HL Deb 15 February 1968 vol 289 cc212-23

3.45 p.m.


My Lords, I beg to move that this Bill be now read a second time. The Bill results from the Criminal Law Revision Committee's Eighth Report, Theft and Related Offences, which was published in 1966. A Bill of 35 clauses and three Schedules cannot exactly be described as massive; nevertheless this Bill represents a monumental amount of work. It amends 18 other Acts of Parliament; repeals in whole or in part 92 more Acts and, in addition, there are many consequential repeals. Their time scale ranges from the First Statute of Westminster, passed in 1275, in the reign of Edward I, to Acts which reached the Statute Book as recently as 1967. I am sure that the House will wish to join me in paying tribute to the work done by this Committee of distinguished lawyers, under the chairmanship of Sir Frederic Sellers. It has been rightly acclaimed in many quarters as an invaluable contribution to the strengthening, modernisation and simplification of the criminal law. We have indeed cause to be very grateful for the efforts of the members of the Committee.

The subjects dealt with in the Bill form perhaps the most complicated and difficult part of the substantive criminal law. It is a valuable contribution to the Government's aim of creating a comprehensive criminal code embodying the whole of the criminal law and procedure. When the further work now planned has been completed the law on any criminal matter will be much more readily ascertainable than at present, because the need to consult old Statutes and judicial decisions, will be largely obviated.

When they came to examine the existing law on larceny and related offences, the Criminal Law Review Committee decided that it would be necessary to make far-reaching changes, not merely by amendments to the present law but by introducing a completely new code to cover the relevant offences. On all the most important of these they found that the law was so defective that they had to go back to first principles—to consider what were the essential elements of the offence, and reconstruct the law on that basis. The Bill now before us is in all essentials the draft Bill which the Criminal Law Revision Committee annexed to their Report; but it incorporates some changes, including a new Clause 11 which meets a suggestion made by the Committee and deals with the removal of articles on show in buildings open to the public. We hope and believe that in dealing with an infinite variety of theft the Bill provides a simple, efficient, and satisfactory code.

In the hope of avoiding what would otherwise be an intolerably long speech, I propose to deal only with the more important provisions of the Bill and explain the thinking and policy behind them. Clauses 1 to 7 deal with the new offence of theft, which will replace the existing offences of embezzlement, fraudulent conversion, and the twenty or so different varieties of larceny. The law of larceny at present is difficult and complex. It calls for a great deal of interpretation by the courts, yet fails to deal with certain kinds of dishonesty which should certainly be punishable. To me as a layman, with memories of Bleak House, the deepest complexities of the law are in the field of Chancery: but I was interested to see that in a recent case—it was one which raised the fascinating question whether mussels are wild animals—a distinguished counsel said As one who normally practices in the Chancery Division I am left wondering at the legal complications that may arise in the more sophisticated forms of larceny. The Bill will reduce that wonder, but I am not sufficiently acquainted with the wilder habits of mussels to answer that legal poser.

The defects in the present law arise mainly from the fact that larceny is regarded as essentially a violation of the owner's rights of possession, and not of his rights of ownership. The offence depended originally on a "taking" of the property. Although this notion of taking was extended to certain cases of obtaining possession without a taking, and to certain cases of appropriation by a person in actual possession, larceny still does not cover many kinds of misappropriation which are indistinguishable from stealing. For example, a taking amounts to stealing only if the taker at the time of taking is acting fraudulently, and intends to deprive the owner permanently of the property. An innocent acquisition followed by a dishonest decision to keep or dispose of property is, generally speaking not larceny. So a finder of lost property who intends to return the property to the owner is not guilty of larceny even if he changes his mind and dishonestly keeps or disposes of it. Again, larceny by finding is committed only where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

The law of larceny is also complicated by the existence of a great many separate statutory offences, some of them inconveniently divided between various Acts. The Larceny Acts 1861 and 1916 achieved some measure of consolidation, but there are many provisions in both Acts which are completely covered by other provisions in the same Act, even in the same section, and many of them are obsolete or unnecessary.

My Lords, I turn now to the simplifications in the law which we believe the Bill's redefinition of theft will achieve. First, embezzlement disappears as a separate offence. The distinction between embezzlement and larceny is one of the technicalities which the Committee thought should be abolished. At present the success of a prosecution may depend on such subtle questions as whether a clerk or servant has placed property in what the law regards as an employer's possession. If, for example, a cashier misappropriates money before putting it into the till he commits embezzlement; but after it goes into the till the money is regarded as being in the employer's possession, and if the employee then takes it out of the till, that is larceny. The enforcement of the law should not depend on the prosecution's guessing correctly how the courts will deal with such subtleties. He who steals is a thief, and this Bill will enable him to be charged as such.

