§ 4.35 p.m.
§ Debate continued.
VISCOUNT COLVILLE OF CULROSS
My Lords, if the noble Lord, Lord Henley, thought that the subject that has just been under discussion might involve blackmail from the Argentine, I hope that I may draw the House back to the question of blackmail in this country and other offences dealt with in the Theft Bill. I suppose it is only those who, like myself, are allowed to deal with the simplest cases of larceny who still think that the definition of larceny in the 1916 Act is the approximate of Holy Writ. Nevertheless, it came as an astonishment to me to read the Criminal Law Revision Committee Report and to find out how defective not only that definition but a great deal of the rest of the Taw on this subject has become. It is not only the cases decided in 1824 which have caused the trouble; surprises still turn up, such as the case mentioned by the noble Lord, Lord Stonham, of Fisher v. Raven which was decided in your 231 Lordships' House in 1964 and apparently put an end to what had been a common form of prosecution for an offence which had always been thought perfectly proper theretofore.
The Criminal Law Revision Committee Report is, indeed, a monumental work and one which is fascinating to read. Incidentally, it may be that the noble Lord, Lord Chorley, if he has a Report like this upon questions such as were raised by the Street Offences Bill of last week will find himself very well done by indeed. I entirely accept that the moment has now come to think of a restatement of the essence of these offences, bringing about a simplification and a complete tidying-up of the law on this matter. It is also very right indeed that the House—indeed everybody interested in this subject—should thank the Committee for the formidable job they have done and for the reasoning which is so clearly set out—at least in most cases—in the Report.
It will not, I trust, be considered a criticism of them if I draw the attention of the House to one or two points on which I think it will certainly be rewarding to have some extra throught in the course of the passage of this Bill through Parliament. I will try not to fall into the error of dealing with Committee points on Second Reading; but there is one substantial point of theory that I consider should be dealt with at this stage. I rather think my noble and learned friend, Lord Dilhorne, may have something to say about it as well. It is clear, in the new definition of theft in this Bill, that it is no part of the essence of the offence that gain or loss to the thief or to anybody else should form part of the underlying theory of the offence. Indeed, it is quite clear from Clause 1(2) and from Clause 2(2) that this consideration does not come in at all. I think the same applies when one looks at Clause 15, so far as the first two subsections are concerned.
There runs through the Bill the whole question of dishonesty; and this has been used, I think, to mean very much the same thing as has previously been represented by "fraudulence" in the existing law. I seriously wonder whether the consideration of the Committee has 232 quite followed through to the proper conclusion the abandonment of the use of "fraudulently", and all that it has been construed to mean—and whether they may not have produced later on in the Bill some definitions of these offences which are going to cause exactly the same sort of trouble as a result of judicial decisions as have occurred in the criminal law we are attempting to clear up. There are a number of other offences—not the one of theft nor of criminal deception under Clause 15(1) and 15(2), but others I shall mention—where an inherent part of the crime itself is causing gain to oneself or loss to another, and your Lordships should realise, as I have no doubt is the case, that this matter is dealt with in the definition clauses; because it will be seen that in Clause 33(2)(a) "gain" and "loss" are defined asextending only to gain or loss in money or money's worth, but as extending to any such gain or loss whether temporary or permanent".My Lords, it may be—it certainly has been suggested—that instead of thinking in terms of gain and loss in the monetary sense, the real underlying and indeed the common concept which runs through all these offences is an intention to prejudice the rights of others; not just their pecuniary rights, but their rights in general, or to prejudice the interests of the State. I should have thought that when it comes to blackmail under Clause 20, or the new "hold-all" crime of criminal deception under Clause 15(3): or false accounting; or suppression of documents; there may be things other than monetary gain and loss which lie behind the crime and which, if these definitions are not changed, will cease to be crimes. They are crimes at the moment, but they will cease to be crimes under the Bill: for instance, the destruction of another person's reputation; or the wish to obtain the custody of a child of whom one is not entitled to have the custody; or the intention to cover up, not some future misconduct, but something that has already taken place in the past may well, I suggest, not be taken into account by this insistence upon gain and loss in the Bill.
There is no coherent application of these principles. I have already mentioned that in Clauses 15(3), 16, 19 and 20 the test is the gain and the loss in 233 the pecuniary sense. But it is not in the main offences of criminal deception under Clause 15(1) and (2). There are some other curiosities, because, for instance, under Clause 13 which relates to abstracting electricity, gain does not come into it but loss does; whereas under Clause 15(3) gain comes into it but loss does not. I should have thought that it would be necessary to look very carefully at these matters in order to make sure that we have got it right. Incidentally, I should have thought that a great deal wider definition was required under Clause 13 because I believe that this is a very useful "catch-all" crime. I may be wrong about this, but it might deal with such things as obscene telephone calls and matters of that nature. If I am right, then I should not have thought that the definition in Clause 13 would be apt to cover such offences.
My Lords, there is another curious introduction of the concept of gain which was mentioned by the noble Lord, Lord Stonham. It appears in Clause 4(3), which relates to mushrooms and wild flowers or plants, and in subsection (4), which relates to animals. Reading the Report, I think it is clear that "wild animals" includes fishes. I think it is a matter for considerable thought whether the test of the commercial taking of these items should be the one that underlies the question of whether or not it is theft. I should have thought that someone who went out and took game and put it in a deep-freeze and kept it for a long period, but did not propose to sell it was just as much of a nuisance, and just as guilty of the sort of thing one is talking about in these subsections, as someone who went straight off and sold the game in the market.
I wonder whether this does not bring in another difficult proposition. It is always a problem to know what is and what is not an offence in territorial waters, but I should have thought that the effect of subsection (4) would be to make all commercial fishermen in trawlers or any other boats guilty of theft every time they caught a fish. To me this would appear to be one interpretation of the definition in Clause 4(4), and I am certain that is not intended. This is a fundamental point and one which applies to the whole definition. I can find no clear exposition in the Criminal Law Re- 234 vision Committee's Report of why they have changed between gain and loss and both and neither in these various concepts, and I think we ought to discuss this point later on in Committee.
Then, my Lords, there are other and somewhat more miscellaneous points which perhaps I may mention at this stage, if only to give the noble Lord, Lord Stonham, an idea of what is in people's minds. I refer to Clause 2 and particularly perhaps subsection (1)(b). This is a parallel consideration with the definition of blackmail in Clause 20, and it relates to the use of the word "reasonable". It is perfectly clear from the Criminal Law Revision Committee's Report that these defences, which is what they are in each case, involve a subjective belief on the part of the person who is accused of the matters which make up the defence as set out in the Bill.
Then it comes to be considered whether, for instance, the person to whom the property belongs can or cannot be discovered by taking reasonable steps, or, in the case of blackmail, whether the person believed he had reasonable grounds for making a demand. Are these two sorts of reasonableness to be objective reasonableness which ought to be judged by the jury on the ground of what a man in the Clapham omnibus would think, or are they involved in, the subjectivity of the accused person's belief? Again, I am not sure that there may not be considerable trouble (indeed, there has been trouble already) about "reasonable" and "probable" in the field of blackmail. I think that there may be trouble here as well.
Your Lordships' House will be grateful for the explanations given by the noble Lord, particularly his explanation of Clause 6. This is indeed new, and I should like very carefully to consider what he has said. If he is right in saying that it will avoid any difficulty about the possible attribution of interpretation to various decisions which were taken before this Bill, and will make certain what it is the Bill means with out having to go back to old case law, then I have no doubt that it is the sort of thing which ought to be in the Bill. But I should like particularly to consider what the noble Lord said.
235 Then there is a small point, but one which I think is dubious, that occurs in Clause 9(3). This relates to burglary in a houseboat, caravan or some other inhabited vehicle or vessel. Is it the intention of the Government that the vehicle or vessel should have to be actually inhabited at the time of the crime? Or would it be sufficient if it was a vehicle or vessel that was generally inhabited, even though there was nobody at home upon that occasion? I do not think that the Bill is clear on this point.
I now move on to Clause 11. The noble Lord explained that this was the Government's implementation of the suggestion put forward by the Committee which they did not include in their draft Bill. I welcome the theory which under lies this clause, but again I am afraid that I must pick a bone with the noble Lord about this test of commerciality. I am not sure that this is the right way to do it. The protection which is given under this clause applies only, among other things, if the object of admitting the public is not a commercial one. Then subsection (2), among other things, sets out what is the commercial object. It is quite clear, I should have thought, that anybody who opens his house to the public as a private individual is capable of getting within the protection, provided that he does not have any excess of income over the expenditure incurred in connection with the admission of the public and the upkeep or management of the building. But if he does have any surplus, unless it is going to Her Majesty or to a local authority or for an ecclesiastical or charitable purpose, he has no protection.
I should have thought that this was a thoroughly untenable method of distinction between two types of house or other building, the contents of which are meant to be protected by this clause. It is not uncommon now for people who have houses worth looking at by the public to obtain a grant from the Ministry of Housing and Local Government, and one of the terms of these grants is that the public should be admitted thereafter. But the question of whether the contents will be protected by the new criminal offence created by Clause 12 will depend entirely on the level of the admission charges the owner happens to make. So I understand it. I think that 236 this makes no sense at all. I think that the clause needs widening and to be much more comprehensive.
