§ 4.24 p.m.
§ THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Stonham.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 4:
§ 4.—(1) "Property" includes money and all other property, real or personal, including things in action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed born it by him or by his directions, except in the following cases, that is to say—
(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
§ (3) A person who picks mushrooms growing wild on any land, or who (without injury to the growth of the plant) picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.
§ (4) Wild creatures, tamed or untamed, shall he regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either—
- (a) it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession; or
- (b) he does it for reward or for sale or other commercial purpose.
§ VISCOUNT COLVILLE OF CULROSS moved, at the beginning of subsection (2)(b), to insert "Subject to subsection (3) below". The noble Viscount said: I hope I may have leave of the Committee, in moving this Amendment, to speak also to Nos. 10 and 11, which go with it. Indeed, No. 8 is only a paving amendment, by which I hope to take out of the general put pose in Clause 4(2)(b) the more specific purpose 11 in Clause 4(3) as I hope to have it amended in Committee. The present law about stealing flowers, trees and plants is contained in Sections 36 and 37 of the Larceny Act 1861 and Section 8 of the Larceny Act 1916, all of which will be repealed by this Bill.
Those do not distinguish particularly between wild flowers and flowers which are growing in somebody's garden or in a place where they are specially kept, but in some circumstances the new draft of the law cuts across the present position. The Bill leaves flowers and other vegetables and plants growing in a garden or cultivated plot to be dealt with under the ordinary law of theft in the Bill, but when it comes to wild flowers and trees, which are the subject of special measures in the law as it stands at the moment, the Criminal Law Revision Committee, in paragraph 47 of their Report, mention three possible courses. The first is
… to provide that things growing wild should in no case be the subject of theft; the landowner would be left to prosecute, if necessary, for malicious damage or to take civil proceedings. But we are not in favour of this course, for it seems to us right that (for example) picking another person's holly to sell should be theft.
The law of theft ought to apply in a case of that sort.
A second view, which the Committee rejected, was to leave the law of theft to apply in all cases. That is the point of an Amendment in the name of my noble friend Lord Dilhorne, and since it was rejected by the Criminal Law Revision Committee and my noble friend wishes to argue it, I will not go into the reasons that the Committee gave as to the review on this matter. The third was the one which they adopted and which is now in the Bill—namely, to provide that a person should not be guilty of theft
by picking mushrooms or other fungi, or flowers, fruit or foilage growing wild … unless he does so for reward or for sale or another commercial purpose.
The paragraph goes on to deal with damage to plants, which also appears in this subsection of the Bill.
§ In my three Amendments there are two main arguments. The first, perhaps the smaller one, relates to damage to the growth of a plant. One of the things which the Committee had in mind was 12 that people should be guilty of theft if they dug a plant up. They seemed to think that that would injure its growth. That is the point of the particular phrase in line 43 of page 2 of the Bill. It a person cuts a tree from the bottom, it probably would injure its growth— in fact, I should have thought there was no doubt about it. But if a person cuts the top off a large conifer in order to provide a Christmas tree and leaves the rest to grow, it is arguable whether or not he is injuring its growth. If a person digs up a wild flower, takes it away and plants it in his own garden, I should have thought that so long as the plant did not die it might well be argued that it is not an injury to its growth because it may grow as well in the new place as in the old. If damage to growth is the criterion, I am not certain that the words in the Bill in brackets in line 43 really do what the Committee set out to achieve. I have put it a little differently, though probably not correctly, in my Amendment No. 11.
More seriously, there seems to me to be grave difficulty about the test that the Committee have adopted for proving theft in these cases. They said—and of course this is an exception to the general proposition in Clause 4(2)(b)—that a person is not liable to be found guilty of stealing what he picks unless he does it for reward, for sale or for other commercial purpose. It seems to me that that must involve placing a burden on the prosecution of showing the motive of a person when he picked the flower or cut down the branch, or whatever it was he did. Supposing that one has a fairly normal case of somebody coming out of a wood with a bunch of flowers, or a bough of holly—or it might be a small Christmas tree—how are the prosecution to show what was his motive? He will not have done anything at that stage which would indicate whether or not he was going to sell that produce that he had taken, or whether there were any of the other elements—reward or commercial purpose—present in his mind. It may be that on the rare occasions where the taking has been on a very large scale it will be proper to infer from this fact alone that this was the intention of the man who had taken the holly, or whatever it may be.
§ I should have thought that if the last course suggested by the Criminal Law Revision Committee were to be adopted, 13 at any rate it would be right to place the burden on the defence. The defence alone can know what was the intention of the man who went to take the flowers or fruit or branches. It cannot possibly be for the prosecution properly to prove that. I have therefore reversed the onus, so that it would be for the defence to make out that particular matter; to establish that there was no question of reward or sale or other commercial purpose. That would provide a defence for what would otherwise be theft under this Bill.
§ I should have thought that this was a sensible compromise to make, particularly in view of the fact that this is a new distinction that is being drawn. I think it cuts across at any rate two of the old sections in the law that is being repealed, and in neither of those sections, so far as I can see, is any requirement such as appears in this Bill placed on the prosecution. Equally, there is no special defence set up, so that that would not be necessary under the existing law. I should have thought that this Bill goes too far in this matter, and that it is necessary. in order to bring home convictions under this subsection, to amend the clause on the lines that I have suggested. I beg to move my first Amendment.
Page 2, line 28, at beginning insert ("Subject to subsection (3) below").—(Viscount Colville of Culross.)
§ VISCOUNT DILHORNE
I do not know whether it will be for the convenience of the Committee and of the Minister in charge to discuss at the same time the Amendment in my name to leave out the whole of subsection (3). It seems to me, having heard my noble friend deploy his argument, that if we deal with the Amendments separately this is bound to involve a considerable repetition of argument.
§ LORD STONHAM
I should have thought that that would be convenient. In some respects, the Amendments spoken to by the noble Viscount, Lord Colville of Culross, are comparable to the Amendment in the name of the noble and learned Viscount, Lord Dilhorne. think it would be helpful to have one discussion on the four Amendments.
§ VISCOUNT DILHORNE
If that be the view of the Committee, I will cer- 14 tainly say what I should have wished to say in moving my Amendment. My noble friend Lord Colville of Culross has sought to redraft and to improve the existing provision. I want to raise the question as to whether we should have this special provision at all. The first point I want to make is that it appears to me very odd that in this clause, which seeks to define the word "property" for the purpose of Clause 1 of the Bill, the definition of "theft" should contain two subsections which create special offences, and this particular subsection, which does not say anything at all about in whom the property is vested in relation to wild flowers, mushrooms and so on. If there are to be special offences in relation to wild flowers and wild animals, then I should have thought that they ought not to be inserted as subsections in a provision dealing with the definition of "property", but should form separate clauses on their own.
As my noble friend has said, the Committee deal with wild flowers, et cetera, in paragraphs 46 and 47 of their Report. They considered, as he has said, several different courses. They said:It might be reasonable to let the law of theft apply in all cases.They pointed out thatlandowners and prosecuting authorities would presumably be sensible enough to prosecute only in the exceptional cases where this would he reasonable; and cases would us Tally be tried summarily and only a minor punishment, if any, imposed.It is, I think, worth noting the difference between paragraph 47, where this is said, and paragraph 56, in relation to dishonest appropriation without an intention permanently to deprive. The reasoning in paragraph 47 is equally applicable to dishonest borrowing. It is just as unlikely that there will be a prosecution except when it is reasonable; offences would also be tried summarily, and only a minor punishment, if any, would be imposed. The Committee thought that a provision that made it theft in all cases to pick wild flowers against the will of the landowner could reasonably be criticised, and so they put forward the compromise. I feel that, whatever be the right answer to the problem, their compromise really will not do.
I am certainly not seeking to suggest that a special provision should be inserted to make the picking of wild flowers 15 theft in all cases. The Committee came to the conclusion, as their Report shows, thata person should not be guilty of theft by picking mushrooms or other fungi, or flowers, fruit or foliage, growing wild unless he does so for reward or for sale or another commercial purpose… In the case of flowers, fruit or foliage exemption from liability to theft will depend on the thing being taken ' without damage to the growth' of the plant or tree.It is inherent in this that, for the act to be theft at all, there must be a dishonest appropriation: and that is provided by Clause 1. So the question really is this: If the picking is done dishonestly, should liability to conviction of theft depend upon whether the growth of the plant or tree is injured? There may be a wide variety of views as to what will constitute injury to the growth of a plant or tree. I should have thought that cutting the top off a tree for sale as a Christmas tree would involve injury to growth in that tree. But I may be wrong. I suppose it can be argued that the picking of a wild flower does not injure the growth of the plant. But in some cases—as, for instance, the picking of a wild rose—may it not do so? Will it not depend in every case upon the way in which the flower is picked?
