§ 6.30 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ LORD CHORLEY
My Lords, I do not want to ask your Lordships to reject this Motion, but I should like to protest against the very short time which has been given between the Second Reading stage and the Committee stage of this Bill. I appreciate that the fortnight or so that we have had is a very usual period in connection with ordinary Bills, but this Bill is a Bill of outstanding importance and an exceedingly difficult one to which to draft Amendments. It may be said that a great part of the Bill was already in the important Report of the Law Revision Committee on this subject, and that is true. But there are in the Bill before Parliament at the present time some important clauses, particularly Clause 6, which are not in the draft, and the reasons for them, I think, have not been made as clear as they might have been. But, quite apart from that, the rather inarticulate mass of the citizenship affected by this Bill—and it affects tremendously a very large number of people—who are not really capable of reading Reports of Law Revision Committees, may have spokesmen, and they certainly have not had the opportunity to master the complications of the Bill.
I think that on Second Reading it was generally accepted that, by and large, this is a very valuable contribution, and I do not think that anybody feels that even small parts of it should be rejected altogether. On the other hand, it was made quite clear that there are a number of aspects of the matter which are very much open to objection and which, arguably at any rate, could very well be amended and improved at Committee stage. This really ought to have persuaded the Government, I think, to give longer time before the Committee stage.
1294 In the Press and from the university law schools a quite substantial amount of anxiety has been manifest over these last weeks. I have had a number of letters from teachers of criminal law in university law schools asking for elucidation of points, which I obviously am not able to give to them; and without the assistance of a pretty skilled draftsman it is extraordinarily difficult to put down Amendments to a technical Bill of this kind. Personally, although this is not perhaps of great importance to your Lordships' House, I have myself not been in a position to give detailed attention to the Bill; and, as it happens, this is a week in which I have long-standing engagements which will prevent my taking very much part either in the Committee stage to-night or, as I understand it will be, the adjourned Committee stage on Thursday.
My second point is that it is altogether wrong that, in the case of a Committee stage of this importance, pretty well the whole of a day should not be given to the discussion of the Amendments. We have important Amendments before us, and here we are, at half past six in the evening, after a longish day, with a comparatively small House. I suggest that a Bill which affects the liberties of such a very large section of the community ought not to be pushed forward in this very hurried way. One appreciates that this is a section of the law which is in very great need of reform, and that it has had to wait a long time. Nevertheless, a great deal of damage can be done in the very last stages if, in an understandable anxiety to get the Bill on to the Statute Book before the end of the Session, too much urgency is shown and the work which ought to be done very carefully, and I think with a measure of slowness, is pushed through late in the evening on a number of rather latish sittings. I therefore hope that after to-night, at any rate, it may be possible to give your Lordships a better opportunity to deal with this Bill in detail, and with the close scrutiny that it deserves, and also that a rather longer period may be allowed before the Report stage is taken. Undoubtedly there are a number of people who have given a very great deal of close thought to this problem, especially in the university law schools, who would like to have the opportunity, through the means which are at their disposal, to 1295 place important criticisms before your Lordships' House.
§ VISCOUNT DILHORNE
My Lords, I am not sure whether the noble Lord, Lord Chorley, is suggesting that we should not take the Committee stage to-night or not, but in support of his plea that we should be allowed plenty of time for this Bill I should just like to say one or two words. I think it is very important that we should get this Bill right. For some of us it is inconvenient, to say the least, for reasons of public business, to take part in a Committee stage which starts before 4 o'clock and I think it is very important that those who have to administer the criminal law should be able to take part in the discussions upon this Bill in Committee. That means that one has to start after 4 o'clock if one can, and I hope that the Government will arrange that. I also hope that the proceedings will not go on too late into the evening.
This Bill is a very important Bill, but I do not believe there is tremendous urgency to get it through; we are carrying along quite well as we are. The great thing is to get it right. I hope that the noble Lord will allow quite an interval between the Committee stage and the Report stage, so that we shall have an opportunity to consider the position in the light of our discussions. I believe that this would facilitate the progress of the Bill.
VISCOUNT COLVILLE OF CULROSS
My Lords, much though we should regret the absence of the noble Lord, Lord Chorley, I hope that the House will proceed to the Committee stage now, and will do as well as it can.
§ LORD CHORLEY
I should like to make it clear that I was not asking your Lordships to refuse the Committee stage to-night, but that I just wanted to make my protest and the plea that there should be a longer period a little later on, so that we can get down to an intensive study of the Amendments that are needed. It would be very useful if a group of Peers could be formed, on a non-Party basis, with the advantage of a draftsman provided by the Government to help us in drafting Amendments. It is certainly not right that an important Bill of this kind should depend on the accident of some of the people who are 1296 interested in it having some skill as draftsmen.
VISCOUNT COLVILLE OF CULROSS
My Lords, I do not disagree with the noble Lord, but I wish to say just two things. First, I would support the plea that we should have a comparatively long period between this stage and the Report stage of the Bill, if that can be arranged, because I believe that there are a considerable number of views to collect, to assimilate and to turn into Amendments. The second thing I would say is by way of paying a tribute. It so happens that during the preparation of the Amendments on this Bill your Lordships' House, in another capacity, has been considering a criminal matter, and the result of that has been that practically every book of any relevance has been out of the Library and in court. I should like to pay tribute to our librarians for their incredible skill in somehow obtaining the necessary books, at any rate for me so that I could draft the Amendments. I think they have done a very good job, and I am most grateful to them.
§ LORD STONHAM
My Lords, it is perfectly right, and indeed valuable, that my noble friend Lord Chorley should have made his protest on this point. Your Lordships will appreciate that the arrangement of business is not a matter for me, and also that we have a very crowded legislative programme. I would say, however, that it is 19 days since Second Reading, which is not an unreasonable time for the tabling of Amendments. That is easily borne out by the fact that your Lordships have accumulated no fewer than 70 Amendments on the Marshalled List; so that, if one or two law professors have been to some extent inhibited, this is a matter for which I, at least, can be devoutly thankful.
I would, in reinforcement of that, point out to your Lordships that because of the delay between First and Second Readings the Bill has actually been printed and before the House since January, which has allowed something like six weeks for the consideration of possible Amendments. With regard to the late hour for discussion, I have the greatest sympathy for my noble friend, because in the last week I have had more bedtimes than bed. Therefore, I can speak feelingly in this matter. But I want to 1297 emphasise to your Lordships the great importance, in the case of a Bill of such major importance as this one, which the Government attach (this is the point made by the noble and learned Viscount, Lord Dilhorne) to the presence of the Lord Chief Justice and the Law Lords, if they can be here. Therefore, while every endeavour will be made to bring on further Committee stages as early as we can in the day, I think it would be generally accepted that they ought to come on after 4.30 p.m. in order to ensure that we have the attendance—
§ LORD STONHAM
My Lords, I agree about "not going on too late" With regard to that, I want to state quite firmly that there will be no tendency at any time to curtail the discussions on this Bill in your Lordships' House. We know that there will be no filibustering. If more time is needed, then more time will be provided; although more days may be necessary. With regard to the time interval between the end of the Committee stage and the beginning of the Report stage, as some of your Lordships are aware I have always held the view that there will have to be a substantial Report stage on this Bill. The Report stage will, in fact, be finality in regard to many of the discussions that we start in Committee and there will have to be a necessary interval. That is a matter for the Chief Whip and "the usual channels". I am sure that the representations that have been made will be fully respected and that we shall endeavour to meet what is obviously the general wish of the House in this matter. I hope that now we may proceed into Committee.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ST. HELENS in the Chair.]