Next, the separate offence of fraudulent conversion will disappear. The essence of this offence is misappropriation of property by a person who has possession of property on behalf of somebody else, but, as in the case of embezzlement, having a separate offence inevitably makes for difficulty and complexity. I have just mentioned a hypothetical case where money is taken from a till. Had the offender in my example been not a clerk or servant, but in some other fiduciary relation to the person defrauded, his offence would, under the present law, be fraudulent conversion. Thus criminal conduct, which is in essence the same may be larceny, embezzlement or fraudulent conversion according to very fine points of distinction. I am sure your Lordships will agree that the courts should not have their time wasted in dealing with such technicalities.

The Committee's solution was a single offence of theft. This is Clause 1 of the Bill, and under it a person will be guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it". Clauses 2 to 6 interpret the expressions used in this basic definition, and Clause 7 provides for a single maximum penalty. The law will thus concentrate on what the accused dishonestly achieved or attempted to achieve and not, as under the present law, on the means which he used in order to do so. In this way we avoid the need for a number of different offences which are all in the same family of theft.

The idea of dishonest appropriation, which underlies the new offence of theft, corresponds to the idea of "fraudulent conversion" in Section 20 of the Larceny Act 1916. But the new offence departs from the present offence of fraudulent conversion in dropping the requirement that the offender should, at the time of the conversion, be in actual possession of the property. The offence will thus extend to ordinary stealing by taking property from another's possession. It is as if fraudulent conversion were widened to include the whole of larceny and embezzlement under the umbrella of theft; but the new offence will also include as theft conduct which may not be criminal under the present law. One example is dishonest appropriation by a parent of things taken and brought home by a child who is under the age of criminal responsibility.

The word "dishonestly", which is very important, since dishonesty is a vital element in the offence, is partially defined in Clause 2. It replaces the requirement in the definition of stealing in the Larceny Act 1916 that the offender should take the property "fraudulently and without a claim of right made in good faith". The effect of the definition in Clause 2 is to preserve the present rule that a "claim of right made in good faith" is inconsistent with theft, and also that a finder of property can be guilty of stealing only if he believes that the owner can be discovered by taking reasonable steps. The offence will apply to any kind of property; but under Clause 4 land, things forming part of land, wild creatures and things growing wild will be capable of being stolen only in defined circumstances. Generally speaking, a wild animal or plant can be stolen if it is taken for a commercial purpose.

We have included in the Bill Clause 6, which partially defines the expression, with the intention of permanently depriving the other of it so as to cover certain sets of circumstances, in which, although there may not be an "intention permanently to deprive" on a strict and literal meaning of the words, what is done amounts, for practical purposes, to permanent deprivation, and is larceny under the existing law. With Clause 6 we are providing as complete a statutory code as is practicable of this branch of the law. Without it we should have to rely on cases decided under the old law of larceny; and there would always be the risk of argument that the courts should not, after the Bill was passed, adhere to those cases.

Under Clause 7 the maximum penalty for theft will be ten years imprisonment. This replaces a whole "shopping list" of maxima for the offences of larceny, embezzlement and fraudulent conversion, ranging from six months, on first conviction for stealing a dog, to life imprisonment. Five years is the present penalty for simple larceny, and the increase to ten years may seem severe. But some increases—and decreases—of penalties are inevitable if we are to get rid of the present jumble. And already under the present law a person convicted on indictment of simple larceny may be sentenced to ten years if he has been previously convicted of larceny or, since the Criminal Law Act 1967, of any arrestable offence within the meaning of that Act. So already a thief with a serious previous conviction is liable to ten years imprisonment; and the courts will not contemplate sentences of that gravity except in the worst cases.

Clause 8 defines the offence of robbery which at present is not defined but rests on Common Law. The new offence of robbery will thus remove uncertainties. The essence of robbery is stealing by using force against the victim or putting him in fear. It will not be necessary for the person on whom the force is used, or who is threatened, to be the person from whom the property was stolen. The clause simply requires that force should have been used or threatened in order to steal, but it limits it to force used or threatened immediately before or at the time of the stealing. To give a simple example of the change made by the clause, if at the time of the "great train robbery" force had been used on a signalman instead of the driver of the train, this, under the Bill, would have been robbery. The maximum penalty for robbery or for an assault with intent to rob will be life imprisonment. At present the maximum penalty for robbery is fourteen years' imprisonment, but it is life if there is any of a number of aggravating features, one of which is the use of personal violence. Similarly, the present penalty for assault with intent to rob is five years' imprisonment, but life imprisonment can be imposed if the aggravating features are present. The single maximum penalty of life imprisonment simplifies the law and removes some anomalies. I do not think the House will have much doubt that the offence is one for which a general maximum of life imprisonment is appropriate.