Moving on rather more rapidly now to the later parts of the Bill, I am glad to have in Clauses 22 and 23 a new and much more comprehensive definition of what used to be receiving. I expect that difficulties will arise in fairly large numbers under Clause 23(2), because it is a complicated piece of drafting. There may be some method of simplifying it. At any rate, the genuine thought given to this matter by the Committee, and the lucid way in which they worked out how this offence is going to overlap with the offence of theft, are entirely acceptable. The general reasoning on this matter seems an admirable example of the clear way they have approached this problem, apart from clearing up in the details of the Criminal Justice Act last year, a number of difficulties that have for a long time bedevilled the law of receiving.
In Clause 25 there are other matters which I think will also have to be thought over. I see the noble Lord, Lord Airedale, in his place, and it may well be that he will take the view that under subsection (2) of the clause a superintendent of police should not be allowed to authorise a constable, without any warrant from the justices, to go and search private premises in the way the clause provides. I know that the Committee made this recommendation because they said that at present it is only the chief constable who can do this, and since the police forces have been amalgamated and enlarged it is not so easy in such cases to get a chief constable's authority. But I am not a bit happy. This may be a dangerous principle, and I cannot see why there is a substantial difficulty in getting a justice's warrant, if that is the proper way of doing it as a general rule. I should be glad if the noble Lord would explain a little more than perhaps the Law Revision Committee did why he thinks this is right.
Clause 27 is a complete reproduction of the clause in the draft Bill the Committee recommended, but I do not think we have been given any clear exposition of how it is that, under Clause 27(1)(a), under this new and much wider system of restoration, a third party may be made subject to an order of the court requiring 237 him to give up goods without any opportunity of being heard. It does not say anything about the circumstances in which he came to obtain the goods, and there must be cases when a person subject to an order like this from the court, who has not himself been accused, will think it unfair and strange if he is not given an opportunity to explain to the court why an order should not be made against him. This again is a general matter, relating to the freedom of the individual and of his property, which ought not to be passed unnoticed by your Lordships' House.
There will be a great many points raised in Committee, but the fact remains that noble Lords on these Benches welcome this Bill, which sets out a new law on this subject. I believe that the whole House will be most anxious that when the Bill leaves us it shall be as correct and perfect as possible, so that it will not fall into the errors that have occurred in past legislation. We must be delighted to see that the Schedule of Repeals at the back of the Bill stretches over an enormous number of Acts, which certainly lightens the Statute Book a great deal. I hope that the House will welcome the Bill most heartily on its Second Reading and speed it on its way.
§ 4.55 p.m.
§ LORD FOOT
My Lords, I hope it will not be thought presumptious for a humble member of the legal profession to join with the noble Lord, Lord Stonham, and the noble Viscount, Lord Colville of Culross, in congratulating and thanking the Criminal Law Revision Committee for the Report upon which this Bill is based. It may be appropriate for a member of the junior branch of the legal profession to say a word or two on a Bill of this kind. It seems to me that this Bill has two great virtues. The first is that the Committee rejected the idea of trying to consolidate and improve the existing law, and took the bold and imaginative course of getting down to basic principles and rewriting the law from the beginning. That is a very great advantage. One has only to look at the third Schedule to the Bill, at the enormous number of enactments that have been repealed, to see the amount of dead wood which has been cut away and cast into limbo.
238 The second great virtue of the Bill is that it is written in language which is simple and comprehensible to ordinary people. I think that all too often the Statute Book is defaced by Acts of Parliament which are incomprehensible to ordinary people. That may not matter so very much if they are dealing with the law of companies or property, because people working in these fields usually know sufficient about them to find their way around, or they have access to professional advice; but to me it is disgraceful to put on the Statute Book an Act which touches the vital things in the lives of ordinary people and express it in a way which ordinary people cannot be expected to understand. One of the most disgraceful Acts of Parliament from that point of view—I am saying nothing about the content—was the Rent Act 1966, which affected millions of tenants and which it is impossible to understand unless one has a pretty close working knowledge of all the Rent Restriction Acts, trailing back to 1923. How much more important it is in a criminal Statute that the wording should be comprehensible and clear! That is the masterly achievement of this Bill.
If I may be allowed, I would not follow the noble Viscount, Lord Colville of Culross, in the points which he made, but would like to speak for a moment on one aspect of the Bill. I am concerned about the new maximum penalties which are being prescribed, because the number of different types of offence which can be committed in misappropriation of other people's property is being vastly reduced by this Bill and because, in particular, the new offence of theft comprises and encompasses all sorts of existing offences including embezzlement and fraudulent conversion. Because that is happening it has been necessary to reconsider the maximum penalties, for the maximum penalties for simple larceny, for example, and embezzlement are at this moment quite different. Therefore it became necessary, as soon as a number of existing offences were joined together in one offence of theft, to look at the maximum penalties. In exactly the same way, when you join together the offence of criminal deception with many existing offences, again there have to be attached different maximum penalties, and it was necessary to look at them.
239 What has been done is this. In this Bill, in the case of the new offence of theft, the maximum penalty is put at ten years; and in the case of criminal deception, equally the maximum penalty is put at ten years. What is the practical result of this? In what is to-day simple larceny the maximum penalty is being increased from five years to ten years; and in the case of false pretences the maximum penalty is, again, being increased from five years to ten years. I should have thought that, on any showing, that is a serious step to take, and it ought not to be taken without due consideration.
May I make four brief observations upon what I think is the importance of this matter. It must be true that the offences of simple larcency and false pretences make up a large proportion of all kinds of offences of misappropriation of property. I do not know what the proportion is, but it must be considerable. Therefore, if you are going to increase, as you do in this Bill, in fact double, the penalties for that wide range of offences, you are obviously going to take a step of considerable importance, and it is a major revision in the law. My second observation is this. These penalties—five years maximum for theft and false pretences—have stood for fifty years or more. Indeed, I am not sure that they have not stood since the Larceny Act 1861, but certainly they have stood since the Larceny Act 1916. I do not know that anybody has complained during that time that those maximum penalties were too low. Indeed, in the Report itself the Committee do not say, so far as simple larceny is concerned, that they consider five years is too low, although they do so in the case of false pretences. But these are penalties that have stood their time. It is surely a fairly startling thing in 1968 to be doubling penalties for simple larceny and false pretences, after they have been on the Statute Book for that length of time.
The third point is that this alteration in penalities for simple larceny, in particlar, involves a curious anomaly—in fact, it involves a set of anomalies. I will give only one example. Under the existing law the maximum penalty for the offence of falsification of accounts is seven years imprisonment, and under this Bill it will 240 remain at seven years in prison. What does that mean? It means that the maximum penalty for what is now simple larceny is going up to ten years, overtaking the offence of falsification of accounts, which has, as it were, fallen in the hierarchy of mischief. I do not think it is even in the "top ten" now. But is it to be said that something has happened during these last fifty years which has increased the moral iniquity of the offence of simple larceny, and has made the moral iniquity of falsification of accounts less? Possibly we should have to seek assistance of the Lords Spiritual to find an answer to that question.
The last observation I want to make about these changes is this. When the Committee were considering revision of the law, redefinition of the law and redrafting of the law, of course their authority was pre-eminent. We could not have had a more authoritative body to pronounce upon matters of that kind. But when one comes to the question of penalties and punishment, I suggest that new considerations come into view, questions of penology and sociology, and one cannot safely leave the matter of punishment and penalty entirely to the lawyers. This is a matter for this House and for the other place, and a matter for the public generally, when we are talking about penalties which have to be attached to particular offences.
The Report itself recognised that this proposal to increase the penalty for simple larceny from five years to ten years would invite criticism; indeed, the Committee anticipated the criticism. I should like, very briefly, to refer to the arguments which they advanced in support of their proposals. First, as the noble Lord, Lord Stonham, pointed out, they said that, although under the present law the maximum penalty for simple larceny is five years, nevertheless if the person convicted has had a previous conviction, either for larceny or for any other felony, the maximum penalty is then ten years. I do not consider that that is really an answer to the objection to raising the penalty for simple larceny in this way. What is the object of having maximum penalties at all? Surely, one of the objects, at any rate, is to give guidance to the courts as to the gravity which Parliament attaches to any particular offence. If you make an overall maximum penalty for all kinds of theft of ten years, you give no indication 241 to the courts as to whether you draw any distinction between the gravity of the offence of, say, simple larceny and that of the offence of something more complicated, such as embezzlement.
The second argument which was advanced in the Report was that the Committee were recommending a general increase of penalties. I accept that. They pointed out that although the maximum penalty for a new theft is to be put at ten years, the maximum penalty for the old offence of embezzlement is being reduced from fourteen years to ten years. And they point out, quite rightly, that the maximum penalty for blackmail and for ordinary burglary is being reduced from life imprisonment to fourteen years. But I do not quite understand the logic of this. Can it really be said that if they are reducing the maximum penalties for certain offences, there is some justification for increasing the maximum penalty for another offence? It does not seem to me to follow logically. I do not think that in this context you can properly argue that what is lost on the swings is gained on the roundabouts. It would not be very much consolation to the petty thief to be told that the penalty for his offence has been put up but that he may console himself with the thought that his blackmailing brother in crime is being dealt with more leniently.