I put this question in all seriousness to the noble Lord: Should the time of the courts, in considering whether or not a person has been guilty of theft, be taken up in resolving a conflict of evidence—and it seems to me that a conflict might easily arise—on the question whether the picking involved injury to the growth of the plant or tree? I should have thought that that was wrong. I suppose the picking of blackberries and other wild fruits does not involve injury to growth. But can the picking of foliage from a plant or tree ever be done without injury to growth? I should have thought not. But whether that be right or not, it seems to me a very odd test to apply to determine whether someone is a thief. If you dishonestly pick something without injury to growth, you commit no crime, unless you are paid to pick it or do it for a commercial purpose. But if you dishonestly pick a primrose, and in so doing happen to uproot the plant, then apparently you will have committed a crime, even if you did not intend to uproot the 16 plant, had not been paid for picking and had no commercial purpose.
The noble Lord, Lord Stonham, has argued with all the force at his command that no matter how dishonest a borrowing may be it should not constitute theft except in special cases. Yet the Government, and the Committee, put forward this proposal, in all seriousness, that if you dishonestly pick primroses and happen to uproot a plant you should be branded as a thief. Although subsection (4) says that wild animals are to be treated as property, subsection (3), the one we are concerned with, does not say that fungi, flowers, fruit and foliage growing wild are property. And yet, as I have said, this subsection appears in the clause which defines property, and unless Clause 4(2)(b) applies, I do not myself see how the subsection can bite. Subsection (2) says:A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases,"—and paragraph (b) is one of them—when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed;and the next exception then follows.
I should like to know whether the noble Lord, Lord Stonham, or the noble and learned Lord, the Lord Chancellor, takes the view that all these wild flowers, fruit and foliage form, until they are severed, part of the land; and whether they take the view that paragraph (b) of Clause 4(2) applies. Because unless these flowers are to be treated as the property of someone, it would seem to me that no one can be convicted of the theft of them, even though he takes them for reward or for commercial purposes. As my noble friend has said, it was clearly the Committee's intention to make the dishonest appropriation of flowers a criminal offence if the growth of the plant was injured. Even if it were right to do so, I must say that I feel very grave doubt whether, on the wording of this subsection, that has been done.
§ VISCOUNT DILHORNE
I am now on subsection (3). Even if it was right, as the Committee thought it was, to make it an offence, a theft, to take wild flowers with injury to the growth of the plant, 17 then I doubt very much myself whether subsection (3) satisfactorily provides for that. The drafting of that subsection is pretty involved and, I would think, with great respect to the draftsman, unnecessarily complicated. It would be easy to provide that:Any person who dishonestly appropriates any wild flowers"—et cetera—with the intention of depriving the owner thereof"—assuming that there is an owner—and in doing so injures the growth of the plant or tree is guilty of theft".But this subsection does not do that, and unless one has read the Report, it does not strike one on reading it that the intention is carried into effect to make that an offence.
Then, I would ask this question. Is it right to make the dishonest appropriation of such things without injury to growth a criminal offence if, but only if, it is done for reward or for a commercial purpose? So far as I am aware, this has not been the law heretofore to establish the offence of theft. And, with this provision, the prosecution will have to prove not only that the appropriation was with intent to deprive, but also, as my noble friend said, what was the motive for the appropriation. Here, subject to what the noble Lord, Lord Stonham, may say, it would seem to me that the onus of proving motive for the appropriation would rest upon the prosecution with the words as they now stand. If a man goes into a wood before Christmas and picks a lot of holly without injuring the growth of the whole bush—and I do not know how that could happen, but assuming it could—and is then caught loading the holly on to a van, it does not seem to me that proof of those facts will establish his motive. Unless he reveals what his motive is, how can the prosecution establish what it is? Unless he makes a statement saying what it is, he would have to be followed to see what he did with the holly.
Supposing—I am sorry to see no right reverend Prelate here—a right reverend Prelate wanted holly for his cathedral at Christmas time—naturally, for a cathedral a large quantity would be wanted—and supposing he persuaded someone to go out and collect some. If a man was 18 caught loading up a lorry with holly, it does not matter how much it was, he would not have committed any offence. He could not be convicted of taking it—unless, of course, the right reverend Prelate gave him five shillings for his trouble, because then he would be taking it for reward. It seems to me, in all seriousness, wrong in principle that the same dishonest conduct—for it always has to be a dishonest appropriation—should depend for its criminality on proof of motive.
I myself doubt, if this subsection is left as it is, whether it will have much practical effect, but for the reasons I have given I do not really feel it should be in the Bill. It is, I think, an unhappy compromise. I shall listen with interest to what the Government have to say about this, but I hope we shall not be treated to another lecture about how wrong it is to seek to amend in any particular or to criticise the Bill which has been produced by the Committee after so much time was spent on it by them. I must say that I do not think they have got this right, and, thinking that, I believe I ought to say so.
As I said, I am certainly against making and appropriation of all wild flowers theft, but I doubt whether it i really necessary to make any special provision in the Bill for wild flowers, et cetera. Those who go on another person's land to pick wild flowers or blackberries may be trespassers, but it is highly unlikely that there will be any prosecution. If they were to pick a few wild flowers or blackberries it would be highly unreasonable for the landowner to refuse to consent their doing so. Should there be a prosecution, it will be open to the accused to say, "I believe that the owner of the land would have consented to my picking these few flowers if he had known about it", and that statement, if bona fide, would entitle him to an acquittal. On the other hand, if the picking involved damage to the plant or tree—as, for instance, by breaking branches off a bush—it is unlikely that the landowner would have given his consent if he had known it was going to happen, in which case a court might well conclude that the accused person had no such bona fide belief.
I can think of one wood in Northamptonshire which at this time of year 19 is very lovely. Wild primroses are growing there in profusion, and efforts are made to stop people from picking them because it destroys the sight for other people who come by. I should like to think that, not for his own benefit, but for the benefit of the public generally, the landowner could effectively put up notices to say that the picking of primroses in that wood—they are wild primroses—is prohibited. But under this Bill, as it now stands, so long as the primroses are not uprooted, so long as they are not picked for reward or any commercial purposes, there can be no prosecution. I have put the matter as shortly as I can, because I believe it will be much better not to make any special provision for wild flowers, fruit and foliage. And I also think that even if the case is made out for making a special provision for them, this subsection does not do it satisfactorily.
§ 4.50 p.m.
§ LORD SOMERS
I should like to add a word to what my noble and learned friend has said. It is possible that a man may have, somewhere on his land, a single specimen of a very rare wild orchid. He may be a specialist in wild orchids, and he may invite friends from all over the country who are interested in the same subject to come and see it, because it grows nowhere but there. There are such cases. Some ignoramus who does not know one flower from another may come along and see this orchid, and pick it. He will have done irreparable harm, but will he not then be committing theft?
§ LORD STONHAM
Would it be likely in such circumstances that this rare orchid would be growing wild on the land?
§ LORD ROYLE
My present inclination is to support the noble Viscount, Lord Colville of Culross, in his Amendment, and to put the onus on the defence, but I am in a difficulty with regard to the Amendment for the complete deletion of the subsection, as suggested by the noble Viscount, Lord Dilhorne. This arises from my ignorance of the law at the moment. What is the situation at present? Is anyone guilty of theft under he present law if he goes into a wood 20 and gathers some flowers? It seems to me that if this subsection is omitted the public will be in the position of not being able to gather wild flowers in any circumstances.
§ THE EARL OF SWINTON
I wonder whether I might make one small suggestion? Speaking as a landowner I do not believe that anybody cares in the least about people picking blackberries. I cannot see why on earth they should not pick them; they always have done so, and I hope they will continue to do so. On the other hand, a great deal of damage can be done to holly trees, which are by no means common in this country and which certainly ought not to be attacked in any way without permission. Why cannot there be a simple clause in the Bill to say that it shall be a criminal offence to take holly without the permission of the owner? The owner could, and in many suitable cases would, give permission, but such a clause would save the great damage which is often done to an important tree.