Clauses 9 and 10 deal with burglary and aggravated burglary. They replace the complicated "breaking and entering offences" and provide that a person will be guilty of burglary (a) if he enters a building or part of a building as a trespasser with the intention of committing certain serious offences in it, or (b), if he commits any of those offences or attempts to do so after having entered the building or part of it as a trespasser. The existing law is unnecessarily complicated. It distinguishes between, for example, places of worship, dwelling-houses and other places. There is a bewildering variety of offences and some of them apply to some kinds of buildings and not to others. In some cases the offence depends on the breaking and entering being in the night. And the concept of "breaking" is itself unsatisfactory. For example, "breaking" applies merely to turning a door handle or gaining admission by a false pretence, but often a breaking is difficult to prove. This Bill draws no distinction between different kinds of building or between night and day; the concept of breaking disappears and is replaced by the concept of entering as a trespasser.

Aggravated burglary, under Clause 10, will consist of burglary when in possession of a firearm, imitation firearm, weapon or offence or explosive. The Committee thought it desirable that burglary with these aggravating features should be a separate offence from ordinary burglary, as defined by Clause 9, so that the burglar who went armed should be punishable with imprisonment for life. Again I do not think noble Lords will be in much doubt that the severest penalty must be available for the armed burglar. The maximum penalty for ordinary burglary will be fourteen years imprisonment, replacing widely differing penalties which apply at present to burglary and various breaking and entering offences.

I now turn to Clause 11, which makes it an offence to remove a work of art or similar object from a museum, art gallery or similar place without authority, but without the intention of permanently depriving the owner of it. The Committee regarded this as one of the exceptions which should be made to the general principle, in the Bill and under the present law, that temporary deprivation of property should not be stealing or any other offence. The removal of works of art and other objects from museums and similar places is a mischief which has given rise to a good deal of concern, not least among those responsible for our national art treasures. We all remember the removal of the Goya portrait of the Duke of Wellington from the National Gallery. Such objects are particularly vulnerable to being taken away in circumstances falling short of theft because they are displayed to the public and the public has access to them. Even if the removal of such an object is not, and is not intended to be, permanent, the taker may put at hazard of loss or damage something of great value or which is irreplaceable. Because of their vulnerability such objects and owners require special protection, and this the clause aims to give. The offence it creates will carry a maximum penalty of five years imprisonment.

Clause 12 is also concerned with temporary deprivation. It replaces the present offences of taking and driving away a motor vehicle without authority under the Road Traffic Act 1960 and taking and using a vessel under the Vessels Protection Act 1967 by a new offence applying to conveyances generally, except pedal cycles. It creates a summary offence applying to pedal cycles. Taking and abandoning pedal bicycles has become a serious nuisance in some places. It causes hardship and inconvenience to the owners, and puts an unnecessary burden on the police. We have made the maximum penalty for taking pedal cycles a £50 fine.

Clause 15 is another major provision. It provides that new offences of criminal deception should replace a number of existing offences concerned with obtaining by false pretences or other deception or with practising deception in order to obtain something. Under subsection (1) of the clause it will be an offence dishonestly to obtain by deception property belonging to another with the intention of permanently depriving the other of it. The definition of the word "deception" replaces the words "false pretences" in the 1916 Larceny Act. Because of it the new offence will be committed not only where there is a false pretence as to an existing fact but also where there is a false pretence about an intention. The courts have interpreted the present offence of obtaining by false pretences as applying only to a pretence about an existing fact. Thus, in one case, it was held that a man who worked as a pest destroyer was not guilty of obtaining money by false pretences when he obtained it under contracts to destroy pests when he had no intention whatever of carrying out the contract.

Because of the decision of this House in the case of Fisher v. Raven in 1964, this sort of conduct also does not amount to the offence of obtaining credit by fraud under Section 13 of the Debtors Act, 1869. If, however, the accused had obtained his money for some useless product which he sold to householders as a pest-destroying specific but which he knew to be useless, he would have been guilty of obtaining money by false pretences because the pretence would have been as to a fact—the nature of the contents of the bottle. The definition of deception in subsection (4) of the clause removes this kind of anomaly, and makes a change in the law which was suggested by the noble and learned Viscount, Lord Dilhorne, as Lord Chancellor, when this House was considering the case of Fisher v. Raven. The penalty for the offence under subsection (1) will be ten years imprisonment, the same as for theft. Under subsection (2) of the clause it will be an offence with a maximum penalty of five years imprisonment, to obtain credit or further credit by deception. This replaces, with some changes, the offence of obtaining credit by deception under the Debtors Act, 1869.

Subsection (3) creates a general offence of dishonestly, with a view to gain, inducing a person by deception to do or refrain from doing any act. This does not correspond to any general offence under the present law, although it will supersede a number of offences of deception in existing Statutes. The main object is to cover cases of dishonest deception which ought to be criminal and which are not or may not be dealt with under the present law: for example, dishonestly inducing a person to release an offender from payment of a debt or to give him a rebate or allowance; or dishonestly obtaining employment or some other contract or opportunity to get money or money's worth.