The last argument—I hope I have summarised the arguments accurately—is this. In their Report, in defence of their proposal, the Committee say that there is no need for alarm about this because the practice of the courts over the period of the last fifty years or so has changed with regard to sentencing; that in these days what is necessary is that Parliament should lay down the penalty appropriate to the worst type of offence, and that then one can safely leave it to the discretion of the courts to apply the proper penalty in each individual case. I am sorry to say that at present I am not persuaded by these arguments, and I think that this matter must be further considered.
The argument that there is no need for alarm, and that we can safely leave these matters to the discretion of the court in individual cases, is really, it seems to me, an argument for abolishing maximum penalties altogether. If we can 242 safely rely upon the courts to deal justly with everyone who comes to court there is no need to have maximum penalties at all. Why do we have them? I suggest that we have them for two reasons. The first is to give guidance to the court as to what gravity Parliament attaches to the particular offence; and the second, and perhaps more important, is to introduce uniformity as between the practices of different courts. As soon as one increases the penalty for simple larceny—and here it is doubled—to that extent one enlarges the area in which courts may differ in their sentencing practice.
This is an important matter because it is well known to members of my profession, and I am sure to members of the Bar, too, that if you are acting for the defence of somebody who is likely to be found guilty, or to be pleading guilty, there are some magistrates, some judges and some chairmen of sessions before whom you would not wish to come: you would like to have a choice. Of course, this is inevitable and inescapable, because everybody has individual views upon these matters, but the reason why there is difference in sentencing policy as between one judge and another is not due only to the idiosyncratic differences between different judges but is due to something more fundamental; namely, that there is often a profound difference between individual members of the Bench as to what is the purpose of punishment.
At this time of day I am not going to embark upon a dissertation on the old question of whether punishment is for the purposes of deterrence, of rehabilitation or of retribution, but it is an odd fact that we can look in vain in the Statute Book of this country to find guidance as to what the purposes and objects of punishment—and in particular imprisonment—may be. The result is that there is a wide difference of view as between one judge and another. It seems to me that if a judge has a preference for a so-called deterrent penalty, and he thinks the first object of punishment is to deter other people from committing the same sort of offence as the offender before him has committed, he is almost bound to pronounce a sentence different from that which will be pronounced by the judge who takes the view that the first 243 object of punishment is something appropriate to that particular offender and that particular offence.
It seems to me inescapable that if we are going to punish for the purpose of deterrence the punishment will be different from that which will be given if we are attempting to rehabilitate the offender. We pay lip service, at any rate, to the theme that the object of imprisonment is the rehabilitation of the offender. I say that we pay lip service to it; but I am afraid I cannot believe that it is in more than a very small minority of cases that we have any success in rehabilitating the prisoner in the present conditions of our prisons. I am bound to say that I prefer the view of Oscar Wilde, who said that in prisonSome go mad and all grow bad".Here, at least, we adhere to the humanitarian principle that we do not put a man in prison for his degradation but with the object of rehabilitating him and making him fit to come into society again. But when any judge sentences a man, not for what he thinks he deserves, or what will do him good, or what is appropriate to that offender or his rehabilitation, but with the object of making an example of him, and so hoping to deter other people from doing the same thing, in my opinion not only is it an injustice to the individual but it also creates grave problems in the prisons. Because the object, and I believe the first duty, of the prisons is to try to render the man fit to return and lead an honest life in society, and there they have delivered into their hands somebody who has received a sentence which is, by definition, not the sentence that is appropriate for him. My Lords, for these reasons I feel some concern about this Bill and the penalties it imposes, and I hope that during the course of its passage these matters may be considered afresh.
The last thing I wish to say is that I do not believe that the difficulties about which I have been speaking are incurable. The Committee themselves, and the authors of the Bill, have in one instance said, "Yes, it is quite all right to distinguish between one offence and another for the purposes of penalty". What they have done in the case of burglary is to say that ordinary burglary will attract a maximum penalty of fourteen years but 244 that in aggravated burglary the penalty shall be life imprisonment. The difference between ordinary burglary and aggravated burglary is that the latter is something done while the offender is at the same time using a weapon or an explosive. I can see no basic objection in principle to making a similar distinction between simple theft and, if you like, aggravated theft. It is only a matter of trying to work out a satisfactory definition. Therefore, there is no real matter of principle involved.
I do not believe that the grave problems of crime with which this country is faced to-day will be solved in our criminal courts by piling on the penalties. I do not believe that the solution of these matters lies there at all, and I think that, so long as we persuade ourselves to believe that, we shall divert our attention from the fields of human activities in which the real causes of crime and the solutions to the problems of crime are to be found.
§ 5.20 p.m.
§ LORD STOW HILL
My Lords, I was glad to hear noble Lords who preceded me describe this Eighth Report of the Criminal Law Revision Committee as a monumental Report. I think it undoubtedly is a monumental Report. It is packed with learning and wisdom, based upon a range and variety of experience which it is difficult to conceive of as being assembled otherwise than within the confines of a Committee of this sort. I am glad to have the privilege of making these remarks to your Lordships in the presence of the very distinguished Chairman of that Committee, Sir Frederic Sellers, who, I am glad to say, is listening to this debate. My noble friend Lord Stonham was obviously inhibited by modesty in refraining from congratulating the Government on introducing this Bill to your Lordships' House. He is one of the Ministers who is obviously responsible for it, as is the noble and learned Lord the Lord Chancellor and the Home Secretary.
I think this is a Bill of very great importance, important to the ordinary man and woman in the street, for this reason, if for no other. I suppose we each and all of us think that we know at least one thing about the law, and that is what is the meaning of the word "theft", and we are all wrong. If one 245 approached half a dozen ordinary citizens and asked them to give a precise definition, for example, of the legal expression "an equitable interest pour autre vie", some of them might hesitate. But if one conceives the investigators who go up and down the country approaching a solid burgess on the top of the proverbial Clapham omnibus and asking him, "Do you understand the meaning of the words 'A stole from B'?", he probably would be met by a somewhat incredulous and rather angry look. But if the solid burgess did condescend to reply to such a question, he would undoubtedly say that if there were one thing he as a respectable person did understand it is the meaning of the word "stealing". I was in entire agreement with the noble Viscount, Lord Colville of Culross, when he said it was surprising really that when one looked at the definition of "larceny" in the Larceny Act, contrary to what we all thought, it was really so defective.
If the solid burgess indignantly says, "Of course I know the meaning of the words 'theft' and 'stealing'", one might put to him the story, so movingly and graphically told in paragraph 23 of the Report, about the two gentlemen on a windy and stormy night in the autumn of 1888, one of whom wanted to borrow a shilling from the other. The other was a willing lender, but when he handed over what he thought was a shilling he in fact handed over what was a sovereign, and neither realised, because it was dark, that it was a sovereign and not a shilling. The borrower when he discovered, having subjected it to the light, that it was a sovereign, instead of disclosing the mistake dishonestly changed the sovereign and appropriated the proceeds. He was convicted of larceny. That seemed simple enough until he appealed. He appealed to the Court for Crown Cases Reserved, and in that court 14 learned judges deliberated upon the problem of whether he was rightly or wrongly convicted of larceny. The issue was not wholly satisfactorily resolved because they differed seven against seven, so nobody will ever know whether that borrower was rightly or wrongly convicted in 1888.
A similarly agonising problem is posed in paragraph 26 about the welshing bookmaker. A punter handed a bookmaker some coins. The bookmaker welshed and was convicted of larceny by a trick. 246 That decision was very severely criticised in a book of very great authority, Russell on Crime, on the ground that the punter when handing over the coins did not expect to have returned to him in due course the identical coins but some other and additional coins, and that therefore the punter intended to part with the ownership of the coins, with the result that it could not be larceny. Then it the solid burgess, going back to 1888, says, "Oh yes, but would he not be guilty of obtaining money by false pretences?", he would be wrong again because you cannot, as the law has been laid down, make a false pretence as to your future intention. A false pretence must be a false pretence as to art existing fact. Apparently it is no use pointing cut, as has been pointed out by one learned judge, that the state of a man's mind is as much an existing fact as the state of his digestion. It still leaves the result, in terms of Russell on Crime, that the bookmaker was wrongly convicted, and indeed was guilty of no offence at all.
When one says that the existing law, without most people knowing it, is really riddled with defects, I should have thought the Report amply demonstrates that that is the case. I entirely agree with the approach of the noble Lord, Lord Foot, who, in looking at the scope and purposes of the Report, commended it by saying that what the authors of it do is to go right back to first beginnings and seek to redraft these basic offences in terms which ordinary people can understand. I would add one further commendation—and I am quite certain the noble Lord would accept this—and that is that not only have they sought to redraft these basic offences, but they have tried to get them right, to produce in the language they have chosen a workable structure of offences which will cover the sort of cases which come before the courts in the vast majority of instances. I am glad that the Government have introduced this Bill to your Lordships' House in the first place instead of to another place, because when we come to examine it in Committee we shall have happily at our disposal so much experience and learning from noble and learned Lords who are Members of your Lordships' House that I hope we can find how far the Committee have succeeded in their very admirable endeavour.