§ Clause 1:
§ Basic definition of theft
§ 1.—(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.
§ (2) It is immaterial that the appropriation is not made with a view to gain, or is not made for the thief's own benefit.1298
§ 6.43 p.m.
§ VISCOUNT DILHORNE moved, in subsection (1), to leave out "permanently". The noble and learned Viscount said: I beg to move the Amendment standing in my name on the Marshalled List. I should like to say at the outset that this Amendment raises a considerable issue. It may be that this Amendment and perhaps many others in my name, is not drafted to the satisfaction of the Parliamentary draftsman. It may be that in some instances some consequential Amendments will be required if an Amendment is accepted; but I have put down these Amendments with a view to raising the points to which I consider that this Committee should give serious consideration. I should like to echo the noble Lord, Lord Stonham, in saying that this is not a Party measure at all. Whatever view we may express, I think we all have the same objective, to try to make this Bill as good as possible.
§ For many years—I have not looked back during the 19 days to see for how long—it has been an ingredient of the offence of larceny that to constitute the offence there must be an intention permanently to deprive. This Amendment, by seeking to remove the word "permanently", raises the question whether in modern times it is either necessary or desirable that to establish the offence of theft the prosecution should have to prove in every case an intention permanently to deprive.
The sub-committee of the Criminal Law Revision Committee, which drafted this Bill, decided, so we are told in page 5 of their Report, that
it would he necessary to make far-reaching changes in the present law.
And they said, in page 6, that
…it was necessary to go back to first principles to consider what were the essential elements of the offence and to reconstruct the law relating to it accordingly,
As the Committee said in paragraph 33:
The important element of them all"—
and they are referring to the offences of larceny, embezzlement and fraudulent conversion—
is undoubtedly the dishonest appropriation of another person's property—the treating of 'tuum' as 'meum'.
§ I entirely agree with that.1299
§ Your Lordships will appreciate that that conception, treating tuum as meum, does not necessarily involve an intention permanently to deprive. Is it not really maintaining—this is the question I pose—an unnecessary refinement in our law to be required to prove not only that there has been a dishonest appropriation, but also that it has been done with the intention to deprive the owner permanently of that article? If someone dishonestly appropriates something belonging to you, would it not be surely the normal use of the English language to say that it has been stolen and that the man who takes it is a thief? If someone takes your car and drives it away when he has no right to do so, surely you and most car owners would say that the car had been stolen. But that would not be right under the present law. It would not be right for you to say that unless you could establish that it had been taken with the intention of permanently depriving you of it. If a man has taken your car away and has deprived you of it, he has probably caused you a very great personal inconvenience, to say the least—and if it were a question of calling witnesses on this, I would call my noble friend Lord Colville of Culross who I hope will speak later. But if a man has done that, and that alone, you should not call him a thief because in strict law that does not suffice to show that he had the intention permanently to deprive you of your car.
§ It was because of this requirement of the law that years ago, I think it was after the Road Traffic Act of 1930, the taking and driving away of a car without the owner's consent was made a criminal offence. It was made a criminal offence because of the difficulty of establishing theft; because you could not prove, when the man had taken your car, that he had the intention permanently to deprive you of it. In some cases the person who took a car was charged with stealing petrol because he had used it, and he was convicted of that offence. That is how that offence came into existence. This Bill, as the Committee will see, keeps that as an offence in Clause 12. The Committee recommended not only that that should remain an offence, but also that it should be an offence to take away 1300 vessels—and we have passed an Act to provide for that.
§ Is it necessary to make special provision for the dishonest appropriation of goods without an intention permanently to deprive as distinct from the dishonest appropriation of them with such an intent? I ask whether it really is necessary that this distinction should be maintained in view of the modernisation and simplification—as I hope—this Bill is intended to achieve. I notice in the Committee's Report that an extract is printed in page 19 from the draft criminal code prepared for Jamaica as long ago as 1877 by Mr. Arthur S. Wright who later became a distinguished judge and a great authority on the law.
Paragraph 183 of that code which is set out in the Report reads as follows:
'A person is guilty of stealing if he dishonestly appropriated a thing of which he is not the owner.'
Surely that is a very good definition. That is very similar to the definition contained in this Bill, except that this Bill requires an addition that it must be done with an intent permanently to deprive the owner. I understand, and the noble Lord will correct me if I am wrong, that under the law of Canada there is no need in relation to theft to prove an intention permanently to deprive, and that law has been in existence for some time. I hope that either now or later the noble Lord will be able to say whether or not serious social consequences have ensued from that. I have not heard of any, and I doubt whether any have.
§ Of course, for lawyers such as myself, brought up on the definition of larceny which is contained in the Larceny Act, now to abandon the requirement of proof of an intention permanently to deprive represents a very considerable change from what we are all accustomed to. At the same time I do not believe that the lawyers' definition of theft, of stealing, as commonly used, accords with the meaning attached to the words by the vast mass of the British public. I pray in aid, too, the authority of Mr. R. S. Wright and his definition of stealing, which shows that at least at that time he did not think that this refinement of having to prove such an intention was really necessary.1301
This question was considered by the Committee in paragraph 56 of their Report—one short paragraph on what is, I think, a fundamental question in relation to this branch of the criminal law. They rejected the view which I am putting to your Lordships and gave a number of reasons on which I should like to make some observations. Their first reason, which will be found in that paragraph, was that in their view:
… an intention to return the property, even after a long time, makes the conduct essentially different from stealing.
Does it? Surely the conduct of the accused is the same in both cases. In each case he has dishonestly appropriated someone else's property. The only difference is that in one case he has done it with the intention of permanently depriving the owner and in the other case that intention was absent or cannot be proved to exist. But surely his conduct is the same, and surely to the person who has suffered the loss of the property the consequences are the same. So I do not find it possible to agree with that reason for rejecting the Amendment that I am now putting forward.
Then the Committee advanced a number of reasons which, I am sorry to say, do not convince me. They say, and your Lordships will see it in paragraph 56, that this change
… might moreover have undesirable social consequences.
Again I put the question—because it is pertinent when you are considering what reality lies behind this—has the Canadian law had any undesirable social consequences? The Committee go on in the next sentence of their Report:
Quarrelling neighbours and families would be able to threaten one another with prosecution.
I find it remarkable to think that, because of a change in definition, quarrelling neighbours and families would be able to threaten one another with prosecution. They can do that now. They are not deterred from doing so by the lawyers' definition, by Parliament's definition, of the word "theft". If this Amendment were accepted I do not think that there would be any real risk of an increase in such threats.
