, will be taken away. But the need to qualify that principle to meet the particular and exceptional cases is, of course, no argument for abandoning it, any more than the covering of specific types of dishonest borrowing by Clauses 11 and 12, to which the noble and learned Viscount referred, is an argument for making all dishonest borrowing an offence.
If your Lordships accept that it is right to try specifically to cover in the Bill particular types of cases that I have mentioned—and I think it is right—I have to satisfy you that the clause fulfills this intention. It has been argued that it will be difficult for a court to know what the clause was meant to cover. The noble and learned Viscount referred to the remarks of the noble and learned Lord, the Lord Chief Justice, who said during the Committee stage:
"I can understand many people reading the words 'amounts … to a complete usurpation' as covering the borrowing of the bicycle or the taking of the picture or the taking of the motor car."—[OFFICIAL REPORT, 11/3/68, col. 71.]
I agree that these points were raised. The noble Lord, Lord Goodman, argued, in
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a debate on Clause 1 on the first day of our Report stage:
"If I see someone 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"— [OFFICIAL REPORT, 4/4/68, col. 1413.]
My Lords, it would clearly be disastrous if Clause 6, as draftee, went so far beyond its intention as the noble Lord, Lord Goodman, the noble and learned Viscount, Lord Dilhorne, and the noble and learned Lord, the Lore Chief Justice, have suggested. The Government have anxiously considered the danger of its being given such a wide interpretation, and whether there is a better concept of the expressed intention of the clause than the concept of complete usurpation. It would be possible to elaborate Clause 6 and to give signposts to its intention. This was something we considered not only yesterday or last week, but a long time ago. But it would be subject then to the difficulty which is always there when a large number of examples are given: that they can never be wholly inclusive and cover the whole field. This possibility could be reexamined if the House found it attractive, but the Government have certainly not been able to find any more apt concept to express the general intentions of the clause than complete usurpation.
As my noble and learned friend the Lord Chancellor explained in Committee, there are many nineteenth century cases in which an accused has been held to be guilty of larceny because he usurped the entire property in the goods. The concept, of course, is not novel. As to the meaning which might be given to the words, the Government do not think that they should be interpreted as covering all temporary acts of deprivation. An expression so strong as "completely usurp" must, we think, mean something a good deal worse than borrowing. Clearly, in considering particular cases the courts would have to draw a line between what did or did not substantially amount to complete usurpation. And it is impossible to say on which side of it a particular hypothetical case might come. But there seems no reason to fear that the line would be drawn much, if at all, differently from the way it has been drawn under existing Case Law, and we feel that we have gone on for a long time without any grave difficulties there. We

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do not accept the view of the noble and learned Viscount that it is illogical to say that the courts, in interpreting Clause 6, would have to have regard to the word "permanently" in Clause 1 and the inclusion of Clauses 11 and 12 in the Bill. The courts, in construing Clause 6, would be bound to look at it in the context of the Bill as a whole.
My Lords, we do not think that Clause 6 would create for the courts or for juries the kind of difficulties which it has been suggested it would create. We believe that this clause, as it were, adds to, supplements and explains Clause 1, and is of definite assistance. In the generality of cases it will not be necessary, but in exceptional cases it will help the courts to decide whether the position substantially amounts to complete usurpation and therefore can be regarded as permanent deprivation—theft. The Government think that it will be extremely useful, and I would ask
Resolved in the affirmative, and Amendment agreed to accordingly.
LORD STONHAM: My Lords, in relation to the announcement of my noble friend the Chief Whip, I now propose
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your Lordships to ensure that it is written into the Bill.
VISCOUNT DILHORNE: My Lords, I just want to say two words. This matter has been debated in great detail in Committee and shortly to-day. Whatever the Government's contentions may be, the Home Office here want to retain this clause. All the legal opinion expressed in the course of the debates, including that of the noble and learned Lord the Lord Chancellor, is that the clause is unnecessary. I ask the House to take the noble and learned Lord's personal view that the clause is unnecessary, and cut it out. Then it can be for the Government, if they have second thoughts, to reintroduce an amended clause.
6.30 p.m.
On Question: Whether the said Amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 42.

CONTENTS

Airedale, L.

Emmet of Amberley, Bs.

Morris of Borth-y-Gest, L.

Albemarle, E.

Falkland, V.

Mountevans, L.

Auckland, L.

Ferrier, L.

Napier and Ettrick, L.

Audley, Bs.

Gray, L.

Oakshott, L.

Bannerman of Kildonan, L.

Greenway, L.

Redmayne, L.

Barrington, V.

Grenfell, L.

St. Helens, L.

Bourne, L.

Grimston of Westbury, L.

Strange of Knokin, Bs.

Brooke of Cumnor, L.

Ilford, L.

Strathclyde, L.

Carrington, L.

Jellicoe, E.

Teynham, L.

Colville of Culross, L.

Jessel, L.

Thorneycroft, L.

Conesford, L. [Teller.]

Kinnoull, E.

Thurlow, L.

Cork and Orrery, E.

Lambert, V.

Tweedsmuir, L.

Craigavon, L.

Lucan, E.

Vivian, L.

Daventry, V.

Massereene and Ferrard, V.

Wade, L.

Denham, L.

Milverton, L.

Wilberforce, L.

Dilhorne, V. [Teller.]

NOT-CONTENTS

Addison, V.

Gardiner, L. (L. Chancellor.)

Norwich, V.

Beaumont of Whitley, L.

Garnsworthy, L.

Phillips, Bs.

Beswick, L.

Granville-West, L.

Plummer, Bs.

Birk, Bs.

Henderson, L.

Ritchie-Calder, L.

Blyton, L.

Hill of Wivenhoe, L.

Rowley, L.

Bowles, L.

Hilton of Upton, L. [Teller.]

Royle, L.

Burden, L.

Kilbracken, L.

St. Davids, V.

Champion, L.

Leatherland, L.

Shackleton, L.

Collison, L.

Lindgren, L.

Shepherd, L.

Delacourt-Smith, L.

Llewelyn-Davies of Hastoe, Bs.

Sorensen, L, [Teller.]

Douglass of Cleveland, L.

Lloyd of Hampstead, L.

Stonham, L.

Faringdon, L.

McLeavy, L.

Strabolgi, L.

Fiske, L.

Milner of Leeds, L.

Summerskill, Bs.

Gaitskell, Bs.

Mitchison, L.

Taylor of Mansfield, L.

that we should adjourn during pleasure until twenty minutes past seven o'clock.
Moved, That the House do adjourn during pleasure until twenty minutes past seven o'clock.—(Lord Stonham.)
LORD LEATHERLAND: My Lords, is it possible for anyone to oppose the Motion? If so, I should like to do so. We are confronted with a Marshalled List containing 68 Amendments. We have so far dealt with 18 of them. We were deliberately brought here to-day half an hour later than usual. We are told, also, that we have to see the whole Bill completed to-night. I think it is rather a pity that we should waste three-quarters of an hour when we have this task in front of us. It may well be that certain noble Lords—probably the noble and learned Viscount, Lord Dilhorne, and others—have other engagements, but can we not take in the meantime what I would, not disrespectfully, call some of the "non-Dilhorne" Amendments? I am opposing this Motion rather sorrowfully, but we have come here to do a job, and we want to do it, and we do not want to be here after the last trains have gone.
LORD BESWICK: My Lords, I perfectly understand my noble friend's attitude on this matter. I think we should all like to press on and get this Report stage completed as quickly as possible, but there are other considerations. I assure my noble friend that, although I happen to know that the noble and learned Viscount, Lord Dilhorne, has another engagement, it is not an engagement that has been arranged for his personal convenience: he is seeking to do a job that the Government have asked him to do. For that one reason it would be courtesy to enable him both to fulfil that engagement on behalf of the Government and to look after the Amendments that he has down on the Marshalled List.
Moreover, my noble friend Lord Stonham, who most people would recognise has taken the burden of this Bill most manfully, has been operating since a little after three o'clock; he has been in the Chamber the whole of the time, and it would be a great convenience for him at any rate to be allowed to go out of the Chamber for 40 minutes. I think, for that reason, too, the suggestion that we should adjourn until 7.20 would not be unreasonable. If my noble friend would like to have a word with me afterwards, I hope I may convince him that this arrangement is, probably for the good of
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the House as a whole, and I hope he will agree to the Motion.
On Question, Motion agreed to.
[The Sitting was suspended at 6.43 p.m. and resumed at 7.20 p.m.]
Clause 9:
Burglary
9.—(1) A person is guilty of burglary if—
(b) having entered any building or part of a building as a trespasser he commits or attempts to commit any such offence.
(2) The offences referred to in subsection (1) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm or raping any woman therein, and of doing unlawful damage to the building or anything therein by fire or explosion.
LORD STONHAM LORD STONHAM moved, in subsection (1)(b), to leave out from "he" to the end of the subsection, and insert:
"steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm".
The noble Lord said: My Lards, I hope that it will suit your Lordships' convenience if with this Amend rent I also deal with Amendment No. An Amendment, Amendment No. 20, is tabled to my Amendment No. 19, in the name of the noble and learned Viscount, Lord Dilhorne. I wonder how I should proceed—whether we should deal first with the Amendment to my Amendment.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD ST. HELENS): My Lords, I would ask the noble Lard to move his Amendment and speak to it, and immediately afterwards I would ask the noble and learned Viscount, Lord Dilhorne, to move the Amendment to the Amendment.
LORD STONHAM: My Lords, Amendment No. 19 would delete the words "commits or attempts to commit any such offence" and substitute the words on the Order Paper in paragraph (b) of Clause 9(1). The relevant part of the subsection would then read:
"A person is guilty of burglary if …
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm".

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The effect of paragraph (b) in the subsection as at present drafted is that a person is guilty of burglary if, having entered any building or part of a building as a trespasser, he commits or attempts to commit any of the offences specified in subsection (2) of the clause, that is to say, theft, inflicting grievous bodily harm, raping a woman, or doing any unlawful damage to the building or anything in it by fire or explosion. At the Committee stage some doubt was expressed by Lord Colville and Lord Dilhorne whether paragraph (b) was needed at all, and it was suggested that it would be sufficient if the offence of burglary depended on paragraph (a) in the subsection, that is to say, upon an entry as a trespasser with intent to commit one of the offences mentioned in subsection (2). It was suggested, in particular, that there was no need to provide that a person who entered a building as a trespasser and committed rape should be guilty of burglary since the offence of rape would, in any event carry a penalty—life imprisonment—greater than the penalty for burglary, which is 14 years.
The Government have carefully considered these criticisms, but are satisfied, for reasons which I gave in Committee, that paragraph (b) cannot be dispensed with altogether. Without the paragraph, it would not, for example, be possible to convict a person of burglary who had broken into a building and stolen unless he could be proved to have broken into the building with intent to steal; and it seems wrong that such a person should not be liable to the higher, 14-year, penalty for burglary rather than the 10-year penalty for theft under Clause 1. The preservation of paragraph (b) for stealing was advocated by the noble and learned Lord the Lord Chief Justice in the Committee debate.
The Government's conclusion on this paragraph is that it should be preserved not only for stealing but also for the offence of causing grievous bodily harm, which carries a maximum penalty of only five years' imprisonment compared with the maximum of 14 years' for burglary, that is, for the offence under Section 20 of the Offences against the Person Act 1861, as distinct from the offence under Section 18 of that Act of wounding et cetera with intent to do grievous
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bodily harm, which carries life imprisonment. The Amendment provides accordingly.
Amendment 21 is a consequential Amendment to subsection (2) of Clause 9. As a result of the proposed Amendment to paragraph (b) in subsection (1), subsection (2) will be relevant only to paragraph (a) in subsection (1). The Amendment provides accordingly.
Amendment moved—
Page 4, line 26, leave out from ("he") to end of line 27 and insert the said words.—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved to add to the Amendment, "or does unlawful damage to the building or anything therein". The noble Viscount said: My Lords, my noble and learned friend Lord Dilhorne has asked me to move the Amendment on his behalf, and I hope that I can do justice to it. As I understand the clause when it has added to it the two Amendments the noble Lord, Lord Stonham, has just spoken to, subsection (2) will in future relate only to subsection (1)(a). We then have a position whereby, if we leave out the part dealing with intent, which is dealt with in subsection (1)(a), there is a series of offences which come under the general category of burglary and what a person does having entered a building or part of a building as a trespasser. I know that this was discussed in Committee, but it seems to me that there is a loophole, with the drafting of Amendment No. 19, as it stands, in that if somebody, although he did not have any intent to do any damage in the building, entered it and then did some damage I understand that he would not be a burglar. If he committed no other offence than entering a building, he could then be charged only with the damage on its own and not as a burglar.
My noble and learned friend thought that somebody who went into a building without the requisite intent to come under subsection (1)(a), but when in there committed unlawful damage to the building or anything inside it, should be treated as a burglar, and that this was not dealt with in Amendment No. 19. Accordingly, although I now see that my noble and learned friend is in his place and can supplement or correct anything I

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have said, I beg to move the Amendment to the noble Lord's Amendment.
Amendment to Amendment moved—
Line 3, at end insert the said words.— (Viscount Colville of Culross.)
VISCOUNT DILHORNE: My Lords, I have not heard all that my noble friend said in moving the Amendment, but I am sure that he would have said all that I would have said. I should like, if I may, not to address the House now but to wait and hear the reply and then, with the leave of the House, which I should have to have, having risen to my feet, to say a few words.
LORD STONHAM: My Lords, I only waited to meet the noble and learned Viscount's convenience. I have moved and spoken to Amendment No. 19, but it has not yet been debated, although the noble and learned Viscount's noble friend has moved the Amendment on his behalf. As I explained, the effect of Amendment No. 19 is to change Clause 9(1)(b) so that it would be burglary, having entered a building as a trespasser, and irrespective of the intent in entering, to commit or attempt to commit certain serious offences. The effect of the noble and learned Viscount's Amendment would be to extend the offences to include unlawful damage to the building or anything in it after having entered as a trespasser. Your Lordships will be aware from the Order Paper that it is the hope of the noble and learned Viscount, the noble Viscount, Lord Colville of Culross, and myself, to persuade your Lordships, by Amendment No. 22, to delete the words "by fire or explosion". The subsection then would conclude with the words:
"and of doing unlawful damage to the building or anything therein",
which are almost precisely the words which the noble and learned Viscount wishes to add to my Amendment No. 19 now.
There is the question whether these words should also be added in this subsection so that it would also be burglary for a person, having entered a building as a trespasser, to do unlawful damage in it, even if entry with an intent to do such damage could not be proved. That is the whole point now between us. It is, of course, a clear point but a debatable point, and the Government's view is that
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on balance such an extension of paragraph (b) would widen the offence of burglary too much, and it is unnecessary. Burglary is, and ought to remain, a very serious offence, and, as I have mentioned, we already propose to widen it substantially by providing, through Amendment No. 22, that it is burglary to enter a building as a trespasser with intent to do malicious damage by any means. If the offence were further widened as Lord Dilhorne proposes, a person who trespassed in a building for some innocent purpose and then committed malicious damage there, however trivial (perhaps on impulse or because of some unexpected provocation), would be a "burgler". We think that is carrying "burglary" too far, and it seems sufficient that a person such as I have described should be liable to prosecution only for the offence of malicious damage.
Your Lordships may suggest that this leaves a gap where the intent on entering as a trespasser was to do malicious damage but the intent cannot be proved. The typical case, however, in our view, where malicious damage is done by a burglar is one where he has broken in to steal and does the damage vindictively but incidentally, perhaps because he is disappointed in his finds. It seems unlikely that a jury in such a case would have difficulty in inferring an intent to steal, and perhaps also an intent to do malicious damage, from the accused's behaviour. And if there was, in fact, no intent to do the malicious damage, the case seems to be distinguishable from the one in paragraph (b), where the trespasser inflicts grievous bodily harm, even if he did not enter with that intent. That is the explanation for which the noble and learned Viscount asked, and I hope he finds it sufficient.
VISCOUNT DILHORNE: My Lords, I am grateful to the noble Lord for what he has said. The intention behind this Amendment was not to widen the clause beyond all reasonable bounds but really to close a gap. The Amendment to which the noble Lord referred, Amendment No. 22, which is supported by such a remarkable conjunction of names, is obviously a very desirable Amendment. We need hardly say anything more about it But the effect of that is to make trespass with intent to do unlawful damage "burglary". That we are all agreed