§ LORD HURCOMB
May I appeal to the noble Lord, Lord Stonham, who has always shown himself to be an open-minded man, to keep an open mind on this complicated question? I hope that before long a Bill dealing with the better protection of our wild flowers, which is being introduced as a Private Member's Bill in another place, will come to your Lordships' House. This question must be dealt with carefully. I cannot pretend to be competent to deal with the legal issues in this Bill, but it seems to me that the owner of land who may have a great many wild flowers growing on his land needs rather better protection than is at present afforded to him.
Not far from London—in Surrey—the land of my great friend next door was full of snowdrops a little earlier in the year. They were picked by local "gipsies", as they were called, and the snowdrops were sold in Guildford market. If my friend, or anyone else, expostulated with anyone picking these flowers, the stock answer received was always, "I was picking them to put them on my mother's grave". I do not know whether that sort of plea would find much sympathy in the courts, but that was always the answer, and to prove that at the time of their being picked there was in the 21 mind of the person picking them an intention to deal with them commercially seems to me to be almost impossible.
I do not think it is necessary to say to your Lordships again that I am not a lawyer; and it might be more relevant to say that I am not a gardener. I do not know what is the opposite to having a "green finger"—if it is a pink finger, I certainly have it. Nobody knowing me would entrust me with the job of pruning his rose bushes, for instance, because I might do irreparable damage by attempting something which, properly done, would do good. I think the converse might easily apply. If, with malice in my heart and a boy-scout knife in my pocket (neither of which I am conscious of having), I were to hack at some bush of which I did not know the name, but, so far from doing it the harm which I intended, I did it a certain amount of good—which I think would be possible—I understand that it would be for the prosecution to prove that I had malice in my heart or that I was doing it for a commercial object. Both these things might be difficult to prove, especially if I was doing it out of carelessness, which I should have thought was criminal. I just put that question to the Committee.
§ LORD PARKER OF WADDINGTON
I should like to say a few words on these Amendments, if only to show that I do not understand where we are getting to at the moment. It may be I have misunderstood the whole position, but under Clause 4(2)(b) a man is guilty of stealing if he:is not in possession of the land and appropriates anything forming part of the land by severing itand so on. I imagine, although it does not say so specifically, that subsection (3) is a proviso to that provision: that although any picking of a flower, fruit or foliage would, under Clause 4(2), render a person liable to prosecution, it shall not do so in the circumstances set out in subsection (3). The only thing that worries me (and I am not expressing a definite view) is whether subsection (3) gives too great a protection, because the man's first defence is, "I never was guilty of any dishonesty because I honestly believed that I should have had the landlord's consent to taking the blackberries"—or the holly, or whatever it 22 may be. That is his first defence; and now, by subsection (3), he gets another defence, in that he can say, "Not only did I believe the landlord would consent but anyhow I was not doing it for reward, or for sale or other commercial purpose". I am wondering whether we are not leaning over backwards too much in favour of those who do sever from land.
§ 5.0 p.m.
§ LORD STONHAM
In so far as the contribution made by the noble Viscount, Lord Barrington, is concerned, I think the important thing to-day is not to have a green or a pink finger but to have a gold-finger. I would assure the noble Lord, Lord Hurcomb, that I am keeping a very open mind on this complicated question (as he put it) and indeed an open mind on everything that we discuss in Committee. I would ask you Lordships first of all, however, to have regard to the present law. As things are at present, it would not be theft to pick a primrose in the woods of the noble and learned Viscount in Northamptonshire.
§ LORD STONHAM
The law is still the same; it would not be theft. Nor, under the present law, would it be theft to pick the orchid growing wild predicated by the noble Lord, Lord Somers. Can we start from that point and consider what the Bill does to the present law?
VISCOUNT COLVILLE OF CULROSS
The difficulty is this. The noble Lord may be right. It depends where it is growing. If it were growing in the orchard or pleasure grounds, that would be an offence; in the wood, it would not.
§ LORD STONHAM
I have to deal with four Amendments. I am a simple layman dealing with a number of distinguished lawyers. Perhaps I may be allowed to proceed with the argument, because the very next point is the one the noble and learned Viscount mentioned when he said that the Larceny Acts do not distinguish between flowers growing in somebody's garden and those growing wild. I may put the argument in a very halting way, but it is in a way that I can understand, and I hope if my modest intelligence can understand the position other 23 noble Lords can understand it also. The position is this, and the noble Viscount has confirmed it. The present law in the Larceny Acts does not distinguish between flowers growing in somebody's garden and flowers growing wild. The Bill is an advance on that position because it does, and the immunity, if this Bill becomes an Act, would be only in regard to some of those flowers and plants growing wild in certain circumstances. I am dealing with four Amendments. I am glad to be dealing with them in one piece, as it were, because it would not make sense to deal with Amendment No. 8, or indeed with Amendment No. 12, in isolation. I am glad the noble and learned Viscount made his suggestion.
May I, quite unfairly, deal with those two Amendments first? The first suggests that we should insert the words "Subject to subsection (3) below", and the noble Viscount, Lord Colville of Cuirass, made it clear that this was only a paving Amendment to the subsequent one. If he will allow me to dispose of this first, there can be no question whatsoever that subsection (2) is subject to the provisions of subsection (3). I will argue the point if he wishes, but obviously it is a limitation or a variation on subsection (2). If the noble Viscount will look, for example, at the previous clause in the Bill, Clause 3, which has two subsections, he will see that we do not say in subsection (1) "Subject to the following subsection", because it is perfectly obvious that it is subject to other subsections in the clause. Therefore I hope I can dismiss that and say that the noble Viscount does not really want us to insert the words "Subject to subsection (3)" in Amendment No. 8, but has just put this Amendment down in order to marry it in with what he has subsequently proposed in Amendments Nos. 9 and 10. Similarly with regard to the noble and learned Viscount's Amendment No. 12, where he proposes the elimination of subsection (3), he himself has made it clear that he does not really want that, because he said. "I do not want everyone who picks wild flowers to be committing an act of theft".
§ VISCOUNT DILHORNE
I hope I have made my point clear to the noble Lord. I should like subsection (3) out. I do not want everyone who picks a 24 flower to commit theft, but that would not be the position if subsection (3) were left out; the ordinary general law would apply. So the noble Lord must not suggest that my Argument is inconsistent.
§ LORD STONHAM
On this I differ from the noble and learned Viscount, because in my view without subsection (3)—and I will come to this point in a moment—it would mean that everyone who picked a wild flower or, as the noble Earl, Lord Swinton, mentioned, did any of the things which everyone of us does do at some time or other, would be guilty. The whole populace goes into the countryside and does one or other of these things without any real harm.
§ VISCOUNT DILHORNE
Is the noble Lord suggesting that if one goes for a walk in the countryside and picks a wild flower one is picking it dishonestly? He will appreciate that for theft to be charged and a conviction obtained it must be established that the appropriation is dishonest.
§ LORD STONHAM
I do appreciate that, but in view of the noble and learned Viscount's example of the right I reverend Prelate sending somebody out I to gather in holly—whether or not that would be dishonest—and the kind of hypothetical cases I have listened to in the speeches made, I am beginning to believe that noble Lords here think that almost anything could be regarded by the courts as dishonest. I am trying to make my case. I have listened without interruption, or almost without interruption, to every other speech, and I should like, if I may, to get on with the argument. I assure your Lordships it is intensely difficult for me, not because I do not believe in the case, because I do, to try to put it in a connected way if every time I say something which is not in the belief of noble Lords opposite they get up to argue a particular point. I should be grateful to be allowed to put my case in a connected way.
I have not obtained agreement from the noble and learned Viscount that if subsection (3) were taken out of this clause everyone would be liable. I can only submit it as my view that everyone would. All we are trying to do here is to decide this intensely difficult thing of drawing a line between reasonable 25 enjoyment of the countryside by the whole populace and proper enjoyment of the rights of property—not saying that in any very narrow sense, but the right of a property owner not to have his land despoiled and his land rifled. We are trying to draw a happy medium. All of us have seen on a Saturday or Sunday troops of cyclists coming home with large bunches of wilting bluebells on the back of their cycles. We all know those bluebells will be dead before they get home. We all know that these cyclists have despoiled great beauty somewhere, and we ail know that these young people have been happy doing n, not in any sense of vandalism but in taking to themselves some of the beauty which they saw.