The paragraph goes on:
Students and young people sharing accommodation who might be tempted to borrow
one another's property in disregard of a prohibition by the owner would be in danger of acquiring a criminal record.
That is another way of saying that they might be prosecuted and convicted. Is that a good reason? If there is a dishonest appropriation by a student or a young person, is not that conduct which should be condemned? If the requirement to prove an intention permanently to deprive were dispensed with, it would still be necessary to prove that the appropriation was dishonest. If a man borrowed his neighbour's mowing machine without his neighbour's consent, but in the belief that his neighbour would not object to the borrowing, surely no one could say that was a dishonest appropriation. There would be no risk of a conviction and, I should have thought, really no risk of a prosecution. The same applies in relation to students and young people.
The paragraph continues:
… it would be difficult for the police to avoid being involved in wasteful and undesirable investigations into alleged offences which had no social importance.
Why should it be assumed that, following this change which I am recommending, the police would be more involved than they are now in wasteful and undesirable investigations into alleged offences? I do not know. If this change were made, I do not believe that people would more readily accuse their neighbours, or any other people, of stealing or of being thieves. I do not believe that is the case at all. Is dishonest appropriation without an intent permanently to deprive an offence which has no social importance? I should have thought it had very great social importance. I pose this question: does the social importance of the conduct of the accused really depend upon whether or not an intention permanently to deprive exists? I cannot find the reasoning in this paragraph—I am sorry to say it—at all satisfactory or at all convincing.
§ I should like your Lordships to consider what the effect would be if this change were made; a change for which I have already indicated that there is at least one precedent. If the change were made, Clause 12 of the Bill would become unnecessary; and so would Clause 11, the extraordinary clause devised to give protection against the loss of things like the Goya picture from 1303 the National Gallery and where it is accepted that there was no intention permanently to deprive. It is a clause which is applied only to certain categories of buildings which satisfy certain conditions, but the effect of that clause is to make conduct which is not accompanied by an intention permanently to deprive none the less criminal.
§ If you take the word "permanently" out of Clause 1(1), as I see it Clause 11 becomes wholly unnecessary; and you get rid of the very tiresome and, I think, erroneous distinction between the types of premises from which the valuable picture, or whatever it may be, is borrowed, and dishonestly borrowed. We get rid of that and of Clause 12 as well. If I may make this criticism of the Bill, so much of it seeks to deal with particular legal problems, very often of a considerable refinement, which have emerged in the course of the years, at the expense of considering whether any changes should be made in relation to the principles which have run through this branch of the law. I make no apology for saying that what I am proposing is a substantial change, but I believe that it will lead to a very real simplification and modernisation of this branch of the law.
§ May I ask your Lordships to look at Clause 15(3) which creates an offence of "criminal deception". This does not require proof of an intention to permanently deprive, and that is recognised in paragraph 56 of the Committee's Report. But contrast that paragraph with Clause 15(1), which also makes criminal deception an offence. In that case, for the deception to be an offence it has to be proved that there is an intention of permanently depriving the other person of the property. So that in this very clause two criminal offences are created—reconstituted, if you like—one requiring proof of intent and the other not. Where is the logicality of that? Where is the principle behind all that? Where, I would ask, is the "far-reaching change" to which the Committee referred on page 5 of their Report?
§ If the change I propose is made, I would think (though I am not certain, because I am not quite sure that I fully understand the clause) that Clause 6 also becomes wholly unnecessary. That, as it stands, is a pretty curious clause. It 1304 defines what is meant by permanent deprivation of property. The rubric is: "With the intention of permanently depriving the other of it", in inverted commas, but the clause does not contain that sentence at all. The substance of the clause deals with what amounts to permanent deprivation.
§ I suppose it will be argued that if what has happened does amount to permanent deprivation, then it is to be inferred that what was done was done with the intent permanently to deprive. Under the clause as it now stands, conduct which substantially amounts to complete usurpation of property will be permanent deprivation. I ask this: if someone takes a noble Lord's car away from outside the Peers' entrance does not that substantially amount to usurpation of his property? And if it does not, why does it not? The clause goes on to say that it is immaterial that one does not finally lose the property. If Clause 6 is meant to have the meaning I think it is meant to have, that supports my case that we do not want the word "permanently" at all in Clause 1.
§ But when we come to the Amendment which the Government propose to table to add a new subsection to Clause 6, it becomes even clearer that a temporary usurpation of property will require in certain circumstances to be treated in the courts as involving more than permanently to deprive. We shall come on to that when that Amendment is called, but it all seems to me very illogical and unduly complicated. Therefore I press the Government to give serious consideration to the question whether we cannot, even now, make a radical and significant improvement to this Bill by leaving out the word "permanently" from Clause 1 and making the necessary consequential Amendments.
§ The noble Lord, Lord Chorley, who I am sorry to see has already had to leave the House, referred to university lawyers. I do not know whether your Lordships read an interesting article which appeared some time ago in The Times from lawyers in the University of Kent. I thought that a great deal of what they wrote was sound sense. In particular, I was delighted to find that one of their major criticisms of this measure was that in the definition of theft was found retained the words "with 1305 intention permanently to deprive". I beg to move.
Page 1, line 8, leave out "permanently".—(Viscount Dilhorne.)
§ 7.7 p.m.
VISCOUNT COLVILLE OF CULROSS
I have heard my name referred to by the noble and learned Viscount, and I trust that it will not be thought that the circumstances which befell me last night have resulted in my so losing the necessary detachment of mind that I cannot approach this matter in a proper way. The noble and learned Viscount has made a number of very sound points. As I understand it, paragraph 56 of the Report, to which attention has already been drawn, says that one of the matters which this complete reappraisal is intended to comprehend is the social consequences—and, I would think, the social importance—of the elements of the crimes with which this Bill deals.
I suggest to the Committee that what is of paramount social importance in the case of theft is the effect upon the victim, and not the precise intent which the thief may have had at the time. I think that Clause 6 does recognise this, or at any rate recognises that the final outcome of the course of conduct into which the thief has entered is not really material. It may well be that in a number of cases what the thief does is a matter upon which he has formed no intent at the time. He takes whatever it may be, and does not decide whether he will give it back or not. In nine cases out of ten, I do not suppose he cares. He just takes it, and when he has finished with it he puts it down conveniently to hand; and whether the owner gets it back has nothing to do with it at all. In fact I am not at all convinced that the question of his intent has anything to do with the true essence of this offence at all.
If we look at this from the point of view of the victim, I think that this becomes even more apparent. It will rejoice your Lordships' hearts to hear that not only was my car removed but so were my notes on the Theft Bill, and this will no doubt greatly accelerate the course of this Commitee stage, although it may make me fairly incoherent from time to time, for which I apologise in advance. 1306 But it really does not matter to me whether I get the notes back next week or not at all. What I wanted was to have them to-day; and if I do not have them to-day, it is of no consequence whatever what may happen to them in the future. That seems to me to be the type of social consequence about which we ought to be talking. If that is so, I wonder whether the Committee really weighed up the tests quite correctly in their paragraph 56.
