§ 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:
§ 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 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
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
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.
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 readA 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 10 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 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.
Page 2, line 5, leave out ("pays") and insert ("is willing to pay").—(Lord Stonham.)
§ On Question, Amendment agreed to.12
§ 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 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.
Page 2, line 8, leave out ("come by") and insert ("obtained possession of").—(Viscount Dilhorne.)