The Criminal Law Revision Committee have tried to draw the line in this very difficult matter. Clause 4(2) says:A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases. …and one of the exceptions, one of the conditions under which a person can steal land or things severed from land, iswhen he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, of after it has been severed.At that point, without any qualification—that is, without the qualification of subsection (3)—that means that severing anything in that way, if you are not in possession of the land, can be theft. That would be the position if the Government accepted the Amendment of the noble and learned Viscount in regard to sub-section (3), because that subsection goes on to qualify it. It says that it will not be theft ifA person who picks mushrooms growing wild … or who (without injury to the growth of the plant) picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or for other commercial purpose.You can make a lot of criticism in this difficult case. You can put up the case: Do you injure the growth of the plant or the shrub when you tear off a branch? Of course you do; there cannot be any question about that, and of course it is theft. It may be said there will be many cases where it is going to be difficult to prove that you are doing it "for reward 26 or for sale or for other commercial purpose". I submit that in the most important cases it is not going to be so difficult to prove. There must be a criterion somewhere. There must be a paint at which it can be said, "That is net theft, but this is". It seems to me that the words "for reward or for sale or for other commercial purpose" provide a sensible dividing line, because one may merely be following a natural instinct, a love of beauty.
I cannot go through a field without pulling up docks or knocking the heads off thistles. It is just something in me. It is not my land. The noble Lord, Lord Hurcomb, said that we may have the pleasure before long of having a Bill for the protection of wild flowers, and then we should have a choice of one of four different kinds of thistles; one of them would be all right and the others all wrong. We should have a difficult choice there. Does somebody like my-self commit a crime by doing that sort of thing? It may be alleged against me that I am picking or knocking the heads off flowers. It is not really doing wrong in my heart. I consider I am helping the farmer, because it is horrible to me to see docks and thistles growing unchecked.
§ LORD SOMERS
May I interrupt the noble Lord for one moment? I wonder whether he could make this quite clear. When Clause 4 says that a person cannot steal land, does that mean that he must not, or that he cannot be accused of doing so?
§ LORD STONHAM
It means that he cannot do it. It is something that it is not possible for him to do. That is the precise point that we are discussing, although at the moment we are discussing things severed from the land in the shape of plants and flowers.
Now may I deal with the speeches that were made on this matter, and first that of the noble Viscount, Lord Colville of Culross. He dealt with damage to the growth of the plant. I do not think there is any question about cutting the top off a large conifer. That, of course, would be theft. There is no question about its damaging the tree. But the rather novel point which he put, that if you dig up a plant and replant it in your garden you 27 may not endanger its growth, is a very nice point, and one I want to look at. Some of these things may seem trivial but I do not think they are. They are not trivial in court. Many of these are matters which are long overdue for decision, and I should be glad to look at that particular point, which frankly had not occurred to me. But so far as there being grave difficulty about the test of proving a theft, whether it be for reward or for sale or for commercial purpose, is concerned, I greatly doubt it. If you see a lorry loading Christmas trees or holly, it must be realised that the police are there to do their job, and even if, as the noble and learned Viscount suggested, it was the right reverend Prelate who had engineered it, which is unthinkable, it could, in the terms of this Bill, be theft. It does not matter whether it is the right reverend Prelate or anyone else.
The noble and learned Lord, the Lord Chief Justice, Lord Parker of Waddington, asked a question about subsection (2)(a) and subsection (3). I accept, and agree with, his interpretations. The idea is that, even if there is dishonesty. the nature of wild plants, and so on, is such that we should not change the law by making the picking of them theft in all circumstances. It may of course be malicious damage, and in this Bill we are not changing the law with regard to malicious damage. As the Lord Chief Justice knows, cultivated plants can be stolen under the existing law, and they will be stolen under the continuing law. I have in mind this question of commercial purpose. My mind goes back to my boyhood on a farm, a long time ago. That farm was famed for almost everything, but particularly mushrooms. Of course people used to go there for a commercial purpose. There was never any doubt about it at all. We knew their commercial purpose; we knew who they were. We knew who they sold the mushrooms to, and of course we took steps to stop it. The most effective step was to get up an hour earlier to get the mushrooms before anyone else got them. But there was no question about this, and in most cases that is so, whether it is Forestry Commission land or not. In the really bad cases, those that most people are concerned with, there would not he a great difficulty in proving these matters.
28 I come on to the formidable case put by the noble and learned Viscount, Lord Dilhorne. His first point was that this particular provision should not be in a subsection but should be in a separate clause in the Bill. I am talking now about subsection (3). That is something that we will look at, although it is not a major point. He also said that subsection (3) does not indicate who would be committing the offence.
§ VISCOUNT DILHORNE
I am most reluctant to interrupt the noble Lord, but, with the greatest respect, I did not say that. If I may help the noble Lord, what I did say—and he has not dealt with it yet—was that if it is intended to make it an offence to pick with injury to the growth, as I think the Committee recommended, I do not think that the drafting of subsection (3) provides for that nearly as clearly as it should.
§ LORD STONHAM
I was coming to that point. I had understood that the noble and learned Viscount said that it did not indicate who would be committing an offence, but if that is not so, I accept that. However, I think the noble and learned Viscount did say that he thought the compromise which had been arrived at by the Committee would not do. He thought that to be theft there must be dishonest appropriation, and he asked whether it should rest on dishonest appropriation. He also asked the quite pertinent question, should the time of the courts be taken up on a conflict of evidence of whether the picking or taking rested on whether or not it caused injury to the growth. There is a great deal of that. But that is one of the criteria, and it is one that I have said I will look at on the suggestion of the noble Viscount, Lord Colville of Culross. But on the question of the commercial purpose, so far this is the only dividing line which has been put forward. On the debate so far it seems to me that it is something to which we should adhere.
The noble and learned Viscount asked whether these items in Clause 4(2)(b) form part of the land until they are severed. The answer is they do—there can be no question about that. Since they do, then to take them would be theft subject to subsection (3). This is our view, and this is something on which obviously we do not agree. It has been 29 suggested that the onus of proof should not rest on the prosecution. This is something with which we would disagree. We think that the onus should rest on the prosecution and, frankly, I do not see any way at present of resolving that difference of opinion, but I will look into it. As we understand the law at present, we think that this would be a change in the law for which there is no justification. Indeed, I did not hear the noble Viscount, Lord Colville, put forward a convincing justification for this change of the law in putting the onus of proof on the defence in these cases. The suggestion was made, and we will look into it, that the landlord should be able to put up a notice saying that the picking of primroses, or whatever it may be, is prohibited on the land, and I understood the noble and learned Viscount to suggest that violations of such a notice could be regarded as theft.
§ VISCOUNT DILHORNE
I do not want to go on interrupting the noble Lord. I meant, of course, if it was a dishonest appropriation.
§ LORD STONHAM
This is another matter which we will look at. My noble friend Lord Royle asked what would be the position if the subsection were removed. I think that I have adequately answered that point. The noble and learned Lord, Lord Parker of Waddington, thought that paragraph (b) gave too great a protection. This is a view which we have not previously had put forward, but I will look at that.
§ LORD PARKER OF WADDINGTON
The noble Lord is always so helpful in these matters. I wonder whether he could look into the point, because it seems to me to be somewhat curious. The prosecution have to negative that the alleged offender did not believe that he would have the landlord's consent if he had asked for it. Suppose the prosecution cannot do that. Suppose it is a clear case where the landlord has put up notices so that the man cannot avail himself of that defence and knows full well that he could not get consent. Yet, apparently, under subsection (3) of Clause 4 he can put up another alternative defence and say, "I knew I could not take them, but I was not taking them 30 for reward." That seems to me to be a little difficult.
§ LORD STONHAM
Certainly it is quite wide, and we will look at that point. To sum up, so far as Amendment No. 8 is concerned it is obvious that subsection (2) must be subject to subsection (3). As for the deletion of subsection (3) as distinct from amendment, I think that for the reasons I have given it would be wrong to delete it. With regard to the consideration of the details of Amendments Nos. 9 and 10, which are the alternative to our proposals, I have given an indication that we will look at all the points very carefully between now and Report to see whether it is possible to meet the noble Lord's suggestions on those points.
§ 5.24 p.m.