I should like to know, also, whether the noble Lord, Lord Stonham, could explain what is the underlying philosophy which says "permanently" as to the intent in Clause 1—this is a point made by my noble and learned friend—and then proceeds, most earnestly and now continuingly, to qualify it in Clause 6: because if this does not detract from the whole point of putting in "permanently" in Clause 1, I do not see what it does. And if it is detracting from the degree of permanence in Clause 1, then I cannot understand why we should have permanence in Clause 1 at all. It seems that these philosophies are contradictory and either the one or the other must prevail I suggest that my noble and learned friend is right, and we should try to see whether we cannot do without permanence in the law of theft. In saying so, I hope I have disabused the noble Lord of any concept that I, who have been brought up upon the definition in the larceny Act, am quite incapable of abandoning it.
§ LORD PARKER OF WADDINGTON
As has been said many times, this is an important Bill, and it is equally important that we should get it right. This definition of "larceny" has, so far as I know, always been part of our Common Law and our Statute Law. I believe two things: one is that reform should not be done for the sake of reform, but only if one is certain that what one is putting instead is better than what is there already. I hope your Lordships will accept this. I do not believe any of your Lordships thinks I am reactionary; I believe I have shown progressive tendencies in your Lordships' House. But that is a cardinal principle.
My second belief is this: that if the matter is left to a high-powered Committee, there must be overwhelming evidence if their recommendations are going to be 1307 discarded. Just think what we have here. It is always invidious to mention names or to make distinctions, but here we have some of the most famous current criminal lawyers among the Judges and ex-Judges, and members of both branches of the profession, barristers and solicitors, and academics well represented. From March, 1959, until April, 1966, they have been weighing the evidence in these matters. Who are we to-day, even the most eminent lawyers among us—and I pay full respect to the noble and learned Viscounts, Lord Dilhorne and Lord Colville of Culross—in a matter of minutes to say that it would have been better if they had recommended something else?
By all means let us interfere if we are convinced that what they have recommended is utterly wrong. But merely to say that they might have done it a different way, or maybe perhaps it would have been better if they had done it a different way, is, I venture to think, neither here nor there. The matter has been left to them, not to a Committee constituted of the noble Viscounts, who might have come to equally good and different recommendations. Here we have these recommendations, and unless we are satisfied that what they have recommended on any particular issue is wrong, I think that we should accept it: and on this Amendment I am utterly unconvinced that they are wrong.
§ LORD WILBERFORCE
I should like to support the Amendment, and I do so with the due respect that one owes to the Committee. At the same time, we are here; we have a duty to do our best in relation to the recommendations; and if we are not to give of our best to the Amendments suggested one wonders what purpose this Committee stage fulfils. Personally, I support this Amendment on the grounds that the clause, as drafted, does not really give effect to what the Committee themselves are quite rightly trying to do. What they are trying to do in this definition of "theft" is to simplify and modernise the law, and to bring into one simple definition a number of miscellaneous offences. That is the merit, and the great merit, of the Committee's proposals. All I understand that the noble and learned Viscount's Amendment is doing is carrying that process a little 1308 further, in the same spirit exactly of simplification, trying to get rid of superfluous elements and of later clauses, one of which, one may remark, Clause 11, was not recommended by the Committee but has crept in at a later stage.
This definition arises from the original definition of "theft" in Section 1 of the Larceny Act, which, as your Lordships know well, was related to the concept of taking. It says:A person who takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof…".That is where "permanently to deprive" comes from. The Committee, very rightly, have decided to discard the concept of possession as being confusing; to separate these different branches of the law into different compartments, and to substitute this much simpler and more generalised definition which we find in Clause 1. We do not have "taking" any more. But it was, of course, in connection with the taking that the intention to deprive permanently was relevant. Now the Committee have suggested to us the much more general, and to my mind acceptable, concept of dishonest appropriation. That is what now constitutes the heart of theft and of other offences which formerly were given other names and which are now brought in under the general description of "theft".
With "dishonest appropriation", you now have "appropriation" and not "taking" coupled with dishonesty. Why is it necessary to add the ingredient of "intention permanently to deprive", which will have to be proved by the prosecution in any cases where they wish to establish theft, in addition to proving dishonesty, and in addition to proving appropriation? Why is it necessary to have this extra element? As I think the noble and learned Viscount made clear in the latter part of his remarks, the defect of this approach is very well shown when one looks at Clause 6, which is the clause about usurpation, because it becomes obvious that once you talk about "permanent deprivation" you run the risk of leaving out of the concept of theft a great many important crimes and important interferences with the property or possessory rights of owners. Therefore it is necessary to complete—if it is a completion—the definition in Clause 1 by that in Clause 6 by saying that a 1309 complete usurpation as against a person of the property is treated as deprivation; and if you appropriate property, and intend such usurpation, you are to be treated as having the intention of permanently depriving a person of it.
The noble Viscount has pointed out that the clause is very difficult to understand: it refers to "a complete usurpation as against him of the property". If that is saying anything it is trying to say that you are to be within the definition of theft, not merely if you deprive somebody completely of his property, but if you deprive him essentially of the benefit of it, of the use of it, of the right of enjoyment of it. In that case, why not say so? Why not enlarge the definition in Clause 1 so that it does that without the additional element?
The fact is that this approach via appropriation, permanent deprivation, plus usurpation, is not really essentially the modern approach which the Committee would have us adopt. It is related to old concepts of taking chattels out of somebody's property, taking sheep and so on, and does not fit in with what the Bill is trying to do, or ought to be trying to do; that is, enlarging theft to cover all sorts of economic appropriation, appropriation of intangible benefits, which are now far more important than sheep were in the nineteenth century, or coins out of somebody's pocket.
If your Lordships will look at Clause 4 you will see that property is now, quite rightly, defined as includingmoney and all other property, real or personal, including things in action and other intangible property".One has to think of things like business secrets, all sorts of ways of enjoying property, getting benefits from them; and if one is to relate the conception of theft to those matters, then it is quite misleading and inappropriate, I suggest, to start off by saying "permanently deprive" and then to meet the obvious difficulties you run into by Clause 6, which talks about "usurpation as against him".
I sum up what I am endeavouring to put in this way. The Committee which produced this excellent Report have seen that it is necessary to widen the conception of theft so as to embrace every kind of asset, every kind of enjoyment, every kind of benefit, to bring under one 1310 umbrella all kinds of appropriation so long as they are dishonest. That is absolutely right, and is why the Bill in its form is progressive. What they have not, I venture to think, seen is that, once that is adopted, the additional conception of permanent deprivation is unnecessary; or if they have seen it, they have seen it by way of a double approach—Clause 1 and Clause 6—instead of by a single and simplified approach such as would be achieved if the noble and learned Viscount's proposal were adopted.
