HL Deb 26 July 1968 vol 295 cc1397-407

[References are to Bill [132] as first printed for the Commons]

No.1.] Clause 1, page 1, line 12, leave out "four" and insert "five".

[No. 3.] After Clause 5, insert the following new clause—

With the intention of permanently depriving the other of it

".—(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights, and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights."

[No. 6.] Clause 14, page 7, line 32, at end insert— (3) Section ("With the intention of permanently depriving the other of it") shall apply for purposes of this section, with the necessary adaptation of the reference to appropriating, as it applies for purposes of section 1.

LORD STONHAM

My Lords, I beg to move that this House doth agree with the Commons in Amendment No. 1, and also in Amendments Nos. 3 and 6. Nos. 1 and 6 are minor consequential Amendments, but No. 3 is a new clause, which is a matter of substance. As this is a matter on which your Lordships spent a great deal of time, and as I do not think the reasons for this new clause have yet been fully explained, I hope your Lordships will bear with me if I spend some time on them.

This new clause replaces a clause (Clause 6) which was deleted in your Lordships' House at the Report stage against the advice of the Government. It partially defines the expression "with the intention of permanently depriving the other of it" in the basic definition of theft in Clause 1(1). A clause for this purpose was reintroduced into the Bill at the Committee stage in another place, and amended there on Report to take account of criticisms which the noble and learned Lord the Lord Chief Justice, the noble and learned Viscount, Lord Dilhorne, and the noble Viscount, Lord Colville of Culross, had made of the earlier version.

The object of the clause is to ensure that the new definition of theft will be construed as covering certain cases which are theft under the existing law although the appropriator of the property does not literally intend to deprive the owner permanently. Examples are where the taker intends to abandon the property in circumstances such as that the possibility of its return to the owner is to his knowledge extremely remote; where he intends to return it only after using it in such a way that it has become useless to the owner—for example returning a railway ticket after travelling on it; or where he intends to sell the property back to the owner as being the taker's own property.

Although there was no corresponding clause in the draft Bill annexed to the Criminal Law Revision Committee's Report the Committee made it clear in paragraph 58 of the Report that they intended such cases to be covered by the new definition of theft. They said that they had thought of including a provision in the draft Bill to cover them expressly but that their general view was that this would be unnecessary; and they also said that such a provision would be difficult to frame. The Government share the Committee's view that the cases should be covered, and although they recognise the difficulty of framing an appropriate provision it remains their view, as it was when the Bill was introduced in your Lordships' House, that the balance of argument is firmly in favour of covering them expressly. The Government's decision to propose an express provision was reached after consultation with the Chairman and several other members of the Criminal Law Revision Committee.

There are two main reasons for departing from the Committee's conclusion that an express provision was unnecessary. In the first place, when the Committee reported the Government had not embarked on the codification of the criminal law of which the first steps were mapped out in the Law Commission's Second Programme. In the light of the decision to have a criminal code, the Bill ought to be as complete a statutory statement as is practicable of the law of larceny. But, in addition, since Clause 1 of the Bill redefines larceny, some doubts have been expressed as to whether, in the absence of an express provision, the courts would interpret the new definition of theft as including the cases in question. Those cases were recognised as amounting to theft before there was any statutory definition of theft and have continued to be so regarded since the statutory definition of theft in section 1 of the Larceny Act 1916. But that Act was known not to be intended to change the law, whereas the present Bill makes major changes. Therefore the Government do not think it safe to assume that the courts will continue to give the same interpretation to the definition of theft in the new Act.

Additionally, there is a need to cover specifically certain cases dealt with in subsection (3) of the former Clause 6 which the Government carried by Amendment at the Committee stage in your Lordships' House. That provision (which is reproduced in subsection (2) of the present clause, which I ask your Lordships to approve) was included to make it clear that Clause 1 is intended to cover certain special types of cases where there may not be a positive intention permanently to deprive but where a person entrusted with property deals with it in a manner differently from that for which it was entrusted to him and in a way which seriously endangers the owner's prospects of recovering the property. These cases amount to larceny or fraudulent conversion under the present law, but the position might be open to doubt if there were not a specific provision about them in the new Bill.