§ VISCOUNT DILHORNE
I realise the difficulty of the noble Lord, and I sympathise with him, in dealing with such an intricate subject. I hope that I did not interrupt him unduly. I think that I did so only when he was putting wrongly a point which I had made. I did not want to interrupt the chain of his argument. I should like to take the opportunity to reply to what he has said because I felt that throughout his argument there ran a fundamental misconception of the position. Time and again he said that things would be theft which are not, and could not be under this clause. He said that, if subsection (3) was deleted, everyone who picked a wild flower would be guilty of theft—that any severance would be theft. That is not so at all, if I may try to convince the noble Lord that my argument is right. Clause 4 seeks merely to define what is covered by the expression "property", which appears in the definition in Clause 1 of what is meant by theft. What Clause 4 provides is a definition of things which are capable of being stolen. That is a very material difference from saying that if you pick a wild flower it is theft. As Clause 4(2)(b) stands, it is quite clear that anything that is severed is capable of being stolen, but it does not follow that if you sever it you are a thief.
In his answer on Amendment No. 8 the noble Lord said that subsection (2)(b) was subject to subsection (3). I thought so too, and I never indicated 31 to the contrary. But one often sees sections beginning, "Subject to the following provision" or "Subject to the following subsection"—it is a commonplace. Bearing in mind that this Bill will have to be considered not only in superior courts but in magistrates' courts throughout the country, I think that if subsection (3) remains it will ease the task of the magistrates if those harmless words are inserted.
I come back to the question: is it right to keep this extremely complicated provision at all? I do not want to repeat what I have said, but all the noble Lord's arguments are completely wrong in saying that if one leaves out subsection (3) the picking of a wild flower is theft. Consider the position if one takes out subsection (3). Any foliage or holly which is picked, any flowers which are picked, will all, by virtue of Clause 4(2)(b), be things which are capable of being stolen. But whether or not they are stolen depends on the positive proof by the prosecution, beyond all reasonable doubt, that there has been a dishonest appropriation.
Take the case, with which the noble Lord is so familiar, of people going into the countryside on a Sunday and picking blackberries, flowers and things of that sort. I do not believe that any court in the world would think that that was a dishonest appropriation. I do not think people doing that would be in any peril at all. As I pointed out—and I am glad to have the confirmation of the noble and learned Lord, Lord Parker—should there be some landowner who is so harsh as to prosecute, there is an absolute defence if the people had a bona fide belief that they were entitled to them.
If the bona fide belief was, "I thought the landowner would have consented to this if he had known about it", that is a clear defence. If someone goes in and does a lot of damage, then that defence may not prevail—and rightly not. If the landowner had put up a notice prohibiting the picking of primroses, in the instances I gave, then the man could not say that he thought the landowner would consent to the picking. But that is a very different thing from saying, as the noble Lord, Lord Stonham, so frequently asserted, that any picking of a wild 32 flower would be theft. It would depend upon the circumstances of the picking.
I dealt with the case of the right reverend Prelate as an example, and the right reverend Prelate would not be commiting any offence if he asked the noble Lord to go and get some holly. Under the Bill as it stands, no offence would be committed if someone went off and brought back lorry-loads of holly. It would be no offence under this Bill, because it would not be for reward, it would not be for a commercial purpose and it would not be for sale. I am assuming, of course, that it is possible to pick holly (though I doubt it very much) without injuring the growth of the holly bush. I doubt whether you can pick any foliage without injury to growth; but, assuming that you can, doing that is not doing something which under this clause as it stands could possibly be regarded as theft. The point I was making was that if the right reverend Prelate went further and gave a man 10s. for the trouble he had taken, then it would be theft, and I myself do not think that that is a possible line of distinction.
The noble Lord, Lord Hurcomb, made an eloquent plea in saying that this particular part, with regard to wild flowers and so on, should be dealt with in a special Bill. I must say that I think there is a great deal of force in that contention. I believe that we should do much better to leave this Bill—and I hope it will be a good Bill at the end of the day—dealing with what I might call the law of theft generally, leaving what might be called the fringe matters, such as wild flowers and wild animals, to be dealt with by special branches of the law relating to them.
I always listen with great attention to the noble Lord, Lord Stonham, but it seemed to me that he was quite clear in his own mind that he must retain subsection (3) with its special defences based on reward, commercial purpose and sale. I think that is wrong in principle, and therefore I hope that the Committee will support me in excluding this particular subsection from the Bill, in the belief that it is wrong to leave it there and that these matters would be much better dealt with in separate legislation.
§ LORD STONHAM
Perhaps I can clear up some possible misapprehension. 33 I believe that subsection (3) is necessary to the Bill, but I do not think that this or any other provision is necessary in its exact and present form, and I have said that I will look at it. With regard to what was said about my remarks, I think it is true that I said that if this subsection came out any severance would be theft. The noble and learned Viscount said that Clause 4 is providing a definition of things capable of being stolen. That is perfectly right. But subsection (3) is providing a definition of things that cannot be stolen. That is my whole point. If subsection (3) is taken out and nothing is put in its place, then I am absolutely right.
In subsections (1) and (2), Clause 4 provides a definition of things capable of being stolen, and subsection (3) provides the exceptions—the kind of things we all do which cannot be stealing. That is why I want the subsection in the Bill. The noble and learned Viscount then said that with subsection (3) deleted any flowers or foliage picked under subsection (2)(b) could be theft. That is quite right. But whether it is or is not theft, he says, depends on whether the court considers that there is a dishonest appropriation. Again, that is right. But he is throwing on to the court a whole mass of these cases which would not be thrown on to the court if subsection (3) were retained. This is clear to me.
I have tried to answer, fairly and precisely, all the points that have been raised in the debate—indeed, I have four briefs and I have not used them at all. I should not have thought it appropriate that these four Amendments could be pressed to Divisions. But, if they are, then I hope your Lordships will support me in rejecting them.
§ 5.36 p.m.
VISCOUNT COLVILLE OF CULROSS
It is, after all, my Amendment and, as I am feeling at the moment, I should have thought it would have been quite right to ask leave to withdraw my first Amendment, No. 8. The matter has been discussed, and I do not think it was wholly valueless to put down the Amendment, because I do not believe that the clause as it stands is clear, and it needed discussing. I do not want to prolong this discussion but I want to understand what the noble Lord, Lord Stonham, is prepared to do about my point. He said 34 that subsection (3) provides an exception, or provides a definition to do with property. So, in part, it does. But it does something else: it also introduces the question of the motive. The noble Lord will remember very well the speech on Second Reading of my noble and learned friend Lord Dilhorne. The noble Lord, Lord Stonham, says that I have produced no very good reason why I should change the law in this subsection. But, equally, neither have the Criminal Law Revision Committee; nor has the noble Lord produced any very good reason why we should change it in this particular way. For it is perfectly plain that, whatever else is being done, this subsection changes the present law. It is not the same as the present law. There is no necessity under the present law for the prosecution to prove, or for the defence to disprove, anything to do with reward, sale or commercial purposes.
As I understand the situation, it is this. Before the prosecution can get anywhere at all, they have to prove dishonest appropriation of property. The noble and learned Lord, the Lord Chief Justice, says that the defence has two ways in which it can act. It can try to act under Clause 2(1)(a); that is to say, the person who took it can say that he thought he would have had consent if the owner had known about it. If he fails on that, he can go on to say, "Well, anyway, I did not injure the growth." Those are his two defences. Now, for some extraordinary reason, instead of providing another defence which I think was what the noble and learned Lord, the Lord Chief Justice, suggested, where a person can say, "I did not do it for reward", the subsection requires that ht the beginning of the whole case the prosecution should have to prove that the man did it for reward, or for sale or other commercial purposes.
I believe that this is completely mixed up. I believe that this whole concept comes in, if it is to come in at all, as one of a line of defences. The first defence is, "I had consent, or I would have done if the owner had known". If that is disproved the second is, "Well, I did not do any damage". If that is disproved the third one is, "I did not do it for reward, or for sale or for any other commercial purpose". In my opinion, for what it is worth, this must 35 rest upon the defence. Is the noble Lord, Lord Stonham, when he says that he is going to consider this again, prepared to consider that, because if so I may be prepared to take a certain course? But if, as I rather thought he said, he is quite determined that, come what may, the prosecution must prove this, then I do not think I can agree with him. I wonder whether he could clear up that point for me.
§ 5.40 p.m.