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upon. It appeared to me that that in fact left a bit of a gap, because a man could be trespassing with intent to steal, and that clearly be his intention—let us assume that that is the case. He gets inside; he cannot find anything to steal but he finds a noble Lord's whisky—if any noble Lord has that at the present time. He consumes it, with sad effects, and does a tremendous amount of damage. It is the case, I fear, in these days that breaking and entering, as it now is, is often accompanied by an extraordinary amount of damage.
What I wanted to make sure was covered was not only the case where the man trespassed with intent to do unlawful damage, but where he trespassed with intent, if you like, to steal, and then did unlawful damage. I thought that if trespass with intent to do damage was burglary, so ought trespass followed by the actual doing of damage to be burglary. In many cases it may be difficult to prove that trespass was done with the intent to do damage. It may be that in some cases you can infer that intent from proof of the conduct of the trespasser, but you will not be able to do it in all cases; whereas you would catch all the kinds of cases I should like to see caught if we passed this Amendment, No. 20.
I am impressed by the noble Lord's point about a man being a trespasser in a building and doing a trivial amount of damage, and then being prosecuted and convicted of burglary. That is not my desire, nor is it my intention. I should hope, if this Amendment were made, that those who settle charges would not dream of preferring a charge of burglary in such circumstances. But I feel that, as the Bill stands, if Amendments Nos. 19 and 22 are made, we are left with that gap, and I should like the noble Lord, if I withdrew my Amendment, to say that he will give further consideration to it. I do not think there is anything between us on policy. I think that to limit it to Amendment No. 22 alone is really not quite sufficient to do the whole of the job.
LORD STONHAM: My Lords, I will certainly look at the point the noble and learned Viscount has suggested. As to the two examples he gave, as I see it, on the first one the man had an intent
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to steal and so would be caught by paragraph (a); and on the second one he stole the whisky and he would be caught by paragraph (b). But obviously there may be other examples, and I will certainly look at it as the noble and learned Viscount has suggested.
VISCOUNT COLVILLE OF CULROSS: My Lords, in that case I beg leave to withdraw the Amendment to the Amendment.
Amendment to Amendment, by leave, withdrawn.
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment No. 21.
Amendment moved—
Page 4, line 28, after ("(1)") insert ("(a)"). —(Lord Stonham.)
On Question, Amendment agreed to.
7.38 p.m.
LORD STONHAM LORD STONHAM moved, in subsection (2), to leave out "by fire or explosion". The noble Lord said: My Lords, I beg to move Amendment No. 22. The noble and learned Viscount suggested that this Amendment was supported by such an array of talent that it did not need discussion but I can hardly expect your Lordships to accept that, since my name appears among the three. I would therefore briefly say that the effect of the Amendment is to widen the clause so that it would, among other things, be burglary to enter any building or part of a building as a trespasser with intent to do unlawful damage to the building or its contents by any means. At present the subsection is limited to damage by fire or explosion.
It was suggested by the noble and learned Viscount, Lord Dilhorne, and particularly by the noble Lord, Lord Conesford, during the Committee stage that people sometimes break in to do damage otherwise than by fire or explosion and there seems no reason for restricting the provision to damage of this kind. It seemed to me that the arguments were unanswerable and that this Amendment was badly needed, and I hope that your Lordships will accept it.
Amendment moved—
Page 4, line 32, leave out ("by fire or explosion").—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, may I just say that I entirely agree with the noble Lord, and I, for one, shall be very glad to accept it.
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment No. 23. This would make subsection (3) of Clause 9 read thus:
"References in subsections (1) and (2) above to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is".
Those of the faithful few who were here at the time will remember the noble Viscount, Lord Colville of Culross, raising the point that a vessel or vehicle can be inhabited, even if nobody is in it when it is burgled, and the words of the Amendment have been chosen to meet that valid point. I beg to move.
Amendment moved—
Page 4, line 34, at end insert (",and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.")—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I should like to thank the noble Lord, Lord Stonham, once again for meeting this point. It only shows how much better it is done when the draftsman does it than when I try to do it myself.
LORD AIREDALE: My Lords, I had intended to put down an Amendment to this Amendment and I am sorry to say I forgot to do so. Perhaps I may briefly mention the point in case the House may decide that an Amendment at the next stage would be useful. My suggestion in this Amendment would have been, instead of referring to "the person having a habitation" in the vehicle, that the wording should be
"any person having a habitation in the vehicle".
It occurred to me that it might be difficult in some cases to define the particular person who might have habitation. For instance, one might have a company of hauliers who had a large number of long distance lorries which were lived in by the drivers, but no particular driver would be allocated to one particular vehicle. There would be a pool of
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vehicles and a pool of drivers, and any driver might, on any night, be inhabiting any of the company's vehicles. That would create a difficulty if it was necessary for the purpose of this clause to have to identify a particular person and say, "This particular person has a habitation in this particular vehicle". Therefore I think it might be useful, instead of saying "the person", to say "any person". It would make the task of prosecutors much easier in cases of that kind. That may be worth looking at with a view to a possible further Amendment to this Amendment at the next stage.
LORD STONHAM: My Lords, in the example quoted by the noble Lord I think the words "the person" would have covered the long-distance lorry drivers or any one of them who was entitled to have a habitation there at the particular time. But certainly I will look at that point between now and the next stage.
On Question, Amendment agreed to.
Clause 11 [Removal of articles on show in buildings open to public]:
VISCOUNT DILHORNE: My Lords, I move this Amendment with the greatest confidence because I see the first part—I will not say the better part—of the next Amendment in the name of the: noble Lord, Lord Stonham, is to the same effect. I beg to move.
Amendment moved—
Leave out Clause 11.—(Viscount Dilhorne.)
On Question, Amendment agreed to.
7.46 p.m.
LORD STONHAM LORD STONHAM had given notice of an Amendment to omit Clause 11 and to insert instead:
Removal of articles from places open to the public
11.—(1) Subject to subsections (2) and (4) below, where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or part of any article displayed or kept for display to the public in the building or that part of it or in its grounds shall be guilty of an offence.
For this purpose 'collection' includes a collection got together for a temporary purpose, but references in this section to a collection do not apply to a collection made or exhibited for the purpose of effecting sales or other commercial dealings.
(2) It is immaterial for purposes of sub-section (1) above, whether a thing removed from a building or its grounds is removed at a time when the public have access to the building as mentioned in that subsection; but a person removing anything from a building or its grounds shall not thereby commit an offence under that subsection unless either—

(a) he does so by the use of some opportunity or information obtained by visiting the building as a member of the public admitted for the purpose so mentioned; or

(b) the thing removed forms part of a collection intended for permanent exhibition to the public.

(3) A person does not commit an offence under this section if he believes that he has lawful authority for the removal of the thing in question or that he would have it if the person entitled to give it knew of the removal and the circumstances of it.
(4) A person guilty of an offence under this section shall, on conviction on indictment, be liable to imprisonment for a term not exceeding five years."
The noble Lord said: My Lords, this new clause is intended to replace the existing Clause 11. Incidentally, the existing clause was substantially amended in Committee, and the intention of those Amendments was the removal from the clause of the "commercial test" to which substantial, and I think valid, objections were taken. As originally introduced, the clause applied only where the object of admitting the public to the building was not a commercial object, and "commercial object" was defined in subsection (2) of the clause, which was one of the provisions deleted during the Committee stage. The noble and learned Viscount, Lord Dilhorne, argued that criminality should not depend on whether or not a building was open for a commercial purpose, and suggested that the courts would have great difficulty in deciding whether a building was or was not open for a commercial purpose. It was also argued during the debate, by the noble Lord, Lord Conesford, that the principle should be to protect objects of artistic merit wherever they might be, and by the noble Lord, Lord Airedale, that protection should be given to objects in the gardens of a building or in the open air generally. The "commercial test" in the clause as introduced was intended to put a limit on the scope of the clause by confining it to places not opened for the purpose of making money. There was no evidence that a provision of this kind was needed for wider purposes, and in the Govern-
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ment's view it was not desirable that the clause should go farther than was strictly necessary to make the temporary taking of articles stealing. In the light of the debate in Committee, the Government have decided that it would be reasonable for the clause to go rather wider than they originally proposed, but they cannot accept the clause as amended in Committee because, as it now appears in the Bill, it is far too wide. It would apply to any building to which the public had access in order to view the building or part of it or any of its contents, and would extend not only to art galleries (public and private), museums and similar places where objects of art or of special interest to the public are displayed, but also to places such as shops, auction rooms and exhibitions of manufactured products where the public go to view the "contents" of the building and where articles are "displayed".
Thus, someone going into a shop to look around, or perhaps to make some trivial purchase, would be within the scope of the clause if he took away an article displayed or kept for display, even if he did not intend to keep it. This would, in effect, enable people taking things from shops to be prosecuted and convicted, under the clause, without the need, as in the case of theft, to show an intention permanently to deprive the owner of his property. It would be giving the clause a scope far outside its intention of dealing with the mischief discussed by the Criminal Law Revision Committee in paragraph 57(ii) of their Report, and would be inconsistent with the Committee's view, with which the Government agree, that there should be only limited exceptions to the general principle reflected in the Bill, as in the present law, that temporary deprivation of property should not be stealing or any other offence.
The new clause therefore offers a compromise between the clause as originally drafted and the clause as it now stands. Subsection (1) states the general proposition that where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who, without lawful authority, removes from the building or its grounds the whole or any part of any article displayed or kept for display to the public in the building

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or its grounds shall be guilty of an offence. "Collection" is defined to exclude collections made for the purposes of effecting sales or other commercial dealings, the object being to exclude, for example, collections of articles in shops and for sale in commercial galleries, and collections in exhibitions for advertising purposes where the articles displayed are specimens of articles for sale. Subsection (1) thus makes the exclusion, which the Government think essential, of shops, auction rooms, and so on, while at the same time meeting critics of the original clause by dispensing with the test that, whatever the nature of the building, the object of admitting the public to it must not be commercial. One effect of the change is that, subject to subsection (2), the clause will now protect articles in private collections even if they are opened to the public for the purpose of making money in excess of the cost of upkeep.
Your Lordships may wonder why we have used the term "collection" and not "contents". The virtues of using "collection" in the subsection are, first, that it helps Ito indicate the intended purpose of the clause—that is, to protect articles which have been got together as objects of artistic or other merit or of public interest—and, secondly, that it facilitates the exclusions made by the definition of "collection" in the latter part of the subsection. If "contents" were substituted, it would be necessary to change the second part of the subsection for the purpose of excluding the contents of shops; and it would be difficult to do this satisfactorily on the scheme of the clause.
It may be objected that sometimes the things which the public are admitted to view do not amount to a "collection or part of a collection", or that the public are sometimes admitted to view a single object, such as a painting. For example, works of art or beautiful furniture may have been assembled in a stately home over many generations for ornament or utility and not as a "collection"; but if the contents are preserved together, to be viewed as the contents of the house, so to speak, it is thought that they would undoubtedly be regarded as a "collection" for the purpose of the clause.
Moreover, this objection overlooks the fact that the clause applies in any event
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where the public have access to view the building or pant of it. This will cover buildings such as "stately homes" and churches which are open to view by the public as buildings, although they may also contain articles on display.
The clause as introduced does not require the taking to be dishonest because it was thought to be implicit in the form of the clause that the taking would be done without lawful authority. The new clause makes it clear that the taking must have been done "without lawful authority", and subsection (1) provides accordingly. The notion of "without lawful authority" seems preferable in this context to the notion of "dishonesty", and it keeps the clause so far as possible, in line, on this point, with Clause 12, the other provision in the Bill dealing with temporary deprivation, which uses the formula "without having the consent of the owner or other lawful authority". The notion of "consent of the owner" would be inappropriate in Clause 11 in relation to some of the buildings or types of buildings covered.
It will be noted that the subsection extends to articles in the grounds as well as in the building. This provision meets the criticism made at the Committee stage by Lord Airedale, that the gardens of buildings on show to the public are equally on show with the buildings, and that objects are also at risk there.
Subsection (1) is subject to subsection (2), which seeks to deal with the difficulty that, while some places within subsection (1) will be open to the public regularly throughout the year, others will be open only occasionally or irregularly, or at particular seasons. In the Committee stage the consensus of opinion appeared to be that where there was a permanent exhibition to the public, such as in the National Gallery, the protection of the clause should be available irrespective of whether the person taking away the article did so by the use of some opportunity or information obtained when visiting the building as a member of the public. The Government are content that the clause should be widened accordingly. But if the same approach were adopted to, for example, a stately home which was open for only a few days a year, the clause would create an indefensible anomaly. A place which happened to be open to the public on a day or two a year (as

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it might be in aid of charity) would then be protected against the taking away at any time, 365 days a year and in circumstances which might have no connection with access by the public, of any article displayed in it when it was open, although a home which was never open to the public would have no protection under the clause. The difference between complete protection and none would depend on the almost fortuitous circumstance whether the place was opened to the public for one day in the year.
Those who want Clause 11 to be very wide, or all dishonest borrowing to be an offence, may say that they agree that this would be indefensible but that the remedy is to give the protection of the clause to works of art and the like whether or not they are kept in buildings open to the public at some or all times. The Government do not think that this would be right. The essence of the clause is to protect things which are put at hazard by being displayed to the public, and it would be going too far in the direction of making temporary deprivation an offence to apply the clause to articles to which the public had no access.
Moreover, it would be very difficult to draft a provision which caught precisely the type of articles forming part of the national heritage which proponents of a wide clause would wish to see covered. How, for example, would it be possible to distinguish from paintings, books, vases, and the like, of little value, the rare and precious objects which it was desired to cover? If, on the other hand, the clause were extended to every painting, book or ornament in private possession, there would be no logical reason why it should not extend to every article in private possession, making the clause, in effect, co-extensive with theft. The Government are therefore convinced that, for places not permanently open to the public, the clause must contain some limiting principle. Subsection (2) has been drafted accordingly. It provides that it is immaterial whether a thing removed from a building to which the clause applies, or from its grounds, is removed at a time when the public have access to the building, but that, except where the thing removed forms part of a collection intended for permanent exhibition to the public, there is no offence
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under the clause unless the article is removed by the use of some opportunity or information obtained by visiting the building as a member of the public. Thus, if the thing removed forms part of a collection intended for permanent exhibition to the public—as, for instance, the collections in the great national museums and art galleries—there will be full protection under the clause at all times. But if the collection does not come in that category there will be protection only if, in effect, there has been abuse of the privilege of entry given to the public.
I am aware that there are many who think this clause is entirely unnecessary, but in my own view it provides a useful addition to the law. It can, of course, be argued that the jury in the Goya case were wrong and that they should have convicted. It may well be so; but juries give verdicts: they are there to give verdicts, and the Goya case verdict had the effect that the man accused was not convicted of the theft of the Goya. With this clause he would undoubtedly have been convicted of an offence punishable with imprisonment up to five years. It is not only the National Gallery; it is not only the Goya, that would be covered. I believe that this clause will give to houses which are part of our national heritage, and their contents, a very wide range of protection which they never had before. I think it is a worthwhile clause, and I hope your Lordships will agree to its inclusion in the Bill. I beg to move.
Amendment moved—
After Clause 11, insert the said new clause. —(Lord Stonham.)
7.57 p.m.
VISCOUNT DILHORNE VISCOUNT DILHORNE, as an Amendment to the Amendment, in the proposed new subsection (2), to leave out from "unless" to the end of paragraph (a). The noble and learned Viscount said: My Lords, I am sure the whole House is grateful to the noble Lord for so clearly explaining what this new clause is meant to do. If ever there was a case where a hard case made bad law the noble Lord is trying to achieve it by introducing this clause into the Bill. For the purpose of making my argument I must deal a little with what the noble Lord said about the

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clause in general. Of course, we recognise that this is a clause introduced to secure the conviction of anyone else who wants to follow the example of the man who took the Goya. Whether or not the jury were perverse in acquitting that man is a subject on which I should not like to express an opinion. But bearing in mind that they had to be satisfied that he intended permanently to deprive, if they were not satisfied then I think their verdict was right. So we have this clause which takes out that element entirely and which proposes to put certain buildings and their contents in a special category so far as the law is concerned.
The noble Lord spent a lot of time in dealing with subsection (1). I was glad to hear him deal with the use of the word "collection" and not with the word "contents". I will not comment on that at the moment, because, as I understand him, he is satisfied that if you are going in to view a building or part of it you cannot view the contents without seeing part of the building, and that will accordingly be covered.
But when he comes to subsection (2) and says, "We must limit this, because otherwise someone who has his house open to the public will get the protection of this clause for 365 days in the year"., there I am afraid I disagree entirely with his reasoning. Subsection (2) provides:
"It is immaterial for the purposes of subsection (1)…whether a thing removed from a building or its grounds is removed at a time when the public have access to the building as mentioned in that subsection."
That is made perfectly clear. But what practical value is this clause going to be to a house owner who throws open his house for admission to the public if, under this clause, he can get a conviction only if he proves that the removal by the accused of some object of value from his house was
"by the use of some opportunity or information obtained by visiting the building as a member of the public admitted for the purpose so mentioned."?
The inclusion of those words destroys almost entirely, if not entirely, the good effect, if there he a good effect, created by the earlier part of the clause. The inclusion of those words destroys the argument of the noble Lord, Lord Stonham.
And—mark the difference—that particular condition in paragraph (a) is not to apply where the thing removed
"forms part of a collection intended for permanent exhibition to the public".
So the National Gallery, the Tate Gallery and other galleries like that have only to prove that the article has been removed. But when it comes to the owner of one of our stately homes—I do not have one —who throws it open to the public so that they may come and see the lovely things which have been accumulated there throughout the ages, he, for some quite illogical reason, is not given the same protection for things which may be just as valuable, if not more valuable, as a part of our national heritage. It really is an astonishing proposition to me.
Why is it put forward? Because, said the noble Lord, in a voice full of horror, "If you do not have this provision in the Bill you would be giving protection to the stately homes for 365 days of the year." I should have thought that that was what you wanted. If you come down to it, how are you going to prove this? A man or woman comes round the house which is open to the public, sees where the things of value are, goes away, maybe miles away. Six months later, a man who has obtained from that person the information about the house, the layout and everything else, goes back to it and removes this article. If he is unwise enough to remove it from a place where it is on permanent exhibition he will be convicted. But under this clause you will not get a conviction by showing that he removed the article from a stately home unless you can show that he did it
"by the use of some opportunity or information obtained by visiting the building as a member of the public…".
Unless he makes a frank and fell confession as to his sources of information, I do not believe you will ever get a conviction under that part of the clause. So far from this clause providing a real and exceptional protection for the contents of stately homes, it is, to my mind, nothing less than a piece of thoroughly bad law prompted by a hard case. I beg to move.
Amendment to Amendment moved—
Subsection (2), line 6, leave out from ("unless") to end of line 9.—(Viscount Dilhorne.)
VISCOUNT COLVILLE OF CULROSS: My Lords, may I say that I hope that my noble and learned friend will not

