THEFT BILL [H.L.]

HL Deb 07 March 1968 vol 289 cc1480-519

6.8 p.m.

LORD STONHAM

My Lords, in moving that the House do resolve itself into a Committee on the Bill, I wish to make a short statement about the position arising from the amendment made to the Bill at the Committee stage on Tuesday. Noble Lords will recall that the Committee carried, against the advice of the Government, an Amendment to leave out the word "permanently" in Clause 1(1) of the Bill. The effect of that Amendment was that, assuming dishonesty, it would be theft to appropriate property belonging to another with the intention of depriving him of it, even if the intention was to take the property only temporarily.

I made it clear when the Committee discussed that Amendment that the Government fully shared the view of the Criminal Law Revision Committee that it would be wrong to make mere temporary deprivation stealing except in the cases specially catered for by Clauses 11 and 12 of the Bill. I have carefully studied all that has been said, in this House and elsewhere, in favour of dropping the concept of permanent deprivation, but I have to tell the House that the Government remain of the view that the Amendment was wrong in principle. We believe that the criminal law should be extended only where there is a clear mischief with which it fails to deal, and which it is appropriate to deal with, by a criminal sanction. We do not think, and we cannot believe, that the House, on mature reflection, will think that the person who has taken something in some dishonest way but who intends to return it—and may indeed return it—should, whatever the circumstances, be equated with a thief and that we should set out to extend the law, as the amended Bill would now do, to make theft conduct of this kind which has never been criminal. I must therefore tell the House that the Government will feel bound, when the Bill comes to its Report stage, strongly to advise the House to reverse the Amendment which was made on Tuesday.

My Lords, I thought it right to give the Committee that information, in the interests of both sides. We have clauses and Amendments to them to consider—I refer to Clauses 6, 11, 12 and 15—on which the Committee might wish to take one view on the assumption that "permanently" was not in Clause 1, and another on the assumption that "permanently" would be restored to Clause 1. The House will have to take its own decision at the Report stage as to whether or not the word "permanently" should be restored, but I have made it clear that the Government will seek to restore it. I hope the House will agree that, without prejudging what will happen at a later stage, it will be in all our interests to have the debates which we should have had on later clauses as if the Amendment to Clause 1 had not been made.

Noble Lords who do not agree with Clauses 6, 11, 12 and 15 as they stand will then have the opportunity of explaining to the Government their criticisms of the clauses, and—although, of course, I can give no undertakings to accept Amendments, either in principle or in detail—the Government will be able to take account of those criticisms before the Report stage in considering whether any changes are desirable to the clauses, on the assumption that Clause 1 will be restored to its original form. If the Committee were simply to take the view that Clauses 6, 11 and 12 should be dropped from the Bill, consequentially on the amendment of Clause 1, and Clause 1 were then restored to its original form at the Report stage, we should, as it were, be "back to square one" on those clauses, and I cannot think that that would be to anyone's advantage.

I hope that noble Lords who voted for the Amendment on Tuesday will temper whatever satisfaction they may feel to the extent of agreeing that this is a reasonable approach to a difficult situation. We have all agreed that our mutual objective is to see that, at the end of the day, the Bill is as right as possible. I have no doubt that we shall best help to get it right if we conduct our further debates at the Committee stage in the way I have suggested. I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)

VISCOUNT DILHORNE

My Lords, the noble Lord, Lord Stonham, has made, if I may say so, a rather tendentious statement. He has referred to the debate that we had last Tuesday and he has made certain observations with regard to that debate. I do not propose to take up time by going over that ground again, and by seeking to answer the arguments which he has advanced as to whether dishonest appropriation of property should be a criminal offence. It is quite clear that we can argue that when we get to the Report stage.

The noble Lord said that the Government have decided at this early stage that they intend to seek to put back the word "permanently". I am sorry to hear that the Government have so concluded so soon. I cannot help thinking that, when they hear the criticisms that are bound to be advanced to the later clauses to which he has referred, if the Government had anything like an open mind on this matter they might well come to the conclusion that the change which we made last Tuesday is beneficial, as indeed I believe it to be. It is not only in relation to Clauses 11 and 12 that there is an exception to the rule that there must be an intention permanently to deprive. The same exception occurs in Clause 15, 15, and also outside this particular measure in relation to vessels and boats. I remain of the opinion that it would be a considerable simplification, and an advance in the criminal law, to retain the change that we have made. I know that I am not alone in that opinion, and that there are many experienced in the criminal law who share it.

The statement which the noble Lord made kept on repeating what the Government have decided and what the Government are going to do about it. I am sure the noble Lord will recognise that in this particular field, although views may differ, it does not necessarily follow that the Government and the Home Office are best able and best equipped to pronounce upon these subjects.

Secondly, I ask the noble Lord to deal with this point. This is a Bill which was drafted by a distinguished Committee. It contains three clauses inserted by the Government. It is not strictly, in the ordinary sense of the word, a Government Bill. The Government have quite rightly introduced it, and sponsored it as coning from the Committee; but it is quite different from a Bill of the character, for instance, of the Transport Bill, which is a Government Bill in the ordinary sense. The noble Lord, Lord Stonham, at an earlier stage, hoped that Lords of Appeal and other distinguished lawyers would not only make their views known for the Government's consideration, but would seek to improve the Bill.

I should have thought that, although this is a Government-introduced Bill, it is one about which no Party politics can ever arise, and that we ought to approach it, as indeed I have done, on a completely non-Party basis. That means, I should have thought—and I hope the noble Lord can give an assurance about this—that this is really not the kind of Bill on which a Government should seek to make their views prevail, perhaps by keeping their supporters here till a late hour during the Committee stage to vote on Amendments which they may not have heard discussed. I hope the noble Lord will be able to say that he agrees that this is not a Government Bill, in the sense in which that term is usually used, and that this is a Bill on which all sections of the House can combine to try to make as good a Bill as possible.

The noble Lord has dealt with what should happen on further clauses. I certainly do not propose to move that those clauses should be left out until after there has been a full consideration of them, because the more they are examined the more I hope the noble Lord will see that the change made last Tuesday was a good change. But I shall seek to remove them from the Bill during the course of the Committee stage, and I think it only fair to tell the noble Lord that.

VISCOUNT COLVILLE OF CULROSS

My Lords, I do not want to prolong this discussion, except to make two points. First of all, we will listen, I have no doubt with the greatest interest, when the noble Lord, Lord Stonham, seeks on Report stage to reintroduce the word "permanently" into Clause 1. I think he will probably produce arguments which may be based upon the paragraph in the Criminal Law Revision Committee's Report; but I hope that he will be prepared to extend those arguments and spread them out a bit, and perhaps he will also be able to deal with the Canadian situation which was mentioned on Tuesday.

LORD STONHAM

And the Jamaican situation.

VISCOUNT COLVILLE OF CULROSS

I did not know whether or not that had, in fact, been implemented. But apart from that, I hope the noble Lord will take some comfort from the fact that I share the view of my noble and learned friend and, even if for the sake of consistency we have in the end at this stage to leave out Clauses 6, 11 and 12 and to do something, at any rate, with Clause 15, I hope that we shall discuss in Committee whether Amendments should be made to those clauses. Then if, subsequently, for the sake of consistency, they are left out, and then the House decides, on Report stage, to restore the word "permanently" in Clause 1, we shall at any rate have an opportunity of discussing the reinsertion of Clauses 6, 11 and 12 in what will perhaps by that time be an agreed form. Therefore, I support the noble Lord in the process that he suggests.

LORD STONHAM

Very briefly, my Lords, I am grateful to the noble Viscount, Lord Colville of Culross, for his support, and, having heard him, I do not think there is very much between us with regard to procedure; nor, indeed, between us and the noble and learned Viscount, Lord Dilhorne. My object is to secure discussion of these subsequent clauses on which Tuesday's Amendment has a major effect; that is all. I did not intend to make a tendentious statement, as the noble and learned Viscount described it. The first paragraph of my statement merely set out, as I thought, the effect of the noble and learned Viscount's Amendment; and that was my only intention.