247 I shall follow the noble Lord, Lord Foot, in this particular and simply address myself, in order to test the success of their endeavour, to one single clause. I will not follow him in his most interesting analysis of the penal provisions of the Bill, but I should like to read later on his closely reasoned argument. I want to put something a little bit more simple, and I would base the test I would invite your Lordships to consider on Clause 20, which is the clause which deals with blackmail. As my noble friend Lord Stonham pointed out, there is at present no definition, and indeed no use of the word "blackmail" in the existing legislation. The Committee have very courageously gone back to first beginnings and they have used the word "blackmail" in Clause 20, and they have defined it. I wonder whether they have really got it right—and I say that with the very greatest deference to the distinguished Chairman of the Committee. What they have done is that they have adopted for the purpose of their definition a purely subjective test as to whether the menaces used are unwarranted or not unwarranted. It depends really upon the opinion of the person charged.
May I try to make good what I am submitting? If I may take a little time to read the clause, it says: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…First, you have to ask whether he wants to get something out of it and whether he makes an unwarranted demand with menaces. Then the clause goes on to tell one what is meant by an unwarranted demand, and here prays in aid the opinion, in effect, of the person who utters the threat. It reads:… for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—So one has to inquire by the ordinary process of the court whether in the belief—I suppose a sincerely held belief—of a person charged with making the menaces, he had reasonable ground for making the demand, and that the use of 248 the menaces was a proper means of reinforcing the demand.
- (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 order to make the point I seek to put before your Lordships, I instance the case of a lady who supposes that she is in an interesting condition as the result of her association with a gentleman who is married. She has asked him to make provision for the expected arrival in this world of a new child, and he has refused. He is well-off and she thinks, no doubt rightly, that his conduct is indescribably evil and selfish. She passionately thinks it, and so she goes to him and says, "Look here, if you don't make an adequate settlement on this child I will tell your wife, I will tell your employers; I will write letters to the Press; I will do everything I can to make you make a settlement on the child." Does she, in these circumstances, commit the crime of blackmail? I should have thought that undoubtedly under existing law she does. But if one tests by cross-examination the question whether she really and sincerely has the belief that she has reasonable grounds for making the demand, I should have thought that in a situation of that sort, unless there were some reason to disbelieve her credibility, most juries would say clearly that she thinks she has. She is in a certain condition; a child is to be born into the world; the man responsible has plenty of means at his disposal but declines to lift a finger. Has she not in her belief, the jury would be asked, reasonable grounds for making the demand?
If the answer to that question is Yes, then the next question arises: Did she make the demand with menaces in the belief that the use of the menaces is a proper means of reinforcing her demand? How else is she to compel him to make a settlement? How else can she do it other than by saying, "I will tell your wife, unless you make a proper settlement on this infant"? Looking at the words of the clause, I should have thought in that case, if the jury came to the conclusion that she was animated by the bitterest of feelings, by a real and earnest desire to make provision for this child that was to come into the world, she had satisfied both those tests and could not be convicted.
In order to test the matter a little further, and possibly to make the example 249 a little more difficult, may I assume this: that she is a lady who feels that this unfortunate infant is going to be born into the world, through no fault of his, labouring under the stigma of being an illegitimate child. What would be a reasonable settlement in the case of an infant born in lawful wedlock into a family is not sufficient in his case; it must be a much more generous settlement. She might say: "You must give three-quarters of your wealth in order to make a settlement on this unhappy child which is going through life with this disadvantage." The amount she has in mind might be such that ordinary people would think it a wholly unreasonable request. But if the jury are to ask themselves, what does she think about it, what is her belief, however unreasonable it may be, however it might beggar the family of the married man, ought they not to come to the conclusion that she is not guilty; that she has the belief that she has (a) reasonable ground for making the demand, and (b) that the use of menaces is a proper means of reinforcing the demand?
The clause goes on to say:The nature of the act or omission demanded is immaterial.So it does not matter that she wants the married man to do something that is utterly unreasonable. He may be a millionaire, and she may say, "Settle £1 million on the child". The clause says:The nature of the act or omission demanded is immaterial.It does not matter that it is £1 million. The relevant question concerns her belief.
May I put yet one more ingredient? Supposing it be the case that, contrary to her suspicions, she is not in the condition that I have described. She is in exactly the same condition, without knowing it, as she was before she met this man who is married. What then? A lady who has no anxieties of the sort that I have described, nevertheless believes that she has, and insists upon £1 million being settled. Where are we? Is that blackmail or is it not? I see that the noble and learned Viscount, Lord Dilhorne, is looking at me rather severely. If he, with his great sense of fairness, were directing a jury—
§ VISCOUNT DILHORNE
My Lords, I was listening with the greatest attention and with the greatest agreement to the noble Lord. I am sorry he thought I was looking severe.
§ LORD STOW HILL
My Lords, I hope that the noble and learned Viscount did not think that my reference to him was intended to be other than wholly complimentary. I am most grateful and flattered to think that he is listening to me with such care. What I meant was, that if he were presiding at the trial he might feel himself obliged, in regard to a clause in this form, to direct the jury that really the case could not be established.
I have made the point. I do not want to delay your Lordships further. I concentrate on that point, although it is really a Committee point, because it is one that is of fundamental importance. I think that blackmail is one of the most terrible crimes that can be committed, and I greatly hope that in this clause, in its ultimate format after consideration in both Houses of Parliament, we shall get the matter right. I cannot help thinking that possibly there is something in the criticisms that I have voiced. I do not intend to delay your Lordships further. Obviously, we shall consider this most important Bill with great meticulousness as it goes through Committee. That is all I have to submit to your Lordships at the present stage.
§ 5.38 p.m.
§ VISCOUNT DILHORNE.
My Lords, I think everyone so far has described this Bill as a monumental Bill. That, I think, has an unfortunate connotation, a sort of relationship with the graveyard. I would not use that word to describe it. I do not think it is a monumental Bill; but I think it is the most important Bill in relation to the criminal law that has come before Parliament for a long time. I should like to begin my speech by joining in the congratulations to the most distinguished Committee which has worked so long, and must have worked hard, first under the chairmanship of the noble and learned Lord, Lord Donovan, and then of Sir Frederic Sellers, who I am glad to see here to-day. It is true that the Bill is based almost entirely on their recommendations.
251 It should not be forgotten, when there are those who seem to be under the impression that law reform started only in 1964, that this Committee which performed this task was appointed by Lord Butler of Saffron Walden when he was Home Secretary, no less than nine years ago. It was only a few days ago that we in this House were considering the Civil Evidence Bill, the result of the Report of a Committee presided over by the noble and learned Lord, Lord Pearson; and if my recollection is correct that Committee was appointed by me when I was Lord Chancellor.
Work undertaken by these Committees necessarily takes a long time, and no one who appreciates the magnitude of the task can possibly complain about the time which has been taken. So it happens that the work started in the lifetime of one Government reaches fruition in the lifetime of its successor, of a different complexion. Of course, history may, and I hope will, repeat itself, and a Conservative Lord Chancellor may have the pleasure of bringing to Parliament Bills which result from work initiated by the noble and learned Lord the Lord Chancellor.
I agree with everything that has been said about the time having come when the law of larceny and the law in relation to other offences had to be reviewed. The Committee have done a great deal to simplify the criminal law by reducing the long list of offences which can be committed. There is a great deal in this Bill which is very good indeed. I do not share the doubts of the noble Lord, Lord Foot, in regard to maximum sentences, for I do not believe it to be the case that those who are charged with the responsibility of passing sentence look to see what is the maximum which Parliament allows to be passed. They first consider what in all the circumstances is the least sentence that they can impose, and then they look to see that they are within the maximum.
The abolition of the technical distinction between larceny, embezzlement and fraudulent conversion, and the replacement of these three offences by the offence of theft will, I am sure, be generally welcomed. As has already been pointed out, a number of gaps have been filled in the existing law. I do not propose to say anything more about all the good 252 parts of the Bill, but I hope that what I am now going to say will not be understood to mean that I do not praise the Committee and congratulate them upon the work which they have done.
The noble Lord, Lord Stow Hill, said quite rightly that the question was: had they got the answers right? I am sorry to say that I am not at all sure about some parts of the Bill. I should like to draw attention to them now, in the hope and belief that the Government will give them careful consideration before the Committee stage. We ought not lightly to reject any of the proposals put forward by this Committee, a committee of such distinction. At the same time we should examine these proposals carefully and not hesitate to alter them when we think that we can improve them, or reject them when we think that they are wrong. There is so much of this Bill which is of a novel character that I hope and trust we shall give it all the consideration it deserves.
The noble Lord, Lord Stonham, started by referring to the definition of "theft", which of course is vitally important. He referred particularly to the word "dishonestly". Those of us who have practised in the courts know that every single word in the definition of "stealing" or "theft" is of very great importance. I must confess that, although the word "dishonestly" has at first sight some attractions, I am rather doubtful whether it is the best word to include in this definition. I will say why I am doubtful about it. I think that different people have different ideas of what constitutes dishonesty, to what kind of conduct that word "dishonestly" can properly be applied. I am rather fearful that the use of this word my lead to widely differing applications of the definition in different courts and in different parts of the country.