§ LORD STONHAM
I most certainly feel that that the burden of proving that the conduct was not criminal ought not to be put on the defence. There is the general principle that the prosecution should prove guilt unless there is some strong reason for their not doing so. I do not know whether the noble Viscount considers that the result of his suggestion might well be that if the jury were left in doubt, on the evidence, whether the picker had a commercial purpose, they ought to convict. In fact, the provision would be unlikely to have this effect, as the jury would be likely to acquit or to find guilty on their estimate of the evidence put forward.
In answer to the noble Viscount's direct question, my feeling with regard to this Committee stage is this. We have been discussing this matter now for an hour and a half (I do not make any complaint about that: I am glad that we have been), but a decision on the arguments that have been put forward ought not to be taken on a Division, with the chances of this question being decided perhaps by noble Lords who have not heard the whole of the argument. I would rather look at all these points, in complete honesty and fairness, between now and Report, and then discuss it again with noble Lords, leaving them perfectly free to take whatever course they liked about a vote at that stage. That, I would have thought, irrespective of the outcome, is the best way to handle these matters in general.
§ LORD PARKER OF WADDINGTON
I wonder whether the noble Lord would allow me to suggest an alternative, if he is going to look into this matter. I know that many people object to having any sort of burden, even "on the balance of probabilities", placed upon the defence. 36 On the other hand, it is far less objectionable if something is made evidential proof—not conclusive proof, but something calling for an explanation. It may be that, instead of putting the burden on the defence, it would be possible to say that in the case of anybody found in possession of, for instance, bundles of holly, or whatever it may be—one of these articles—the fact that they are found should be evidence, by which I mean some evidence, that it was for sale or reward.
§ THE LORD CHANCELLOR
Yes. That, if I may say so, seems a very sensible halfway house. In a criminal case one is always very reluctant to move the onus of proof from the prosecution on to the defence. On the other hand, having listened to the arguments, I have some sympathy with the view that in this particular kind of case it is difficult for the prosecution to be expected to discharge the onus themselves. I should very much like to have the opportunity of considering the suggestion which the noble and learned Lord the Lord Chief Justice has made.
§ Amendment, by leave, withdrawn.
THE CHAIRMAN OF COMMITTEES
Before I call Amendment No. 9, I must point out that if this Amendment is agreed to I cannot call Amendments Nos. 10 and 11.
§ 5.43 p.m.
§ VISCOUNT DILHORNE moved to leave out subsection (3). The noble and learned Viscount said: We have already discussed this Amendment. I have listened to the recent interchange between the noble Lord, Lord Stonham, and the noble and learned Lord the Lord Chief Justice, and to the observations of the noble and learned Lord the Lord Chancellor. I myself feel that it really would be better to excise subsection (3) in its present form from the Bill. Quite frankly, I did not think the answer given by the noble Lord was satisfactory. But I will also say to the noble Lord that that does not stop him bringing back a revised subsection on Report stage. I myself feel—and I am saying this in all seriousness—that it really is impossible 37 to amend the wording of subsection (3) to get it right, but my view may not prevail on the Committee. It may be better to leave it to the ordinary law. But I am quite certain that this is not right, and that as it stands it could not give effect to the suggestion put forward by the Lord Chief Justice. I therefore feel that we would do much better to leave the subsection out, bearing in mind that the Government, when they have had afterthoughts, can table a fresh subsection for Report stage if they think it is necessary. But I hope they will consider again whether it is really necessary to make special provision for this in the Bill. I beg to move.
Page 2, line 42, leave out subsection (3).—(Viscount Dilhorne.)
§ LORD SILKIN
I hope the noble and learned Viscount will not press this Amendment to a Division. My noble friend has already given an undertaking that he will look at this and consider the suggestion of the Lord Chief Justice. It may well be that at the end of the day he will not be able to produce any alternative which will meet with the approval of the noble and learned Viscount, in which case he can press it to a Division on Report. But to take out subsection (3) altogether at the present stage would, I think, be quite wrong in view of the assurance that it will be looked at together with all the suggestions that have been made.
§ LORD ROWLEY
I should like to associate myself with what my noble friend has just said, but I should like to ask my noble friend Lord Stonham whether, when he comes to deal with this subsection on Report stage, he will make it clear that any person who is walking along a country lane and who takes blackberries from a hedge, or crab apples, is not within the terms of this subsection. Perhaps my noble friend has already dealt with that point.
§ LORD STONHAM
I particularly dealt with that point, and it is the basis of the whole case I put forward.
§ VISCOUNT DILHORNE
I have listened to what the noble Lord, Lord Silkin, has said about this. I am very reluctant to divide the Committee except on matters which I think are matters of 38 principle. I think this Amendment comes within that category. I must say—of course, I must take a slightly different line from my noble friend—I do not like proof of motive coming into it at all, because it seems to me to be the wrong test to apply when determining criminality in this field. I think there are many objections to it, but I will not expound upon them at all. If the noble Lord will go so far as to say that when he reconsiders it he will reconsider the whole question, I will withdraw the Amendment. But I do not want any limited reconsideration; I do not want the reconsideration limited to where the onus of proof should be, or whether it can be dealt with by evidence, as the Lord Chief Justice suggested. I hope that the Government will look into the whole thing again, because it is pretty complicated and, on any view, I do not think it is very well drafted. If the noble Lord will say that, I will certainly withdraw the Amendment.
§ LORD STONHAM
I can only give the undertaking that I shall look into the whole of the matters raised in subsections (2) and (3) of this clause. That is my undertaking, and I cannot go beyond that. The whole Committee knows, and has known for many years, that any undertaking I give will be carried out.
§ VISCOUNT DILHORNE
I have never doubted that an undertaking given by the noble Lord would be carried out, but he has now quite clearly and specifically given a full undertaking covering the matters I wanted to cover, and in those circumstances I ask the leave of the Committee to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
THE CHAIRMAN OF COMMITT'EES
Before I call Amendment No. 12, I must point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 13.
§ 5.48 p.m.
§ VISCOUNT DILHORNE moved to leave out subsection (4). The noble and learned Viscount said: Again it might be for the convenience of the Committee, if it is not putting too heavy a burden on the noble Lord, Lord Stonham, and if my noble friend Lord Colville of Culross agrees, to discuss 39 Amendment No. 13 together with Amendment No. 12, because otherwise we shall be repeating many of the arguments.
No less than eleven paragraphs of the Report, occupying more than four pages, relate to wild flowers, and eight paragraphs and more than three pages to this subject of wild animals; but there is only one paragraph devoted to the much more important question of whether it is necessary to obtain proof of an intention permanently to deprive. In paragraph 51 the Criminal Law Revision Committee summarises the arguments for treating a poacher as a thief, and that paragraph begins with the statement that there is a case for doing so. The next paragraph says that there are strong arguments to the contrary, and says what they are. Having regard to the contrast between the opening words of each paragraph, I was rather surprised to find in paragraph 52 that, in spite of the strong arguments against doing so, the Committee were at first:
in favour of making all wild creatures in respect of which sporting rights exist the subject of theft. But in the end we thought that this would be too great a departure from the present law.
And again they proposed a compromise. In some cases a poacher will be convicted of stealing; in other cases he will not; and whether or not he is convicted of stealing and branded as a thief will depend not on his conduct but on whether he is paid for what he does or whether he does it to sell what he poaches. Here again a certain question of motive arises. The Committee's reasons for this conclusion are set out in one sentence, and one sentence only. They say:
However we think that cases of real dishonesty ought to be theft, especially where the poaching is done on a large scale for commercial purposes.
§ I must confess that I do not find this a very convincing argument for the compromise. Not all real dishonesty is to be regarded as theft. No matter how real the dishonesty, the noble Lord, Lord Stonham, holds the view that appropriation without an intent permanently to deprive should not be a crime. Neither is it the case that all who poach do so for reward or for commercial purposes on a large scale. One can illustrate this by taking an example. If a poacher takes 100 40 pheasants to give them to his friend, then under this Bill he will not be liable to be convicted for stealing. But if he is given 5s. by a friend to go and get a brace of pheasants, or if he goes on his own initiative to poach a brace of pheasants to put them on the market, and that can be proved, then he can be convicted of stealing. His liability to conviction will depend not on the value of what he has taken nor upon what it is, but on whether it can be proved that he is paid or has poached for a commercial purpose.
§ The Committee appeared to think that there are two classes of wild creature: those to which sporting rights attach and those to which they do not. Is this right? I thought that sporting rights were rights over land, and that while their exercise might be limited to certain animals it was wrong to say that there is a class of wild animals to which sporting rights exist. The subsection says that wild creatures are to be regarded as property. Whose property?—because they must be the property of someone for the crime of theft to be committed.