I entirely agree that this is not a Government Bill in the sense that it is a Party political Bill. No one in his right mind would suggest that. Nor am I suggesting that, distinguished though the Committee is which produced this Bill, as the noble and learned Lord, Lord Wilberforce, said on Tuesday, we cannot discuss it, or that these things are immutable. I believe the noble and learned Viscount is already aware that later stages of the Bill will prove our willingness to consider suggestions. But with regard to the assurance for which he asked, I agree that it may not be the case that the Government and the Home Office are the best equipped bodies to deal with this Bill, but the Government and the Home Office have the responsibility, and someone must have the responsibility, of seeing this Bill through Parliament. In that sense we are responsible, and that is the responsibility that we will discharge.

But, my Lords, in case there should be any misunderstanding, may I repeat that during this Committee stage on no Amendment shall we have a closed mind. If it is impossible to accept what noble Lords say, we will say so. If it is impossible for them to agree with us and to withdraw their points, then I suggest that we defer a decision until the Report stage. It may well be that on Clauses 6, 11, 12 and 15 the arguments may be such as to cause us to agree with suggestions, if not in Committee then on Report; but what I now hope is that we can go forward and consider all that is in the Bill at present in the spirit that, together, we are going to get it right.

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS WOOTTON OF ABINGER in the Chair.]

Clause 1:

Basic definition of theft

(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.

6.23 p.m.

VISCOUNT DILHORNE moved to leave out subsection (2). The noble and learned Viscount said: I beg to move Amendment No. 2, to leave out subsection (2). This subsection must be read with Clause 33 of the Bill, which defines what is meant by "gain" as "gain … in money or money's worth …" I may have missed it, but I have failed to find anything in the body of the Committee's Report giving a reason for the inclusion of this subsection. The only reference I can find to this subsection is in Annex 2 to the Report, which contains the notes on the Draft Bill. This is what the note says: The subsection will prevent argument that it is not theft to take something which is useless to the taker or to take something with the intention of immediately destroying it. Usually, throughout these notes, there is a citation indicating the paragraph of the Report in which the matter is dealt with. There is no such citation hero, and that rather confirms my belief—I may have missed it, as I say—that nothing appears about this subsection in the body of the Report of the Committee.

This is going to be a very long Bill if we are going to include in it provisions just to prevent argument arising in the courts, and I think that the inclusion of this provision for this reason, to prevent argument, indicates a weakness that is apparent in other parts of the Bill as well. It should be a Bill, and we want to make it such, which clearly—and I should like to emphasise the word "clearly"—defines the ingredients of the offence to which it relates; and here, in Clause 1, we want a very clear definition of what is the meaning of "theft". But this clear definition has been blurred by attempting, in different parts of the Bill, to provide for particular cases without regard to fundamental principles, and by attempting, as in this subsection, to prevent argument in the courts.

I would ask the noble Lord, Lord Stonham, to answer one question. I should like him to say what was the date of the last reported case in which an argument on the lines of that which this subsection seeks to prevent was advanced in the courts. I think it must have been a very long time ago. It is now, I am sorry to say, over forty years since I was called to the Bar, and I cannot recollect a single case in which such an argument was advanced, although the motive with which the theft was committed may be material when considering sentence. Section 1 of the Larceny Act 1916 was intended to reproduce the Common Law, and no one could possibly argue with the slightest prospect of success that the purpose of the theft, the motive for it, was material in determining whether a theft had been committed. It simply was not open on the language age of that section of the Larceny Act 1916. The newest barrister, the newest admitted solicitor, will know that it is immaterial what the motive for the theft was, whether it was for gain or the thief's benefit; and if he does not know that, then he is unlikely to have passed his Bar exams or his solicitor's finals, for it is elementary.

Why, then, is it necessary now to put this provision in the Bill? There is nothing in the definition of "theft" in subsection (1), or in subsection (2), which is a partial definition, to suggest or imply that the motive of the accused is of any relevance in determining whether or not he is guilty of theft. I believe that this subsection is wholly unnecessary. There is no reasoning that I can find advanced in the Committee's Report for its insertion, and I am against inserting unnecessary provisions in a Bill. For that reason, I think it would improve this Bill to leave this provision out.

But I do not argue that it should be deleted solely on the ground that it is unnecessary. Its inclusion is, I think, positively dangerous, for it implies that sometimes the motive with which the accused has acted is material to the question whether he is guilty of theft. The subsection says only: It is immaterial that the appropriation is not made with a view to gain, or is not made for the thief's own benefit". Does not the language of the subsection of itself clearly suggest that if the appropriation is made for gain, or is made for the thief's own benefit, then that is material in determining whether or not his conduct falls within the definition of theft? It would seem to me that that must be so. Under the existing law and under the Common Law, which Section 1 of the Larceny Act 1916 seeks to reproduce, it is not and was not the case that the motive, whether it be for gain, for anyone else's benefit or for the thief's benefit, was relevant.

So it seems to me that, in fact, the insertion of this subsection, far from preventing argument, will indeed give rise to very considerable argument; for it will be argued that Parliament would not have inserted this subsection if it did not regard motive in some cases as material to the question of whether or not conduct falls within the definition of theft. I have put my argument as shortly as I can. I think that every clause of the Bill—and perhaps every word of it—is of very considerable importance. I can see myself that this subsection really serves no useful purpose and, as I say, far from preventing argument, I think it will lead to very considerable argument in the courts, and I believe the Bill would be much better without it. I beg to move.

Amendment moved— Page 1, line 10, leave out subsection (21.—(Viscount Dilhorne.)

6.33 p.m.

LORD STONHAM

The noble and learned Viscount in moving his Amendment said that we have already a clear definition of theft. In my view, this is an extension of the definition, an extension which he regards as unnecessary and indeed, in his own words, as positively dangerous. But at least as far as the first part is concerned, I believe he is wrong. He asked me to quote the date of the last case of this kind, and said that he had not known of one in his 40 years of experience at the Bar. His memory is not at fault. We cannot say when there was last a case to which this subsection is relevant. But the rarity of cases is no argument against including the subsection to make the Bill a comprehensive statement of the law of theft. All the time we are thinking of a criminal code of which the Theft Bill will form part.

The noble and learned Viscount is right in saying that in the body of the Report of the Criminal Law Revision Committee there is no reference to this particular matter. It was included in the annex because the Committee regarded this as detail which could be adequately covered in the Bill. On the point of whether the words are necessary, in our view they are essential in order to counter in advance arguments that it is not theft to take something which is useless to the taker, or to take something with the intention of immediately restoring it. The noble Viscount, Lord Colville of Culross, mentioning on Tuesday the theft of his car, said that his notes were in the car—he managed very well without them, if I may say so—and that they would be no good to him on the following day, even if the car were returned. That was the point that we were on in the first Amendment. But, with great respect, I would suggest that they were useless to the taker.

VISCOUNT COLVILLE OF CULROSS

Hear, hear! They were just legible.

LORD STONHAM

I have tried to read the noble Viscount's writing! But they were useful to the noble Viscount and of value to him, and indeed of value to this House. Therefore it is quite wrong, in our submission, to argue against the inclusion of these words when they would make a charge of theft stand against someone who took something that was of no value to the taker but which was of value—even if only of sentimental value—to the owner.

VISCOUNT DILHORNE

I do not quite follow the noble Lord's argument. Is he saying that if the article is of sentimental value to the owner, the charge of theft should not stand?

LORD STONHAM

I was arguing the other way. The subsection which the noble and learned Viscount wishes to delete reads as follows: It is immaterial that the appropriation is not made with a view to gain"— that is, something of sentimental value to someone but of no other value— or is not made for the thief's own benefit. These are the words which it is proposed to take out. I am giving instances of cases where in our view it ought to be theft if something of that kind is taken. If something has been taken which is useless to the taker, or even if it is taken in a spiteful way with the object of immediately destroying it, it still would have value to the owner, and we think it should be treated as theft.