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press this Amendment. If he does, and we take out paragraph (a) from the new subsection (2), it seems to me that only the permanent exhibitions will have any protection under this clause; and that is something that, I think, he does not wish, and certainly I do not wish.
What I should like to ask the noble Lord, Lord Stonham, is whether he is quite certain that this paragraph (a) provides the right test. He said just now that he thought it was wrong that the home or other building which was open only on a few days of the year should have protection throughout the year. But of course, under the clause as it is drafted, they have protection throughout the year. It does not matter whether the house is open or whether it is shut to the public at the time the article is taken. Only one thing matters in this clause, and that is that the information must have been obtained from the visit as a member of the public. But on any other day of the year, whether the house is open or not, if the object is taken away then the offence is still committed.
So I do not think that the noble Lord has succeeded in achieving what he wants if he wishes to limit the protection to some smaller number of occasions than every day in the year. I do not think that one ought to limit the clause to a certain small number of occasions in the year, and I think that the noble Lord is perfectly right when he drafts this clause in such a way that under this subsection a person can be convicted even although he comes back on a day when the house is not open and takes the thing.
I am quite certain that that is what the noble Lord wishes, because that is what the clause does. If that is what he wants, why is it necessary to have this test, which I suggest will be exceedingly difficult to prove? I agree with my noble and learned friend that it is only an obstacle to the success of the prosecution. You have year-round protection; you have the rare case, I think it may well be, which is not theft but merely a temporary removal of the object. Why is it necessary to show, in order to establish the guilt of the person who has taken away this object, dishonestly, or at any rate without lawful authority, and not with an intention permanently
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to deprive the owner of it, that he got it "by the use of some opportunity or information" which perhaps he himself has had to acquire by going to the house? It seems to me that if the information has been derived, either directly or indirectly, from an open day at the house, that is one thing: that may be the source of the crime; that may have been how it came into somebody's head. But why should it be necessary to prove that, when the noble Lord has already drafted a clause which gives year-round protection?
I think that the noble Lord may have some comments to make on that point, because I do not quite understand what are his aims in limiting the clause in the way he has suggested. I do not think that it works in the least in the way that he thinks. But at any rate one thing is, I feel, quite certain: even it paragraph (a) is taken out something else ought to be put in instead.
8.10 p.m.
LORD CONESFORD: My Lords, on the Amendment I agree with nearly everything said by my noble and learned friend Lord Dilhorne, and, having listened to my noble friend Lord Colville of Culross, I am convinced that the fault of the Amendment moved by my noble and learned friend is that it does not strike out enough. I think that he ought to strike out everything in subsection (2) after the word "subsection" in line 4. Whether he proposes to strike the words out in bits or altogether I do not know, but it seems to me that that is what is needed. I agree with the noble Lord, Lord Stonham, that this clause is a great deal better than nothing. But why go out of your way to protect those who remove works of art? The unlawful taking of works of art has become a great public nuisance in many countries and it is in the public interest to stop it, not to try to protect, by all sorts of artificial means, those who indulge in it. I can see no reason whatever for the words attacked by my noble friend in paragraph (a) of the proposed new subsection (2).
The only other matter I wish to raise on the noble Lord's Amendment is that I think he has been unfair to his own subsection (1). His subsection (1) is a little better than he thought. He said—and it may be that he was speaking in general

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terms and did not wish to be taken too literally—that it did not protect auctioneers. It would, I think, have protected Christie's in the example which I ventured to give at an earlier stage when we were considering the Bill in Committee (although no doubt it would not protect Christie's as regards articles for sale at their auctions) that is to say, in a case where they gave an exhibition, as they did about a year ago, of objects which had been originally purchased from them and were lent by public galleries all over the world and which were not for sale in their showrooms. If Christie's had collected them for exhibition to the public, I think they would fall within subsection (1), and it is right that they should do so. In that respect, subsection (1) is better than the noble Lord implied. But as to the objections to the limitation in subsection (2), I am sure that we ought to strike out not only the words which my noble friend seeks to strike out but a good many others as well.
VISCOUNT MASSEREENE AND FERRARD: My Lords, in regard to subsection (1), does the phrase "any person" cover only a person visiting a collection and viewing the building, or does it apply to anybody? Does it apply, for instance, to a window cleaner in the museum, or to a member of the staff, or to some other person in the museum, or does it apply only to somebody who is visiting the collection? It seems extraordinary that a man should be guilty of this offence only if he is, according to paragraph (a) of subsection (2), visiting the building and the collection. After all, a friend could go round the museum and tell the man everything about it and where everything is situated, and that would be just as effective as the person himself going round the collection. Therefore, I find it difficult to understand paragraph (a). That appears to leave a large loophole in regard to the commission of a theft.
As for private collections in the stately homes, as they are called, it seems rather illogical that the owner of a private collection does not receive the same treatment as a public museum. It would appear to me, as a layman, that in relation to the man who commits a theft, the crime is judged from the point of view of the source from which he steals rather than in regard to the crime which he
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commits. That seems to be illegical, but perhaps I have it wrong. It would appear that if one steals from the National Gallery after one has visited the National Gallery it is a serious crime, but if one steals from a private collection it is not such a serious crime. That seems to me to be rather odd. But I am not a lawyer.
LORD AIREDALE: My Lords, I should like to support this Amendment to leave out paragraph (a) of subsection (2). I feel that it is impracticable to expect anybody to prove the matters in paragraph (a). Somebody who is going round a building on an open day to spy out the land for a subsequent raid obviously will not make himself conspicuous. He will not go round dressed in a bright red shirt and a top hat so as to be easily recognised afterwards. Presumably he will go during the busiest time and will be one of hundreds of visitors to the building. What hope is there that subsequently, when the person has been found to have taken property out of the building, somebody will be able to say, "We saw him in the crowd on the open day three weeks ago"? He would be a fool if he found himself in that position. He will make himself as inconspicuous as he can on the open day, and there will not be the remotest hope of establishing the facts in paragraph (a) of subsection (2).
LORD STONHAM: My Lords, I am bound to say that I am disappointed at the reception which all noble Lords, save the noble Viscount, Lord Colville, have given to my efforts on this clause.
VISCOUNT COLVILLE OF CULROSS: My Lords, we are only discussing the Amendment to the Amendment. Nobody yet has said anything nice about the main clause, since it would have been out of order.
LORD STONHAM: Then that is a battle yet to come. I will deal with some of the points raised on the Amendment. The noble Viscount, Lord Massereene and Ferrard, seemed to find difficulty about the window cleaner or somebody who worked in the building in question. But subsection (1) refers to "any person who without lawful authority removes" and so on, and "any person" means precisely what it says, subject, of course, to paragraph (a) of subsection (2) which deals

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with a case where it is not a permanent exhibition. We are talking about the case of temporary deprivation, and many of those offences are just plain stealing. Most of them would be plain stealing and there would never be any doubt about it. But we are talking about what I think are a minority of exceptional cases.
The noble Lord, Lord Conesford, raised a point about an exhibition, and certainly the clause would protect an exhibition at Christie's if it were not for sale or commercial purpose. There is no question about that, and the clause was indeed so framed. So it would protect that. The one major point was the one raised by the noble Lord, Lord Airedale, that it might be difficult to prove that a person committing an offence under the clause was making use of some opportunity or information obtained by visiting the building as a member of the public. He spoke about a man in a red shirt and top hat. Judging by some of the ties I have seen worn by noble Lords on the Liberal Benches, I think he had better not be a Liberal. But that is by the way.
It must be remembered that cases of temporary taking from private collections are extremely rare. In fact, there is no evidence of their happening at all. To a great extent, therefore, the extension of the clause to private collections is a bonus beyond what was contemplated by the Criminal Law Revision Committee. We do not think there would be great difficulty in proving. It is quite true that if a man was one of hundreds or thousands who might visit a house on a certain day, he is unlikely to have been spotted by someone who could say that he was there. But if there were such a temporary taking there could be an admission of having made a previous visit, or a clear inference from the evidence that such a visit must have been made. I will come back in a moment to the question of proof, which remains the one point of substance, and the point raised by the noble Viscount, Lord Colville of Culross.
In dealing solely with the Amendment, however, I put it to the noble and learned Viscount, Lord Dilhorne, that the effect of his Amendment—and I cannot believe that this is what he intends—would be that it would never be an offence under the clause to take an article unless, under
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paragraph (b), it formed part of a collection intended for permanent exhibition to the public. I do not know whether he read his Amendment in that light, but that is the effect of it. That means that if the Amendment were accepted the clause would no longer apply to a temporary exhibition whenever held, or a collection shown in a private house occasionally or periodically but not intended for permanent exhibition to the public. It is possible that the clause should be so restricted. That was never my intention, and I do not think it was the intention of your Lordships when we discussed it in Committee, and if that is the noble and learned Viscount's intention then I, for my part and certainly for the Government's part, would reject it. We should think it undesirable, and certainly not what I set out to do after the Committee stage in trying to meet, if possible, the points raised by noble Lords. Therefore, on that point I would urge that the Amendment be rejected.
I come back to the point raised by the noble Viscount, Lord Colville of Culross. He was quite right. The wording of the clause on this matter is deliberate. The object—and I tried to make this clear when I introduced the clause—is to make the essence of the offence the abuse of the privilege of entry, whether on the day of entry or afterwards. At the close of the discussion all we are left with is that. Certainly, any temporary taking from a place where there was an occasional or periodic exhibition, and not an exhibition open to the public all the year round, would be covered at any time of the year, whether the exhibition was open or not. So all we are left with is the question of proof and the words which the noble and learned Viscount wanted to delete. I believe I understand what he was wanting to achieve, but if it is achieved by this Amendment it achieves much more which is unacceptable. I can only suggest that if he agrees to withdraw his Amendment I will look again at the point raised by the noble Viscount, Lord Colville of Culross, to see whether we can do away with the restriction on the question of proof. But to limit the protection in the way suggested in the Amendment would not carry out the intention which I think most of us have.
VISCOUNT DILHORNE: My Lords, I think I raised the point about what

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would have to be proved. I made that the basis of my speech and I said that it was an unreasonable requirement. I put down this Amendment with a view to drawing attention to this unreasonable requirement. I was hoping that for once I might be able to convince the Government that it really was an unreasonable requirement, and that they would say, "Well, we will meet this with the appropriate wording in an Amendment of our own." I do not gather that the noble Lord has gone quite so far as that. Whatever view one takes about the earlier part of the clause, whether or not one thinks the revised version is an improvement on the original edition, is to me immaterial in considering this Amendment, because I stressed, and I stress again, that in relation to the stately home this requirement of proof robs the clause of all practical effect. I said that before, but as the noble Lord seemed to think I had not and attributed it to the noble Lord, Lord Airedale, and my noble friend Lord Colville of Culross, who made the same point, I thought I should remind him that it is my Amendment and that I had said that.
But I certainly do not want to have these serious consequences of leaving only paragraph (b), and, bearing in mind that the noble Lord has placed so much emphasis on that—although I was tempted to think that we might proceed piecemeal and excise paragraph (a) at this stage and paragraph (b) at a later stage—I am perfectly content to withdraw this Amendment now, so long as the noble Lord, clearly understands that I shall take the advice of my noble friend Lord Conesford and move to leave out all the words from subsection (2) after the word "subsection" at our next stage, unless the noble Lord, Lord Stonham, likes to put that Amendment down in his name.
Amendment to the Amendment, by leave, withdrawn.
VISCOUNT COLVILLE OF CULROSS: My Lords, I think it would be less than just if somebody did not say "Thank you" to the noble Lord, Lord Stonham—I think the noble Lord, Lord Airedale, may do so as well—for the new Clause 11. It does away with all the objectionable emphasis on commerce which I found so very unacceptable in the earlier draft. Its great advantage has been the leaving out of that test, and the noble
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Lord has now come forward with a completely new method of tackling the matter which I find a great deal more acceptable. Therefore I should like to allay his disappointment at the reception which he thought this clause was getting.
I just want to add a footnote to what he has said he will take away to consider. Suppose you have what I agree with him, is likely to be the comparatively rare case of a temporary taking of a work of art or some other thing on exhibition in a house which is open for a few periods of the year—and I think I must confine it to a house which is open on a few occasions in the year. In such a case the prosecution have a choice. Are they going to try to get the jury to convict for theft, with the extension of what "permanently" in fact means in the very large cases? Will they take that risk; or will they take the risk of trying to prove the matters in the paragraph which we have just been discussing on the previous Amendment? I think there might be cases where they would say, "Subsection (2)(a) is so difficult that we will prosecute for theft". If they do that, then there is really no reason for having this clause at all. That is the point I should like the noble Lord to look at, and it is the only spot on an otherwise greatly improved clause.
LORD AIREDALE: My Lords, I, too, am very grateful to the noble Lord, Lord Stonham, for the new Clause 11, and I am particularly grateful for his extension of it to cover the grounds and gardens of buildings so as to protect statues and other attractive objects which people might remove. But I am extremely sorry to have to go on to level a further criticism— and it is very disappointing for me to have to say this. Consider, for instance, the many gardens which at certain times are open to the public without the houses to which those gardens belong being open to the public at all. This is quite common all over the country throughout the summer. Then, of course, we have Kew Gardens and Wisley, and all sorts of horticultural gardens belonging to horticultural societies, which are open to the public and ought to be protected under a clause of this kind, if anything is going to be protected, but which have no houses attached to them to which the public have access. As the new subsection (1) is drafted, none of these gardens is going

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to be covered unless there is also a house beside the garden to which the public have access, because the clause begins:
"…where the public have access to a building in order to view the building or part of it, or a collection or part of a collection",
and so on. Then, further on, when it comes to the removal of objects from a building, it includes, of course, the grounds. It says, "or its grounds". But this is not adequate to cover all those cases where there are gardens that are open to the public but no houses attached to them which are also open to the public. That is my first point.
My second point is that I am very disappointed that a point taken in Committee by the noble Viscount, Lord St. Davids, was not taken note of when this new Clause 11 was drafted. The noble Viscount pointed out that art galleries and museums are not used by members of the public only for viewing their contents. People go there for concerts, for lectures, for meetings of philanthropic societies, and for a number of other purposes which do not depend upon a desire to view the objects of art displayed. It would obviously be quite absurd if some dishonest person who attended a meeting or a concert in an art gallery, took a fancy to some object and then went later and removed the object from the building, was able to escape by saying. "I am not covered by this clause because I did not go there to view the collection; I went there to a concert". It would be quite absurd that, in a case of that kind, no offence would have been committed.
I have only one other point, and it is quite a small point. What is the purpose of the difference between the words "without lawful authority", which are used in subsection (1), and the words "without due authority", which are used in the next clause but one, Clause 13, which deals with extracting electricity? This may be a small point, but if Parliament means the same thing in two clauses, as I imagine it does in these two clauses, Parliament had better say so. If not, this opens the way for lawyers to argue to their hearts' content that these two expressions, although very similar, must have different meanings because otherwise Parliament, in its wisdom, would not have used one expression in one clause and another in another. So perhaps that
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matter, too, could be looked at when this Clause 11 is being looked at again, as I very much hope it will be.
LORD LEATHERLAND: My Lords, I apologise for trespassing on my noble friend's patience at this hour, but I will be brief, and I do not expect a reply tonight. Perhaps he will look again at subsection (3), which says:
"A person does not commit an offence under this section if he believes that he has lawful authority…"
and so on. The word"believes"has a subjective connotation. If I believe something I do believe it, whatever my state of mind may be. Imagine, for instance, that I am a person with a slightly unbalanced state of mind—that is pure imagination—and that I have, say, an obsessive conscientious objection to nudes. Let us say that I visited a stately home or a museum where the picture of a nude was on exhibition, and that I took my conscientious objection to nudes to the extent of believing that I had lawful authority, in the interests of public decency, to remove this picture. I believed that. Whether you believed it, my Lords, is quite another matter. Whether I was mistaken in believing it is quite another matter. But I believed it. Therefore, according to this clause, I am innocent. I wonder whether the clause requires tightening up a little so that we might say "reasonably believes", or something like that. For the moment the nude remains on exhibition.
VISCOUNT MASSEREENE AND FERRARD: My Lords, if the noble Lord believed he had lawful authority and he had not he would presumably end up in a mental home.
LORD LEATHERLAND: No; we all make mistakes.
THE LORD CHANCELLOR: My Lords, to satisfy my own curiosity, I wonder whether any noble Lord who has spoken can tell me whether in the last hundred years, except for the Goya case, any picture or other object has been taken from a museum, gallery, a country house or a garden, and the prosecution has ever failed because of the difficulty of proving that he intended to deprive the owner permanently of it. Are any of the other cases which have been referred to real cases, or are they all mythical?
LORD CONESFORD: My Lords, since the noble and learned Lord extends the invitation, perhaps I may say that I am only quoting from memory but I think the Committee themselves mention one other case in the paragraph dealing with the Goya.
VISCOUNT COLVILLE OF CULROSS: The case of the statue by Rodin.
LORD CONESFORD: Yes, the statue by Rodin. They say:
"In another case an art student took a statuette by Rodin from an exhibition, intending, as he said, to live with it for a while, and returned it over four months later. (Meanwhile the exhibitors, who had insured the statuette, had paid the insurance money to the owners, with the result that the statuette, when returned, became the property of the exhibitors.)"
Then the same paragraph goes on to deal with the difficulty about the Coronation Stone. Those three examples are mentioned by the Committee themselves.
LORD STONHAM: My Lords, I am getting a great deal of help from all sides for which I am most grateful, particularly to the noble Viscount, Lord Massereene and Ferrard. But on the point raised by my noble friend Lord Leatherland, I know the answer. I am grateful to him for not demanding an answer to-night but I feel that I must give it. The belief would have to be a belief that what was done was lawful. In the example given by my noble friend the taker is unlikely to believe that he is lawfully as distinct from morally justified, and I do not think there is any problem there.
The noble Lord, Lord Airedale, raised several points. One of them was a revival of the point made by my noble friend Lord St. Davids about attending a concert. If the building is open for people to view the contents, it does not matter that the person went there to hear the concert; he is "any person" and would be covered by the clause. Then the noble Lord said that gardens would not be covered if there was not a building there. He gave as an example Kew Gardens. Quite obviously, Kew Gardens would be covered; there are many buildings there. I have been trying to think of any garden open to the public where there is no building. There may be some; but I do not know of them.
LORD AIREDALE: My Lords, am I right in thinking that the District Nursing Association or some such society is almost entirely dependent on the charitable proceedings from people opening their gardens to members of the public? This is one of the cases I was thinking about.
LORD STONHAM: My Lords, quite obviously those societies are covered. Apparently the noble Lord does not patronise these occasions as often as I do. I have never once gone in and paid my half-crown to see the garden without not only seeing the building but very often going through it to another part of the garden.
LORD CONESFORD: My Lords, surely the noble Lord, Lord Airedale, is quite right in what he said. The words here are:
"Where the public have access to a building in order to view the building or part of it…"
There are many cases where the garden is open and where those words do not apply.
VISCOUNT MASSEREENE AND FERRARD: My Lords, on my estate the public do not have access to the building; they have access only to the garden.
LORD STONHAM: My Lords, one must take the clause as a whole. It goes on
"…removes from the building or its grounds the whole or part of any articles displayed or kept for display to the public in the building or that part of it or in its grounds…"
These things can only be interpreted by the courts. But in my view the case raised by the noble Lord, Lord Airedale, would be covered. I say again that I do not know of any of these gardens where there is no building or part of a building. I have not seen any.
I do not think there is any desire generally to prolong this discussion. I think it has been extremely useful, and one point which impressed me—indeed it may have been originally raised by the noble and learned Viscount Lord Dilhorne; but certainly it was a point that impressed me—was the second of the two points made by the noble Viscount, Lord Colville of Culross, which was that it