To be guilty of theft under this definition a person must dishonestly appropriate property. In paragraph 39 of the Committee's Report it is claimed that "dishonestly" has the same meaning asfraudulently and without a claim of right made in good faith".Those words are to be found in the existing definition of larceny, and the Committee say that "dishonestly" means the same as those words. I wonder whether magistrates and juries will understand 253 that, and will understand that that is what the Committee mean.
The Bill does not define "dishonestly", but it says in Clause 2 what is not to be regarded as dishonest; and also that an appropriation may be dishonest notwithstanding that the person who appropriates the property pays for it. I am not quite sure what that means, but perhaps we can get certain guidance on this matter in Committee. But if the word "dishonestly is meant to mean the same as "fraudulently", a word of the present definition of larceny and a word which is well understood in the courts and about which juries have little difficulty, will it not have to be explained to juries that that is what is meant? I think that it will have to be explained: and if that be the case it seems to me that it would be better to use the words which convey the meaning that "dishonestly" is intended to have.
The reasons advanced by the Committee for making this change are simply these. They say that "dishonestly" seemed to them a better word than "fraudulently", and that the question "Was this dishonest?" was easier for a jury to answer than the question, "Was this fraudulent?" I do not think it is a better word if what is meant to be understood by the word is fraudulent, and I very much doubt whether juries will find it easier to answer the question, "Was it dishonest?", for views on that differ widely. I do not think that juries have any real difficulty in answering the question, "Was this fraudulent?" One part of the Committee's Report seems to envisage that a judge will not have to give any guidance to a jury as to the meaning to be attached to the word "dishonestly". If this is so—and I doubt it very much—my fear is that a far wider meaning will in fact be given to the word "dishonestly" than the Committee's Report shows that they intended. If this be the case, then the offence of theft will be extended by the Bill to cover conduct which at the present time does not constitute theft. If by "dishonestly" is meant "fraudulently", it seems to me that it would he much better to use that word in the definition.
In this branch of the criminal law, as I think in most branches, the commission of an offence does not depend upon the motive with which it is committed. There 254 may be a wide variety of motives. In nearly every case proof has to be given that the accused acted with the necessary intent. But although the words "intent" and "motive" are sometimes used interchangeably, there is a very real difference to lawyers, and I think to most people, between, for instance, intent to defraud and the purpose or motive of the fraud, which may be to acquire gain or to inflict a loss on someone one does not like. There is a real and valid distinction between "intent" and "motive".
For the first time, in many clauses of this Rill the question of motive is brought in, and as my noble friend said, the criminality of the conduct will depend on proof of motive. The first time one finds this introduced is in Clause 4(3), the effect of which will be that a person who picks wild flowers is not to be regarded as stealing them,unless he does it for reward or for sale or other commercial purpose.So that to establish guilt the prosecution presumably will have to prove that the conduct intentionally done was done for the purpose of reward or for sale or commercial purposes; that is to say, motive has to be proved.
When one realises that, I should like to ask the House to consider it in the same way as the noble Lord, Lord Stow Hill, considered the clause dealing with blackmail. Suppose that some person—perhaps a gipsy—is found coming out of a wood with a bundle of bluebells under her arm. She has taken them deliberately and intentionally, but whether or not she is liable to be convicted of a criminal offence under this Bill will depend on whether it can be proved that she took them for reward or for sale or for some commercial purpose. I think it wrong that the criminality of conduct of that individual should depend upon the purposes for which those flowers were picked. I am not at all sure that the picking of wild flowers ought to be regarded as theft at all. I am very doubtful of it. But if it is to be so regarded, you cannot properly, to my mind, draw a distinction based upon the purpose for which the conduct is done.
Let me consider it further. That having to be proved by the prosecution, are they ever likely to be in a position to prove it without an admission by the 255 accused person? How will they be able to prove that the gypsy coming out of the wood was going to sell the bluebells? Your Lordships may say that it is obvious, but what is obvious still has to be proved in the courts.
Before I pass from Clause 4(3), there is one other matter to which I should draw attention. I see from the Committee's Report that it was intended to make stealing a wild plant an offence. So if you pick wild primroses, not for reward or for sale or other commercial purpose, you are not guilty of any offence—you are not stealing. But if I have read the Report correctly, if you dig out the primrose plant, even though it be not for reward or for sale or other commercial purpose, you will be guilty of the offence of stealing. This is thought to be covered by the insertion of the words in the subsection, "without injury to the growth". If that is the purpose, I doubt whether it is achieved by the words of the Bill. But I am not at all sure that the taking of wild plants which are not anyone's property should be theft, whatever the motive. If you pick a bunch of white heather in the Highlands, you surely should not be liable to be convicted of the offence of theft if, and only if, you pull it up by the roots.
Similarly, in Clause 4(4) it is provided that the test of whether there has been a theft of wild animals is whether it is proved that they have been taken for reward or for sale or other commercial purpose. My noble friend Lord Colville of Culross gave the example of a man who took 50 pheasants. If a man takes 50 pheasants and puts them in his deep freeze and feeds his family on them, or gives them to his friends, there is no theft. Why should that be so when the young man or woman who takes an apple off an apple tree will, under this Bill, be guilty of an offence? Again, if the requirement of motive has to be established, I do not see how, when a poacher is caught in possession of pheasants, you can possibly establish that he got them for reward or for sale or other commercial purpose. I hope that the provisions in relation to wild animals and wild plants will be reconsidered. I think myself that perhaps they ought to be dropped entirely, but we can discuss that later.
256 I now come to Clause 6. This clause was not in the Bill as suggested by the Committee, and is quite new. If I understood him aright, the noble Lord, Lord Stonham, in putting forward this clause said words to the effect that this will save a lot of trouble; that you will not have to look at the old cases to be able to understand the meaning of the words,having the intention of permanently depriving the other of it".I would ask your Lordships to look at the words in subsection (1) and see whether it really does do that, and satisfies the test of simplicity and comprehensibility which the noble Lord, Lord Foot, put forward. He said that it would be disgraceful to express parts of this Bill in language that members of the public, ordinary people, could not understand.
This is what Clause 6(1) says, and your Lordships will bear in mind what the purpose of it is:A person is to be regarded as permanently deprived of property belonging to him by any dealing with it that amounts (or substantially amounts) to a complete usurpation as against him of the property, and in those circumstances it is immaterial that he does not finally lose the actual property.Let us suppose that the noble Lord, Lord Chorley, was addressing, as I know he does, one of those juries in Cumberland who are as quick-witted as most juries are. After he has summed up to them, they come back with a question and say to him, "Would you explain to us what is meant by the words 'having the intention of permanently depriving the other of it'?" The noble Lord, Lord Chorley, could not go wrong if he read out the words of that subsection to that jury. The Court of Appeal would say, "Well, that is what it is intended to do. This is the guidance which the noble Lord, Lord Stonham, has said is so clear." But what would the members of the jury think or understand? I am not sure that I know what one is meant to understand by this clause. I recognise the purpose of it and what the noble Lord wants it to do, but I must say that I think it is extremely difficult to understand exactly what it does.
May I go a little further on in the Bill. I welcome the definition of "burglary". This is a considerable simplification of the law. But I do not think that paragraph (b) of Clause 9(1) should be left in the 257 Bill, and I see no need for it. Certainly, paragraph (a) of Clause 9(1) should stay in, but it is surely quite new to have an express provision about a trespasser making him guilty of burglary if he commits or attempts to commit any of the offences mentioned in subsection (2). It is necessary, because it sometimes occurs, to make it a criminal offence to break into a house with intent to commit rape or to do grievous bodily harm. That is now being converted, and quite rightly, to entering any building as a trespasser. So you get rid of all the technicalities of proving a breaking and entering; and you retain the breaking and entering with intent to commit grievous bodily harm or rape of women. It may seem odd to call that offence burglary. When there has been a rape committed, or when there has been an attempted rape in a house by a person who is a trespasser, why should he be charged with the offence of burglary? He would always be charged with the offence of rape or attempted rape. Paragraph (b) serves no useful purpose, except perhaps to cause some degree of confusion.
I come now to what my noble friend Lord Colville of Culross touched upon, and what I think is the most important part of this Bill which we will have to consider in Committee. So far as theft is concerned, we do not have to prove any motive, but we have to prove an intent. The definition contains only the word "dishonestly". When you come to Clause 13, dealing with the abstracting of electricity, there again, for some reason which I simply do not understand, you are required to prove in addition to "dishonestly", which one interprets as "fraudulently", that it is done with the motive of causing loss to another. Bearing in mind that "loss" is interpreted to mean money or money's worth—that is, a financial loss—you will be liable to be convicted of an offence under Clause 13 only if it is proved not only that you abstracted electricity dishonestly but that you did it with the purpose of causing loss to another. My Lords, I should have suspected that in a great many cases where that kind of crime is committed it is done without any thought of whether or not it causes loss to another. But, there again, there is the addition of these words, introducing what 258 I think is an entirely novel concept into this branch of the criminal law.