There is, of course, a case for arguing that the words are not absolutely essential, otherwise the noble and learned Viscount would not have argued it. But we think they are of value in a Bill which is intended to form part of a criminal code. Certainly the Criminal Law Revision Committee regarded them as useful, and we do not think they should be omitted. I must confess that I had not fully considered the point about its inclusion being positively dangerous because of the implication that the thief's motive is material. I should like to consider that argument. I think I have made the case for retention of the words in the Bill as useful, but I will look at the other implication and I hope that the noble and learned Viscount will be satisfied with the explanation on this occasion.

VISCOUNT COLVILLE OF CULROSS

I am glad that the noble Lord, Lord Stonham, said that he would look at the converse of what is immaterial because I think it is possible that there may be difficulty here. The only thing I should like to say about this—and I am afraid that I am against the view put forward by my noble and learned friend—is that provided we can make perfectly certain that there is no positive danger in this subsection, I think it is possible, in view of the emphasis that is placed elsewhere in this Bill upon pecuniary gain and loss (although I do not agree with it as being right in every case) that there are cases where it will have to stay in the Bill. I think it may be meritorious to put in this subsection to draw a distinction between theft cases and those other offences where, at any rate, the Committee may come to the conclusion at the end that it is right to keep the pecuniary gain and loss point. I therefore have sympathy with the noble Lord, Lord Stonham, in seeking to retain this subsection.

LORD CONESFORD

I have no objection to the principle that is conveyed in this subsection but I was a little puzzled by the part of the argument of the noble Lord, Lord Stonham, that suggested that it was really necessary for the complete definition of theft. That proposition appears to me to involve the further proposition that, if this, subsection were deleted, the theft he has described would not be dishonest appropriation within subsection (1); and I find that rather alarming. I should have thought it would be covered; but, like my noble friend Lord Colville of Culross, I have no objection to the subsection.

VISCOUNT DILHORNE

I listened with the greatest care to what the noble Lord, Lord Stonham, said. I think it is right to say, is it not, that the Larceny Act 1916 was drafted by Mr. Justice Avory. And I think it is right to say, is it not, that Section 1 of that Act, which contains the definition of "larceny" which subsection (1) of this clause is intended to replace, contains no subsection similar to subsection (2). It was not considered necessary then, and I believe, subject to what I am going to say, that it is not in the least degree necessary now.

I asked the noble Lord whether he could turn to any reported case in which it had been argued that it was material, in considering a theft, whether or not it had been made with a view to gain or made for the thief's own benefit. The noble Lord cannot refer to a single case in which it has been argued that dishonestly to appropriate something that is useless or is to be destroyed is not theft. The fact that he cannot argue that indicates to my mind—and after all we have had this definition since at least 1916—that there is no likelihood of that argument being advanced in future. Subsections (1) and (2) of the clause define what is meant by theft. If we go on to suggest that certain motives are immaterial, that must imply that other motives are material. I should not object if the noble Lord put in a more general phrase to say that in determining whether or not conduct amounts to theft (I am not trying to draft while on my feet) the motive with which the accused has acted is immaterial, because that would cover all kinds of motive, and motive is immaterial.

I concede that if we keep these words anywhere else in the Bill—and we cannot say yet whether or not the relevant words will be retained; and I think that in most places they should come out—the requirement of proof that certain conduct is criminal depends on whether it is done with the view to financial gain or with a view to financial loss, and there is an argument for retaining in Clause 1 some words to make it clear that the question of motive is irrelevant in considering whether or not conduct constitutes theft. But subsection (2) does not go so far as that. It deals only with particular motives, and I think it has dangerous implications. I welcome what the noble Lord has said. I hope that he will give further consideration to both aspects in relation to this subsection, and that we shall see it in a definite form at a later stage of the Bill. In the light of what he said, I shall not seek to divide the Committee on this Amendment.

LORD STONHAM

I am most grateful for what the noble and learned Viscount has said, and I will consider his words. It may be that because the present law does not turn on appropriation but on taking, my advisers have not come up with a case. Certainly a search will be made. I think it could be argued that appropriation could imply a benefit to the appropriator. Nevertheless, we will have a careful look at this, and maybe by discussion before Report stage we shall arrive at something satisfactory to all concerned.

LORD SILKIN

This is not a question purely of appropriation, but of dishonest appropriation. Therefore I should have thought that some kind of elaboration would be desirable. It could be argued, though probably it has not been argued for at least 40 years, that certain types of appropriation are not dishonest. This is designed, it seems to me, to indicate that whether it is intended for gain or not, it is still a dishonest appropriation. It may be that the words are not as effective as they might be, and I am very glad that my noble friend is to look at this again.

VISCOUNT DILHORNE

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 1, as amended, agreed to.

Clause 2:

"Dishonestly"

2.—(1) A person's appropriation of property belonging to another is not to be regarded as dishonest—

1. (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, or that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or
2. (b) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he pays for the property.

6.46 p.m.

VISCOUNT DILHORNE moved, in subsection (1), to leave out paragraph (a), and insert: (a) unless he appropriates the property without claim of right made in good faith".

The noble Viscount said: There is a slight error in the printing of this Amendment. There should be an "a" between "without" and "claim". This subsection is dealt with in paragraph 39 of the Report in the following words: But we decided to include the partial definition in Clause 2 to preserve specifically two rules of the present law. The first is the rule mentioned above, that the claim of right made in good faith is inconsistent with theft. This rule is preserved in different language in paragraph (a) of Clause 2(1). That is all they say about it.

I entirely agree that the rule should be preserved, but why completely alter the language in which it is expressed? The Committee gave no reason for that. The Lord Chief Justice said on Tuesday that he believed—and I agree with him—that reform should not be done just for the sake of reform but only if we are satisfied that what we are putting in instead is better than what is already there. I am sure we all agree with that. So the question arises: is the language in the Bill better than that in which the law, which is familiar to nearly all of us, was expressed in 1916? The Committee do not say that it is expressed in better language and give no reason at all for the change. I feel that the change of language not only does not effect an improvement but is a change for the worse. I will indicate why I say that.

Under the law as it stands to-day and as the Committee want it to remain in future, if the accused says bona fide, "I believe I had a right to take this property," then it matters not whether in law he had a right to take that property; he will be acquitted. It has to be a bona fide belief of a claim of right. That is what the Committee want to continue to be part of the law. But now, under the new formula, will it not run like this? If the accused says, and believes when he says it, "I honestly thought I had the right to take this property", will he not be told, "That is not enough; did you believe in law that you had the right to take it?". If he is an honest man he will probably answer: When I took it I did not think anything about the law. I am not a lawyer. I thought that I had a right to take it, and I took it. "What is going to be the position then? If he gives that answer, can it really be said that he has come within the words of this provision, that he appropriates the property in the belief that he has in law the right to deprive the other of it"? If I be right in thinking that under this wording his honest belief that he had a right to take it will not be sufficient unless he goes on to say that he believed he had a right in law to take it, that honest belief that he had a right to take it wi1l not suffice to secure his acquittal. I recognise that it was not the intention of the Committee to produce that result; and no one wants that result. But ii seems to me that the language used in this new expression of an old and familiar rule may well produce that result when the matter comes to be discussed in the courts. And when the matter comes to be discussed in the courts, the courts will not be able to refer to the Committee's Report and see what the Committee intended to do. That is one reason why I believe that the rule which the Committee wished to preserve should be preserved in the same language is that in which it has been expressed since 1916 and which is, I think, understood by all those who practise in the law and at the criminal Bar.

Clause 2(1)(a) goes further than to restate in different language the a le that a person who takes property with a claim of right made in good faith is not guilty of theft. It goes on to provide fiat his conduct shall not be regarded as dishonest if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it". I think I am right in saying that no such provision as these last words I have cited appears in the Larceny Act 1916. The Committee do not, in their Report, so far as I can see, give any reason for the inclusion of those words; and they are not unimportant.

I put to the noble Lord, Lord Stonham, another question (I am sorry to go on asking him questions, but I will try to give him time to get the answers to them): Is there a decision of the courts on this point, a reported case? I do not believe that there is, but there may be and I may not have found it. I would say to the noble Lord that I do not myself think it is necessary to include these words, unless there is a decision of the courts which indicates that, despite such a belief, the accused could be convicted of theft. I will put it in this way: in the absence of such a decision, I cannot believe that any court would regard a man as acting dishonestly if he appropriated property in the bona fide belief that the owner of it would consent to the appropriation if he knew of it. I cannot believe that without these words anyone would think that that was dishonest conduct. That being so, I feel that the inclusion of these words is really unnecessary unless there is a case to the contrary effect.