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is so difficult to prosecute under paragraph (a). I think that is a very important point, and it is one that I shall look at. I do not think it would be helpful if the noble Lord, Lord Conesford, introduced a very truncating Amendment. Certainly I will look carefully into it.
I have just had a note handed to me with regard to what I have said about gardens. I understand that gardens on their own are not covered and, of course, the gardens attached to buildings open to the public are. But, of course, we think that gardens which are not attached to buildings are unlikely to contain things that would be taken temporarily. I will look into that particular point, and I hope to come up with a satisfactory answer.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, before calling Amendment No. 27 in the name of the noble Lord, Lord Airedale, I should say that I think, in view of what has happened, the correct form of the noble Lord's Amendment should be:
"To leave out the words last inserted and insert the new Clause as printed."
LORD AIREDALE LORD AIREDALE moved to leave out the words last inserted and to insert instead the following new clause:
Removal of articles from places open to public
"11. Any person who removes without due authority the whole or part of any article from a place where it is put for public display shall, on conviction on indictment, be liable to imprisonment for a term not exceeding five years."
The noble Lord said: My Lords, I will not make another long speech on this Amendment because we have covered the ground extremely fully in the last few minutes. But I should have thought that our discussion on the new Clause 11. which has just been agreed to, has shown that it contains some quite serious defects. I believe that something very much simpler is required, and I do not suppose that my proposed Clause 11 is perfect. I should be very surprised if it were, but it is certainly shorter and very much wider in its scope, and I should have thought answered what was required much better than the new Clause 11 that has just been agreed to.
This Amendment is almost identical with an Amendment I moved in Com-
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mittee, which I have amended in two respects. In the earlier Amendment I used the word "dishonestly" which came in for some criticism. I have therefore changed that word to, "without undue authority". In the earlier Amendment I referred to an article being taken from a place where it is "kept" for public display, and it was suggested that this gave an impression of its being kept there permanently. I have therefore left out the word "kept" and inserted the word "put". It now reads, "where it is put for public display".
I think the Minister will criticise this Amendment by saying that it still covers takings from shops. That criticism may be well founded, and it may be that subsequently an Amendment to this Amendment ought to be moved which would read:
"…from a place where it is put for public display otherwise than for sale"
That presumably would exclude takings from shops which fell short of theft. But subject to those self-criticisms, if I may so call them, I should have thought that these four lines went very much nearer to meeting what was demanded than the rather involved Clause 11 which we have now in the Bill and which has been subject in the last few minutes to very serious criticism. I beg to move.
Amendment moved—
Leave out the words last inserted and insert the said new clause.—(Lord Airedale.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I hope that the noble Lord, Lord Airedale, will not press this new clause. I agree with him that it seems that shops are covered, and since I agree with the noble Lord, Lord Stonham, that they ought not to be covered under this clause, I think it is a defect. But I hope I may also say, without being garrotted by some noble Lords behind who have a garden, that I hope the House will not make too heavy weather about Clause 11. It seems to me that it is going to fill a small niche indeed in criminal law. There may be some garden which contains, perhaps, a beautiful statue—but only one statue—and which is open to the public; and it may be that the statue is taken. But, if so, it must be a remarkable concatenation of circumstances that will result in that taking not being theft under this Bill. It must be the rarest

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possible occasion, and I think that if we complicate Clause 11 so as to take account of all these non-permanent takings in every conceivable situation, we shall end up by doing more harm than good: we shall make the clause too complicated to work at all.
I hope, therefore, that the noble Lord, Lord Stonham, will stick to his guns over the breadth of this clause. The House has decided that theft is going to include depriving "permanently", whatever that may mean, and I think that we ought to confine ourselves to something which is fairly obviously likely to happen and not go so broad as all that.
LORD STONHAM: My Lords, I am grateful to the noble Viscount, Lord Colville of Culross, for his suggestion, which I very much hope the noble Lord, Lord Airedale, will accept. As he has said, the Amendment which he is now moving is very similar to the one that was put forward in Committee, although the noble Lord has made the adjustments to it which he mentioned. As he will recall, I made clear during the Committee stage, when dealing with his Amendment, that his clause, in seeking simplicity, went far too wide. It would apply to the taking of an article kept for display in an ordinary shop. I know that the noble Lord has substituted the word "put" for "kept", and no doubt this is intended to meet the point raised by the noble and learned Viscount Lord Dilhorne, who suggested that it was difficult to say that, because an owner had a valuable picture in a private house, even if people were admitted on certain occasions to see the pictures, the picture was kept there for public display. It is by no means clear whether or not the change made by the noble Lord, Lord Airedale, in his present Amendment meets that criticism. But, whatever may be the answer to that, it is clear that something displayed in a shop is put there for display, and the new version of the Amendment is, therefore, just as wide as the old one. Obviously, in this context of temporary taking we cannot possibly include any form of words which would include shops. I hope, therefore, that the noble Lord will feel able to withdraw his Amendment.
LORD AIREDALE: My Lords, I should not burst into tears if someone
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were convicted of temporarily taking something from a shop which he was not entitled even temporarily to take. But in view of all that has been said, and as we have given this matter a good airing, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 12 [Taking motor vehicle or other conveyance without authority]:
LORD STONHAM LORD STONHAM moved, in subsection (1), to leave out "and drives away any conveyance" and insert, "any conveyance for his own or another's use". The noble Lord said: My Lords, I hope that it will meet your Lordships' convenience if, in dealing with this Amendment, I deal also with No. 29. These Amendments slightly widen the offence in the clause as originally drafted to meet doubts about what would constitute taking and driving or riding away. During the Committee stage the noble Baroness, Lady Emmet of Amberley, questioned whether a boat which was towed away to be used later would be "taken and driven away" for the purposes of subsection (1) as interpreted by sutsection (7)(a). It seemed to the Government that such conduct ought to amount to an offence under the subsection and that any doubt on the point should be re-moved by adopting the wording in Amendment No. 28 which I am now proposing.
Amendment No. 29 makes a similar change in subsection (5) to meet the analogous case of a person wheeling away a bicycle, perhaps with the intent to use it later. That Amendment also fills another gap in the subsection by providing for an offence to be committed by a third party who rides the bicycle knowing it to have been taken without authority. This puts subsection (5) on all fours with subsection (1) which already makes it an offence for any person, knowing the conveyance to have been taken without authority, to drive it or allow himself to be carried in or on it. I beg to move.
Amendment moved—
Page 5, line 22, leave out ("and drives away any conveyance") and insert ("any conveyance for his own or another's use").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment No. 29.
Amendment moved—
Page 5, line 40, leave out ("and rides away a pedal cycle") and insert ("a pedal cycle for his own or another's use, or rides a pedal cycle knowing it to have been taken without such authority,").—(Lord Stonham.)
On Question, Amendment agreed to.
Clause 14 [Extension to thefts from mails outside England and Wales and robbery etc. on such a theft]:
8.56 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved to leave out Clause 14. The noble Viscount said: My Lords, I hope your Lordships will agree that I can deal with this Amendment and with Amendments Nos. 58, 59 and 60 at the same time.
LORD STONHAM: And Amendment No. 61?
VISCOUNT COLVILLE OF CULROSS: My Lords, it is open for suggestion that the noble Lord, Lord Airedale—the noble Lord nods his head—would like to join in with Amendment No. 61 as well. The noble Lord, Lord Stonham, will remember very well the discussion we had on paragraph 10 of the Schedule 2 on Committee stage, and at that time both the noble Lord, Lord Airedale, and I suggested to him that the proper place for the contents of Clause 14 of this Bill was in the Post Office Act 1953. The noble Lord made a long and extremely useful speech explaining the difficulties of this matter, and I will not go in detail into any of those points. But the more I looked at Clause 14 afterwards, the more it seemed to me that the criticism which had been made was right, because Clause 14 does not in fact create any offence at all. It is simply a matter of jurisdiction and it provides that an offence under either Clause 1 or Clause 8 can be dealt with in any of the jurisdictions to which the Post Office Act 1953 applies.
The noble Lord, Lord Airedale, has solved this problem in one way and I have solved it in another. I do not mind very much which of the two is chosen, so long as one or other is accepted as correct. It seems to me that three fairly simple Amendments to the existing paragraph 10 of Schedule 2 may be enough, although I am sure that I shall be told
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that it is effective as it is drafted. Alternatively, it may be that there should be a new subsection added to the Post Office Act, as the noble Lord, Lord Airedale, suggests. I do not suppose that he minds very much, either, which way it is done. What seems to be quite unnecessary is that a Bill which succeeds in getting rid of all the special kinds of thefts —theft of animals and apples, and anything else that you can find in the old Larceny Act 1861—should contain one special clause for mail bags and the contents of mail bags; and that dealing only with jurisdiction and not with a special offence at all.
I have noted the point that this Bill does not apply to Scotland, so that one has to be careful when amending the Post Office Act 1953, which does. Nevertheless, there is a provision in one of the later clauses which makes all the Amendments to the Post Office Act 1953 apply to Scotland, so I think that one is safe in that respect. Therefore there does not seem to be any good reason why we cannot attempt what I think is desirable, to put all these matters about jurisdiction for Post Office offences back where they belong; cure the defect which has been found in the existing Section 70 of the 1953 Act and replace it with something comprehensive which deals with offences under that Act in the jurisdictions where they still apply, and in England and Wales for offences under Clauses 1 and 8 of the Theft Bill itself. I beg to move.
Amendment moved—
Leave out Clause 14.—(Viscount Colville of Culross.)
LORD AIREDALE: My Lords, I wholeheartedly support everything that the noble Viscount, Lord Colville of Culross, has said; and I have nothing more to add.
THE LORD CHANCELLOR: My Lords, what we are dealing with, as your Lordships know, is the theft of mail bags and postal packets or robbery in committing that offence when the bag or packet is in the course of transmission by post between different jurisdictions of the British postal area; that is to say, England and Wales, Scotland, Northern Ireland, the Isle of Man and the Channel Islands. I should have thought that the scheme of the Bill as to these postal

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offences is simple. If the offence is prosecuted in England or Wales, the offender will be dealt with as for the ordinary offence of theft or robbery under the Bill. If the offence is proved to have been committed in England or Wales, the ordinary rule as to jurisdiction will apply. If it was committed in transit, Clause 14 will secure that it is triable in England or Wales as if committed there. Schedule 2, paragraph 10, substitutes a new Section 70 of the Post Office Act 1953 so as to make exactly similar provision in respect of the other jurisdictions in the British postal area, so that thefts and robberies from mails in the course of transmission by post between any of the different jurisdictions can be dealt with in any of those other jurisdictions.
The noble Viscount, Lord Colville, and the noble Lord, Lord Airedale, both seek by Amendment 31 to leave out Clause 14. Lord Colville proposes instead, by Amendments 58 to 60 to amend Schedule 2, paragraph 10, so as to make the substituted Section 70 of the Post Office Act apply to proceedings in England and Wales as well as to proceedings in the other jurisdictions. The result would be that, so far as proceedings in England and Wales are concerned, a person who stole a mail bag or postal packet in the course of transmission by post between two different jurisdictions would be guilty of the offence under the Bill by virtue of Section 70 of the Post Office Act as substituted by Schedule 2, paragraph 10, and not by virtue of Clause 14. But it is far more convenient to separate the provisions necessary to give jurisdiction in England and Wales from those necessary to give jurisdiction in the other countries and to deal with the situation in England and Wales in the main body of the Bill without the need to refer to the Schedule and to the Post Office Act. The Theft Bill is one for the law of England and Wales, and the necessary provisions for the trial in England and Wales of an offence of theft or robbery in respect of mails in transmission by post should be found in the main body of the Bill. It is, I suggest, only confusing to have to look for them in provisions in a Schedule and in another Act mixed up with provisions for Scotland and the other countries.
The noble Lord, Lord Airedale, on the other hand, has, by Amendment 61,
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simply lifted Clause 14 and inserted it, by a new paragraph in Schedule 2 after paragraph 10, as a new Section 70A in the Post Office Act. He has copied it word for word, but of course "the offence against this Act" will mean the Post Office Act instead of the Theft Act. It is difficult to see any possible reason for making people look at the Schedule and the Post Office Act instead of what will be Section 14. It is on those grounds that I hope the noble Viscount and the noble Lord will not press this Amendment.
VISCOUNT COLVILLE OF CULROSS: My Lords, before the noble Lord sits down, could he tell me whether there are technical criticisms of my three Amendments? I gather there are not. In that event, I should dearly like to press this matter, but in view of the time of evening I think that it would he a mistake to do so now. I should like to study what the noble and learned Lord has said. On first hearing, I could net disagree more with practically every word of it. It seems to me that if we want to deal with a matter which is one of jurisdiction under the Post Office Act the place to look for it is in the Post Office Act, not in the Theft Act. If it was a substantive offence, then I agree that one would look for it in the Theft Act, because one would know that it was going to be dealt with under the Theft Act in England and Wales, but here one is interested only in looking for jurisdiction, and the proper place to find it is, with every other country in the British postal area, in the Post Office Act. There is no reason whatever why this should not go back to the Post Office Act, where it belongs. I beg leave to withdraw this Amendment, but if I am not satisfied by what I read in the OFFICIAL REPORT to-morrow, I will raise the matter later.
Amendment, by leave, withdrawn.
Clause 15 [Criminal deception]:
LORD STONHAM: My Lords, I beg to move the next Amendment.
Amendment moved—
Page 7, line 6, leave out ("For purposes of this subsection") and insert ("(2) For purposes of this section").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move the next Amendment.
Amendment moved—
Page 7, line 12, leave out subsection (2).—(Lord Stonham.)
On Question, Amendment agreed to.
9.8 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved to add to the clause:
" () For the purposes of this and the next following section a person's obtaining any property or pecuniary advantage is not to be regarded as dishonest if he obtains it in the circumstances mentioned in section 2(1) of this Act."
The noble Viscount said: I move this Amendment to seek a progress report from Her Majesty's Government. It is a matter which was raised in Committee and was not originally understood by the noble Lord, Lord Stonham, for which my drafting was no doubt responsible, but in the end I managed to explain to him what it was I had in mind and he said that he would be so good as to look at it. I need not go through the arguments, but if noble Lords look at paragraph 88 of the Committee's Report they will see that the Committee think that in cases of criminal deception or (as I think it might now be called) cheating, and also of the new offence under Clause 15, the defences which are provided in Clause 2(1) of this Bill should apply. I suggested to the Committee on the previous stage that if the Bill did not say so specifically there was liable to be some doubt whether this was so or not. Equally, the existing law appears to be somewhat doubtful on the matter. Therefore there seems to be double merit in putting this in express terms in the Bill. I really had no answer because the noble Lord had no opportunity to find out what it was about. I should be glad, therefore, if he could now tell me whether this is the correct way of dealing with it. I beg to move.
Amendment moved—
Page 7, line 24, at end insert the said subsection.—(Viscount Colville of Culross.)
LORD STONHAM: My Lords, I am grateful to the noble Viscount for his brief explanation. I did undertake to consider the point. In accordance with the suggestion of the noble Lord, Lord Airedale, which was supported by the noble and learned Viscount, Lord Dilhorne, the proposed Amendment should
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be to Clause 15 instead of Clause 2, for the convenience of the reader of Clause 15. If the Amendment were to be made, Clause 15 would be a more appropriate place than Clause 2, because, as the noble Lord, Lord Airedale, said, the reader would naturally expect to find any provision as to the interpretation of Clause 15 in that clause.
As I understand it, the point of the noble Viscount, Lord Colville of Culross, is that unless the partial definition of "dishonesty" in Clause 2(1) is expressly applied to Clause 15 it might not be certain that it would apply to Clause 15. In particular, he suggested that the defence under Clause 2(1)(a) corresponding to that of a "claim of right" under the present law in the case of a charge of theft might not apply to a charge of obtaining by deception contrary to Clause 15(1). He quoted the last sentence of paragraph 88 in the Criminal Law Revision Committee's Report in support of his argument that clarification was necessary. But the Government do not think there can be any doubt that the requirements in Clause 15 and the new clause that the conduct in question should have been committed "dishonestly" will exclude a case where the person concerned has, or believes that he has, in law the right to get the property or the pecuniary advantage. The Government agree with the statement higher up in paragraph 88 of the Committee's Report that:
"Owing to the words 'dishonestly obtains' a person who uses deception in order to obtain property to which he believes himself entitled will not be guilty; for though the deception may he dishonest, the obtaining is not".
The sentence quoted by the noble Viscount does not mean that the Committee thought that the effect of the new clause would be only "probably" as mentioned; it means that the effect of the present law is "probably" as stated.
There are also two particular objections to the Amendment. First, it would be misleading and otherwise undesirable to apply the partial definition of "dishonestly" in Clause 2(1) to two only of the other clauses in the Bill which refer to something being done "dishonestly" (these include Clauses 13, 16, 19 and 21), and it would be difficult, and unnecessary, to frame a general definition of "dishonestly" which would apply throughout