I looked to see what the Committee had to say about this point, and all they said in their Report, in paragraph 85, was:It also seems right, and in accordance with the scheme of the Bill, to require an intention to cause loss to another".No reasons are given; there is no explanation for the insertion of those words. I frankly say that it does not seem to me right. Nor, when you examine the rest of the Bill, do I think it clear that it is in accordance with the scheme of the Bill. Not only does the offence of theft import no such requirement of proof, but the offence described in subsection (1) of Clause 15—the offence of criminal deception, for which the maximum penalty is ten years—does not require it either.
In relation to that offence, paragraph 88 of the Report said that a person who dishonestly obtains by deception property to which he believes himself entitled will not be guilty of an offence under Clause 15(1) as—and this is the reason given—though the deception may be dishonest, the obtaining is not".My Lords, I am by no means sure that that is right as a matter of reasoning, because I should have thought that the dishonest deception would have coloured the obtaining. But even if it is so, it seems to me anomalous that a person will still be guilty of a criminal offence if, by deception, by the use of a forged instrument, he obtains payment of a debt due to him; and that is clearly so, and is clearly recognised in paragraph 92 of the Report.
When we come to Clause 15(3)—the subsection to which my noble friend drew attention—I think we shall have to take a very careful look at that in Committee. But I come to Clause 15(2) first—I jumped ahead too much. Clause 15(2) extends the offence of obtaining credit, and, as it stands, anyone who goes to his bank manager to get an extension of time for the payment of his overdraft by telling him a lie, by telling him that something has happened or is about to happen which will enable him to pay soon, will be guilty of a criminal offence punishable with five years imprisonment. That is clearly intended, as 259 one sees from the Report of the Committee. If this Bill is passed in its present form, going to see one's bank manager will have additional terrors to those which such a visit now ordinarily has.
I now come to Clause 15(3). The Committee say that it does not correspond to any particular offence under the present law; and I am in agreement with paragraph 99(i) of the Report, where it says that the terms of the clause to which it refersare extremely general, whereas it is a principle of English law to give reasonably precise guidance as to what kinds of conduct are criminal. The expression 'dishonestly', 'gain' and 'deception' are not precise enough for so general a provision asthis clause. I should make it clear that those were the views not of the Committee as a whole but of objectors; and I think that they were right.
Then in paragraph 99 they give instances of three cases which this wide clause will cover, so they say, provided that there is dishonesty. As the clause now stands, I do not think that in two of those cases that is a correct statement. For theft, as I have said, it has to be proved only that the accused has acted dishonestly, and the position is the same under Clause 15(1); but Clause 15(3) requires proof that he has acted dishonestly with a view to gain for himself or another and with intent to cause loss to another.
VISCOUNT COLVILLE OF CULROSS
No, my Lords. With great respect to my noble friend, this is the very point. For some reason, the loss point is not brought in here.
§ VISCOUNT DILHORNE
I quite agree. I have muddled up my notes, and I have got on to the wrong subsection. Perhaps your Lordships will forgive me for one moment. It is Clause 13 which requires proof of an intention to cause loss to another; and that, again, is said to be in accordance with the scheme of the Bill. When one looks at Clause 15(3), one sees that the words are,with a view to gain for himself",and in Clause 16(1) they are:Where a person dishonestly, with a view to gain for himself or another or with intent to cause loss to another …".260 That is in the case of false accounting. You find the same formula in Clause 19, dealing with the suppression of documents, and in Clause 20. They all start with those words. I come back to Clause 15(3) and to the examples given in the Report of what that subsection will now cover. That part of the Report is prefaced by the words,Provided that dishonesty is proved",and there is nothing said there about the addition of the requirement to prove, "with a view to gain for himself". Nowhere in the Report is that dealt with.
It may be that it has just slipped through in the drafting, but it is extremely important. I personally believe that this Bill would be no worse, and would really be very much better, if those requirements to prove it was done with a view to gain or with a view to loss were completely omitted. I will deal with it more fully in Committee, but in some cases the insertion of the words "with a view to gain" narrow the clause beyond the point to which, in my belief, it should be narrowed.
My Lords, I have taken long enough, and I do not want to pursue this point at any undue length, but I think that is a very important matter with which we shall have to deal. I listened with attention to what the noble Lord, Lord Stow Hill, said about Clause 20. That is prefaced by the same words. I must say that, on reading that clause, I thought? as he thought, that the interpretation to be given to it was that the test was subjective, about the belief of the person accused, and I doubted again whether it would ever be possible to prove that the lady (in his case) did not have the belief which she said she had. We shall have to look at that very closely indeed; but I am doubtful, too, with the noble Lord, as to what the meaning of that clause really is.
My doubts have been rather added to by the fact that in this Report, at paragraph 123, there is a discussion on the use of the word "proper", and it says:'Proper' directs the mind to consideration of what is morally and socially acceptable …That looks like applying the objective tests. But as the Bill is drawn the question, as I understand it, is not what was "morally and socially acceptable" in the 261 view of ordinary people, but whether the individual concerned believed that what she or he was doing exercised a proper means. If that be so, I think the difficulties of getting a conviction for blackmail in a case where most people think there ought to be a conviction would be very great indeed.
My Lords, I fear that from what I have said I may have given the impression that I am extremely critical of this Bill. I am very critical of certain aspects of it, but I am absolutely sincere in my congratulations to the Committee upon the work they have done. I do not believe that anyone has yet produced a perfect Bill or a perfect Act of Parliament, and I hope that in this House we shall be able to put a polish on, and improve in certain respects, the Bill which has come from this Committee and of which they have many reasons to feel proud.
§ 6.11 p.m.
§ LORD CHORLEY
My Lords, we are having rather a lawyers' holiday this afternoon, which I think is unfortunate. The noble Lord, Lord Stonham, is the only non-lawyer taking part in this discussion. The noble and learned Viscount who has just resumed his seat has indicated that I am a justice of the peace and accustomed to working in that capacity, so perhaps I may regard myself as half a layman for the purpose of this afternoon's debate.
I am in entire agreement with the noble and learned Viscount when he says that this is much the most important Bill relating to criminal law which has been before Parliament for a very long time. Indeed, I would say that it is the most important Bill we have had to deal with in the present Session of Parliament. When one considers that the vast majority of the men and women who are sent to prison in this country—and tens of thousands of them are dealt with every year by the courts of criminal law—have been charged with stealing, then surely the vital importance of this Bill is only too clear.
I should like to join in all the gratitude that has been expressed in this House this afternoon to Sir Frederic Sellers and to his Committee—I do not know whether he is still here. When, a year 262 ago, we had before us the Criminal Law Bill—which also was founded on his Committee's work—I took the opportunity, when congratulating him and his Committee on that occasion, to mention that if you wanted to get a job done quickly the thing to do was to get a Chairman from the Northern Circuit, like Sir Fred Sellers. He is a very old pal of mine on the Circuit; I think we were called almost at the same time. His conduct of the chairmanship of this Committee has been quite remarkable; to get this Report out in such a short time, is a great achievement indeed. It almost sounded as if the Committee had been a long time over it. But consider what is in the Report. It really is an astonishing achievement that the Committee should have succeeded in getting it done in the short space of time that they took.
I remember an occasion when Lord Goddard, at that time Lord Chief Justice, made some tart remark about the time it was taking to get the law of larceny cleaned up. I think those were the words he used: that "It is time it was cleaned up." I am sorry he is not here to-day. It was that remark of his in the Court of Criminal Appeal that led to the reference to the Criminal Law Revision Committee—and they have waited no time over it. Undoubtedly, this area of criminal law is one of the worst of all Augean stables in the palace of the criminal law, where, incidentally, there are quite a number of Augean stables. There is no part of criminal law more in need of some cleaning up. A great deal more than just tidying up is needed; a really complete house-cleaning is required; and this, in fact, it is going to get. This has appeared from what everybody has said this afternoon.
No doubt before this Bill is through it will be amended in certain respects—and I am in sympathy with some of the criticisms that have been made this afternoon. But, even so, it will be a really astonishing achievement. It will clarify the position in this dim but very important area of our criminal law in a way that can only be described as dazzling. It has been received with considerable enthusiasm by the legal profession; or, at any rate, by those members of it who are concerned with working in criminal courts. On the other hand, 263 there are, as one would expect, some points on which there is far from complete agreement.
One of the criticisms which I think has not been made this afternoon is that there is possibly no really valid reason for retaining as a separate crime the offence of obtaining by false pretences, even under a changed name. But it seems to me that that offence would fit into the general category of theft which has been widened so much. When the possession concept is abolished from theft, as it will be under this Bill, and ownership is substituted for it, we get the same test as that applied in false pretences where we know it is the obtaining of the property rather than the possession which is the essential basis of that crime.
In the old days this distinction used to give rise to terrible trouble, and literally hundreds of offenders escaped prison because it was difficult to tell, until you tried the case, whether it was one of larceny or of obtaining by false pretences as under the present law. If you tried a man for the wrong offence he got away with it altogether, until a very sensible Statute was passed in that great era of criminal law, the mid-years of the Victorian period, when it was laid down that the jury should find him guilty of whatever crime the evidence showed he had committed. In this Bill, so far as I can see there is not this same sensible provision. In a number of cases it will still remain difficult to be sure whether the man was really guilty of theft or of obtaining by deception. Unless we put into this Bill a similar clause enabling the jury to find him guilty of whatever he did, we may find ourselves back in the situation which existed in the 1840s. It may be that I am wrong about this, but I think that it ought to be looked at very carefully.