I do not like having words in a Bill which I think are unnecessary. And I think the inclusion of these words is again open (I may be wrong about this) to a little danger. I think that putting this in the forefront of the Bill may lead to this kind of defence being raised in a great many cases where the charge is the theft from someone whom the thief knew. That defence is not frequently run nowadays (and this is another aspect of it), and I feel that putting it in the very beginning of this Theft Bill may encourage people to run that defence in future when there is any theft from someone whom the thief knows.

Believing, as I do, that no court could possibly come to the conclusion that it would be dishonest to borrow property in circumstances in which the thief honestly and bona fide believed that if the owner knew of the circumstances he would consent to the borrowing, I cannot myself think that this is necessary. I have seen the noble Lord, Lord Stonham, receiving very rapid instructions. I do not know whether I have given him enough time, but I will not pursue the matter, because I hope I have said enough to get him to say that he will give serious consideration to this point between now and Report. I beg to move.

Amendment moved—

Page 1, line 18, leave out paragraph (a) and insert— ("(a) unless he appropriates the property without a claim of right made in good faith").—(Viscount Dilhorne.)

6.57 p.m.

THE LORD CHANCELLOR

May I deal with the two points which the noble and learned Viscount has raised on the first point as to a claim of right. A claim of right, of course, means a claim of right in law, and I do not understand why the noble and learned Viscount objects to the words "in law" in the alternative phraseology here put forth. A claim of right does not mean a religious right, a moral right; it means a right in law, and always has. Secondly, I would respectfully agree with him on the second point, that a judge would not seek to have anybody convicted who had taken something without somebody's consent but in the belief that he would have had the other person's consent if he had known of the appropriation and the circumstances of it. The noble and learned Viscount says: If that is the law, why do we want it expressed here? Here I must say that I admire very much the courage of the noble and learned Viscount in putting down 25 Amendments to this Bill. The Bill was drafted by 17 of the best-known judges and academic lawyers, all of them specially—

VISCOUNT DILHORNE

Is the noble and learned Lord addressing the Committee?

THE LORD CHANCELLOR

I thought there were slightly more here than there are. They spent nine years on this subject. They started in 1959 and took a long time considering whether it was possible to have a Bill which would amend the existing law so as to cure the well-known defects in this branch of the law. They went into it very exhaustively to decide, first, what kind of Bill it ought to be. Then they came to the conclusion that it was quite impossible to do that, and that they must scrub out the existing law and introduce a code in new words which would cover the whole of this field. They having done that, I should have thought it is a brave thing to say on 25 different Amendments: "I know better than they". They thought about every word. They had long arguments, and, indeed, it appears from the Report in most cases that they chose this word rather than that word.

One of the interesting Amendments—I am not undertaking on behalf of the Government to accept it, because it may or may not be the right place to do it in this Bill—and certainly a very important Amendment which has been put down by the noble and learned Lord, Lord Wilberforce, is Amendment No. 58, which says: The provisions of this Act"— this is something new in English law, incidentally— shall be interpreted and applied according to the plain and natural meaning of the words used, read in the context of the Act as a whole, and given a fair, large and liberal construction". Then paragraph (b) states: It shall not be permissible in any proceedings upon this Act to refer to any decisions of any Courts prior to the passing of this Act other than decisions dealing in general terms with the interpretation of Statutes". Then it says the very thing which the noble and learned Viscount said they could not do—and he would be right without this Amendment: Reference may be made, for the interpretation of this Act. to the NOTES ON DRAFT THEFT BILL contained in Annex 2 of Command 2977 but this commentary shall be for guidance only and shall have no binding force. So this is a Bill the whole object of which is to be an entirely new self-contained code of this part of the law. And the suggestion is made that as this distinguished Committee say in their Report why they used one word rather than another, when a judge has to construe the Act it might be sensible that he should be able to look at this, which at the moment in law he is not allowed to do. We shall have to consider, when we come to the Amendment, whether or not that would be a wise thing to do. But here the Committee are clearly using perfectly ordinary English words: if he appropriates the property in the belief that he has in law the right to deprive the other of it, or that he would have the other's consent if the other knew of the appropriation and the circumstances of it …". That, I suggest, is much more comprehensible to the ordinary person than this curious old legal phrase "a claim of right", which makes it sound as if there has to be a claim. One of the first things one has to explain to the jury is that there does not have to be a claim; the phrase does not mean what it appears to mean. Of course, all lawyers know what it means, because they are used to it; but it is not law in words which ordinary people ordinarily use. Therefore, I hope that, when we consider this matter on Report stage, the House will accept the words of the Criminal Law Revision Committee, rather than those now contemplated by the noble and learned Viscount. But, of course, we shall be quite ready to consider what he has said.

One of the difficulties, of course, about retaining this very old phraseology is that people want to go off to look at the old cases. Really, the object of this Bill, as I understand it, is to have, so far as possible, a complete code in words which people can understand, and which stand on their own. But we will certainly consider further what the noble and learned Viscount said.

VISCOUNT COLVILLE OF CULROSS

I do not want to take part in the merits of this discussion, but I want to say one thing to the noble and learned Lord the Lord Chancellor in relation to a point in his last speech. I think it must be understood that any of us who puts down Amendments to this Bill does so with a feeling that he is being presumptuous to question the Report of the Criminal Law Revision Committee. Who am I to say that they were wrong? I fully admit that I have not their experience, I have not their background, and I have not the benefit of the no doubt interminable discussions which took place on each of these matters. But what I wish Her Majesty's Government would realise is that a Report from the Criminal Law Revision Committee is not an Act of Parliament. It would be wholly wrong for this House, and, I venture to think, for another place too, although I must not comment upon that procedure, to take as Holy Writ the words of the Criminal Law Revision Committee.

I do not think that any noble Lord will have put down Amendments in this House in order to show that he knows better, or that he is cleverer, than those who wrote this Report and framed the draft Bill at the end. What we are doing, I venture to suggest, is testing out whether this is right; and in so doing we are doing our job as a House of Parliament. Indeed, if we did not do this job we should be falling short of the duty which is laid upon both Houses of Parliament.

There is one other matter. It is all very well on occasions for Her Majesty's Government and, with the greatest respect to him, the noble and learned Lord the Lord Chief Justice to say that this is a most valuable Report and the result of much labour. But it will be clearly discerned in the course of this Committee stage that a large number of Amendments are going to be moved which do not agree, and do not disagree, with anything that has been put in their Report by the Criminal Law Revision Committee. A great number of these Amendments will be upon topics that have not been explained at all in this Report. It is because they have not been explained at all in the Report, apart from our general duty as a House of Parliament, that I, for myself, feel it wholly justifiable that we should put down Amendments and discuss them. Particularly when that is done, I very much hope that the spokesmen for Her Majesty's Government will not continue to say, "It is in the Report, and therefore it must be right whether it is explained or not". Because every time they do so, I shall get up and make this same speech.

THE LORD CHANCELLOR

Nobody is suggesting that the House is not entitled to consider Amendments, and carry Amendments, and of course there are in the Bill some clauses which have been put in which were not in the draft Bill of the Committee at all. All I am suggesting is that, whereas in the ordinary way there ought to be a presumption that whatever is in a Government Bill is wrong, when we are dealing with a matter which has been considered by as distinguished a Committee as this there ought to be a presumption that what is in the Bill is right.

VISCOUNT DILHORNE

The noble and learned Lord the Lord Chancellor really cannot have it both ways. It is all very well for the noble Lord, Lord Stonham, to invite those who are practised in the law, Lords of Appeal, to attend at this late hour and give the benefit of their views and criticisms upon this matter, and then, when one puts down Amendments, which one feels to be important and worthy of consideration (I do not profess always to be right about this) for the noble and learned Lord the Lord Chancellor to get up and say that it must take a lot of courage to put down so many Amendments. I am grateful for the compliment, but at the same time noble Lords on the Government Benches cannot expect assistance in seeking to make this Bill a really good measure if that is the way in which suggestions put forward are to be treated.