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the Bill. Dishonesty is, as the Committee said in paragraph 39, easily understood, and the partial definition in Clause 2(1) was, again as mentioned in paragraph 39, included only to preserve specifically two rules of the present law—the defence of a "claim of right", and the rule that a finder of property cannot be guilty of stealing it unless he believes
"that the owner can be discovered by taking reasonable steps".
Those defences are expressly provided for in the definition of stealing in Section 1 of the Larceny Act, 1916, and to have omitted any reference to them might have caused people to wonder whether the defences were intended still to apply. There is no similar specific defence included in the existing provision as to obtaining by false pretences in Section 32(1) of the 1916 Act, to which Clause 15 corresponds.
Secondly, neither the substance nor the wording of the partial definition of "dishonestly" in Clause 2(1) is really appropriate to Clause 15 or the new Clause 1, as Clause 2 relates to appropriation and the other two clauses to obtaining. The defence of a "claim of right" is applicable to Clause 15, but that of belief in the owner's consent, and that in respect of an innocent finder, have nothing to do with obtaining by deception. We have considered this matter and, as I have explained, we feel the Amendment is unnecessary, and is therefore unacceptable.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble Lord does not surprise me when he thinks that my drafting is imperfect, but, more important, I think, he points out that there are other clauses in the Bill where "dishonestly" is used and where one would tend to wish to find a similar partial definition if one were going to put it in Clauses 15 and 15A. I think this is a convincing argument, and I only hope that we do not find it necessary to have too much Case Law to establish it in practice. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD STONHAM: My Lords, I wonder whether your Lordships will allow me, before we leave Clause 15, to mention that, owing to the deletion of Clause 6, there are two consequential Amendments which should be made to Clause
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15. And I wonder whether I may be allowed to make them by Manuscript Amendments. The Amendments are as follows:
Page 7, line 8, after ("it") insert ("and");
Page 7, line 9, leave out from ("retain") to end of line 11.
Both those Amendments are consequential on the deletion of Clause 6 from the Bill. I beg to move.
Amendments moved—
Page 7, line 8, after ("it") insert ("and");
Page 7, line 9, leave out from ("retain") to end of line 11.—(Lord Stonham.)
VISCOUNT DILHORNE: My Lords, these Amendments are clearly consequential on the decision which the House reached this afternoon on the wording of Clause 6 as it stood then. I understand this means that the noble Lord will not seek at a later stage to reintroduce Clause 6 in the form which has now been excised. Does that also mean—I hope it does not—that he is not giving consideration to an entirely different wording to carry out the intentions which he said lay behind Clause 6?
LORD STONHAM: My Lords, the only purpose of the Amendments I have now moved, which are two consequential Amendments, is to clean up the Bill in that respect. No other undertaking I have given will he forgone, but it may well be that the undertaking would have to be implemented in another place.
On Question, Amendments agreed to.
9.20 p.m.
LORD STONHAM LORD STONHAM had given Notice of his intention to move to insert the following new clause after Clause 15:
Obtaining pecuniary advantage by deception
".—(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a term not exceeding five years.
(2) Without prejudice to the operation of subsection (1) above in cases not mentioned in this subsection, a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person in any case where—

(a) any debt or charge for which he makes himself liable or is or may become liable (including one not legally enforceable) is in whole or in part evaded or deferred; or

(b) he is allowed to borrow by way of overdraft, or to take out any policy of insurance or annuity contract, or obtains an

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improvement of the terms on which he is allowed to do so; or

(c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting.

(3) For purposes of this section 'deception' has the same meaning as in section 15 of this Act."
The noble Lord said: My Lords, I beg to move Amendment No. 36: Clause 15, page 7, line 6, leave out, "For purposes of this subsection", and insert; "(2) For purposes of this section".
SEVERAL NOBLE LORDS: No.
LORD STONHAM: I beg your Lordships' pardon. This explains a little contretemps that occurred earlier, because I had Amendment No. 36 with two earlier ones which were paving Amendments for it. Amendment No. 36 was not then moved, and I had intended to move it. The first two, Amendments 33 and 34, were drafting or consequential. The new clause, which I now move, is designed to fill the gap caused by the deletion of what was then subsection (3) of Clause 15—obtaining credit by fraud —which was deleted by Amendment No. 34, to which your Lordships have already agreed.
Subsection (3) of the Bill as introduced created a general offence of dishonestly, with a view to gain, inducing a person by any deception to do or refrain from doing any act, and provided for a maximum punishment of two years' imprisonment. The main criticism of the subsection at the Committee stage was that it was too general and ought more specifically to deal with particular types of criminal deception. There appeared, however, to be general agreement in the Committee that there would be a serious gap in the Bill if the subsection were simply deleted, and that the Bill ought specifically to make criminal certain types of conduct such as the fraudulent obtaining of services.
In the light of the discussion in Committee, the Government have considered afresh what form the criminal deception provisions of the Bill should take. They are satisfied that subsection (1) of Clause 15 should remain in its present form (to deal with the obtaining of property by deception) but have come to the conclusion that the best course would be to
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replace the original subsections (2) and (3) of Clause 15 by a new provision which makes it an offence, punishable by a maximum penalty of five years' imprisonment, by any deception dishonestly to obtain for oneself or another any pecuniary advantage. Subsection (1) of the new clause provides accordingly, and "pecuniary advantage" is partially defined in paragraphs (a), (b) and (c) of subsection (2).
Under paragraph (a) of subsection (2) a person commits an offence under the clause if by deception he dishonestly evades or defers (or enables another to evade or defer) in whole or in part any debt or charge for which he makes himself liable or may become liable. This paragraph incorporates the offence of obtaining credit by fraud, previously in subsection (2) of Clause 15. It also covers the obtaining of services by deception (because liability for any debt or charge for the service will be evaded) and such conduct as obtaining an income tax allowance by deception (because a liability will have been evaded in part) or using deception to evade meeting some financial obligation. Paragraph (a) is not concerned with such conduct as fraudulently obtaining a family allowance or a subsidy because this will be an obtaining of property and will be covered by Clause 15(1). Nor does it cover (because it seems unnecessary to do so) fraudulently obtaining services for which no financial liability arises.
Paragraphs (b) and (c) of subsection (2) deal with a number of specific types of conduct which fell within the former subsection (3) of Clause 15. They are thought to cover all the principal types of things done by deception which do not or may not result in an obtaining of property (so as not to be covered by subsection (1) of Clause 15) or involve an attempt to obtain it (which would of course itself be an offence). This paragraph (b) covers obtaining by deception overdrafts, insurance policies and annuity contracts (including obtaining them on more favourable terms than would have been the case without the deception) and paragraph (c) covers obtaining by deception an opportunity to earn remuneration or greater remuneration in an office or employment, and obtaining by deception an opportunity to win money by betting.

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In the case of obtaining employment or opportunities to win money by betting, there might be an offence of obtaining property under Clause 15(1), but there have been cases under the existing law of false pretences where there has been difficulty on this point. For example in R. v. Clucas in 1949 it was held that betting winnings paid over by a bookmaker had been paid, not because of certain false pretences used by the punter to get him to take tits: bets, but because the horse had won; and similarly, money paid to an employee who has got his job by false pretences was held in R. v. Lewis (1922), to have been paid because of the work done by the employee and not because of the false pretences. Including these cases in the new clause makes it clear that the obtaining of the opportunity to get the property is an offence in itself. Owing to the possibility that some cases of obtaining a pecuniary advantage which ought to he punishable are not provided for by paragraphs (a), (b) or (c) subsection (1) is framed so as not to confine the meaning of "pecuniary advantage" to those cases.
Subsection (3) provides that for the purposes of the clause "deception" has the same meaning as in Clause 15; that is, it means any deception (whether deliberate or reckless) by word or conduct as to fact or as to law, including deception as to the present intentions of the person using the deception or any other person. As a result of the amendment of Clause 15 and of the new clause it will be necessary for all the relevant repeals in Schedule 3 to be closely examined to ensure that they are covered by these clauses. This task is being undertaken, but it is unlikely to be possible to complete it before the completion of the Report stage. We will do what we can, but some tidying up of the repeal Schedule may have to he left to be dealt with in another place. I thought it better to explain this new clause at some length. I beg to move.
Amendment moved—
After Clause 15, insert the said new clause.—(Lord Stonham.)
9.25 p.m.
VISCOUNT DILHORNE: My Lords, this is a very important new clause; I think the noble Lord, Lord Stonham, will recognise that. I am grateful to him for his long and, I am sure, lucid explanation
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of what the clause does. It is a little hard, I find, to take in at this hour of the night the full details of what the noble Lord said. I shall read it most carefully. But I must say I think it is difficult for the noble Lord and difficult for some of the rest of us, to carry on with this intricate measure at this late hour when we have been sitting since 3 o'clock or shortly afterwards with only a slight intermission. We have now come to Amendment No. 36 and there are 68 Amendments. I do not think anyone can suggest that anybody has tried to delay business. But when we have dealt with this important clause we have still to come to what is perhaps one of the most important clauses in the Bill, Clause 20, and that ought to have a considerable time for consideration.
I think we ought to take a little time over this clause. We certainly ought to consider it most carefully. I would say, from having heard the noble Lord, that it is a considerable improvement on Clause 15 as it stood originally. The old subsection (3) of Clause 15 had few friends, and it conflicted in principle, I thought, with subsection (1) of Clause 15 as it was. We moved it out in Committee, and the result has been, I think, that although there may be some defects which I have not as yet perceived, the noble Lord has come back with a far better proposal. There may be some things which I should like to criticise, but I have not perceived them yet, and that may give him some hope for the future. It is far better than Clause 15 was. Despite the fact that the noble and learned Lord the Lord Chancellor thought it right to reprove me on more than one occasion for my temerity in moving Amendments to this Bill, I think the fact that the Amendment we moved and carried, which has led to this great improvement in the particular clause which is being tabled by the Government, shows that our conduct in that respect was justified. I propose, if I may, to reserve any detailed comment upon the new clause, except to say that, reading it as I have, and listening as I have to the noble Lord's explanation, I think it constitutes a very remarkable improvement.
VISCOUNT COLVILLE OF CULROSS: My Lords, I very much agree with my noble and learned friend about this. I think it is a most important new clause

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and one which will have to be studied, as this Bill has been studied, deeply by others, not only in this House but also outside, to see whether there are further criticisms to be made. One point strikes me immediately very much in favour of this clause, which is that it faces the business of obtaining services by deception or fraud. There has been over a long time a suggestion that the method of approaching this matter through the offence of obtaining credit by false pretences was not only laborious but quite unreal. What was wanted was to get somewhere approximating to the idea of the theft of services. That is the course they follow in America in some cases, and for all I know in other parts of the world also. This new clause does that, and it makes it perfectly simple under the three paragraphs of subsection (2). It is an improvement not only from the point of view of presentation but from the jurisprudential point of view as well, and it will therefore be very much welcomed.
The other point that seems to me to be an improvement in this clause is that whereas I criticised the old subsection (3) as not being wide enough to cover some of the things I think the Criminal Law Revision Committee themselves wished to have covered by it, we now have these signposts in three paragraphs, but a wider definition in subsection (1) itself. So that although there are these specific instances, which are set out, and some of the old difficulties are cleared up, as the noble Lord explained, there is still a breadth in the new clause which will enable other things also to be covered, if it is found necessary; and the combination of this, with the remains of the existing Clause 15, seems to me to be an enormous advance upon what was in the Bill before. I share the slight tone of self-congratulation which was adopted by my noble and learned friend in having required Her Majesty's Government to have this re-think, and I should like to congratulate them upon the outcome of it.
On Question, Amendment agreed to.
Clause 17 [Liability of company officers for certain offences by company]:
LORD STONHAM: This Amendment is consequential upon Amendment No. 36, the new clause which your Lordships
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have just accepted. It inserts a reference to the new clause in subsection (1) of Clause 17, which relates to the liability of company officers for certain offences by the company—that is, at present, offences under Clauses 15 and 16. The Amendment would add offences under the new clause. I beg to move.
Amendment moved—
Page 8, line 2, leave out ("or section") and insert (" (obtaining pecuniary advantage by deception) or").—(Lord Stonham.)
On Question, Amendment agreed to.
Clause 20:
Blackmail
20.—(l) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.

9.33 p.m.
LORD STOW HILL LORD STOW HILL moved, in subsection (1), to leave out from "unless" to the end of the subsection, and insert:

"(a) the person making it does so in the belief that he has reasonable grounds for making the demand, and

(b) it is in all the circumstances not unreasonable to seek to reinforce the demand by the use of the menaces in question."

The noble and learned Lord said: My Lords, I beg to move Amendment 38 which stands in my name and those of the noble and learned Viscount, Lord Dilhorne, and the noble Viscount, Lord Colville of Culross. This is a variant on an Amendment which I put down on the Committee stage to Clause 20 of the Bill, dealing with the definition of blackmail. It would not assist your Lordships if I repeated at any length the objections which I respectfully urged to the definition of blackmail which at present appears in Clause 20.
The basis of my objection, if I may repeat it in a few words, was that the definition contains the requirement that there should be compliance with two qualifications, depending on the belief of the person charged. The definition is one which makes the offence of blackmail consist in this: the making of a demand backed up by an unwarranted menace.

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The definition goes on to provide that a demand with menaces is unwarranted unless the person making it does so in the belief (a) that he has reasonable grounds for making the demand, and (b) that the use of the menaces is a proper means of reinforcing the demand. In other words, it depends on the belief of the person charged with blackmail whether in fact he has committed the offence at all. If, having heard all the evidence, the jury come to the conclusion that the person charged believed, in the first place, that he had reasonable grounds for making a demand, and in the second place, that the use of the menaces was a proper means of reinforcing the demand, then the person charged must he acquitted; the offence of blackmail has not been made out.
I ventured to submit examples which, I argued, demonstrated that that definition might result in the most unfortunate consequences. I instanced the imaginary case of a lady who was pregnant as a result of her association with a married man. I tried to delineate an accused woman in those circumstances appearing before the jury, obviously wracked with fury against the father of her unborn child, extremely indignant at the man because he had refused to make any provision for the child which was to come into the world.
I pictured her as a person who felt, with deep intensity, that his conduct was utterly villainous, wholly unjustifiable, and as a person who felt she was morally justified, not merely in demanding from the putative father proper maintenance for the child, but also in thinking to herself, with considerable sincerity, that she was not only justified but in duty bound to the unborn child to bring home to the father, by any threat which she chose to use, that he must comply with his duty to the unborn child. This might mean the woman making a demand for maintenance for the child in excess of what ordinarily would be considered adequate, on the ground that it was to be born with the stigma of illegitimacy and that the unfortunate child was to go through the world with that disadvantage. She might demand that the putative father should settle half his fortune on the child.
If the jury, having heard the woman charged with this matter, having heard her cross-examined and having taken into
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consideration all the circumstances, came to the conclusion that she thought her demand was reasonable, and also came to the conclusion that she genuinely thought she was justified in so threatening, and was indeed bound to use the threats in relation to which she was charged, they would be bound to acquit her. Those threats might include threats to burn down the man's house, or perhaps even to throw acid in the face of his wife—in fact, any threat that she might think she was perfectly justified in making. If the jury came to the conclusion that she really thought she had a reasonable demand and was justified in using the threat, whatever it may be, they would be bound to acquit her.
I submit to your Lordships' House that if that were to be the result of the law of England, we should be back in the jungle. That is not law; it is the obverse of law. That would be a state of legislation which permitted a person using threats to bend the law to his or her own will, to threaten to do anything which he or she thought it was reasonable to threaten. Speaking for myself, and I believe for both noble Lords who are named as supporting this Amendment, I should be sorry to think that we were leaving our law in that state. If citizens, whether their own conduct is reprehensible or not, are to be exposed to what may well be the venom of a jaundiced mind and the criminal law is to be powerless to intervene, I should have thought that we should have gone badly wrong. It was to try to offer some alternative that I put down my Amendment on Committee stage.
That Amendment would have required that, in order to secure an acquittal, the accused person would not merely have to show that he or she believed genuinely that he or she had a reasonable demand to make and was justified in backing up that demand with the threat in question, but would have to go on to prove to the satisfaction of a reasonable jury that it was reasonable to back up the demand with the threat; that it was proper, to use the words of the definition, to use that threat in support of the justifiable demand.
The noble and learned Lord the Lord Chancellor, in answering the debate on that Amendment, argued that if one pictured a jury confronted with a lady wracked with hatred of the type that I