There are a number of retentions of title and some new titles. In both cases, I am a little doubtful. Burglary is a crime which has a distinct connotation, not only to the lawyers but to the great mass of the people. I think it is really rather absurd to retain the expression "burglar" for a sneak-thief who goes into a cloakroom in a hotel, "pinches" an umbrella and runs off with it. So far as I can see, under this Bill he will, in fact, be a burglar. It is true that we are getting different gradations of 264 burglary, simple burglary and aggravated burglary; but surely it is using rather a heavy gun to shoot at a sneak-thief, to make him a burglar when he behaves like that just because he takes an umbrella out of a house. There is a trespass in the house, something is stolen; therefore it is burglary.
As I say, this is making rather heavy weather of it and it would be sensible to have something rather less serious in the Title. On the other hand, they introduce this extraordinary crime of handling, which I must say I do not like. I would rather have the current expression "receiving", which we are all accustomed to and which does describe what a man is doing. "Handling" is an expression which undoubtedly will puzzle the jury, because it is obvious that the common-sense meaning is not what is aimed at by the Bill; it sound like argot.
On the other hand, the provisions of this clause, as was said by the noble Viscount, Lord Colville of Culross, are very good indeed. The crime of receiving stolen goods well knowing them to be stolen is one of the most difficult crimes for any judge to handle. I am grateful to the noble Viscount, but I am not going to tell him what I would say to the foreman of a jury if he came back with the question which the noble Viscount suggested the foreman might ask. But if he were to put to me some questions about receiving he would catch me out even more easily. Receiving is an extraordinarily difficult crime with which to deal, because of points of this sort which are now cleared up in the Bill. I think the new provision will make it much easier to get convictions in cases where undoubtedly people are guilty but find themselves able to escape from the clutches of the law because of the extreme technicality of the present law relating to receiving.
My Lords, I was very much in agreement with the noble Viscount, Lord Colville of Culross, when he pointed out the difficulties which will undoubtedly arise out of the use of the words "gain" and "loss" in the clause to which he referred. He used the word "prejudice"—I am not sure whether he used it advisedly. No doubt he will know that in the case of Wenham, which is the most important case on forgery in recent years to come to your Lordships' House, the 265 word "prejudice" was in fact the word chosen, after a great deal of discussion, to describe the sort of loss which results in a forgery case. There had been an attempt to say that what happened was not forgery because there had not been any pecuniary loss, but as the words "pecuniary loss" are not used in the Forgery Act, or at any rate in the part which was relevant, your Lordships' House was able to come to the conclusion that the fact that prejudice had been suffered made out the case of forgery. I must say I thought a similar principle could be applied in this case and would meet the point which the noble Viscount was making. We might remember that when we look at these clauses in detail during the Committee stage.
I was interested in what the noble Lord, Lord Foot, said about the maximum sentences being increased. At first sight there seems to be a good deal to be said for that point of view, but those of us who are accustomed to dealing with these cases know quite well that if we started to send people to prison for too long sentences, the Court of Appeal would soon come down on us. The Court of Appeal exercises a very thorough control, not only over magistrates' courts and courts of quarter sessions but over the uniformity of the punishments meted out by judges on assize, and I think they can be relied on to see to it that sentences of anything in the neighbourhood of ten years are not imposed in the ordinary way for cases of theft.
What the Sellers Committee were trying to do, I think, was to keep the law fairly simple. There are a number of kinds of theft in which thefts are committed by people in responsible positions, such as people employed in the postal service, for which at present a man may, I think, be sent to prison for as long as 20 years. What the Sellers Committee were trying to do was to establish a maximum sentence which would cover all sorts of cases of that kind in order to get uniformity. It is quite possible to introduce aggravated larceny and ordinary larceny, with a shorter sentence for ordinary larceny and a longer one for aggravated larceny. But that would be a return to the rather complicated position that the Sellers Committee were so anxious to avoid. On the whole, I think it is more sensible and reasonable 266 to leave the matter to the courts who, as I say, are supervised by the Court of Appeal in regard to the sort of sentences which they impose.
When I listened to the noble and learned Lord, Lord Stow Hill, I was sorry to find that apparently he was aligning himself with those who feel that the guiltiness of a person's mind ought to be measured in objective terms. Surely it is one of the great prides of our law that a man cannot be found guilty of these serious offences unless he has a really guilty mind. There was the divergation in your Lordships' House in the famous case of Smith v. The Director of Public Prosecutions, where it was held that the unfortunate man who killed the policeman without ever intending to do so at all—he was just trying to shake the policeman off the running board of his car—was guilty of murder because an ordinary person looking at it would have said, "Well, if he hits something corning in the other direction the chances are that the man will be killed, or at any rate very seriously injured, and that provides the necessary guilty mind." We put that right only last year in the Criminal Justice Act, because that doctrine had repelled not only the mass of the legal profession but the country as a whole. The Law Commission reported very strongly against it, and that applies in exactly the same way to a case of this kind.
The noble and learned Lord, Lord Stow Hill, quoted almost exactly the case of Bernhard, which was the case of a woman who had been living with a man who had promised to make a settlement on her and who paid it for some time and then just stopped. She said, "If you don't go on paying, I will show you up". That, said the man, was stealing money by menaces, and he complained to the police. The woman Bernhard was tried at the Old Bailey and convicted. The Court of Criminal Appeal said, "No, the woman had an innocent mind. She thought she was entitled to do this, and that is what you have to look at; whether in fact she thought she had the right to make this demand on the man and, when he did not pay, to make these threats for the purpose of inducing him to pay"—or, at any rate, that was how it should have been left to the jury.
267 I must say that I thought the view of the Court of Criminal Appeal in that case was the correct one, and not the view taken by the Lord Chief Justice, Lord Hewart, when he directed the jury at the Old Bailey and told them it did not matter what was in the woman's mind, the point was that this was an unreasonable demand to make, unwarrantable in law, and if the jury felt it was an unreasonable demand they should find her guilty. Obviously, the Sellers Committee were following the law as laid down in the Bernhard case, and I think that most lawyers would feel that that was right, because this subjective test of the guilty mind is the correct one to apply in this sort of case. Those are points which we shall have to look at again as we come to deal with the clauses one by one.
Finally, I should like to say that I entirely disagree with the noble and learned Viscount, Lord Dilhorne, who wanted to go back to the use of the word "fraudulently" in the definition of theft. The word "fraudulently" has given rise to quite a lot of trouble. It is my custom to tell the jury, if they cannot understand what "fraudulently" means, that it really means "dishonestly"; and I have the strong support of Lord Goddard in the case of Williams, in which he said that that was the right way of handling this matter. Both to lawyers and to lay people the word "fraudulently" has developed a very distinct meaning since it was used in the 17th and 18th centuries when the definition of theft began to be built up. It is used in a very different sense now. At that time it really meant "dishonestly", and I think it much more sensible to use the word "dishonestly" as the Sellers Committee have done; and they explain very clearly why they have done it. I think it would be a very substantial retrogression if we were to eliminate "dishonestly" and put back "fraudulently". I hope that we shall not do so. I hope that this Bill will, in the main, go through in the way it has come before us. Certainly I would agree that some of the points should be looked at when we come to the Committee stage.
§ 6.30 p.m.
§ LORD STONHAM
My Lords, of the six noble Lords who have spoken in this debate five have been distinguished law- 268 yers. Therefore it is only common justice, even common sense, that the one layman, myself, should speak twice. I feel very much as I did when I had to go to France during the war as a civilian. Having the right papers, I could talk to officers of any rank and get what I wanted done. It had distinct advantages. I think I have an advantage now, even though I am completely outranked by the lawyers who have spoken. When I come back from my forthcoming visit to Canada to receive an honorary degree of Doctor of Laws, perhaps I shall have some shred of respectable standing in the distinguished company I shall have to meet in Committee. I must say that I look forward to the Committee stage of the Bill, because I cannot imagine any discussions more valuable and rewarding than those we shall have in Committee on this Bill.
I think it is fair to say that every noble Lord has warmly welcomed the Bill. My noble friend Lord Stow Hill said that it had gone right back to first principles, that it was drafted in language that the ordinary man could understand, and that great pains had been taken to make the right decisions. With that I am in agreement. The noble and learned Viscount, Lord Dilhorne, took me to task for using the term "monumental". I did not have gravestones in mind. While on that point, I think the noble Viscount made a mistake when he said that my noble and learned friend Lord Donovan had been chairman of this Committee at one time. He was a member, but I believe that Sir Frederic Sellers has been chairman throughout.
At the beginning of his speech the noble Viscount, Lord Colville of Culross, said something which has coloured my listening to every one of the learned speeches that followed. He said that he had been brought up to believe that the definitions in the Larceny Act were akin to Holy Writ. I think that every one of the criticisms made this afternoon was coloured by the training and the practice of the distinguished lawyers who have taken part in the debate. I think they find it difficult to come to this new way of thinking, to relinquish the old cases, mementi curiae. But we shall hammer these things out in Committee. It is worth spending a long time on them and getting them right.