The noble Lord refers to Amendments which are not at the moment the subject of consideration at all. If the noble and learned Lord the Lord Chancellor had been in another place it would not have been open to him to make a great speech about Amendment No. 58, or any of the other Amendments. I have confined my remarks to this particular Amendment. Then the noble and learned Lord the Lord Chancellor went on to say that in the Amendment I dealt with—referring to the notes in the Annex to clauses—I was wrong in what I said. With great respect to him, I was not. What I said was that there was not a single word in the body of this Report to explain why the language was changed.

VISCOUNT COLVILLE OF CULROSS

Hear, hear!

VISCOUNT DILHORNE

I read out the only passage in the Report that deals with it. I will not read it out again. When the noble and learned Lord the Lord Chancellor says that the Committee say why they used one word in preference to another, this is just what they have not done in relation to this change.

THE LORD CHANCELLOR

I did not say that. I said that in many places they had done it.

VISCOUNT DILHORNE

I do not dispute that in many places they have done this, but we are at the moment discussing one place where they have not. Of course I know perfectly well that when you speak of a "claim of right" you mean a claim of right in law. That is perfectly true. But it does not matter, so far as that offence is concerned. And this is equally true whether that claim of right is well founded or is ill-founded, so long as it is bona fide. I do not want to pursue this point, although I do not think it unimportant. But this is really a matter of language, because there is nothing between what the Criminal Law Revision Committee want to achieve on this and what I want to achieve.

But I do put this other point; and I ask the noble and learned Lord to look at it again. If the question is put, "Did you honestly believe that you had a right to take this property?"—which is the simplest way of putting it—and the man says "Yes", under the existing formula, if bona fide, that would suffice. I think there can be no doubt about that. But if it has to be said: "Did you honestly believe that in law you had a right to take this property?" that is a complete change of emphasis. I might add to the argument by saying that I think that is dangerous because it may lead to the interpretation that it is not just enough to say, "I thought I had a right to take it".

LORD AIREDALE

I should like to support entirely what has been said on this side of the Committee. I, too, have the greatest deference and regard towards the Criminal Law Revision Committee, and for that reason I have ventured to put down only three or four Amendments to this Bill. Were I an ex-Lord Chancellor I dare say I should have ventured to put down 25 Amendments.

What I cannot understand about paragraph (a) of subsection (1) of Clause 2, which this Amendment seeks to leave out, is that that paragraph contains two propositions, and the purpose of it is to say that they are not to be regarded as dishonest. Reading paragraph (a), if you went before any class of secondary schoolchildren and put these two propositions to them and said: "Have any of you any doubts whether this conduct would be honest or dishonest?", I do not believe any of those children would for a moment suggest that either of the propositions in paragraph (a) would amount to dishonesty. If that is right, I cannot see the point of solemnly stating in an Act of Parliament that these two things, which any intelligent child would accept at once as not amounting to dishonesty, are not to be regarded as dishonest. It seems to me that paragraph (a) is in any sense superfluous.

VISCOUNT DILHORNE

I understand that the noble Lord, Lord Stonham, said that the Government would look at this again with a view to meeting the points we have raised and would certainly consider them seriously.

LORD STONHAM

I agree, as long as the noble and learned Viscount understands that it is without an absolute commitment.

VISCOUNT DILHORNE

I am certainly not asking for a commitment upon it; it is just the way in which it is phrased. There is nothing between us as to what is wanted. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1)(a), after "in the belief that he has", to insert "on his own or another's behalf". The noble Viscount said: Continuing for one moment with the theme of what I said just now—and it is unfortunate that the noble and learned Lord has just left his place—I would say to the noble Lord, Lord Stonham, that despite what he said I cannot accept the onus which he placed upon those who propose Amendments to this Bill, that it is essential they should show that the wording suggested by the Criminal Law Revision Committee is wrong before there can be any assumption that it should be changed. I do not intend to take that course, and I hope the noble Lord, Lord Stonham, if he does not agree with the Amendment that I have put down (for reasons other than those of drafting, which I am sure will be good ones) will be so good as to defend positively the wording of the Bill as it stands and say that it is better than the Amendment I am suggesting.

This Amendment is a comparatively small point, but it is another one that the Committee has not specifically explained. The previous expression in the Larceny Act 1916, about which my noble and learned friend has just been speaking, does not require it to be said specifically that a claim of right made in good faith may be exercised on behalf of the person making the claim, or on behalf of somebody else, but the fact remains that at any rate in a case decided in 1962, namely, that of R v. Williams, it was held that a claim of right may be exercised on behalf of some other person and fall within the expression in the old Larceny Act. I have no reason to suppose that that is not so.

One then comes to look at paragraph (a) of subsection (1) of Clause 2, and we see that it says: if he appropriates the property in the belief that he has in law the right … Unless I am persuaded by the noble Lord, Lord Stonham, that this has been comprehensively considered by the Criminal Law Revision Committee, who have a very good reason to suppose that in what is meant to be a clear restatement of the law "he" means "on his own behalf or on behalf of anybody else", I would suggest that there would be merit in saying so clearly and explicity in the Bill, because if that is the present law—and I have no reason to suppose that the Government wish to change the law on this point—then I do not believe that the Bill as it stands on this point is a clear restatement of anything at all in this connection. I beg to move.

Amendment moved— Page 1, line 18, at end insert ("on his own or another's behalf").—(Viscount Colville of Culross.)

LORD STONHAM

The insertion of the words proposed by the noble Viscount, Lord Colville of Culross, would make the subsection read: if he appropriates the property in the belief that he has on his own or another's behalf in law the right to deprive the other of it or that he would have the other's consent if the other knew of the appropriation and the circumstances of it". I am not saying that the words of the Criminal Law Revision Committee are better than those proposed by the noble Viscount, but I say that in my view his words do not add anything to the meaning of the paragraph, because the words that he proposes to insert are already sufficiently implied by the phrase, in the belief that he has in law the right to deprive the other of it, or that he would have the other's consent… Under the clause as drafted, the action of a person who took property on behalf of someone else, on whose behalf he believed he had a legal right to take it, would not be theft. In our view, therefore, the Amendment is unnecessary, but certainly I will look at it again. If there is found to be a gap in the clause it will be considered, but my present view is that the words are not required.

VISCOUNT DILHORNE

I will just say this to the noble Lord, if I may, in support of my noble friend, who I think said that the decision in R v. Williams was in 1962. The Criminal Law Revision Committee have been sitting for a long time and whether they had passed this part of their Report before the decision in R v. Williams, I know not. There is no issue of principle between the noble Lord and my noble friend, but it was not until 1962 that we had this decision on the present language "without a claim of right made in good faith".

Until that decision many people thought that was a claim of right made by the person who took it. Even though it be the case that the courts would interpret the words, "that he has in law the right" as meaning that he is exercising a right which he believes someone else has in law, I think that maybe there is some doubt. I would have thought that there was a case here for the insertion of words not necessarily the same words my noble friend has put down, to make it quite clear that the belief may extend to a belief that the person on whose behalf he is appropriating the property has the right to deprive the other of it. I think the noble Lord may be right in saying that it is in fact covered by these words, but I think it is desirable that it should be covered explicitly, particularly after the decision in Williams. It should not be left in doubt, and if I may quote something which appears very frequently in the case of the draft Bill, it will, I think, prevent argument if it is made explicit. At the moment it may be implicit; I am doubtful whether it is. I hope the noble Lord will look at it and insert words on Report to make it explicit.