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have described, it would be unlikely that they would record it as their verdict that she genuinely believed that she was entitled and justified in threatening to burn down the house of the putative father of her unborn child. Sometimes they might refuse so to find. On other occasions I should have thought, with very great respect to the noble and learned Lord, they might come to the completely opposite conclusion. My own conjecture would be that in a very large number of cases the more vicious and spiteful, and torn and twisted by fury a defendant was, the more likely would it be that the jury would feel impelled to come to the conclusion, perhaps reluctantly, that the defendant thought that he or she had the reasonable claim necessary, and that the defendant thought that he or she could properly reinforce that claim with the threats which had been used in the case.
The noble and learned Lord the Lord Chancellor said that that would be a rare occurrence. With very great deference, I would seek to join issue with him on that and say that it might be far too frequent an occurrence, and that people who richly deserved punishment for blackmail would too often secure acquittal from reluctant juries in our criminal courts. Even if the noble and learned Lord is right and I am wrong, and if it is the likelihood that most juries would convict in that sort of case, surely it is enough to support the case which I put before your Lordships, that at least sometimes they would not, and that sometimes one would get people who on an ordinary moral assessment were as guilty as they possibly could be of this most detestable crime and who would in fact be acquitted. One would really be making the criminal law a laughing stock if one could present oneself in the character of an accused before a jury, and the more utterly repugnant one's attitude to the ordinary decent-minded man or woman in the street the more likely it was that one would be acquitted by being able to show to the satisfaction of the jury that one genuinely believed that it was proper to reinforce the claim in question by the most vile and contemptible threats.
But in coming again to your Lordships' House on the Report stage of this
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Bill I have sought—and I believe the noble and learned Lords who have put their names to the Amendment also seek to achieve this result—to come halfway to meet, if I may put it respectfully in that way, the argument put before your Lordships by the noble and learned Lord the Lord Chancellor. The Amendment which is now on the Marshalled List is a changed Amendment. It differs from the Amendment which we earlier put down. It retains the requirement, in order to establish innocence on the part of the accused, that he or she should be able to prove a belief that he or she had a reasonable ground for making the demand. That, in other words, is the subjective test. It retains that subjective test, which is the first of the two tests contained in the clause which we are discussing. But it imports an objective test in place of the second of the tests which the definition embodies. Under the existing definition, the second of the tests is that the accused should believe that it was proper to reinforce the demand with the menaces in question.
The Amendment which I place before your Lordships substitutes for that subjective test an objective test. In other words, it requires that the accused should genuinely believe in the fairness of his or her claim, but that it should be shown by him to the satisfaction of a jury that:
"it is in all the circumstances not unreasonable to seek to reinforce the demand by the use of the menaces in question".
There is an objective test which does not depend on the belief of the accused person.
My Lords, I would very respectfully commend that wording to your Lordships. Is the language which I have chosen in the second of those tests, paragraph (b), language which would permit of its being possible for a judge to sum up to a jury? I respectfully submit: Yes, it would. A learned judge could deploy the circumstances in his summing up to the jury which would enable them to come to a conclusion as to whether, in all the circumstances, it was not unreasonable to use the menaces.
I would add this further consideration in support of the change which I press upon your Lordships' House. I suppose that in the actual hearing of a charge of blackmail before a jury there might be a slight parallel between a case of blackmail

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as defined in my Amendment and a case in which it is sought to reduce the crime of murder to manslaughter by showing irresistible provocation. At the conclusion of the evidence, if an accused is charged with murder and seeks to put before the jury evidence of irresistible provocation which induced him to kill, it is for the judge at the conclusion of the evidence to decide whether the evidence of provocation offered on behalf of the accused is such as could in law constitute provocation; and if a learned judge comes to the conclusion that it is inadequate in law to constitute provocation, he can decline to allow the issue of provocation to go to the jury.
So, here, if the evidence put before a jury on behalf of the accused could not reasonably in law lead to the conclusion that it was not in all the circumstances unreasonable to use the menaces, I would respectfully submit that the judge could decline to leave that issue to the jury. One would, in effect, have a double check. First of all, the court would have to say whether in law it was open to a reasonable jury to come to the conclusion that it was not unreasonable to use the menaces; and, secondly, if the learned judge decided to leave that issue to the jury, it would then be for the jury to decide whether in fact it was not unreasonable.
I should like, if I may, to reinforce my argument by one other type of example. In answer, again, to what the noble and learned Lord the Lord Chancellor said about its being unlikely that a jury would acquit in the sort of circumstances which I envisaged earlier, I should like to put this case before your Lordships' House. Suppose that A—say an unscrupulous trader—ruins B and brings him to bankruptcy by unscrupulous dealing with B, and that C is a perfectly right-minded man who is cognisant of the circumstances; and suppose that C, in a genuine state of indignation, goes to A and says: "You have behaved like a scoundrel to B. Unless, by paying B money, you put him back on his feet, I shall denounce you to the Inland Revenue for the frauds which you have carried out on the Inland Revenue over a period of years". If the definition stands as it is now in Clause 20, it would be highly probable that a jury would say, "C was perfectly genuine in his belief that it was proper to bring that degree of pressure on A".
My Lords, that sort of case can be multiplied over and over again. A father is indignant that a man has seduced his daughter. He goes to the man and says, "Unless you see my daughter right by making a settlement upon her for her unborn child I will denounce you to your wife". I would respectfully put this question to the House. In those two cases, should the person who uses the threats be guilty under the law of England of a crime, or should he not? The answer I would offer to your Lordships is, quite obviously, that he should. One must not take the law into one's own hands. One must not, to secure an objective, even a rightful objective, use threats at one's own discretion to compel somebody else to embark on a particular course of action. As the definition stands, that would not be an offence: but it should be an offence.
The Amendment which I would seek to make would constitute it an offence, and I respectfully submit that it is not open to the noble and learned Lord the Lord Chancellor to say that in most cases of that sort a jury would be likely to convict. On the contrary, I would respectfully submit that in 99 cases out of 100 of that sort juries would be likely to acquit—and they ought not to. It is for those reasons that I respectfully submit to your Lordships that the change which I, and those noble Lords who signed their names under mine, would make is one that would greatly improve Clause 20. I commend it to your Lordships and hope that you will accept it.
Amendment moved—
Page 9, line 13, leave out from ("unless") to end of line 17 and insert the said new words. —(Lord Stow Hill.)
9.52 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I suspect that this is a subject upon which it is very difficult to produce a wholly convincing argument one way or the other. It is really a matter of judgment as to which of the two, the subjective or the objective test, ought to be used for the second of the two elements in the offence of blackmail. But when you consider which of those two is right, it is most important to have in mind—and I am glad that the noble Lord, Lord Leatherland, is in his place—exactly the

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sort of thing Lord Leatherland was speaking about when he addressed your Lordships earlier in the matter of what people did in houses and gardens which were open to the public. As the noble Lord, Lord Stow Hill, has made so clear, it is just those people with a slightly marginal approach to some of the problems, who have perhaps a slanted view, an extreme view, who may really have the belief which they are entitled to use as a defence. I think this is the precise point that Lord Leatherland was making about the nudes hung up on exhibition.
Of course, the noble Lord, Lord Stow Hill, has exemplified this on other occasions in the case of blackmail. The answer to it seems to be one of two choices. Either you say, as the noble and learned Lord the Lord Chancellor said last time, "Oh well, the jury will not, in fact, believe that that was his belief—and so they will convict." Or, alternatively, you may say that it is not going to be a matter for the jury to look at his belief on that occasion. Blackmail is so abhorrent and so sinister a crime that it is for the jury to decide for themselves, on their own judgment, whether the means employed were reasonable or not. Of those two, on the Lord Chancellor's argument, the result in nine cases out of ten will be the same; because if it is left for the jury to decide what they thought was the genuine belief of the person accused, if he has or claims some extreme belief in the propriety of the means he used they just will not believe him.
That particular stage will be reached by one of two means, I think—although it is not really legitimate to go into what is in a jury's mind, I think that perhaps one can rationalise a little. They could say, "We do not believe that that was his belief because he has been telling a lie". That would be, no doubt, a perfectly reasonable thing to do. They could also say. "We do not believe that that was his belief because it would be completely unreasonable for anybody to believe that sort of thing at all." If they say the latter—and I suspect that they would be strongly inclined to come to this sort of conclusion, by one route or the other, if the menaces were severe in type —they have really been using the objective test. They have been substituting what they themselves thought reasonable
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for what they were meant to be doing, seeing whether the person definitely believed what he said he believed.
If, in fact, we are all seeking to get the same point whereby the extreme type of menace used in one of these dreadful cases is not enabled to be used as a defence because a person claims he really believed it was proper; if we are trying to catch cases of this sort, I think the safest way to do it is to put the second paragraph of this offence on to the objective basis. Because, as the noble and learned Lord, Lord Stow Hill, said, even if most juries do what the noble and learned Lord the Lord Chancellor said they would, and come to the conclusion that they must convict on one of the two methods I have suggested, there may be cases where there will be a genuinely conscientious jury who say to themselves, "No; we believe that this man did hold this belief, and held it genuinely, and we have been directed that if that be so we must find him not guilty". They will let him off, and it may be those very cases which are the most abhorrent of all, where the most extreme types of menace have been used.
That would be the effect in the occasional case where you have a truly conscientious approach to the way in which the law has been set out in this Bill. My Lords, I find that to be a risk which I do not think we ought to take, and I therefore support the noble and learned Lord, Lord Stow Hill, in leaving it to to the judgment of the jury as to what is reasonable, and I very much hope that your Lordships will do the same.
VISCOUNT DILHORNE: My Lords, I want to say a word or two, even at this hour, in support of the noble and learned Lord, Lord Stow Hill. It is, I think, a great pity that we should be discussing a clause of this importance so late and in a House which one cannot expect to be otherwise than "thin" at the present time. I say that, my Lords, because I hope that the Government will give, and say that they will give, further consideration to the questions raised by the noble Lord, Lord Stow Hill. I think the fact that there is nothing Party about this is shown by the fact that our names appear on the same Amendment. So far as I can recollect that has not occurred before. The noble and learned Lord, Lord Stow Hill, speaks with considerable

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authority. Not only did he practise for a long time on the Midlands Circuit, and do criminal work, but he has been a Law Officer and, last but not least, Home Secretary. His words on a subject like this ought to carry very great weight in all parts of your Lordships' House.
I may be revealing a secret when I say that I had no hand at all in the drafting of this Amendment. It was his solution of a difficult problem, and I believe (and I have given such consideration as I could to it between the Committee stage and now) that he has found a right solution to a problem of very considerable difficulty. It is clearly right that there should be a subjective test on the question whether a person accused of demanding something with menaces believes that he had reasonable grounds for making the demand. That is clearly right. That is the first step in justifying his course of conduct. That is left untouched by the Amendment of the noble and learned Lord.
My Lords, the only issue, then, is with regard to the second step. Is it to be a defence to a charge of demanding money with menaces that the accused believed also that the menaces used were a proper means of reinforcing that demand? Surely when you come to consider what happened, that is what the jury should pronounce upon: whether the conduct was proper or improper. Assuming the belief that the demand was reasonable, surely a jury in the natural order of events would say, "Let us see what was done to seek to enforce compliance with this demand. Was that reasonable? Was that proper?" Once that test is applied, the test to the second limb is entirely objective, as the noble Lord, Lord Stow Hill, says. I do not believe that the courts should concern themselves with the question of whether the accused believed that the menaces used were a proper means of enforcing the demand. If the conduct was grossly wrong, the jury can reach a conclusion. I suggest the fact that the accused believed that the means, though grossly improper, were proper in the circumstances would not be a matter of defence but a matter of mitigation.
The noble and learned Lord, Lord Morris of Borth-y-Gest, is here. He has summed up to juries often, and he will correct me if I say anything that is
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wrong. As the clause now stands, will not the jury have to be told that here is a charge of blackmail and that they will have to be satisfied that with a view to gain for himself, or for another or with intent to cause loss to another, the accused made an unwarranted demand with menaces? Whoever is summing up will have to explain what that means: that a demand with menaces is unwarranted unless the person making it believed he had reasonable grounds, and they will have to be satisfied of that before saying that the demand with menaces was unwarranted. But they would also have to be satisfied—and this is where the rub comes in—that the accused did not believe that the use of the menaces he used was a proper means for enforcing that demand. So, if that direction is given—and I think it is that direction that has to be given—the jury's attention is turned to the man's belief as to the propriety of the means used, and not to a consideration of those means themselves. If that direction is a right direction to give to a jury, it seems to me that a jury could not possibly be regarded as perverse if they found a person not guilty, despire the fact that most violent, most objectionable means were used, on the ground that they were not satisfied that the accused did not believe, because of his particular mentality, that they were proper means to be used. It may be argued that this is too refined. If a jury thought that the means were improper, they would not go on to worry about what the belief was. That is really saying that, despite the language of the Bill as it stands at present, in practice the jury will apply the objective test. If that be the argument, and I have heard it advanced, I say with all the conviction I can that it would be much better to accept the Amendment moved by the noble Lord, Lord Stow Hill.
I have kept my remarks as short as I can. I feel that this is extremely important. On Second Reading, on Committee and again to-night the noble Lord, Lord Stow Hill, has made most powerful, sincere and compelling speeches. I hope that the Government will say that they will give further consideration to his proposal; but if they turn it down flat, I shall feel bound to support any course that the noble Lord may feel inclined to take.
LORD MORRIS OF BORTH-Y-GEST: My Lords, your Lordships have heard three powerful speeches, and the point of view that they represent has been most eloquently put before your Lordships. But I am bound to confess that I have some uneasiness in regard to the proposal that meets with the favour of the three noble Lords. I do not like the idea of mingling the subjective and the objective test, and that is what this Amendment would involve. Indeed, it is made quite plain by noble Lords that it would involve, first, a subjective test, and secondly, an objective test. I thought that in our criminal law we had set the course firmly in favour of the subjective test. After a decision in this House in a murder case, it was made quite plain last year in the Criminal Justice Act that the test for the future was to be a subjective test.
In the clause as it stands, I assume that the onus is always on the prosecution, and most respectfully I agree with the noble and learned Viscount, Lord Dilhorne, that the summing up to the jury would be on the lines that he has outlined. But if the jury considering the matter came to the conclusion that the person accused did have the belief that he or she had reasonable grounds for making the demand, and did have the belief that the use of the menaces was a proper means of reinforcing the demand, then there could not be a conviction.
Are we not right to consider the individual in the dock as an individual, and to consider whether that individual has been wicked or not? Is not that our approach in criminal matters? If this Amendment meets with favour—and I am indicating the doubt I have in regard to it —it would be possible for somebody to be convicted even though the jury thought that the person in the dock was quite genuine and honest in the belief that he or she had reasonable grounds for making the demand, and that he or she honestly believed that the use of the menaces was a proper means of reinforcing the demand. If this Amendment were carried, a judge would have to tell the jury: "Even though you think that the accused person really believed that he had reasonable grounds for making the demand; even though you believe, also, that the person in the dock had the belief that what he did was all right, in the sense that the use of the menaces was a proper means
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of reinforcing the demand; even if you think that individual as an individual has been quite honest and has not been wicked, if you think that in all the circumstances what the accused did was unreasonable, then, in spite of your view that as an individual he was innocent, you must convict him." That is the anxiety I feel in regard to this matter, and that I thought I ought to express.
THE LORD CHANCELLOR: My Lords, I entirely agree with the noble and learned Viscount, Lord Dilhorne, that it is of great importance that we should get our law of blackmail right, and I can assure the House that there is no clause to which the Government have devoted more care and attention than this clause. At the Committee stage my noble friend Lord Stow Hill and the noble Viscount, Lord Colville of Culross, moved an Amendment which sought to add to the clause an objective test of the reasonableness of the ground for making the demand and the propriety of using menaces to reinforce it. The Amendment would have had the effect that the clause contained both a subjective and an objective test, and I ventured to state fully the objections and complications which it seemed to me such an Amendment would cause. My noble friend withdrew the Amendment on an undertaking to give further consideration to the points raised in the debate.
My noble friend has now changed his mind. The present Amendment adopts a different approach. It preserves the subjective test in paragraph (a), but applies an objective test in paragraph (b). Thus, if the Amendment were accepted, a demand with menaces would be unwarranted for the purpose of the clause unless the person making it believed he had reasonable grounds for making the demand and the use of menaces to reinforce it was (objectively) "in all the circumstances not unreasonable". It is quite clear from the Committee's Report that there is no part of their Report to which they themselves devoted more attention than this, which is fully discussed in paragraphs 116 to 122 of the Report. The Committee were satisfied that the test of the legality of both making the demand and using the menaces should be subjective. As to the