The main criticisms which were made of the former clause by the noble and learned Viscount, Lord Dilhorne, and others in your Lordships' House were not that its intentions were wrong but that it failed to fulfil them. At the Report stage, however, the noble and learned Viscount, Lord Dilhorne, after successfully moving an Amendment to delete Clause 6, said: I understand that the noble Lord"— He was referring to me:— will not seek at a later stage to reintroduce Clause 6 in the form that has now been excised. Does that mean—I hope it does not—that he is not giving consideration to an entirely different wording to carry out the intentions which he said lay behind Clause 6." —[OFFICIAL RFPORT, 8/4/68, col. 114.] The present clause meets specific criticisms made of the original clause in the House of Lords. In particular, the concept in the former clause of "complete usurpation" has been replaced by the concept of an intention to treat the thing as one's own to dispose of "regardless of the other's rights", and the final words of subsection (1) make it clear that it does not cover mere borrowing or lending—a point on which the original clause was misunderstood. The noble and learned Lord the Lord Chief Justice suggested in Committee that the original clause might be read as covering, for example, ordinary borrowing of a bicycle or the taking of a picture or a motor car the present clause meets this criticism.

Subsection (1) of the clause provides that a person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights. It would be for the courts to decide in the circumstances of any particular case whether the person appropriating the property had such an intention, but the Government consider that the provision will effectively embody the desired notion of a total conversion to one's own use and will preserve the law substantially as it is now. Thus, if, for example, a person takes a railway ticket intending to return it after travelling on it, or takes property intending to sell it back to the owner as being the taker's own property, he will clearly intend to treat it as his own to dispose of regardless of the other's rights.

In addition, subsection (1) provides that a borrowing or lending another's property may amount to treating the property as one's own to dispose of regardless of the other's rights if, but only if, it is for a period and in circumstances making it equivalent to an outright taking or disposal. This removes any room for misapprehension that the clause is intended to cover mere borrowing or lending. But the exception by which a borrowing (or lending) may amount to treating the property as one's own in the way mentioned, if it is for a period and in circumstances making it equivalent to an outright taking or disposal, will secure that it shall not be a defence that one intended to return the property, say, years later.

Subsection (2) provides, without prejudice to the generality of subsection (1), that where a person having possession or control, whether lawfully or not, of property belonging to another parts with the property under a condition as to its return which he may not be able to perform, this amounts (if done for purposes of his own and without the other's authority) to treating the property as his own to dispose of regardless of the other's rights. The effect of subsections (1) and (2) together is that a person who appropriates property with the intention to part with it under a con- dition such as is mentioned in subsection (2) will have an intention permanently to deprive the owner of the property for the purposes of Clause 1 of the Bill. The type of case covered by the subsection is one where the person having possession of another's property pawns it and spends the proceeds, and his ability to redeem the property is in doubt.

My Lords, I apologise for having dealt with this matter at some length, but I am aware that there are a great many people who will read this and I hope, therefore, that you will agree it should have been said. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendments (Nos. 1, 3 and 6).—(Lord Stonham.)

11.34 a.m.

VISCOUNT COLVILLE OF CULROSS

My Lords, I do not think the noble Lord, Lord Stonham, need apologise for his explanation. As the noble Lord has said, this particular clause was not of course the result of a draft by the Criminal Law Revision Committee, and it poses problems of diabolical complexity in drafting which I do not think were overcome in the first place. One obvious advantage of the form in which it has now been put in the Bill that the language, I think, measures up to the clarity of the rest of the language in the Bill. I do not think that people really liked the idea of "complete usurpation", although it has a respectable legal origin dating from the middle of the 19th century, and I do not think that the intention was nearly so clear before as it now is.