I now come to Clause 20—blackmail. It is an astonishing fact—at least, astonishing to me—that there is at present no offence called "blackmail". In this clause we create one, to replace the group of offences of demanding property with menaces and similar conduct. When this Bill becomes an Act a person will be 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. For the purpose of the clause a demand with menaces is unwarranted, unless the person making it believes that he has reasonable grounds for making the demand, and that the use of menaces is an appropriate means of reinforcing the demand. I have tried to think of a precise case of "unwarranted", but I am not quite sure. I shall have to leave it to the courts. The penalty for blackmail will be fourteen years imprisonment. The comparable offences in the Larceny Act 1916 carry penalties of life imprisonment, five years, and two years. Blackmail can be an extremely cruel offence, apart from being a detestable offence, and it seemed to the Committee, as it does to the Government, that a general maximum penalty of fourteen years was not excessive to cater for the worst cases.

Clause 21 replaces, with a new offence of handling stolen goods, existing offences of receiving stolen property. The new offence will be committed not just by a receiver, as now understood, but also by anyone who dishonestly helps in keeping, removing or disposing of the stolen goods or arranges to do so. It will, for example, catch the intermediary who puts a thief in touch with a buyer; or the man who knowingly moves the stolen goods from one hiding place to another. In this respect the Bill carries forward the extension of the offence of receiving made by Section 4(7) of the Criminal Law Act 1967, which the Bill supersedes and repeals. The maximum penalty for this offence is fourteen years imprisonment. It is a higher penalty than the ten years for theft, but the same penalty as at present. It seems right that such a severe penalty should still be available for the large-scale handler of stolen goods who encourages, and may indeed arrange, major crimes.

Clause 24, is a useful clause which should strengthen the hand of the police. It makes it an offence for anyone to have with him, when not at his place of abode, any article for use in the course of, or in connection with, any burglary theft or criminal deception. This replaces several offences of which the best known is possessing housebreaking implements by night. The existing offences are capable of being committed only at night, a restriction which is abolished in the offence under the Bill. In addition, the offence in the clause is not confined to housebreaking implements so that it will be committed by, for example, the car thief who has with him car keys or false number plates, or the confidence trickster with the traditional "gold brick" in his pocket. The proposed penalty for the new offence is three years compared with five years for the corresponding offences under Section 28 of the 1916 Act, or ten years after a previous conviction for an offence under the section or for an arrest-able offence. The Criminal Law Revision Committee considered that three years was adequate for an offence which is essentially of a preparatory nature; and I agree with them.

It only remains, I think, to make a special mention of Clause 29. This is an interesting clause, because it provides that husbands and wives should be liable, as if they were not married, for offences under the Bill by one spouse against the other's property. It also makes two changes in the position of husbands and wives under the criminal law generally. It enables them to prosecute each other as if they were not married; and it makes it clear consequentially that husbands and wives are competent witnesses in such prosecutions and that they are competent witnesses in prosecutions instituted against the other spouse by a third party for an offence against the spouse or his or her property.

Broadly speaking, husbands and wives who are living together cannot at present steal from one another unless the offender is "leaving or deserting or about to leave or desert" the wronged party. But while, of course, nobody would want petty disputes between husbands and wives to get to the courts in the form of allegations of theft, it is possible for a spouse systematically to make away with the property of the other, and it seems wrong that the criminal law should not be able to deal with that kind of situation. The occasions on which there is a question of prosecuting husbands and wives for offences against each other's property are not likely to be frequent. If the spouses are living together neither is likely to see much point in getting the other sent to prison or fined. But we have added a safeguard against whatever risk there may be of vexatious prosecutions, by requiring the authority of the Director of Prosecutions for prosecutions for stealing, and malicious damage to, the other spouse's property.

My Lords, I am conscious that there are issues raised by the Bill which I have not touched upon, and which the House may wish to consider now or at later stages; but I have tried, at the risk of wearying the House, to draw attention to all the main changes made by the Bill and the principles underlying it. May I in conclusion repeat what was said by my noble and learned friend the Lord Chancellor in your Lordships' House last November: Our law of theft has been in a mess for a long time and: The Criminal Law Revision Committee have done an excellent job and a beautiful piece of drafting ".—[OFFICIAL REPORT, 8/11/67, col. 397.] I feel sure, therefore, that your Lordships, who will have had the advantge of reading their very detailed Report, will give full weight to their opinions on the many important issues raised by this Bill and that you will give it Second Reading. I beg to move.

Moved, That the Bill be now read 2a. —(Lord Stonham.)