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illegality of making the demand, the Committee said, in paragraph 118:
"We are decidedly of the opinion that the test should be subjective, namely, whether the person in question honestly believes that he has the right to make the demand … Since blackmail is in its nature an offence of dishonesty, it seems wrong that a person should be guilty of the offence by making a demand which he honestly believes to be justified. Moreover to adopt the objective test seems to involve almost insuperable difficulty. It would he necessary either to set out the various kinds of demands which it was considered should be justified or to find an expression which would describe exactly these kinds but not others. The former course might in theory he possible; but the provision would have to be very elaborate, and it would involve the risk which attends any attempt to list different kinds of conduct for the purpose of a criminal offence—that of including too much or too little".
Turning to the legality of using threats, the Committee said, in paragraph 120:
"for reasons similar to those given in paragraph 118 concerning the demand we think that the only satisfactory course would be to adopt a subjective test and to make criminal liability depend on whether the person who utters the threat believes in the propriety of doing so".
After the most careful consideration, the Government share the Committee's view. If the Amendment were adopted, a person could honestly believe that he was entitled to the thing demanded and entitled to use threats to get it, but he could still be convicted of blackmail unless he satisfied the jury that his use of threats was "not unreasonable". The Amendment does nothing, beyond directing their attention to "all the circumstances", to give juries guidance about what are and are not reasonable threats, and there would be risk that juries, in attempting to apply the objective test (which they could do only by using their own subjective judgments), would arrive at disparate results.
Your Lordships will remember that one of the difficulties of the existing law was the difficulty juries had concerning reasonable or probable cause. As I understand it, under the Amendment it would be open to the defence to submit to the judge that there was no case to answer, on the ground that there was no evidence on which a jury could find that what he had threatened was not unreasonable. If the judge did not accede to that view he would have to direct the jury as to what "not unreasonable" really meant. I myself have not followed
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whether there is some subtle distinction to be drawn between "reasonable" and "not unreasonable", but the test, the thing which the jury has to decide, is whether in all the circumstances it is "not unreasonable".
The form which the law should take is not, I suggest, to be decided solely by what will enable most people to be convicted. The case, I know, which my noble friend has mostly in his mind, in the, if I may say so, very clear and cogent argument he put before the House, is that of the woman who is going to have some man's illegitimate child, and then she makes demands on him. But he will bear in mind that under the present law an oral demand by a woman to a man to pay maintenance for her child of which he is the father is not blackmail, whatever the nature of the threat, because Section 30 of the 1916 Act requires an intent to steal, and therefore a claim of right is a defence. Similarly, of course, although under this Bill we do not call it a "claim of right" the intention is that the state of mind of the accused is relevant, because under Clause 2(1)(a) he is not dishonest.
"If he appropriates the property in the belief that he has in law the right to deprive the other of it,"
and again, if I may remind my noble friend, under the existing law in Skivington's case, which was decided only last year, a defence of claim of right applies to any aggravated form of larceny, such as robbery, robbery with aggravation, or assault with intent to rob. It is not necessary to establish a claim of right in such offences that the defendant should further have had the honest belief that he had the right to take the property in the way in which it was taken.
I pay the greatest tribute to the high offices which my noble friend has held and the very great experience which he has had, but one of the things which I think the Government must take into account at the end of the day is that we are dealing with a practical thing, not something on paper, in which I should have thought great experience must count; and I am sure my noble friend would agree that the seven criminal law Judges on the Committee, and also, of course, the Director, have no less experience of blackmail cases than he has had. I am sorry that the noble and learned Lord the Lord Chief Justice has

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not been here to-night, but perhaps it is significant that the Member of your Lordships' House who, of those present, has undoubtedly had most experience of trying criminal cases, the noble and learned Lord, Lord Morris of Borth-y-Gest, takes the view which the Government have been compelled to take: that really the test ought to be subjective. This is where this House went wrong a little time ago and we have had to alter the law by Statute since. I refer to the case of Smith v. The Director of Public Prosecutions, another case where an objective test had been laid down instead of a subjective test. At the end of the day blackmail, like all the matters dealt with under this Bill, is a crime of dishonesty, and it does not seem right that a man who has not a guilty mind may be convicted.
However, in view of the cogent argument which has been put forward by my noble friend Lord Stow Hill I will see that exactly what he has said is considered, not only by the Government but, if I may do so, by the noble and learned Lord the Lord Chief Justice, and perhaps other members of the Committee. On that undertaking, I hope that my noble friend will agree not to press his Amendment to a Division.
LORD CONESFORD: My Lords, before the noble Lord, Lord Stow Hill, intervenes, I wonder whether I may put to the noble and learned Lord on the Woolsack one point which puzzled me. I saw the force of the conclusion of paragraph 120 of the Commission's Report, which he quoted in the speech which he has just made. What I find so difficult to reconcile with that is what the Committee themselves say in paragraph 119. May I read the passage, which seems to indicate a point of view more nearly that of the noble Lord, Lord Stow Hill. It reads as follows:
"On this view no demand with menaces would amount to blackmail, however harsh
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the action threatened, unless there was dishonesty. This is a tenable view, though an extreme one. In our opinion it goes too far and there are some threats which should make the demand amount to blackmail even if there is a valid claim to the thing demanded. For example, we believe that most people would say that it should be blackmail to threaten to denounce a person, however truly, as a homosexual unless he paid a debt. It does not seem to follow from the existence of a debt that the creditor should be entitled to resort to any method, otherwise non-criminal, to obtain payment."
But, my Lords, unless we adopt some such Amendment as is now proposed by the noble Lord, Lord Stow Hill, it seems to me we shall be rendering possible the very thing that the Committee themselves said should not be possible. It may be that I have overlooked some point, but it seems to me that what they say in paragraph 119 cannot be very easily reconciled with what they say in paragraph 120.
LORD STOW HILL: My Lords, this is the second time that I rise to speak, and I think on Report stage I should ask your Lordships' permission to do so. May I have your Lordships' permission to do so? What I would like to say is this. We are all anxious to get this right. The noble and learned Lord the Lord Chancellor said very kindly at the conclusion of his speech that while he rejected entirely the arguments which I had ventured to put before your Lordships' House, he nevertheless would give them careful thought again and see that those arguments received further consideration. I always live in hope. In the most dire moments I think there is hope always which lingers in the human heart, and it does in mine. In those circumstances, in view of what the noble and learned Lord the Lord Chancellor has said, I would ask permission to be allowed to withdraw this Amendment in order that it may receive further consideration in due course before it goes to another place.
Amendment, by leave, withdrawn.
Clause 21:
Handling stolen goods
21.—(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
10.23 p.m.
LORD AIREDALE LORD AIREDALE moved, in subsection (1), to leave out "handles stolen goods" and insert "shall be guilty of an offence". The noble Lord said: My Lords, I think it may be convenient to discuss Amendments Nos. 39, 40 and 42 together. Inevitably those three Amendments must stand or fall together. These are Amendments to Clause 21 which is described as "Handling stolen goods", not only so described in the side-note but also in line 1 of the clause itself—"A person handles stolen goods if …", and so on. I think it was the noble and learned Viscount, Lord Dilhorne, who pointed out in Committee that of the list of offences comprised in this clause only the first, receiving the goods, would almost inevitably amount to handling the goods. The remainder of the offences listed there—undertaking or assisting in their retention, removal, disposal or realisation by or for the benefit of another person or arranging to do so—all those things could be done without handling the goods at all. It therefore seems rather misleading to describe specifically as handling stolen goods the whole list of offences which might quite easily not involve handling the goods at all.
I can quite see the purpose of having an expression of this kind in the side-note. No doubt the offence in lawyers' parlance can loosely be described as handling stolen goods, but I do not see that any useful purpose is served by using these words in the body of the clause. I should have thought it was much less misleading to say that a person "shall be guilty of an offence" if he does these things. I beg to move.
Amendment moved—
Page 9, line 25, leave out ("handles stolen goods") and insert ("shall be guilty of an offence").—(Lord Airedale.)
THE LORD CHANCELLOR: My Lords, this was a question which was raised on the Committee stage of the Bill, and the Government have already given it careful consideration. They are satisfied that it would be wrong to alter the clause as proposed. In the first place, it is desirable, for the convenience of the courts, the police and others wishing to refer to an offence to have a name for it. We really require that of all offences—taking and driving away, or grievous bodily harm—and it would be rather unusual to have an anonymous offence, one having no name. To facilitate references elsewhere in the Bill to the offence, we think that it should have a name, and nothing more suitable than "handling" has been suggested.
The existing word "receiving" would not be apt in view of the extension of the offence by the clause to cover people who do not "receive" the goods, and are not "receivers" as that word is generally understood. In Committee, the noble and learned Viscount, Lord Dilhorne, suggested the term "deals with"; but the Government would regard it as a pity to use such everyday expressions as "deals with" and "deals in" as names for a criminal offence, and so make the expressions difficult to use in ordinary speech in an innocent sense.
Apart from the fact that no preferable alternative to "handles" has been suggested, the Government do not accept that the word is used in the clause with an unnatural meaning. I am not much given to looking at dictionaries to see what words mean, because I tend to flatter myself that I know what the English language means. But in point of fact, the New Oxford English Dictionary has nearly two full columns of definitions of the word "handle", and one of the main usages recognised is with the meaning: "To have in hand or pass through one's hands in the way of business; to trade or deal in; to buy and sell." In short, the word is used to describe business dealings of the kind which are done in

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stolen goods. In any event, it is not necessarily wrong, since English is a living language, to give a word an extended meaning in a Statute provided that, as here, the meaning is clear in its context. Whatever "handles" has or has not meant in the past, it is used in the Bill as a term to describe a defined course of conduct, and is likely to become rapidly recognised as having that meaning.
Apart from the Amendments being unnecessary, I do not think the noble Lord, Lord Airedale, appreciates that there would have to be consequential Amendments made, for example, in Clause 23(2), Clause 25(2) and (5), Clause 26(1), (2), (3) and (4), Clause 28(2) and Clause 31(2), and also in a number of places in the Schedules. If the offence under Clause 21 was nameless these clauses and Schedules would require some cumbrous drafting. When all that is taken into account, I suggest that "handles" is with respect a convenient expression—better than having no "handle" at all to the crime, if I may use that term; and no one has suggested a better one. I would hope that on consideration of these matters the noble Lord would withdraw his Amendment.
LORD AIREDALE: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor. I confess at once that I had not spotted all the consequential Amendments. But when I am told that it is so important that an offence must have a name in the clause which creates it, I simply observe in passing, as the noble and learned Lord the Lord Chancellor himself will, that when we get to Clause 24, which is called in the side-note "Going equipped for stealing", it does not begin, as one would suppose, with the words, "A person goes equipped for stealing if"; it begins, "A person shall be guilty of an offence if". That was what I was trying to do in Clause 21, because I thought that "Handling stolen goods" was not really accurate to describe most of the offences in this clause. However, it is not a matter that I want to press to a Division, and I am quite willing to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
LORD AIREDALE LORD AIREDALE moved, in subsection (1), after the second "of" to insert "himself or". The noble Lord said: My Lords, this Amendment is one which I moved in Committee. I did not think that its purpose was then fully understood, and I have put it down again. The offence of handling stolen goods is, as the clause stands, committed only if it is done for the benefit of another person. I should have thought that it was necessary to say that it was to be for the benefit of the handler himself or of another person. I gave an example of a case where it would not be for the benefit of another person but for the handler himself, a case in which I should have thought the handler was meant to be caught under this subsection.
The case was as follows. A thief steals a lawn mower and goes to a receiver and says, "Can you dispose of this for me? "The receiver replies, "I cannot sell it, but I would not mind having it for myself." The thief says, "You are a good friend of mine, and if it is for yourself you can have it for nothing." The receiver then makes arrangements to have it collected. In the meantime, the police catch up with what is going on, and the lawn mower never arrives at the receiver's premises. In that case it will not have been for the benefit of anybody else. It will not have been for the benefit of the thief, because the thief was not going to get anything for it. It will have been for the benefit of the receiver or handler. I do not see why the handler who was plotting to get for himself a stolen lawn mower should not come within the offence of handling stolen goods. For this reason I have put down this Amendment. I hope that I have here spotted a lacuna and that the Amendment will be accepted. My Lords, I beg to move.
Amendment moved—
Page 9, line 29, after ("of") insert ("himself or").—(Lord Airedale.)
THE LORD CHANCELLOR: My Lords, this is really a question of the correct interpretation of subsection (1). Under subsection (1) of Clause 21:
"a person handles stolen goods if (otherwise than in the course of the stealing) knowing or

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believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person or if he arranges to do so."
The Amendment would alter the words, "by or for the benefit of another person," to read, "by or for the benefit of himself or another person". I thought that we had fully discussed this matter in Committee when the noble Lord explained that his Amendment was to cover the hypothetical case which he has repeated tonight. I thought that my noble friend Lord Stonham dealt with this in column 564, when he said that the hypothetical case put by the noble Lord, Lord Airedale, was clearly caught by the clause because of the words, "or if he arranges to do so" at the end of subsection (1). The receiver, in the hypothetical case, would have arranged dishonestly to receive the goods. The noble Lord, Lord Airedale, rejected this explanation and said he did not accept that the words, "for the benefit of another person" do not also apply to the words, "if he arranges to do so".
This is wholly a matter of the correct construction of subsection (1), and the Government, having taken further advice on the point, are satisfied that the assurances given by my noble friend Lord Stonham in Committee was correct. It may be that Lord Airedale overlooked the significance of the word "if" in line 29 of the subsection. The words following the word "if" in line 25 set out a number of things which constitute "handling", and it is clear from the repetition of "if" in line 29 that arranging to do any of these things also constitutes handling. In any case, the noble Lord has done nothing to alter it to meet the objection put to it by my noble friend in Committee in columns 563 and 564 that the Amendment could have the undesirable effect of making a thief a handler (thus exposing himself to the higher penalty for handling) for no other reason than that he undertook the "retention, removal, disposal or realisation" of goods which he had previously stolen. I thought from reading column 564 that the noble Lord had accepted that that might well be a criticism of his Amendment, and had said that he had not intended that. But he has not, I think, altered it from what we discussed on the Committee stage. I hope that the noble Lord
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may be good enough to consider what has been said, and will not press his Amendment to a Division tonight.
LORD AIREDALE: Yes, my Lords. I certainly accept that invitation. I feel sure that if it were not so late I could find the passage where the Committee expressed the view that they would not be very concerned if a thief, who subsequently took part in a separate incident of handling the goods, was liable to be convicted separately of the handling offence. But I will, of course, read carefully in Hansard what the noble and learned Lord has said, and will consider this matter further. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 24 [Going equipped for stealing, etc.]:
LORD STONHAM: My Lords, I hope that it will meet your Lordships' convenience if I deal at the same time with Amendments Nos, 45, 48 and 50. These Amendments are consequential on the changes which have been made since the Bill was introduced in the provisions of the Bill dealing with criminal deception. Clause 24 as drafted referred to offences of "criminal deception", meaning offences under Clause 15. But we have now deleted subsection (2) of Clause 15 and it has been replaced by the, new clause on "pecuniary advantage", and there are now two criminal deception clauses in the Bill—the new clause and Clause 15 as amended. It is therefore necessary to adjust Clause 24 to take account of this position, since it is considered unnecessary for that clause to apply to the offences under the new "pecuniary advantage" clause. The Amendments therefore make Clause 24 apply only to the offence under Clause 15 as it now stands—the offence which is given (by Amendments Nos. 48 and 50) the new name of "cheat". I beg to move.
Amendment moved—
Page 10, line 38, leave out ("criminal deception") and insert ("cheat").—(Lord Stonham.)
LORD AIREDALE: My Lords, as I have alternative Amendments to each of these, perhaps I may say something now upon this Amendment. The most

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glaring inappropriateness of the word "cheat" in these Amendments is in Amendment No. 45, which relates to subsection (3). If the Minister's Amendment is accepted that will then read
" … for use in committing burglary, theft or cheat".
So we have the expression "committing cheat". I cannot feel that that is an appropriate expression in the English language. My alternative to all these instances of inserting the word "cheat" is "cheating", which would give us the expression "committing cheating". I cannot say that I am greatly enamoured of it, but I venture to suggest that it is a great improvement on the extraordinary expression "committing cheat".
LORD STONHAM: I am grateful to the noble Lord for raising this point now as it will save time. I am sorry that he finds the use of the word "cheat" extraordinary, particularly in the context of Amendment No. 45 to which he referred. Cheating is a word which has a very general meaning, whereas cheat is a term of art which can appropriately be applied to the offences under Clause 15. It may well be that the use of the word "cheat" as a noun to describe an act of cheating is unusual, but I assure the noble Lord that there is well-established legal usage of the word "cheat" in this sense. It is nothing new. Its use in this sense is nothing novel, and it is not unusual to use it in an ordinary literary sense. The New Oxford English Dictionary (everybody else seems to have quoted it during the Report stage, so I may as well do so, too) gives examples of its use to mean:
"the action of cheating or defrauding".
These examples come from Milton and Locke, both of whom are generally thought to have written tolerably good English. It is good English. It is an appropriate term—a term of art, if you like. It is what we mean in this Bill, more than "cheating", which might mean a small child doing something wrong when playing "Beggar your neighbour". This is what we really mean, and this, we consider, is the best word. I hope that the noble Lord will accept that.
On Question, Amendment agreed to.
LORD AIREDALE: My Lords, I cannot think that any great writer has ever used the expression "committing cheat". However that may be, I will not move my Amendment, No. 44.
LORD STONHAM: My Lords, I beg to move No. 45.
Amendment moved—
Page 11, line 1, leave out ("criminal deception") and insert ("cheat").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment No. 47. This Amendment deletes the words "and driving away" in subsection (5) of Clause 24, which relates to going equipped for stealing, et cetera. The Amendment is consequential on Amendment No. 28. I beg to move.
Amendment moved—
Page 11, line 7, leave out ("and driving away").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move the next Amendment.
Amendment moved—
Page 11, line 8, leave out ("criminal deception") and insert ("cheat").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment No. 50.
Amendment moved—
Page 11, line 9, leave out ("(1) or (2)").(Lord Stonham.)
On Question, Amendment agreed to.
Clause 27 [Orders for restitution]:
10.43 p.m.
LORD STONHAM LORD STONHAM moved, in subsection (1)(c), to leave out "taken from the person convicted" and insert: "of the person convicted which was taken out of his possession". The noble Lord said: My Lords, I beg to move Amendment No. 51. The noble Viscount, Lord Colville of Culross, will recall that he was prominent in the discussion on this