I do not want in any way to repeat or expand upon the noble Lord's explanation because it was very full, and I think it now justifies the insertion of the new clause in the Bill, with the two consequential Amendments in Clause 1, and the application to the "criminal deception" concept later on in the Bill. I think that this is not an occasion when I want to pull the Government's leg any more—it has been pulled enough already on this Bill. Even on a matter of this technicality, when it is as important a subject as theft in the criminal law, it is amazing how Parliament can improve even upon the most expert drafting by the most expert lawyers. I think that what has happened here is yet a further example of how worth while it has been to subject the whole of this Bill to detailed criticism in Parliament. I am quite sure that, even after all the Amendments which the Government have now accepted in another place, as well as those which they accepted here, have gone into the Bill, the Government will bear no more rancour against those who were bold enough in the first place to suggest that there might be criticisms, and will agree that the Bill is a great deal better now than it was originally. This new clause is justified, and we shall all look with great interest to see what the courts do with it.

On Question, Motion agreed to.

COMMONS AMENDMENT

[No. 2] Clause 4, page 3, line 18, to leave out from "possession" to the end of line 20.

LORD STONHAM

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2. This Amendment deletes the provision in subsection (4)(b) of Clause 4 making it theft dishonestly to take a wild creature for reward or sale or other commercial purpose. In consequence, a wild creature, not tamed nor ordinarily kept in captivity, will be capable of being stolen only in the circumstances covered by paragraph (a) of the subsection. This Amendment was made to meet criticisms of the commercial test expressed both in the House of Lords, notably by the noble and learned Viscount, Lord Dilhorne, and by the noble Viscount, Lord Colville of Culross, and in another place.

The arguments for and against making poaching theft are, as the Criminal Law Revision Committee recognise, nicely balanced, and the balance as it left the House embodied the compromise proposed by the Committee—that is to say, that poaching should, in effect, be theft only if done for a commercial purpose. The Government, after considering the criticisms made of the subsection, came to the conclusion that theft should not be extended to poaching even to that limited extent. In reaching their conclusion the Government had much in mind that, traditionally, poaching has never carried the stigma of theft, and that the Criminal Law Revision Committee did not know of any other country where wild creatures are in general the subject of theft. Poaching is not, for example, theft in Scotland, New Zealand, France, Germany or South Africa.

The Government do not underrate the mischief that can be caused by large-scale poachers, such as those who strip shoots for commercial purposes or take salmon on a large scale. But against this mischief they have had to balance the effect on rural opinion of making it theft, for example, to take without the landowner's consent a few rabbits running wild in the fields, in order to sell them. The Government came to the conclusion that to strengthen the law against poaching to the extent of treating such creatures as property which could ordinarily be the subject of theft would be out of line with modern attitudes towards it, particularly as the effect would be to replace the mostly minor penalties for poaching by the maximum of ten years' imprisonment for theft. My Lords, I beg to move.

Moved, That this House doth agree with the Commons in the said Amendment (No. 2).—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

My Lords, I shall not weep at the demise of the commercial test in Clause 4. I never liked it and I thought that it was going to be as difficult to deal with in practice when it related to animals as I still fear that it will be in relation to flowers. Flowers are still covered by this test, and this, again, will be something which Parliament will want to watch as it is dealt with day to day—or perhaps not so often as that, but on rarer occasions in the courts. With the balance being so finely drawn as it is in regard to poaching, I consider that this Amendment is justified and that, as and when the game laws (not, as was stated in another place, the gaming laws, which I believe have a different context) are looked at, that may be the time when any anomaly can be cleared up. Meanwhile, I would support the Amendment. Although it is probably a compromise on Clause 4 it is a good one.

On Question, Motion agreed to.