VISCOUNT COLVILLE OF CULROSS

Will the noble Lord, Lord Stonham, allow me to say at this stage that I do not suppose that there is any elegance in any single one of my Amendments. If he does not like the wording of them, or the way they are expressed, he need not say so: I will assume it to be the case. I have tried to put down a matter of principle in each Amendment to which I am asking the noble Lord to address his mind. On this one, I am grateful to the noble Lord for saying that he will look at it again; but I believe he is a little misled if he supposes that the second half of paragraph (a) has anything to do with this. The situation, as I understand it, is this. "A" has something which "B" takes away. "A's" consent, or his deemed consent, simply does not enter into this at all. The point is whether "B" takes it, thinking that he has a right to do so for himself, or whether he does so thinking that he has a right to do it for his wife. It is if he does so for his wife that I am saying these words are necessary. It may be that in law it is his wife's property he is collecting, and the fact that the person who has it—"A" in my example—would or would not have given consent if he knew the circumstances really has nothing to do with this. I would ask the noble Lord, when he is thinking about it again, to concentrate on the words "in the belief that he has in law the right" and to leave out altogether the second part of that paragraph. Before I ask leave to withdraw the Amendment, I think that another noble Lord wishes to say something.

LORD WILBERFORCE

I only wanted to make one possible suggestion that the noble Lord might care to have in mind when considering this matter. I am not sure whether it is in the mind of the noble Viscount or not, but it might be the sort of case his Amendment would be required to cover, and, like him, I think it is relevant only to the first part of paragraph (a) and not to the second. It is the case of a company employee, the employee of a bank or someone like that, who takes property in the belief he has the right to take it on behalf of the company. It is not his right, it is the company's right, and he takes the property back, quite legitimately, in the belief that his employer, or whoever it is for whom he is acting, has a right to take it. I feel some doubt whether without some words such as have been suggested that case would be covered. I simply throw that into the discussion, parallel with the case of the wife to which the noble Viscount referred, as something which, one way or another, ought to be taken care of by these words.

LORD AIREDALE

If this paragraph is to be looked at again, since its contains two quite separate propositions and there has been confusion, is not there something to be said for separating them by (i) and (ii) so that it would read: "if he appropriates the property in the belief (i) that…" or "(ii) that…"? In that way you have two separate propositions which cannot be confused.

VISCOUNT COLVILLE OF CULROSS

The noble Lord, Lord Stonham, has a lot to think about on this. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.25 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1)(b), to leave out "reasonable steps" and to insert instead: such steps as he believes to be reasonable in the circumstances". The noble Viscount said: I think I can deal with this Amendment without making too heavy weather of it. It is a problem which can become a trifle intricate. The second defence provided in subsection (1) of Clause 2, unless one takes Lord Airedale's point—at any rate the defence in paragraph (b)—says that a person's appropriation is not dishonest …if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. It must be immediately recognised that the last part of this phrase is taken word for word from the Larceny Act 1916. But it raises the question as to what "reasonable" means in this context. Is it reasonable in the minds of the jury as being exemplars of what the ordinary man in the street thinks, or is it reasonable in the subjective sense, that this is what the accused thought at the time when he appropriated the property? I do not believe that this is made wholly clear by the insertion of the words "in the belief" at the beginning of the whole phrase.

I should say further that, as I understand it, the existing law is that the test is subjective. The steps which ought to be or could be taken are those which the prisoner believes to be reasonable, and it is not the objective test of what the ordinary man in the street would think in those circumstances. And I look again at Archbold, paragraph 1502, in which reference is made to the case of Thurborn, which was approved later in the Court of Criminal Appeal. I: that is right, I believe that the matter should be put beyond doubt in this clause. And it is all the more important that it should be done if one looks for a moment at Clause 20, where (although I believe there are no Amendments down on this point) we find exactly the same proposition. In that case two terms are used: there is "reasonable" in paragraph (a) and there is "proper" in paragraph (b).

If one looks at what the Criminal Law Revision Committee had to say about blackmail—and this was a matter of much discussion on the Second Reading of this Bill—it really is, I suggest, very far from clear whether they thought that these matters in Clause 20 were to be governed by the subjective or the objective test. No doubt when we come to that clause the point can be discussed further, but at this stage I would ask the noble Lord, Lord Stonham, first: Is it the intention of the Government that it should be a subjective test or an objective test? And if, as I believe to be the case, it is the former, is he absolutely certain that no argument can arise from the way that this Bill is drawn in this particular respect—because again this could give rise to a large amount of litigation and appeals which, if only we were clear and explicit in the Bill, would be avoided. I therefore beg to move.

Amendment moved— Page 2, line 2, leave out ("reasonable steps") and insert ("such steps as he believes to be reasonable in the circumstances").—(Viscount Colville of Culross.)

LORD STONHAM

I am grateful for the very careful explanation which the noble Viscount has given of his reasons for tabling this Amendment, because my reaction otherwise would have been merely to say that the new words add nothing to the meaning of the paragraph, since it is already implicit, in the words the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps", that they should be steps which he believes to be reasonable. The noble Viscount has made this clear by asking the direct question, Is the test of "reasonable" to be a subjective test, and the answer is a very firm, Yes; and we believe that this is embodied in the clause as it now stands.

The noble Viscount mentioned that it should be linked with a similar test in Clause 20. I will not enlarge upon that at the moment, except to say that I agree. But I do not think that the Amendment itself really raises a question of whether it should be a subjective test. Under Clause 2(1)(b) a person's appropriation of property belonging to another (except where the property came to him as a trustee or as a personal representative): is not to be regarded as dishonest… if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. The test therefore is subjective, because the honest man believed that the owner could not be discovered by taking reasonable steps. Even if we made the change suggested by the noble Viscount, his subsection would still be subjective, as I believe he wants it to be, because it would still be governed by the word "belief". It would then read, if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking such steps as he believes to be reasonable in the circumstances. I can only say again that I think I have answered the noble Viscount's question. We are satisfied that what he wants to achieve is achieved, and that the words which he proposes to insert in substitution for the words "reasonable steps" do not add anything to the meaning or clarify the matter in any way.

VISCOUNT DILHORNE

May I just say a word about this? I quite agree with the noble Lord, Lord Stonham, that as this sentence is preceded by the words "in the belief" the whole of what follows would appear to be the application of the subjective test. But I think it is not so much what is the content of the words "in the belief"; the difficulty I see here lies in the use of the word "reasonable" before "steps". Again this is a case where there is absolutely nothing between the noble Lord and my noble friend as to what they seek to achieve. But I must say that, if it be the case at the end of the day that all consideration of authorities bearing on these questions has to be ignored, then I can well understand that there may be argument on the question, independent of the belief, as to whether the test to apply in relation to the steps being reasonable is itself objective or subjective. Does the noble Lord follow me? It is rather a narrow point. It is quite true the man has to believe something. Has he to believe something which he considers are reasonable steps? Or, in determining whether or not there are reasonable steps which can be taken, is the test of that objective? This is different from what follows from the belief.

It is quite clear that the noble Lord wants, and I want, the test to be: "Does the man believe that the owner cannot be discovered by taking such steps as he thinks reasonable, whatever anyone else may think?" That is what we want. But I greatly doubt whether that appears as clearly as it should in the Bill as drawn. I am not going to suggest re-wording it. I say again that it would be an advantage if this matter could be looked at to make that clear beyond all doubt. I do not think it is at present.

LORD STONHAM

Of course it will be looked at in the light of what has been said. I should have thought that if the accused person acted in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps, the implication must be there that there are reasonable steps that could be taken. That seems to me to be implicit in the clause.

VISCOUNT DILHORNE

If the noble Lord says that, that there are reasonable steps that can be taken, then that immediately brings in the objective test as to whether or not there are in fact reasonable steps that can be taken. That is the point. It does not matter whether you and I would think that there were reasonable steps that could have been taken. That is not the point we want to secure. The question is whether the accused had a bona fide belief that steps which he considered reasonable would not have produced the person. That is just the difference, and I think that what the noble Lord said indicates that, while our objectives are the same, the language could be made more explicit.

LORD STONHAM

The assumption of the noble and learned Viscount is quite right. We depend on the belief of the person; it is what he thought. I think that the Criminal Law Revision Committee indicated in Clause 20 their view about the objective test, that the difficulty in applying the objective test would be quite insuperable; and it might be so here. But certainly I will look at the point again.