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particular subject. Each of the provisions which this and the next Amendment would alter contains a power to order restitution "out of any money taken from the person convicted on his apprehension".
Subsection (1)(c) provides for compensation, out of such money, of the person entitled to recover the original, stolen, goods; and subsection (3) for the compensation, out of such money, of a person acting in good faith to whom the convicted person sold the stolen goods or from whom the convicted person borrowed money on them. The Amendments would widen both provisions so that an applicant could be compensated not out of "money taken from the person convicted on his apprehension" but out of any:
"money of the person convicted which was taken out of his possession on his apprehension".
These Amendments meet, and I think meet effectively, the criticisms that were made during Committee. They are intended to meet the difficulties then raised without departing from the principle, which the Government are certain is right, that the subsections should apply only to money which was, broadly speaking, in the personal possession of the offender when he was arrested. I beg to move the first Amendment.
Amendment moved—
Page 13, line 27, leave out ("taken from the person convicted") and insert ("of the person convicted which was taken out of his possession").—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I think the true credit for these Amendments is due to the vivid and, as it turned out, accurate imagination of the noble Lord, Lord Airedale, and also to the noble and learned Lord, Lord Wilberforce. Nevertheless, it is to be welcomed that the Amendments broaden the general conception of what we are trying to deal with here, and do so in a very satisfactory way.
On Question, Amendment agreed to.
LORD STONHAM: My Lords, this Amendment deals with the same point. I beg to move.
Amendment moved—
Page 13, line 41, leave out ("taken from the person convicted") and insert ("of the
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person convicted which was taken out of his possession").—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM LORD STONHAM moved, after subsection (3), to insert the following new subsection:
"(3A) The court shall not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the trial or the available documents, together with admissions made by or on behalf of any person in connection with any proposed exercise of the powers; and for this purpose `the available documents' means any written statements or admissions which were made for use, and would have been admissible, as evidence at the trial, the depositions taken at any committal proceedings and any written statements or admissions used as evidence in those proceedings."
The noble Lord said: The object of this Amendment is to make it clear that the procedure for making restitution orders under the clause should be used only where the title to the property is clear from facts emerging in the criminal proceedings, as the clause provides only a summary method of compensation. The Amendment should meet the point raised by the noble and learned Viscount, Lord Dilhorne, in Committee who, in making a number of criticisms of the clause, suggested that there should be some words to act as a "guide post" that the intention is to provide for a procedure to be used only in the clearest cases. The Amendment is intended to indicate that if the title to goods was not clear, or if it would be necessary to hear evidence beyond that which was available in the course of the trial, the court should not exercise its powers under the clause. The Amendment thus makes it clear on the face of the clause that the criminal court is not expected, in exercising the powers under the clause, to get itself involved in issues that are best left to a civil court. I beg to move.
Amendment moved—
Page 13, line 44, at end insert the said subsection.—(Lord Stonham.)
VISCOUNT DILHORNE: My Lords, I rise to thank the noble Lord. I think that this proposed subsection satisfactorily meets the suggestions I put forward. I am grateful to him and to those who work for him for the trouble they have taken.
VISCOUNT COLVILLE OF CULROSS: My Lords, I think it also deals, at any rate, indirectly, with certain points I made on this clause. I am bound to say that I regard this new subsection as a holding operation, because we have not yet finished with the whole problem of restitution: there will be the Report from the Criminal Law Revision Committee in due course. I am sure it is right for the moment to hold it in this way so that it is made clear that it will be only in the most obvious and summary cases that the power is to be used by the courts. I reserve the right later, when we have some Report from the other Committee to go back to the other points I raised. I am content to leave it like this at the moment.
On Question, Amendment agreed to.
Clause 28:
Jurisdiction of quarter sessions, and summary trial
28.—(1) A court of quarter sessions shall not have jurisdiction to try indictments for blackmail; but in Schedule 1 to the Criminal Law Act 1967 there shall cease to have effect paragraph 13(a) and (b) of List B (which exclude from the jurisdiction of quarter sessions the theft etc. of court records and documents of title to land).
VISCOUNT DILHORNE VISCOUNT DILHORNE moved, in subsection (1), to leave out, "A court of quarter sessions shall not have jurisdiction to try indictments for blackmail; but". The noble and learned Viscount said: My Lords, the noble and learned Lord, Lork Parker of Waddington, who, unfortunately, is unable to be present this evening and whose absence we all regret, has asked me to move this Amendment which he has tabled to this part of the Bill. The offence of blackmail created by Clause 20 is really an amalgamation of the offences under Sections 28, 29, 30 and 31 of the Larcency Act 1916. Section 29 creates the most serious offence, carrying a sentence of life imprisonment which is triable only at assizes. Sections 30 and 31 create lesser offences carrying sentences of five years and two years respectively, and these are in fact triable at quarter sessions. However, when Lord Goddard was Lord Chief Justice, he said that certain Section 30 cases should be triable at assizes unless there was some compelling reason to take another course. Subsequently a Practice Note to this effect was issued.
My Lords, experience has shown that some such cases are comparatively trivial, and could well be tried at quarter sessions. It may be right that the Practice Note which is now in existence should be varied to enable that to happen, and it would not be unreasonable that it should, having regard to the pressure of work on assizes and to the fact that chairmen of quarter sessions are legally qualified, as are recorders.
If Clause 28 stands as it is at present, the Lord Chief Justice will not be able to make arrangements for the trial of any cases under Clause 20 at quarter sessions. I think it very desirable that he should have the power to do so in appropriate cases. Of course, it goes without saying that the serious offences now covered by Section 29 of the Larceny Act, and in future to be covered by Clause 20 of this Bill, will always be, and should be, tried at assizes, and no legislation about that is required. I beg to move.
Amendment moved—
Page 14, line 6, leave out from beginning to ("in") in line 7.—(Viscount Dilhorne.)
THE LORD CHANCELLOR: My Lords, I expect the noble and learned Viscount would agree that Amendments Nos. 64 and 68 are purely consequential on this Amendment, and that it would be convenient to discuss them together. For the reasons which the noble and learned Viscount has given, and which it seems to me quite unnecessary to repeat, I would advise the House to accept the Amendment.
On Question, Amendment agreed to.
Clause 33:
Interpretation
33.—
(2) For purposes of this Act—
(a) "gain" and "loss" are to be construed as extending only to gain or loss in money or money's worth, but as extending to any such gain or loss whether temporary or permanent;
10.52 p.m.
LORD STONHAM LORD STONHAM moved, in subsection (2)(a), to leave out "money's worth" and insert "other property". The noble Lord said: My Lords, I hope it will meet the convenience of your Lordships

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if we deal also with Amendment No. 56 which embodies, as it were, amplifications of the meanings of both "gain" and "loss". During the Committee stage, the noble and learned Viscount, Lord Dilhorne, suggested that "money's worth" had a more limited meaning than the word "property" and that the two expressions were not interchangeable. The Government do not think that in the context of this Bill "money's worth" has quite the limited meaning attributed to it by the noble and learned Viscount—for example, such things as cheques, bills of exchange and promissory notes—but we are anxious that there should be no doubt on this point, and accordingly Amendment No. 55 meets the criticism of the noble and learned Viscount by substituting the words "other property".
Amendment No. 56 clarifies the meaning of "gain" and "loss" in the Bill. Again, doubts were expressed by the noble and learned Viscount during the Committee stage about whether the words "with a view to gain" cover action taken with a view to avoiding loss. Paragraph (i) in Amendment No. 56 meets this point and paragraph (ii) simply provides that "loss" includes loss of expected gain. My Lords, I beg to move.
Amendment moved—
Page 17, line 33, leave out ("money's worth") and insert ("other property").—(Lord Stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I do not think that one would realise from what the noble Lord, Lord Stonham, has said what an important Amendment No. 56 is. Having moved this, and having given me an opportunity to see on the Order Paper beforehand that this was being done, the noble Lord has avoided a discussion over again of Clauses 16, 18 and 19, and that is no mean achievement. In the process of expanding the definition of "gain" and "loss" he has met the point that was made so many times: that the Bill, as it was previously drawn, did not deal with those people who falsified accounts or suppressed documents or did other things of that nature to cover up past defalcations.
There were a great number of arguments in the Committee stage about what was the extent of the existing criminal law about some of those rather com-
150
plicated matters, but I do not think that the Government ever went so for as to say that the existing criminal law when it said "to defraud" did not mean "to cover up past defalcations". Certainly this seems to be what has been tried in criminal courts and upon which accused people have been found guilty. I do not think that the definition in the Bill as it stands, without these Amendments, was apt to cover these matters. I consider it to be a major Amendment, which has brought a great deal of relief to me, because I believe now that there is a fair chance that the scope of the existing criminal law is being preserved by this Bill. It may he that there are one or two small matters that fall outside—blackmail, offices that carry profit and one or two other things—but, broadly speaking, the Bill covers the vast substance of existing criminal law, and I want to thank the noble Lord sincerely for these Amendments, which I believe cut out a great deal of further argument at this stage of the Bill.
VISCOUNT DILHORNE: My Lords, I should like to endorse what my noble friend has said. I am sorry that the noble Lord, Lord Stonham, thought fit to introduce the question of whether I was right or the Home Office was right as to the interpretation of the missing word. At least it was vague, but by this Amendment it has been made clear. I think it is one of the most important Amendments made to the Bill and effects a considerable improvement. Indeed, if only Clause 33 with these Amendments had been in the Bill when it was considered in Committee, it would have saved a lot of time and discussion. The fact that we have persuaded the Government to make these Amendments justifies the trouble we on this side of the House have taken and I thank the noble Lord for meeting us in the way he has.
LORD AIREDALE: My Lords, I am bound to say that I feel that what has been done has been done in the wrong way. I deplore this straining of the meaning of words so that in an interpretation section we can have solemnly enacted that "'gain' includes 'avoidance of loss'." In plain English, gain and the avoidance of loss are not the same thing; they are quite distinct and separate. There would not be the slightest difficulty, so far as I can see, in making the Statute much

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more intelligible by saying in all places where we intend to say it "for the purpose of gain or for the avoidance of loss."
If we put in "for the purpose of gain" and leave it at that, and take the chance that the reader will eventually arrive at the end of the Statute at the Interpretation Clause and then discover that gain does not mean just gain, its ordinary meaning, but also the avoidance of loss, when he would never otherwise have suspected, we are not doing what I think in these days we are striving to do: make the Statutes, particularly the criminal Statutes, as intelligible as possible to ordinary people. It is straining the English language to say that "gain" also means "the avoidance of loss". I am not quarrelling with what is being done, but the way and place in the Statute in which it is done.
LORD STONHAM: I am grateful to the noble and learned Viscount, Lord Dilhorne, and to the noble Viscount, Lord Colville of Culross, and I agree with them that these are important Amendments. I have always thought that Clause 33 was of great importance. I do not wish to enter into an argument with the noble Lord, Lord Airedale, but, speaking as a layman, I do not think that the avoidance of loss necessarily means the same things as the definition.
"(ii) 'loss' includes a loss by not getting what one might get, as well as a loss by parting with what one has"
I think that is much greater and covers a wider field than the words "avoidance of loss".
LORD AIREDALE: "Keeping what one has" is not, in ordinary English, "avoidance of loss".
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move.
Amendment moved—
Page 17, line 35, at end insert—
("and—

(i) 'gain' includes a gain by keeping what one has, as well as a gain by getting what one has not got; and

(ii) 'loss' includes a loss by not getting what one might get, as well as a loss by parting with what one has").—(Lord Stonham.)

LORD AIREDALE: My Lords, this is a very simple matter. If the expression "what one has" is satisfactory in line 2, is it really necessary to have the expression, "what one has not got" in line 3? I should have thought that the hideous little word "got" could have been eliminated from line 3. I beg to move.
Amendment to Amendment moved—
Line 3, leave out ("got").—(Lord Airedale.)
LORD STONHAM: I agree that the expression "what one has not got" is really shocking. It does not really matter whether "got" is in the sentence or not, although the repetition of the verb is not without its value for clarity. "What one has not" has the same meaning, and it sounds so much better that I think we should accept this Amendment.
On Question, Amendment to Amendment, agreed to.
Amendment, as amended, agreed to.
Schedule 2 [Miscellaneous and Consequential Amendments]:
LORD STONHAM LORD STONHAM moved to insert, after the amendment to The Pawnbrokers Act 1872:

"The Bankruptcy Act 1914 (4 & 5 Geo. 6. c. 59).

In section 166 (admissions on compulsory examination etc. not to be admissible as evidence in proceedings for certain offences) for the words from any of the misdemeanours' onwards there shall be substituted the words 'an offence under [section 1, 16, 17 or 19 of] The Theft Act 1968'."

The noble Lord said: My Lords, with this Amendment I should like to deal with Amendment No. 67. The Bill in its present form follows the draft Bill annexed to the Criminal Law Revision Committee's Report. Paragraph 205 of the Report gave as the reason for the proposal the fact that, according to the Committee's information (obtained from the Board of Trade, whose solicitor was a member of the sub-committee of the Committee), the existing provisions did not in fact produce disclosures.
At the Committee stage the noble Viscount, Lord Colville of Culross, criticised the Bill on the ground that the proposal to abolish the restrictions on giving

153
evidence of an admission made in bankruptcy proceedings was inconsistent with the provision in Clause 30(1) imposing a similar restriction (in place of the wider immunity from liability under the present law) in the case of admissions made in certain kinds of ordinary civil proceedings.
I have considered this question, as I promised. In the Government's view, it would still be justifiable to make a difference between disclosure in bankruptcy proceedings and disclosure in ordinary civil proceedings, because the two kinds of proceedings differ considerably in character. In particular, in bankruptcy proceedings much of the information required is got in the so-called "preliminary examination" under Section 22 of the Bankruptcy Act 1914, to which the restrictions in the present law do not apply, and there is nothing corresponding to this in ordinary civil proceedings. It seems to the Government a mistake to assume that, because experience shows that something does not happen in one kind of proceedings, it will not happen in quite different kinds of proceedings.
Since the question has been raised, and since the Criminal Law Revision Committee in their review of the law of evidence in criminal proceedings are considering, among other topics, the rules as to the privilege of self-incrimination, which Clause 30 restricts, the Government see no objection to preserving the present limited privilege in bankruptcy proceedings, leaving the question of privilege generally to be considered by the Committee in relation to both kinds of proceedings. They are quite satisfied, however, that subsection (1) rightly reduces the present immunity from liability to criminal proceedings in the cases to which it refers to inadmissibility of evidence of the admission. This result is secured by the Amendment 62, which amends Section 166 of the Bankruptcy Act 1914 so that, instead of applying only to the offences under the Larceny

(" 34 & 35 Vict. C.41.

The Gas Works clauses Act 1871.

In section 38, as incorporated in the Electric Lighting Act 1882, the words 'or fraudulently abstracts, consumes or uses gas of the undertakers', the words 'or for abstracting, consuming or using gas of undertakers' and the words `abstraction or consumption'.")—(Lord Stonham.)

Act 1861 to which it applies at present, it will apply to any offence under the Bill. Amendment 67 is consequential. My Lords, I beg to move.
Amendement moved—
Page 24, line 11, at end insert the said words, —(Lord stonham.)
VISCOUNT COLVILLE OF CULROSS: My Lords, I should like to thank the noble Lord for what is again, I think, a holding operation which will be examined at the proper time and in the proper place. Meanwhile, I welcome this Amendment.
On Question, Amendment agreed to.
LORD STONHAM: My Lords, Clause 15(3) was deleted in Committee and is to be replaced by a new clause, "Obtaining pecuniary advantage by deception". The repeal of Section 4 of the 1900 Act is no longer desirable as it is uncertain whether the new clause would cover it as Clause 15(3) of the Bill as introduced did. This Amendment would accordingly delete the consequential change to the 1927 Act which was to have been made by Schedule 2. I beg to move.
Amendment moved—
Page 24, leave out lines 12 to 17.—(Lord Stonham.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: My Lords, on behalf of the noble and learned Lord the Lord Chief Justice, I beg to move Amendment 64. This is consequential.
Amendment moved—
Page 25, leave out lines t4 to 18.—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
Schedule 3 [Repeals]:
LORD STONHAM: My Lords, I beg to move Amendment 65. This is a purely drafting Amendment.
Amendment moved—
Page 26, line 31, at end insert—
VISCOUNT COLVILLE OF CULROSS: My Lords, the remarkable thing is that when it says "gas", I believe it means "electricity".
On Question, Amendment agreed to.
LORD STONHAM: My Lords, this Amendment is consequential. Before I move it, I should like to thank all those noble Lords who have taken part in this long and hard-working but, I think, very fruitful session. Thank you all for your courtesy and help. I beg to move.
Amendment moved—
Page 27, leave out lines 31 and 32.—(Lord Stonham.)
On Question, Amendment agreed to.
LORD STONHAM: My Lords, I beg to move Amendment 67.
Amendment moved—
Page 31, leave out lines 46 to 49.—(Lord Stonham.)
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: My Lords, in moving this Amendment, which is consequential, I should like to reciprocate what the noble Lord, Lord Stonham, said. There are still one or two things he has promised to look at, and I think, therefore, that there will have to be a few discussions on the Third Reading. I agree that considerable and substantial progress has been made tonight, and for that I thank him and the noble and learned Lord on the Woolsack.
Amendment moved—
Page 32, line 42, column 3, at end insert ("and, in List B, item 13.").—(Viscount Colville of Culross.)
On Question, Amendment agreed to.
House adjourned at ten minutes past eleven o'clock.