I shall not say any more about the other classes. I am entirely with the noble Viscount in thinking that, by removing this element, one would greatly benefit the Bill by being able to dispense with Clause 11 and possibly other clauses. But my main reason for supporting the Amendment is that subsection (1), as it stands, is conceptually out of tune with what the Committee are trying to do, and it would make the Bill more intelligible, more general and more progressive if we were to go with him and take out these words.
§ 7.24 p.m.
VISCOUNT ST. DAVIDS
Although I am stepping into a "basinful" of lawyers, I do not apologise for that. I think that sometimes these debates need a certain amount of ordinary everyday life injected into them. I rise to support the noble and learned Viscount, Lord Dilhorne, and just to quote a small case of which I have had experience in the course of my youth work in the last few weeks. A young man removed—I will not say "stole", because that seems to be begging the question in this case—a bicycle pump from a boy's bicycle and went off with it. After a certain length of time the boy required the pump to pump up his bicycle tyres, but had to buy a new pump. In other words, he had suffered at least the loss of the cost of a new pump.
The police are now going after the young man concerned, who, luckily, is known, and when they find him they may be able to "have him up" for stealing the pump. But at the present moment, and in future if this Bill goes through as it is, the young man will be able to turn to the police and say, "Oh no. I only borrowed that bicycle pump. I am going to give it back some time". What do the police do then? Do they prosecute 1311 him for stealing the pump although he has told them that he was only borrowing it? I should like an answer to that question.
Suppose that the police say, "Oh, we can see you are only borrowing it, so we cannot have you up for stealing it. Goodbye. We leave you to continue to enjoy the pump for a little longer". How does the owner ever recover the pump from the young man? Does he have to go to a civil court, at enormous expense, to recover the cost of a 4s. 6d. bicycle pump? Obviously he is not going to do it. He is deprived of the pump. The only thing he can do is to have the young man up for theft, and then the court will return to him, in their judgment, either the pump or its cost. Otherwise, I do not see how he is ever to recover the pump or its value. For this reason, I strongly support the Amendment of the noble and learned Viscount, Lord Dilhorne.
§ LORD CONESFORD
I rise very briefly to support this Amendment. My noble and learned friend Lord Dilhorne, and my noble and learned friend Lord Wilberforce have stated the case so cogently that it is unnecessary to add very much. I can only express my mild astonishment at the noble and learned Lord the Lord Chief Justice, who, after a very formidable display by my noble and learned friend Lord Dilhorne, and before the impressive display by my noble and learned friend Lord Wilberforce, said that we should not make this Amendment, not because he gave us a single argument against it, but because he said it had been rejected by a Committee. I must say at once that I have an immense respect for that Committee. But if respect for a Committee were a ground for not considering the merits of an Amendment in Parliament, then we ought really to revise our procedures rather drastically. We ought to say that any law reform recommended by a strong legal committee should be passed without a Committee stage. I really cannot accept that argument.
I speak, of course, before the noble Lord, Lord Stonham, who may produce arguments that we think have great weight and tell against this Amendment; but I think we ought to be given reasons. If I may say so, one of the things that 1312 predisposes me in favour of this Amendment is noticing what the Bill finds necessary owing to the fact that we have these words about permanently depriving.
I find Clause 11 of this Bill one of the most ridiculous clauses I have ever seen in a suggested Act of Parliament. I cannot think of any particular reason why a picture in the National Gallery should be protected but a picture in my house should not. I do not follow the argument. Why is it so necessary to protect one picture and not the other? I agree that the picture in the National Gallery is in all probability of infinitely greater value than the picture in my house. Nevertheless, if I have a work of art in my house, why should somebody be at liberty, supposing it is somebody who has gained access to the house perfectly legitimately—
§ LORD STONHAM
Will the noble Lord allow me to interrupt him? He has given a precise example of the reason for Clause 11. If it is a picture stolen from his house by a burglar it will be with the intention permanently to deprive. If someone stole a Goya from the National Gallery it may not be with that intention.
§ LORD CONESFORD
The noble Lord, Lord Stonham, I think, is quite wrong. I was not supposing a burglar; I was supposing that somebody who quite legitimately was in my house, for a similar reason that was held to actuate the man who stole the Goya, decided it would be a very good idea to remove my picture. I should be without any protection under Clause 11, and might be without any protection from the criminal law as long as we have these words about "permanently depriving", because the story that was put up by the gentleman who removed the Goya might equally be put up by the gentleman who removed a picture from a private house to which he had originally obtained legitimate entry. If I am entirely wrong my error can no doubt be pointed out, but it seems to me that cogent reasons against this clause have been given by my noble and learned friend Lord Dilhorne, they have been supported by my noble friend Lord Colville of Culross, and very strongly supported, with reasons which commanded my complete assent, by the noble and learned Lord, Lord Wilberforce.
1313 If I may, I feel bound to call attention again to the article from the academic lawyers in The Times, who pointed out that this requirement of permanent deprivation was not a requirement in the law of many civilised countries. My noble and learned friend Lord Dilhorne also mentioned the provision drafted by R. S. Wright, and I think we want an answer to this. I speak, as I have said, before we have heard the Government's reply, but the complication of our law that is involved by our having this requirement is very great. I suppose, having learnt my law a long time ago, that I have perhaps an exaggerated respect for the Common Law, and the Common Law when embodied in a Statute; and, of course, the requirement of permanent deprivation is very ancient indeed. But for the reasons given by the noble and learned Lord, Lord Wilberforce, when we are simplifying the whole of the criminal law on the subject I think we ought carefully to consider whether we should not get rid of this requirement.
§ LORD MORRIS OF BORTH-Y-GEST
Whatever your Lordships may think about the views of those of us who sit on these Benches, I hope you will at least not feel that they are marred by any dull and barren uniformity. Greatly as I respect always the views of the noble and learned Viscount, Lord Dilhorne, I must confess that on this occasion I find myself in entire agreement with all that was said by the noble and learned Lord, Lord Parker, the Lord Chief Justice. We can make words mean what we would like them to mean, but I suggest that to adopt the suggestions of the noble Viscount, Lord Dilhorne, would be to give the words "theft" and "stealing" not only meanings entirely different from those they have always possessed, but meanings entirely different from those which are recognised by members of the public.
The case has been put of a car being taken. Somebody leaves his car in one place and along comes somebody else who, without any sort of claim to take it, decides that for his own convenience, for his selfish ends, he will take it away, although at the time he fully intends to return it. He may be acting entirely dishonestly and he may be doing it to save himself trouble, and he may be causing 1314 infinite trouble and bother for the owner. He takes it away, uses it for his own purposes, and then he replaces it in exactly the place where it was before and in exactly the condition in which he found it. The owner may not even have known that it had been taken away. As I suggest, that is not what any of us regard as stealing. It is certainly not what is regarded in the Common Law as stealing, and that is an offence made under another clause of this Bill, and provision has already been made for that.