§ To answer that question one must look at Clause 5(1). Has the landowner "possession or control" over the wild pheasants on his land? Has he in law any "proprietory right or interest" in them? The Bill does not state that he has. If he has not, the poaching of wild pheasants for commercial purposes, no matter on how large a scale, will not be theft. The position may be different where the pheasants are reared; and then his liability to conviction may depend on proof that they were, in fact, reared pheasants. I do not think that that will be very easy to achieve.
§ The same question arises with regard to partridges, wild birds. Whose property are they? And what about wood pigeons? Whose property is a wood pigeon flying in the air? Is the landowner to be regarded as having "possession or control" over wild pheasants, wild partridges or wood pigeons; or of having a "proprietary right or interest" in them while they are on his land? And whatever applies to pheasants must apply to other wild birds. There are people nowadays employed for reward to shoot pigeons. If such a person goes on land not belonging to his employer and shoots a pigeon will he not be liable to prosecution for theft?41
§ I am dealing with this shortly because, in my belief, with all the complications that are involved in dealing with wild creatures—making them sometimes the subject of property which is capable of being stolen and so sometimes making it possible to charge someone with stealing them—it would be much better to leave the question of poaching to the poaching law and not to try to bring some poachers in as thieves and have them convicted of larceny. I think we should leave poaching cases which relate to game, fish and deer to the game laws and not bring them in into the law of theft.
§ Another reason why I should like the Government to think again about this is because of the difficulty one will have of proving that the poacher was being paid or was poaching with a commercial motive. If he is found by the game-keeper with game in his possession, it is no evidence—and I mark the word "evidence"—that he did it for reward or for commercial purposes. The noble Lord said just now, in relation to people out to pick mushrooms from a field: "Oh, we all know that it was for a commercial purpose." I dare say the game-keeper knows very well that So-and-so, a poacher he knows, is poaching for commercial purposes. But it is a different thing indeed to produce evidence of that view in court. It will have to be proved affirmatively; and if the onus is on the prosecution it will have to be proved beyond all reasonable doubt.
§ I should like the noble Lord to say that he will agree to this clause coming out de bene esse and that he will think again about the whole subject. I hope he will not fight to retain the clause which in my view, I must say again, contains an unsatisfactory and unworkable compromise. I beg to move.
Page 3, line 3, leave out subsection (4).—(Viscount Dilhorne.)
VISCOUNT COLVILLE OF CULROSS
I am in entire agreement that my Amendment No. 13 should be discussed at the same time as this one. I do not wish to deal with it at any length, because if there is to be a subsection (4) some of the thought that the noble Lord, Lord Stonham, promised he would give to subsection (3) could also with advantage be applied to subsection (4). There is 42 the same question, in my Amendment, of turning the onus from the prosecution to the defence; and if the noble Lord is going to consider turning this into an evidential matter, such as was suggested by the noble and learned Lord the Lord Chief Justice, I should have thought he could also consider dealing with it in subsection (4).
I should like the noble Lord to give particular consideration—and I think it is very apposite here—to the point that it may well be that the proper test is not simply reward, sale or commerce (to borrow, if I may, a phrase of the noble and learned Lord, Lord Wilberforce) but that it applies to people who do this on a commercial scale. If that is the thought behind what some of us have in our minds, then I think the question of evidence is peculiarly apt to express that type of thought. It may be that the noble Lord—although I do not expect him to deal with it to-day—will be able to fit in that conception.
§ LORD STONHAM
I do not think I shall be able to deal with that point to-day. Would the noble Viscount deploy this argument so as to enlighten me somewhat? He quoted the noble and learned Lord, Lord Wilberforce, as finding a difference between "commercial scale" and "commerce". I remember on Second Reading that the noble Viscount asked what we were to do about people who steal 50 pheasants and put them into a deep freeze, which is a sort of commercial scale, but which it might be argued was not for commerce. But the noble and learned Viscount, Lord Dilhorne, says, and quite rightly, "How do you get the evidence, how do you prove it?" As we are considering this matter, will the noble Viscount, Lord Colville of Culross, develop his argument a little?
§ 6.0 p.m.
VISCOUNT COLVILLE OF CULROSS
I will certainly try to, although it is to some extent as novel a proposition to me in this form as it is to the noble Lord, Lord Stonham, because I am trying to follow what the Lord Chief Justice has said. I go back to what I said on Second Reading about the mischief which seems to be inherent in this matter. It is not so much a question of a man who takes one pheasant to sell it as opposed to 43 taking one pheasant to eat in his own house. We are really after the man who takes 50 pheasants, or 50 birds, or creatures of whatever sort for whatever purpose, and then tries to make out that he is using them for some domestic or family purpose, when in normal cases no doubt somebody who took as many as that would be doing it only for commerce, sale or reward.
There are methods nowadays, in the case of fish and animals, by which a large number may be kept in cold storage and they will stay fresh for a long time, and you can go on eating them. This seems to me, at any rate, to bring economics into the matter. After all, somebody could take other people's birds or beasts or fish to feed himself and his family for a considerable period, and I would certainly think it within the concept of dishonesty that he should do so. Yet even if it were dishonest, it would not be criminal under this subsection, because he would not be doing so for reward, or for sale, or for a commercial purpose. If the onus is changed, as the Lord Chief Justice suggests, so that the fact that the man had a certain number of these beasts or fish or birds would become evidence that he had not done it purely for his own domestic purposes, it may be that this concept of a commercial scale could be brought in.
It may be that there is a proper defence in the first place if the man can show that he had not done it for reward or sale or for a commercial purpose; and it may then be evidence for the prosecution to show that, if he had a large number of them, that is unlikely to be true. I am not saying which way round it would be done—it would need a certain amount of thought; but I suggest that there is a proper place in this consideration for the commercial scale.
There is one other point that I should like to raise, and I hope that it will not be thought to be purely frivolous: it is certainly not intended to be. It is raised in my Amendment No. 13, relating to the phrase in subsection (4), that a person cannot steal:a wild creature not tamed nor ordinarily kept in captivity …That is what the Bill says. This is capable of two interpretations. It is capable 44 of meaning a type of wild creature, which type is not tame and which type is not ordinarily kept in captivity; or it is capable of being a particular wild creature that has not been tamed, and that that particular one is not ordinarily kept in captivity. I think that what is needed is the latter meaning, but I do not think the clause makes it perfectly clear. If the noble Lord, Lord Stonham, is going to look at this clause again, I should like to try to make it perfectly plain that we are not talking about types of wild creatures ordinarily kept in captivity, but about particular creatures which ordinarily were in captivity but had, at the time when they were taken, escaped. Those are the two points I should like the noble Lord to consider. I certainly shall not press my Amendment today because I believe that he could, with usefulness, consider these points together with those on subsection (3).
§ LORD STONHAM
With regard to the last point about a wild creature ordinarily kept in captivity, my own belief is that it means a particular one, and certainly I will look into it to make sure that it does mean that, if that supposition is correct. Certainly the meaning must be made clear, and I give an unqualified assurance on that point. With regard to the Amendment to leave out subsection (4) (the noble and learned Viscount, Lord Dilhorne, asked me not to defend it but to agree to its deletion). I must tell him that I cannot agree to its deletion at this stage. Here I agree with the noble Viscount, Lord Colville of Culross. This is something I have to look at. I think that fundamentally the question revolves on the law on poaching. The noble and learned Viscount said that if a poacher took a hundred pheasants and gave them to a friend, he would not, under this Bill, be liable to be charged with theft. I take leave to doubt that. The noble and learned Viscount also said that if the friend gave the poacher five shillings, the poacher would be liable to be charged with theft. Again, I would doubt that.
The noble and learned Viscount went on to say, some time later in his speech, that he agreed that we should leave poachers to the poaching law. I thought that that is what we were doing in this Bill; that we were certainly not taking 45 them fully into this Bill. I submit to your Lordships that if the Amendment to delete this subsection were accepted, it would not be clear whether or not the taking of wild animals would always be theft or would never be theft, because subsection (4) provides that they shall be regarded as property but that taking them shall not be theft except in the specific cases mentioned in subsection (4). Therefore, if you take out the subsection the question whether taking them would be theft would depend on whether they were property for the purposes of Clause 1; and the answer seems doubtful because, although wild animals when free are now in general "property", the land-2owner or other person having the right to kill wild animals on someone else's land has for the time being what has been called a "qualified property right" in them when they are on the land.