VISCOUNT COLVILLE OF CULROSS

In that case, I have much pleasure in asking leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.36 p.m.

VISCOUNT COLVILLE OF CULROSS moved to add to subsection (1)(b): and a person's obtaining of property shall, for the purposes of section 15 of this Act, be interpreted accordingly.

The noble Viscount said: This again relates to a matter of wording and clarification. Her Majesty's Government have said on several occasions already that it is essential that we should get this clear and right, and to that end, among other things, they have put in Clause 6, and propose to extend it in accordance with Amendment No. 15. The definition in subsection (2) of "dishonestly appropriates" is partly applicable also to the offences in Clause 15, and if one looks at paragraph 88 of the Report of the Criminal Law Revision Committee one will see that they intend this to be so. They say: In this respect also the offence will be in line with theft, because a belief in a legal right to deprive an owner of property is for the purpose of theft inconsistent with dishonesty and is specifically made a defence by the partial definition of 'dishonestly' in Clause 2(1)(a). (The partial definition in Clause 2(1) is not repeated in Clause 12(1)"— that is Clause 15(1) in the Bill— It would be only partly applicable to the offence of criminal deception, and it seems unnecessary and undesirable to complicate the Bill by including a separate definition in Clause 12)"— that is, Clause 15. The paragraph goes on: The fact that a claim of right will be a defence to a charge under Clause 15 is probably in accordance with the present law of obtaining by false pretences; for the existence of a claim of right to the property obtained is regarded as inconsistent with that of an ' intent to defraud' for the purpose of Section 32(1) of the 1916 Act.

There are two points here. First of all, as I understand the Criminal Law Revision Committee, the law at the moment is not clear on this subject If it were, I think that they would not have put the word "probably" in the passage that I have read. This is reinforced by the fact that, so far as I can discover, Archbold does not deal with this matter under "false pretences", although I may be wrong on that. If the law is not clear upon this point, then I would suggest to the noble Lord that it must stand to reason that if we intend that the law should be made clear, we ought to do something specific about it.

The second point is that although the Criminal Law Revision Committee said that the definition should only partly apply—and my Amendment probably is not effective to achieve that—it must be in line with the whole approach which the Government have adopted to this Bill to be explicit where one needs to be explicit. I do not believe that in this respect we are suitably clear about the availability of this defence under Clause 15. For those two reasons I earnestly ask the noble Lord, Lord Stonham, to have another look at this matter to see whether it ought not to be made perfectly plain that the proper part of this defence is also available in Clause 15. I beg to move.

Amendment moved— Page 2, line 3, at end insert the said words.—(Viscount Colville of Culross.)

LORD STONHAM

I shall be grateful if I may briefly put our view on this Amendment, because, frankly, I am not yet clear precisely what the noble Viscount wants. I know that it is my fault, but if I tell the Committee how I see the position the noble Viscount can come in again. The noble Viscount made it clear that the effect of his Amendment would be to attract the provisions relating to the offence of criminal deception in Clause 15, subsection (1).

VISCOUNT COLVILLE OF CULROSS

No—to attract the defence which is provided under Clause 2 in the case of theft to be applicable also to the offence of criminal deception under Clause 15. I am not trying to attract the "offence", but to attract the "defence".

LORD STONHAM

The noble Viscount is trying to attract the same approach, the same form of words.

VISCOUNT COLVILLE OF CULROSS

Yes.

LORD STONHAM

We think that an addition of that kind to subsection (1), paragraph (b), of Clause 2 would not be appropriate. A person who by any deception dishonestly obtains property belonging to another must have practised the deception on someone to whom the property belongs, including any person having possession or control of or some proprietory right or interest in the property, and, by virtue of the definition of "belonging to another" in Clause 5(1)—which is applied to Clause 15 by Clause 33(1)—the pro- perty will "belong" to that person. The circumstances envisaged in Clause 2(1)(b), that the person to whom the properly belongs cannot be discovered can hardly arise. I do not know whether the noble Viscount has followed me.

VISCOUNT COLVILLE OF CULROSS

I am afraid not. I start off from the point that the Criminal Law Revision Committee said that this defence did apply to Clause 15. That is plain from paragraph 88. They said that they thought that it was probably the law now, and they further said that they had not drafted a partial definition of "dishonestly obtains" for the purposes of Clause 15 as they had done in the case of "dishonestly appropriates" for theft. Paragraph 88 said—and I did not propose to read it all out, but it is relevant to what the noble Lord says: …though the deception may be dishonest, the obtaining is not. They were saying that, owing to the words "dishonestly obtains", a person who uses deception in order to obtain property to which he believes himself entitled will not be guilty, for though the deception may be dishonest the obtaining is not. Therefore, the two elements necessary in the offence, "dishonestly" and "obtaining", are not both fulfilled. Therefore it is implicit in this, and is plain from this subsection, that this defence is intended to be available in the case of Clause 15.

May I read the next sentence in the paragraph? It says: In this respect also the offence will be in line with theft, because a belief in a legal right to deprive an owner of property is for the purpose of theft inconsistent with dishonesty and is specifically made a defence by the partial definition of 'dishonestly' in clause 2(1)(a). There cannot be any doubt about what is intended here. This defence is meant to apply. I am not saying that I have done it the right way; I am not saying that it should go in Clause 2. I am simply raising for the consideration of the noble Lord whether we ought not properly to set this out clearly, instead of leaving it to be implied from the words "dishonestly obtained" in Clause 15. I am drawing attention to what the Report says, and I am saying that I think that the law is not clear at the moment and that we ought to make it clear in this Bill. That is all I am asking the noble Lord to consider.

LORD STONHAM

I have got it clear now, whereas I did not have it clear before, so my words were useful. We will have a look at it, as the noble Viscount asks.

LORD AIREDALE

As it is going to be looked at and as the noble Viscount said that he may not have done it in the correct way, may I suggest that the way to do it is not by means of a forward reference from Clause 2 to Clause 15, but by a reference back in Clause 15 to Clause 2. Nobody will act on Clause 15 without reading it. When they read it they will discover that there is a defence mentioned in Clause 2 which applies to Clause 15. But if you do it by a forward reference, somebody may read Clause 15 and not appreciate that, had they looked at Clause 2, they would have discovered a defence which applies to Clause 15.

VISCOUNT DILHORNE

May I support what the noble Lord, Lord Airedale, has said; I am inclined to agree that the reference back should be in Clause 15. May I add another point. My noble friend has read out part of paragraph 88. I hope the noble Lord will consider what is said in that paragraph and what is said about the case of Parker in the Committee's Report in paragraph 92. It will be most anomalous if what is not criminal conduct under paragraph 88, with this claim of right contained in it, still remains criminal conduct if the deception is effected by way of a forged instrument. If the noble Lord will look at paragraphs 88 and 92 he will see that there is an anomaly which ought to be ironed out before the Bill is passed, and it bears on the question of the cross reference.

LORD STONHAM

I am grateful for that suggestion. I am a little at variance with the noble Viscount because he quoted paragraph 88, which refers to the whole of subsection (1) paragraphs (a) and (b), whereas on his Amendment we are discussing only subsection (1) paragraph (b). Therefore, that created some difficulty in my mind.

VISCOUNT COLVILLE OF CULROSS

It depends how far out you set the Amend- ment in the Bill. I meant it to refer to the whole of subsection (1) of Clause 2. I am sorry if I misled the noble Lord in that way. It was certainly not my intention.

LORD STONHAM

We will look at it in the light of that explanation.

VISCOUNT COLVILLE OF CULROSS

I beg leave to withdraw the Amendment.

Amendment by leave withdrawn.

7.50 p.m.

VISCOUNT DILHORNE moved to leave out subsection (2). The noble and learned Viscount said: This is again a case where I can find nothing in the Report dealing with this subsection, so I am not able to say for what reasons it was included. But in the notes on the draft Bill in Annex 2 there is the following passage, which is familiar: Without the subsection it might be argued that it would not be theft to take property and pay full value for it even if the taker knew that the owner was unwilling to sell. I must say that I find it very difficult to conceive that there is any real likelihood of that being argued.