I very much sympathise with what the noble Viscount said, that this Bill might even be made much shorter, but it would be made shorter at the expense not merely of a fundamental change of our concepts but, as I think, by adopting notions that would not agree with the notions accepted by most people. We understand what is meant by "stealing", and to make some things stealing which everyone would feel is not stealing would, I think, not be a service to the law.
VISCOUNT ST. DAVIDS
Before the noble and learned Lord sits down, can he possibly tell the Committee whether such a case of a car being moved dishonestly and returned to the exact spot in exactly the condition in which it was taken has ever occurred?
§ LORD MORRIS OF BORTH-Y-GEST
I am not sure that it has ever occurred that pictures belonging to my noble friend Lord Conesford have been stolen, but surely we are allowed to put these illustrations in order to test the principle.
I should like to speak very briefly, because I believe I am the only person who is not a lawyer who has spoken, with the exception of the noble Viscount, Lord St. Davids. I should like to mention a case of which I have personal knowledge which seems to me, in the absence of an answer which we may get from the noble Lord, Lord Stonham, to confirm the point made by the noble Lord, Lord Conesford, and to justify what, as I understand it, this Amendment is aiming to do. This was not a case of a motor car, though, like some of your Lordships, I have suffered in that particular way. As I understand it, that would be covered by Clause 12. Nor did the incident that I have in mind take place in a public building, where it would have been 1315 covered by Clause 11, but in a flat next door to where my parents lived.
A young married couple had spent a considerable amount of money on furniture, pictures and carpets. They went away for a holiday, leaving behind them in the house as servants a married couple who had been engaged the previous week. Two days later the married couple who were acting as servants, with the assistance of the porters in the flat, had a large number of the more valuable items taken downstairs and put in a furniture van, on the understanding that they were wanted in the country. So far as I know, that was the end of the story. The servants were not entitled to do this by their employers. I suppose if it could be proved that they had subsequently sold those goods that would be evidence that they intended permanently to deprive the owners of them. If they had argued that they had no intention of doing that but wanted to set up house themselves, and that they found this a cheaper way of doing it than buying furniture; and intended, after a certain number of years, that the goods should be returned, would that have been "theft" under this new Bill? If not, would it have been an offence of any kind, and, if so, what offence would it have been? I am asking this merely for clarification.
§ 7.40 p.m.
§ LORD STONHAM
I think I showed prescience earlier on in suggesting that we should have a full Report stage. I am quite sure that this has now been indicated. I am content to speak to this Amendment, which emphasises the great importance of the Bill, and I think it also emphasises what I said earlier in response to my noble friend, Lord Chorley, that we would devote all necessary time to a full consideration of this Bill. Before I heard the noble and learned Lord, the Lord Chief Justice, I had intended to say three things about the Government's general attitude to Amendments to this Bill. The first thing is that we put the greatest possible weight on the Criminal Law Revision Committee's recommendations, which they have reached after discussion in depth over a period of years. A later speaker to my mind, misquoted the noble and learned Lord, Lord Parker of Waddington—not that he is not used to that. I 1316 took down as far as I could what he said, and perhaps I may repeat it, so as to get it right, because it is exactly my view of this. I may be paraphrasing; I do not know. But it is important that we should get it right. Reform is acceptable only if what we propose to put in its place is better than what we have. What we have at the moment is this Bill, based very closely on what the Criminal Law Revision Committee recommended.
I was not quite sure that I understood the noble and learned Lord, Lord Wilber-force, when he said that the clause as drafted did not carry out the Committee's intention. Except for Clause 6 and Clause 11 we have accepted virtually unchanged the Committee's intentions, and therefore it seems extraordinary at this stage to hear that we have not carried out the Committee's intentions when they did this very job. So in considering Amendments we attach the greatest possible importance, I think rightly, to what this very high-powered and important Committee, which sat for years and considered these things very carefully indeed, thought. The second thing is that the Government support the Committee in their desire to start from a new basis and to free us wherever possible from reliance on Case Law, much of it very old. I think that is an objective which we should bear in mind in considering the Amendments that come before us.
Thirdly (and this has great relevance to what the noble and learned Lord, Lord Wilberforce, said), in this Theft Bill we do not wish—and it does not arise on this Amendment—if it can be avoided, to widen the offence of theft to such an extent that it includes perhaps analogous offences which are not theft, which are not stealing. The reason for this is very plain. This, in our hope, is the beginning of the building up of a code of criminal law, a new criminal code, and this is the Theft Bill. Therefore we hope that these (things will be considered, certainly when, later, we come to Amendments which are quite definitely not concerned with theft, and I hope your Lordships will not press that those should be included in this Bill.
The noble and learned Viscount, Lord Dilhorne, said something to the effect that "If our Amendments are not drafted in a way to satisfy the Parliamentary 1317 draftsman, we hope they will not be turned down on that account". I am surprised he thought it necessary to say that. Although it would be my duty to point out that an Amendment was technically faulty, this has never been any reason for not accepting something in principle, and perhaps giving assistance where needed.
§ VISCOUNT DILHORNE
I made that observation after observations by the noble Lord, Lord Chorley; it was in consequence of those observations that I made that remark.
§ LORD STONHAM
I am even more surprised that the noble Viscount made those observations on this particular Amendment to leave out "permanently". There cannot possibly be anything wrong with that Amendment.
§ VISCOUNT DILHORNE
One never knows. I think I have heard it suggested that if we took out the word "permanently" it would be better to take out also the words "with the intention of depriving the other of it", because that is covered by "appropriation". I did not feel confident that I had done it right.
§ LORD STONHAM
I am glad to have elicited that explanation.
Noble Lords have referred to Clause 11, Clause 12, Clause 4 and Clause 6 to illustrate the point with regard to this particular Amendment, and I do not object to that. But it prompts me to say that if it is the case that acceptance of this Amendment to remove the word "permanently" from this subsection would involve also the removal of three clauses, and possibly even substantial sections of the Bill, I certainly think that at this stage it would be unwise to do so. I think we ought to discuss this aspect.
VISCOUNT COLVILLE OF CULROSS
The only thing about that is that we should be removing two clauses that were not dealt with by the Criminal Law Revision Committee, and both of which have been put in by the Government since. Only one clause is really in point.
§ LORD STONHAM
I am expressing my own point of view on this, and certainly on the first count I should not agree that these three clauses should be removed.
1318 The noble and learned Viscount, Lord Dilhorne, asked me one or two questions to begin with. He asked me whether in Canada, where they had legislation of the kind that he would like to see, there had been any serious social consequences. I do not know the answer to that question at the moment. I am making inquiries and will let the noble Viscount know when I hear. With regard to the question of Jamaica, the legislation referred to by the Committee, at page 19, was not enacted.
§ VISCOUNT DILHORNE
I never suggested that it was. It was cited by the Committee, as an obviously authoritative text. I was adopting that because they cited it, and said that it did not contain this ingredient.
§ LIRD STONHAM
The noble Viscount will know that I am not trying to make clever points; I am merely trying to get to an understanding. I was even trying to find the note that I had on that particular point. I cannot find it but I do know what the point is. It is that the Committee do not quote the whole Code and we are not aware whether there is written into it a permanent intention to deprive; and therefore I cannot answer that particular point.