COMMONS AMENDMENT

[No. 4] Clause 10, page 5, leave out lines 29 to 31 and insert "that the public's access to a building is limited to a particular period of particular occasions; but where anything removed from a building or its grounds is there otherwise than as forming part of, or being on loan for exhibition with, a collection intended for permanent exhibition to the public, the person removing it does not thereby commit an offence under this section unless he removes it on a day when the public have access to the building as mentioned in subsection (1) above.

LORD STONHAM

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 4. This Amendment makes changes in subsection (2) of Clause 10, which deals with the removal of articles from places open to the public. We are back to Goya. The need for some Amendment to the clause was foreshadowed by myself when the Bill left your Lordship's House. The main change made here is that the Amendment puts a limit upon protection given where the thing taken is not part of a collection intended for permanent exhibition to the public. The clause as it left your Lordship's House would have protected a place to which the public had occasional access, perhaps only on certain days of the year, from the removal of an article even by a servant, guest or trespasser, at any time of the year, even if the removal had nothing to do with the public's occasional access to the building; whereas the servant, guest or trespasser in a building which is never open to the public could not commit an offence under the clause. This seemed to the Government an unsatisfactory, and indeed absurd, result. The clause secures a limitation by providing that unless the thing removed forms part of, or is on loan for exhibition with, a collection intended for permanent exhibition to the public, the person removing it does not commit an offence under the clause unless he removes it on a day when the public have access to the building.

The Amendment makes further improvements in the clause by referring specifically to things on loan for exhibition with a collection intended for permanent exhibition, making it clear that the clause would cover articles on loan to an exhibition. Secondly, the Amendment, by limiting the clause to days when the building is open to the public, prevents the question from arising whether a building to which the public were admitted only occasionally would be deemed to be one to which they had "access".

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

The use of this clause is going to be another rarity, but one way or the other one cannot avoid anomalies. Ono has now the position where somebody who, for some reason, stays after midnight and takes the thing away the next clay is not caught. On the other hand, the number of times when this will not be theft, particularly now that we have back in the Bill the new clause which was dealt with at the beginning of these proceedings, will be most unusual. It was plain that the matter was not right when it left this House, and the anomalies which arose in the circumstances then have been described by noble Lords. I think that the anomalies now are fewer, and, this provision being experimental, it is something which again will have to be watched. It is a new offence and a very unusual one. I am very content that it should now proceed on this new basis.

On Question, Motion agreed to.

COMMONS AMENDMENT

[No. 5] Clause 12, page 6, line 40, at end insert "dishonestly".

LORD STONHAM

My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 5. This is a purely drafting Amendment to Clause 12, "Abstracting of electricity". It inserts "dishonestly" at the end of line 1 so as to make it clear that the word applies throughout the clause.

Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Stonham.)

On Question, Motion agreed to.

COMMONS AMENDMENT

[Nos. 7 to 9]

Clause 15, page 7, line 41, leave out from beginning to "a" in line 42, and insert—

"(2) The cases in which".

Clause 15, page 8, line 2, leave out "in any case" and insert "are cases".

Clause 15, page 8, line 5, after "is" insert "reduced or".

LORD STONHAM

My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 7, 8 and 9. These Amendments make changes in Clause 15, "Obtaining pecuniary advantage by deception". The effect of Amendments 7 and 8 is to make subsection (2) of the clause an exclusive definition of the type of case to which the clause applies instead of the list of examples of the general proposition in subsection (1). The third Amendment slightly widens the application of the clause.

Moved, That this House doth agree with the Commons in the said Amendments.—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

This clause deals with another subject on which there was a slight dispute in this House, and I am not surprised that the Government have reconsidered the question of "exclusivity" or "inclusivity". When one takes into account changes in the Repeals Schedule, it looks as though this is now a restatement of the existing law, albeit in a much changed and simplified form. So long as the Government are satisfied that they have covered all possible circumstances—and I imagine that that is the case—I feel that this is another experiment which should be allowed to go forward under the Bill to see whether or not it works. I have little doubt that it will.

On Question, Motion agreed to.