Here again we have a provision in the Bill not aimed at defining the offence, but at preventing what the draftsman thought to be a possible argument. He seeks to defeat that possible argument by stating what, with great respect to him, seems to me to be rather a statement of the obvious. Subsection (2) says: A person's appropriation of property belonging to another may be dishonest notwithstanding that he pays for the property. Surely, of course it may. If there is a dishonest appropriation it will not cease to be a dishonest appropriation if the taker pays for the property. I should have thought that was so obvious that it did not require stating. If I am right about that, then this provision is unnecessary, and I feel it should be left out of the Bill.

I should perhaps point out that there is a discrepancy between the note in the Annex and the subsection in the Bill. The subsection says, "pays for the property", whereas the note says "pay full value for it". I do not know whether in this context the words "full value" have any significance. I should have thought that paying for it would mean paying full value in this context. But it is unfortunate, if at the end of the day we are going to be able to look at these notes for the purpose of guidance in reference to this Bill, that there should be this patent discrepancy between the language of the note and the language used in the Bill. It seems to me that this is a statement of the obvious, and as there is nothing in the body of the Report signed by the Committee dealing with it, I doubt myself whether it is necessary to include it. I beg to move.

Amendment moved— Page 2, line 4, leave out subsection (2).—(Viscount Dilhorne.)

THE LORD CHANCELLOR

I do not gather, from what the noble and learned Viscount has said, that he thinks any real harm will be done by this subsection, but that he feels it is unnecessary as it states the existing law. The purpose of the subsection is to clarify the meaning of "dishonestly"; simply to make it plain that a person who takes property, for example when the owner is unwilling to sell, may be dishonest even if he puts down the money for the property. This would apply, for example, to taking a rare and coveted object or paying the full price for something which is earmarked for somebody else; for instance, if a person goes into a shop and asks to buy something and is told that it is for somebody else, and he takes it away putting down the money in spite of the shopkeeper's protest.

The suggestion that a payment would be made only if the owner accepted the money seems to be based on a narrow and technical construction of the clause. The meaning of "pays for the property" should surely be understood in this context as covering sending, leaving or putting down money against the owner's will and not as implying his acceptance of the money offered. The subsection is included only as a signpost to indicate that the person appropriating the property is not excused from committing theft merely by leaving or sending the money for the property. The owner may not wish to part with it. There is no reason why it should not be theft to take something which an owner is unwilling to sell. I do not think the noble and learned Viscount really takes any diff- erent view. I think he is saying that this is the law, and that therefore it is unnecessary to put it in.

I think that to some extent there are two views about a Bill of this kind. The noble and learned Viscount spoke of what the draftsman had or had not done, but the 17 members of this Committee themselves had draft after draft—and, after all, they were at it for seven years—carefully considering every single word and the effect which it was likely to have, because this is intended to be a complete code of this section of the law. That is not an easy code to make, because we all know that this branch of the law has caused a great many difficulties, and to take theft, robbery, blackmail, fraudulent conversion, larceny by a trick and so on, and to codify the whole thing must be an extremely difficult thing to do.

The difference of opinion seems to be simply this. If you are trying to codify completely this whole branch of the law, ought you. to leave things out because the present law on that point is not in doubt? I submit to the Committee that where as here you are trying, in new words, in modern words, to codify a whole section of the law, it is a good thing to make it complete, and that it ought not to be regarded as any answer to say, "Well, you need not put that in because everybody knows that is the law." Of course, we shall carefully consider what the noble and learned Viscount has said, and what any other members of the Committee may say.

LORD WILBERFORCE

I am grateful for the statement that has just been made by the noble and learned Lord, because it highlights the difficulty which I felt about this clause, which I think is not the same as that felt by the noble and learned Viscount. He said that the clause stated the obvious and should not be in the Bill. To me it was obscure, and I could not understand it and still am not satisfied that it would normally he understood, as relating to the case which it is apparently meant to cover. To me the word "pays" involves an acceptance as well as a handing over of money—that is, a hand to receive and a pocket into which it goes. If what is meant is leaving money for the property, then I feel that some other expression might have been found. To say that a man who goes into a shop, helps himself to a valuable picture and leaves £100 or £5 on the counter, can say, "I paid for it", does not correspond to reality. That is not payment. That is leaving money and is completely irrelevant to the whole transaction. Sending a postal order through the post is not payment for the property. It is something quite different until it is accepted.

So that if what is intended, and I think it is right, is to say that merely leaving money for the property does not prevent the taking from being dishonest, I personally would prefer to see some other expression used if one can be found. To that extent, and only to that extent, I support the noble and learned Viscount in asking for some reconsideration of this subsection.

VISCOUNT DILHORNE

I, too, have listened with interest to what the noble and learned Lord the Lord Chancellor has said. I hope that every time he speaks he will not remind us of the eminence of this Committee, which we take for granted, or the length of time they took over their deliberations, which we all recognise, or repeat the remarks about the complexity and difficulty of the task they were set.

VISCOUNT COLVILLE OF CULROSS

Or remind us how many members of the Committee there were.

VISCOUNT DILHORNE

Yes, that, too. We all know that, and we have a great respect for them. The noble and learned Lord must realise that it is our function and our duty to look at these things and to raise questions which we are not happy about, and doing so is no disrespect to the Committee. We found several times, I think, during the noble and learned Lord's absence, that there is no difference of view between the noble Lord, Lord Stonham, and those who sit on this side of the House as to what we want to achieve, but there have been doubts raised with some considerable substance as to the choice of language. I think that is all to the good. That is the only way in which we can seek to effect improvements to this Bill.

When I moved this Amendment I was not seeking to suggest that this was not a statement of the existing law—it is. I put my statement forward on the ground that it was also a statement of the obvious, and I think it is. I think even in codification it is not desirable usually to put in things which are really so obvious as to be unnecessary, because the mere fact that an obvious thing has been put into a Bill makes people wonder whether there really was not some ulterior motive for it. That is one reason why I am suggesting that what really is obvious —and I think this is—ought to be omitted from the Bill, because it has a counter-productive effect. The noble Lord may not agree with me about that, but certainly I think that the use of the word "pays" is wrong, and I support what my noble and learned friend has said about that. If the noble Lord is going to retain this subsection. I think some different word ought to be used—"sends" the money, or "gives" or "deposits" the money for the article would suffice, but "pays" does involve acceptance. Again, I entirely agree with the concept here, and as the noble Lord has said that he will look at it again I will, if the Committee will allow me to do so, ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Appropriates]:

8.1 p.m.

On Question, Whether Clause 3 shall stand part of the Bill?

LORD WILBERFORCE

I did not put down an Amendment to this clause because there are limits to the number of linguistic changes one can suggest, but I find considerable cause for stumbling in the phrase "come by". I do not know where this has been brought from, or what it is intended to mean, other than to give a sort of popular look to the clause. It seems to refer to having possession, or something of that sort. Without making any suggestion this time, I would, in a friendly way, invite the noble Lord to consider whether it is altogether an appropriate expression. To me it is unattractive and not clear.

VISCOUNT DILHORNE

I should just like to say that I welcome this provision in Clause 3(1) if it means what I think it means, but I share my noble and learned friend's doubts as to the precise meaning to be given to the words "come by". In all the Bills I have read—and I have read a good many hundreds of them in my time—I cannot recollect Parliamentary counsel ever using this expression before. It is, I think, a novelty, and I hope this will not constitute a precedent. I should like to see it changed.

LORD STONHAM

We have not an Amendment down to consider it, but I will certainly consider what both the noble and learned Lord and the noble and learned Viscount have said.

Clause 3 agreed to.

LORD STONHAM

We have before us the entrancing prospect of a full day on Monday on the Committee stage of this Theft Bill, and I feel we might give ourselves a half-holiday to-night. I move that the House do now resume.

Moved, That the House do now resume.—(Lord Stonham.)

VISCOUNT DILHORNE

May I say how much I welcome that Motion, because the next Amendment, dealing with the fragrant subject of wild flowers, is bound to take a considerable time, and I think it would be much better to deal with it on Monday.

On Question, Motion agreed to, and House resumed accordingly.