The noble and learned Viscount quoted extensively from paragraph 56 of the Committee's Report, and I hope your Lordships will forgive me if I also quote extensively, because this is the whole crux of the argument. As I see it, the argument is this: if Lord Dilhorne's Amendment were accepted, if "permanently" were taken out of the definition of theft, it would in all circumstances—and I hope noble Lords will appreciate this—be theft to appropriate property belonging to another even if the intention was only temporarily to deprive the other of it.
§ VISCOUNT DILHORNE
With great respect to the noble Lord, that would not be right. There must be a dishonest appropriation: that is essential.
§ LORD STONHAM
Assuming that it is dishonest—I accept that. The noble and learned Viscount is not proposing to take out the word "dishonest". I am dealing only with the word "permanently", which is the only change we are considering. If there were 1319 a dishonest intent and the word "permanently" were taken out, then it would be theft in all circumstances, even if there were only a temporary intention to deprive the other of it. I submit, and I quote in aid the Committee, that this would be a major extention of the law of theft, going far beyond what the Bill does or is intended to do.
As I see it, on the one hand, where there is a dishonest intent if we take out the word "permanently", then every case is theft, whereas the Committee thought that that would be wholly wrong when it could be shown that there was intended only temporary deprivation. May I then read to your Lordships paragraph 56:Owing to the requirement in Clause 1(1)…that there should be an intention of permanently depriving the owner, temporary deprivation of property will not be stealing.They are talking about the law at present.
The paragraph goes on:At present it is not stealing, nor is it any other offence except in special cases where it is made so by statute, such as taking and driving away a motor vehicle contrary to Section 217 of the Road Traffic Act 1960.This Bill follows precisely the same process, because under Clause 12 of this Bill we have offences comparable to those under the Road Traffic Act, of taking away a car.
Then the Committee go on to say:We considered whether temporary deprivation of property in general should be included in theft or made a separate offence under the Bill. There is certainly a case for making temporary deprivation punishable in circumstances in which it may involve dishonesty comparable with that involved in theft and may cause serious loss or hardship. The taker gets the benefit of the property without payment, and the owner is correspondingly deprived. The property may be lost or damaged, or it may be useless to the owner by the time it is returned. It is also arguable that theft should be extended to cover temporary deprivation because the general offence of deception under Clause 12(3) which is discussed in paragraphs 96 to 100 will cover deception in order to obtain property temporarily".
VISCOUNT COLVILLE OF CULROSS
The noble Lord should realise that that is Clause 15 of the Bill that we have here.
§ LORD STONHAM
Of course I know that, and I knew that the noble and 1320 learned Viscount knew; and I imagine that every noble Lord did.
VISCOUNT COLVILLE OF CULROSS
Yes, but with great respect to the noble Lord, this debate is going to be widely read, I trust, and I hope that when we read out of this Report we shall quote the clause in our Bill rather than the clause in the draft Bill at the end, because the further you go on the more confusing it becomes.
§ LORD STONHAM
I accept what the noble Viscount has said, and I am sure that will clarify the position. But I am reading from the Committee's Report, and therefore it would appear in Hansard as a quotation and I cannot alter it there, except that I may add words to make the meaning quite clear.
The Report goes on:But the Committee"—this is a most learned and powerful Committee—generally are against extending theft to in dude temporary deprivation or creating a general offence of temporary deprivation of property. The former course seems to them wrong because in their view an intention to return the property, even after a long time, makes the conduct essentially different from stealing.The noble and learned Viscount does not agree with that. He thought that it amounted to the same thing. But there is this difference in law at present, and what is proposed in this Amendment is therefore a major change in the law which the Government are not prepared to accept, and which, on the advice of the Lord Chief Justice, we certainly should not accept unless we are absolutely convinced, and the Committee is absolutely convinced, that what is now proposed is better than what we have in the Bill. Certainly there is no evidence to suggest that it is. In fact, the Lord Chief Justice actually used those words. He said that he was utterly unconvinced with the argument put forward by the Amendment.
The noble and learned Lord, Lord Morris of Borth-y-Gest agreed with him. He said, "We can make words mean what we like them to mean, but to give the words 'theft' and 'stealing' meanings entirely different from those they have always had and the public have always understood them to mean, would be wrong." 1321 I think I have quoted the noble and learned Lord correctly. With this I entirely agree.
But the point is this. Here we have this most important Committee working for all these years coming up with these conclusions and then we have a discussion in Committee in your Lordships' House, a most highly informed discussion, apart from my contribution, and there is disagreement. The noble and learned Viscount and a number of his colleagues are of one opinion, and the Lord Chief Justice and the noble and learned Lord, Lord Morris of Borth-y-Gest, and, if I may say so in that context, myself, are of another opinion. Surely this is a case where it would be utterly wrong for this Amendment to be persisted in.
The noble and learned Viscount asked: are there likely to be any social consequences such as the Committee refer to? I would submit that of course there are. You may have a case where you have borrowed your neighbour's lawn mower, although you knew that he would object to your borrowing it. You do not have any real intention of keeping it for a long time; but he could say that you did, and the penalty could be 10 years. You might say, "That is ridiculous; no judge or magistrate would award 10 years". But in the view of the Bill it is not theft if there is an intention only temporarily to deprive. That is why the word "permanently" is so important. My noble friend behind me raised the point about the bicycle pump. But he would have a civil right, and it does not follow, because a person has a civil right, that we should reinforce it by a massive criminal law with a penalty of 10 years and say, "This is theft". I do not think that the criminal law should be extended in this way.
Then the noble and learned Lord, Lord Wilberforce, argued that it is illogical to include the requirements of permanent deprivation in Clause 1 but to cut down the effect by Clause 6, where you give, as it were, exceptions. But we do not agree at all. We think it is entirely logical to provide the exceptions of Clause 6.
§ LORD WILBERFORCE
I was not complaining that it was illogical. What I was saying was that the Government in Clause 6 have completely departed from what was recommended by the Committee in paragraph 56, and therefore it is use- 1322 less, I would suggest, for them now to appeal to paragraph 56 and say they are carrying out the recommendation. They are not.
§ LORD STONHAM
With respect to the noble and learned Lord, I cannot accept that the Government have completely departed from it. It is certainly true that the Criminal Law Revision Committee regarded Clause 1 as quite sufficient definition and that the courts would understand it. With respect again, they seem to have been proved wrong by the discussion we have had here to-night, and therefore the Government were right to add this clause, which in my view clarifies the position and makes it much clearer.
But we are on the Amendment of the noble and learned Viscount to remove the word "permanently", and the Government think it would be wrong to remove that word because it would have a fundamental and most undesirable effect on the Bill, and on the law as the Criminal Law Revision Committee said it is and thought it should be. In our view, Clauses 11 and 12 deal adequately with serious examples of temporary deprivation. We think that it would be quite wrong to bring under "theft", willy-nilly, a multitude of minor happenings, many of which in the public view would not amount to stealing at all. So although I have been extremely grateful for the discussion and shall consider everything that has been said with the utmost care, between now and Report stage, I cannot agree that the Amendment should be accepted.