269 Another point that occurs to me is that though the Bill has emerged from a Report produced by a Committee of distinguished lawyers, who have worked hard to the utmost of their abilities, not under conditions of stress but with time for full consideration, during this short debate there has been disagreement on different points.
VISCOUNT COLVILLE OF CULROSS
My Lords, I do not know whether any noble Lord is necessarily saying that he disagrees with any point. One of the main points I was making was that on the loss and gain clauses of the Bill it has not been explained specifically why there is loss in one, gain in another, both gain and loss in a third, and neither gain nor loss in the fourth. I think that what we should all be grateful to hear is the reasoning, which I do not think appears in the Report.
§ LORD STONHAM
My Lords, I could not give all the reasons in a speech of reasonable length to all the many important points that have been raised, and to be honest I do not know the answers in every case. They are matters we shall have carefully to consider. I shall have to read and study them so that we can work them out in Committee. But I would refer to one or two of these points to give some idea of our thinking.
The noble Viscount had the theory that there is some kind of overriding principle that fraud should run through the Bill and that this included the idea of harming a person's rights. I regard that as a heresy which I cannot accept. The noble Viscount, in his interpretation of Clause 4(3), put forward the point that in his view trawlers would be committing an offence as soon as they caught some fish. They could not be caught—I mean, the trawlers—because the fish they trawl for is not other people's property. He also mentioned the word "reasonable". In our view this is subjective, because it depends on what a person believes to be reasonable. On the point of loss and gain, we have tried to see gain where the essence of the offence was gain and similarly with loss. With the Committee, we think that we have got them right.
§ VISCOUNT DILHORNE
My Lords, the noble Lord will appreciate that my point was not so much whether there 270 would be gain or loss, but rather the difficulty of proving motive, which is now placed on the prosecution.
§ LORD STONHAM
I appreciate that, and that is why we must consider these points so carefully. In Clause 13, we feel that it can only be loss to the electricity suppliers. Clause 16 replaces the present offence, of which the essence is falsifying the accounts as a preparatory offence to cheating an employer or owner of a business whose books are being kept.
The noble Lord, Lord Foot, raised the question of penalties, which is exhaustively discussed in paragraphs 12, 27 and 59 of the Report. I have great sympathy with the noble Lord, because his reactions were precisely the same as my own when I saw this in typescript almost three years ago. I thought that it was one of the best things I had ever read but, like the noble Lord, when I picked up "simple larceny, five years" I voiced my objections, just as he has done But I came to the conclusion that there are two points here. If we want different penalties, then we have to have different offences, with all the complications of the present law, the precise thing which this Bill is designed to avoid.
I am going to do to the noble Lord what I did to myself nearly three years ago. I got out Archbold and looked up larceny, the whole 20 varieties. I will not read them all; but larceny by a clerk or servant carries a penalty of fourteen years, or by a tenant or lodger, where the value is over £5, it is seven years; where the value is under £5, two years; larceny from the person, from ships or docks, in dwelling-houses, of cattle, all fourteen years. But larceny of deer only two years. Larceny of documents of title, five years; larceny of dogs, after a previous conviction, eighteen months. And we go down to larceny of goods in process of manufacture, fourteen years; larcency of postal packets, life imprisonment; larceny by officer of a post office, life imprisonment; and lower down, after previous conviction of felony, ten years. In fact, it has to be a very simple larceny to get only five years maximum. That is the conclusion I reached.
There are very great advantages in having this one penalty. But the other point is this, and my noble friend Lord 271 Chorley raised it. Because a maximum is fixed—and we have some of these offences with life imprisonment—no court would ever award a maximum penalty for a minor larceny such as stealing an apple or something of that kind. And I am satisfied that we have the maximum penalties right.
§ LORD FOOT
My Lords, before the noble Lord leaves that point, may I ask him this question? Would it be right—and I followed his arguments about this—that if you are going to have different maximum penalties for different offences you have to distinguish between the less serious offence and the more serious offence? Is that not exactly what this Bill does in the case of burglary? There is simple burglary, attracting a punishment of fourteen years, and aggravated burglary, attracting a penalty of life imprisonment.
§ LORD STONHAM
If a man goes to commit a burglary armed with a cosh or gun or knife, I think we must regard that as a different offence from that of a man who goes to commit a burglary unarmed. I think it is right that those offences should carry different maximum penalties, because the man who goes armed takes his arms in order that he may well use them; and it may well result not merely in grievous harm to some other person, but in death. Therefore I think it is right that we should have different maximum penalties for offences of different gravity.
But the point I was discussing with the noble Lord was that here we have one offence of theft, with one maximum penalty, which takes under its umbrella 20 existing offences of larceny, all fraudulent conversion, all embezzlement, and says—as indeed they are—that they are all theft and, whichever variety is being dealt with, it is possible to have ten years imprisonment for it. What I am saying is that I do not accept that it will create more anomalies than it abolishes.
The noble Lord mentioned the sentence of seven years for falsification of accounts. It may well be—and this is a matter to be considered in Committee—that that also ought to carry a maximum of ten years. I do not know. But I believe that when we have settled and agreed 272 this single maximum penalty for this family of offences (if I may call it that), it then becomes a matter for the courts. If there should be different sentences for similar offences between different courts—and we have that now, Heaven knows!—it will be a matter for the Lord Chief Justice and the conferences which he periodically holds on these different subjects.
My noble friend Lord Stow Hill, whose speech I so very much enjoyed and for which I am so grateful—as I am for everything he does—raised, in particular, blackmail, which is dealt with in Clause 20. As he knows, the question is discussed in paragraphs 114 and 121 of the Committee's Report. I would not venture to answer all the questions he put and which I wrote down, but it seems to me that in the case he suggested it would be right to point out that the girl could go to a solicitor and get him to put the demand in a way which would not lead I to any criminal proceedings. He asked what the girl should do; and that would be the answer, I think. As for a demand for £1 million, surely no jury would ever accept that she believed she had reasonable grounds for making such a demand. Of course it is hard to evolve a test as to exactly what should be covered, and this is another point on which I am sure we are going to have a very important and interesting debate.
The noble and learned Viscount, Lord Dilhorne, dealt—and I was glad he did—with the word "dishonestly". We do not at present consider that any further definition is necessary. We think that "fraudulently" is a more legalistic term; that people would better understand "dishonestly". Of course, there has always been a good deal of argument about the word "fraudulently" in existing Statutes. I took his point, which is a fair one, as he put it, that the definition may lead to widely differing application in different courts throughout the country. He asked whether magistrates and juries would know what the Committee mean by the words they use, and whether exactly what is meant would not have to be explained to the jury. I think that that is probably right, but I do not think it is much different from current practice. He may be right in thinking that a far wider interpretation will be put on "dishonestly" than the Committee or Parliament might 273 think. That is something we shall have to look at very carefully, and we shall study his speech and other speeches on the point.
With regard to Clause 2(2), which he mentioned, we think it is for the person who puts down the money and takes the property, even though he knows the owner is unwilling to sell; and it is that subsection which provides for that offence. The noble Viscount also spent some time on wild animals and wild birds. In our view, so far as the wild creatures are concerned, they are not at present "property", but Clause 4(4) makes them property. Even so, taking is not made theft, except in the cases mentioned in the clause; and, of course, it is the same with wild plants, except that wild plants are "property" now if they are growing on somebody's land. As for tearing them up by the roots, this is ordinary malicious damage now, under the present law, and under the Bill it will be theft if the conditions of Clause 4(3) are satisfield. But, naturally, we shall have a look at this question, particularly if Amendments on this subject are put down, even if they are put down as points for discussion.
§ LORD AIREDALE
My Lords, surely the trouble with Clause 4(3), regarding the picking of wild flowers—and this subject seems to have given rise to more dispute than anything else this afternoon—is that this subsection departs from the essence of theft, which surely is deprivation of another of his property. Taking some wild flowers from somebody else's property is depriving the person of the wild flowers. If you go on to say that that will be theft if the person who takes the flowers is going to sell them, but not if he is not going to sell them, it undermines the principle. The person who is deprived of his wild flowers does not care tuppence what the thief will do with them. That, surely, is the trouble we are in with this subsection.
§ LORD STONHAM
My Lords, I quite agree with that, though I regret to announce that the odds on lawyer versus lay have now gone up to six to one. I was about to say that in the case of the taking of heather, mentioned by the noble and learned Viscount, it would not be theft unless it was done dishonestly. This is one of the misfortunes of having to deal with these points in this way. It will be much better if we can deal with them in Committee and consider them properly, so that we can cover the whole ground.
On the point about pheasants—
§ VISCOUNT DILHORNE
My Lords, if it will help the noble Lord may I say straight away that I was not expecting answers to all these points? I was giving him advance notice and hoping to give him an opportunity of considering them.
§ LORD STONHAM
My Lords, I am most grateful for that, and if your Lordships feel, as I am sure you do, that I have said enough I will not say any more. The noble and learned Viscount is always helpful in these matters, but never so helpful as now.
I therefore conclude by thanking all the noble Lords who have spoken for the general welcome they have given to the Bill and for the valuable suggestions which have been made on matters which we shall certainly discuss in Committee, and I would only add that I now look forward to the next round.
§ On Question, Bill read 2a and committed to a Committee of the Whole House.