§ VISCOUNT DILHORNE
I have listened with the greatest interest to the speech of the noble Lord, Lord Stonham. I must confess that I was sir gularly disappointed by it. Lord Stonham spoke about the long time which had existed for considering Amendments to this Bill. Well, he has had a very long time to prepare his speech in reply to this Amendment, and has had ample notice. What has he done? He has just based himself on paragraph 56 of the committee's Report and on nothing else. I will come to that in a moment.
First of all, may I express my thanks to the noble and learned Lord, Lord Wilberforce, to my noble friends Lord Colville and Lord Conesford, and to the 1323 noble Lord opposite for the support which they gave to this Amendment. Lord Stonham's argument, such as it was, is completely defeated by the Government's inclusion of Clause 6, which was not recommended by the Committee at all. That is a complete departure from this principle of an intent permanently to deprive. That invalidates his own argument.
I also pay tribute to those who devote a great deal of their time to serving on committees, such as the Criminal Law Revision Committee. Any Lord Chancellor or former Lord Chancellor is always very grateful to those who add to their ordinary labours work of that sort. But I could not for one moment adhere to the proposition or give it support that because distinguished people are prepared to serve on such a committee one should accept without consideration whatever they recommend. That would mean Parliament delegating to outside bodies some of the functions which it is Parliament's duty to perform, and it would not be right for Parliament to do that. It is the task of Parliament to examine the reasons put forward by distinguished committees like this committee, and to see whether they are right and sound. That is what I did in moving my Amendment. I dealt with every single argument raised in paragraph 56. It is no answer to what I put forward for the noble Lord, Lord Stonham, to read to the Committee paragraph 56 of the Report. Of course, I treat what the Lord Chief Justice says with the greatest respect. But what did he say? It really amounted to this: that if you have a committee of this sort, you should accept what they have proposed. He was quoted by the noble Lord, Lord Stonham, as saying that one should not make change unless change is for the better. I entirely agree, and because I myself am satisfied that this change would be for the better in criminal law in England, I put down the Amendment.
The only other noble and learned Lord who spoke was my noble friend, Lord Morris of Borth-y-Gest. It is to my mind extremely interesting that his rejection was confined to one particular ground. He did not deal with the application of this definition as amended throughout the criminal law. He did not in any 1324 way try to contend that it would not lead to simplification. He did not argue that it would lead to hardship or, as the Committee suggested, to serious social consequences. His objection was quite simple. To him, and perhaps to most lawyers, "stealing" means taking and carrying away with the intention permanently to deprive. I do not believe that is true of the great British public; I do not believe that that is the normal use of the English word. That was the reason why my noble and learned friend did not like this Amendment, because he said you could make words mean what you want them to mean. You can define theft to mean anything, but he did not think that it meant what I believe the ordinary British public think it to mean when they find anything of theirs has been, to use a colloquialism, "pinched". They do not even apply their minds to whether it has been taken away with an intention permanently to deprive.
I would say to the noble Lord, Lord Stonham, that of course this means a major change; I do not deny that it is a change of principle. But reading through the Committee's Report—and I say this with great respect to them—they have proposed some pretty fundamental changes, but I think that by the time they came to paragraph 56 they rather suffered from a loss of nerve. I am very disappointed by the noble Lord's reply. He said quite positively that the Government were not prepared to accept a change. He did not say there would be any consideration given to it. After the debate we have had to-day I think that this change is right. I remain of that opinion, and, in view of the answer which we have received, I would ask the Committee to carry the Amendment.
§ VISCOUNT DILHORNE
May I say one further thing, which I forgot to mention? There is one question with which I should like the noble Lord, Lord Stonham, to deal—I should have liked the Lord Chief Justice to deal with it—and it is this. It is very important that a summing-up to a jury should be very clear to them. If I read the Bill aright, this is what will have to be said to the jury in every single case of theft. 1325 You will have to tell them about dishonest appropriation and what that means. Then you will have to say to them that there must be an intention permanently to deprive. You will have to go on to say: "You have to be satisfied that there is an intention permanently to deprive". But as the Bill stands you have to go on to say, "But you may convict if you think that, although not intending permanently to deprive, the accused intended complete usurpation of the property". That may be a change which satisfies the Lord Chief Justice's criterion of a change for the better. I beg leave to doubt it, and I think that if this language is left as it is it will lead to a great deal of confusion and a great deal of litigation.
§ LORD STONHAM
I want to say only two things. The first is on a point of detail. I think that the noble and learned Viscount and the noble and learned Lord, Lord Wilberforce, were wrong in suggesting that we had departed from the Committee's advice in regard to Clause 6. In paragraph 58 of their Report the Committee clearly speak of applying special cases, and they say at the end of the paragraph that they considered a provision in the Bill dealing expressly with these cases, but decided that it would be very difficult to frame
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ LORD HILTON OF UPTON
I understand that it would meet your Lordships' convenience if we now adjourned consideration of the Committee stage. I
§ because they could not cover all the cases without being elaborate. That is very different from saying that what we have done in the Bill is a contradiction.
§ The other point I would mention is in regard to the noble and learned Viscount's observations on my remarks. Naturally I regret it if he found them unsatisfactory or disappointing. I cannot withdraw my view that I regard this as a fundamental and important Amendment which the Government could not accept in Committee but I said, and I meant, that I would study the whole debate between now and Report stage. That must be within the noble Viscount's recollection. I cannot of course give any undertaking in the matter except to say that I shall study it. But that I will do, as I said I would. Indeed, it is my intention to do so with any Amendment that is raised during the Committee stage, where we do not reach a conclusion which is satisfactory to those who move it or to those who listen.
§ 8.10 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 19; Not-Contents, 15.1325
|Airedale, L.||Henley, L.||St. Davids, V.|
|Barrington, V.||Iddesleigh, E.||Somers, L.|
|Beaumont of Whitley, L.||Jellicoe, E.||Strange of Knokin, Bs.|
|Brockway, L.||Mar, E.||Wade, L.|
|Colville of Culross, V.||Mowbray and Stourton, L.||Wilberforce, L.|
|Conesford, L. [Teller.]||Raglan, L.||Worcester, L. Bp.|
|Dilhorne, V. [Teller.]|
|Addison, V.||Gardiner, L. (L. Chancellor.)||Rhodes, L.|
|Beswick, L.||Hilton of Upton, L. [Teller.]||Segal, L.|
|Blyton, L.||Morris of Borth-y-Gest, L.||Shackleton, L. (L. Privy Seal.)|
|Bowles, L. [Teller.]||Parker of Waddington, L.||Stonham, L.|
|Burden, L.||Peddie, L.||Strabolgi, L.|
§ therefore move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Hilton of Upton.)
§ On Question, Motion agreed to, and House resumed accordingly.