This argument may be sufficient, if read with Clause 5(1) to which the noble and learned Viscount referred, to cause the animals to be "property"—that is, property of the person having the right to kill them for the purpose of the Bill. But subsection (4) as drafted, if left in the Bill, makes the position quite certain, in our submission, and purely for that reason (this was my thinking before I listened to the debate) I think it should be retained, though not necessarily in the present words. But certainly there should be a subsection to that effect. In considering how to deal with this and how to deal with the points raised by noble Lords I have to make clear (in this I think that I shall have the agreement of the noble and learned Viscount) that we do not want, as he put it, to do otherwise than leave poachers to the poaching law. Apparently, the noble and learned Viscount feels that in this subsection we are not doing that.
I will look at the matter from that aspect, and certainly I will look at the point raised by the noble Viscount, Lord Colville of Culross, that the proper test is not simply that of reward or commerce, but, as he put it, whether the taking was on a commercial scale. In other words, it is the argument of the housemaid's baby in reverse—not that I am overfond of that argument: frankly, if it is a crime, it is a crime, whether a small or a large one. But certainly I will have a look at that point.
VISCOUNT COLVILLE OF CULROSS
I did not suggest that size on a commercial scale should be the only test, but that it should be taken into account when the whole question of where the onus lies and the evidential point mentioned by the noble and learned Lord the Lord Chief Justice are being thought about in connection with subsections (3) and (4).
§ LORD STONHAM
I am certainly prepared to do that. I imagine that in some cases the same arguments apply, whether they are wild animals, dead or alive, or flowers. In certain circumstances they are property and taking them would be theft. I am perfectly prepared to look at the arguments on that basis and come back to your Lordships before we reach Report stage and let your Lordships know what my conclusions are. The practice I am following is, as soon as the Committee proceedings are published, to make my observations on the arguments that have been raised the day before, so that we have a continuous process. I hope to send your Lordships progressive reports on all these subjects.
§ VISCOUNT DILHORNE
I have listened carefully to what the noble Lord, Lord Stonham, has said. He has not dealt with all the points I have raised but I am not criticising or complaining on that account, because I gather that he will read them and consider them carefully. I should like to make a few observations on what he has said. I do not mind its being said that wild creatures are property. The question I raised under Clause 5(1) is really: Whose property are they? I think that that is very doubtful and very arguable. There are sporting rights over land but they may be limited to shooting deer. I should think that as a matter of law it is doubtful whether wild birds can be regarded as being in the possession or control of any body or that anybody has any proprietary right or interest in them. If they are not property, then there cannot be a charge of theft. And if we are going to make it possible to steal any wild bird, we are going to get a great deal of argument about whether they are property and whose property they are.
I wonder whether it serves any useful purpose to bring this matter into the law of theft. The only reason the Committee gave, in one single sentence, was 47 that real dishonesty, such as poaching on a commercial scale, justified bringing it in. I doubt whether that is so, in view of the complications, and I hope the noble Lord will give further consideration to the question. Subsection (4) will bite only on poachers, and I think it best to leave them to the game laws and if necessary amend the game laws. On the understanding that the noble Lord will consider all these matters carefully, I beg leave to withdraw my Amendment.
§ LORD HURCOMB
I hope that the noble Lord, Lord Stonham, will consider whether he is altering in law what has hitherto been meant by a wild bird. Without taking into account migratory birds, I would point out that game animals and birds are more or less sedentary but the place the wild population is in and the ownership of any particular bird can change many times in the course of the day. If that is a novelty, then the Bill will be introducing a confusion into what people have hitherto thought. This may be a matter of no substance, and I do not ask the noble Lord to make any reply, but if he is altering the legal definition of wild birds I hope he will think of this point.
§ LORD STONHAM
I must give the categorical assurance that I am not attempting to alter the law relating to wild birds. I remember the three years' discussion required to reach the present definition and it would take a much bolder and abler man than I to attempt to alter the law now. Perhaps the noble Lord has unwittingly reinforced the concluding remarks of the noble and learned Viscount and I will certainly look at the important point he has raised.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ LORD WILBERFORCE
I did not put down an Amendment to this clause because I thought that the noble Lord had enough Amendments to deal with, and perhaps I may be allowed to take advantage of our flexible procedure to draw attention to what seems to me is possibly a defect in one of the provisions of the clause. It arises in subsection (2)(a), which has so far not been discussed. I raise it simply as a point and 48 the noble Lord does not have to make a speech in answer. It says that land can be stolen in cases included under paragraph (a):where the person concerned is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise."—which seems to include agents generally—to selland so on; and then at the end it says:by dealing with it in breach of the trust reposed in him".I do not comment on the rather mediæval language in the last words, but they seem wrong, in the sense that they confuse a breach of trust with a breach of authority, which is a distinction well known in law. If we leave in the words "breach of trust" we shall be laying up difficulties for ourselves when the cases of agents and excess of authority come to be considered. I am afraid that this is rather a desiccated point. But this is a legal clause as well as a poachers' clause and a gardeners' clause, and I think that if the noble Lord takes advice he will find that there is something in it. I raise the point without asking for any assurance or reply.
§ LORD STONHAM
I will certainly look into it, but I would tell the noble and learned Lord that what we have in mind is dishonest appropriation by trustee or other persons who are able to dispose of land in this way. I will look at the last line and see whether the words are right.
§ Clause 4 agreed to.
§ Clause 5:
§ Belonging to another
§ (2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person hiving that right.
§ VISCOUNT DILHORNE moved, in subsection (2), to leave out from first "trust" to the end of the subsection. The noble and learned Viscount said: I tabled this Amendment because I was not sure of the kind of situation the subsection is meant to cover. I have since learned that it 49 is intended to cover fraudulent conversion, as it is now called—it will be a different name under the Bill—by a trustee of a trust property in which it can be said that a beneficiary has an interest. The example given to me was of a charitable trust, and I suppose another example is a discretionary trust, but if that be so, does the first part of the subsection apply? Who has the right to enforce a discretionary trust? Does it not suffice to treat the trust property as belonging to a person having the right to enforce it—that is to say, to stop at the word, "trust"? Is it necessary to go on to provide that an intention to defeat the trust ought to be regarded as an intention to deprive?
It seems to me odd that in this clause, which is intended to deal only with the meaning of the words "belonging to another", there should be this provision about intention. Surely it is misplaced and ought to be elsewhere. I am not sure what is meant in this context by the phrase "an intention to defeat the trust." Whatever that may mean, I ask the Committee to note here that the wording is:
… shall be regarded accordingly as an intention to deprive of the property any person having that right.
It is not worded as it is in Clause 1,
an intention permanently to deprive".
I am wondering whether the word "permanently" has been deliberately omitted from this particular provision. Is it the intention of the Government that in this instance an intention just to deprive will suffice? I beg to move.
Page 3, line 19, leave out from first ("trust") to end of line 21.—(Viscount Dilhorne.)
§ LORD WILBERFORCE
I should like to give my support to this Amendment. Here, as in all the other places in the Bill where trusts are referred to, there seems to be a little uncertainty in conception. It seems to me, at any rate, that this language is neither clear nor effective. To me, "to defeat the trust" is very curious language. It does not fit into any ordinary equitable language that I know, and I do not know what it is intended to do. If it is intended to include some misappropriation or conversion of trust property, then I think it would be much better to say so. At the 50 moment I think the clause would be better without it, or, if we are to have anything, the phraseology wants reconsideration.
§ LORD STONHAM
This subsection, as I understand it, is intended to deal with a case which is somewhat exceptional in English law but occurs in foreign law, where the beneficiary has, in law, no interest in the trust property. I understand that there are in certain American trusts examples of cases where the beneficiary has no interest in the trust property. Under American law, the beneficiaries have no interest in the legal sense, and we think the same conditions apply in some other countries. I confess that this is an abstruse point, and one which may not arise very often, but it was thought proper to provide for it. There is also the case of charitable trusts, where there is no ascertained beneficiary. The property would be treated as belonging to any of the persons entitled to enforce the trust under Section 28 of the Charities Act 1960. The words which the Amendment proposes to leave out prevent fraudulent conversion by trustees ii these classes of cases, and we therefore think they should not be left out.
With regard to the particular question which the noble and learned Viscount, Lord Dilhorne, addressed to me, may I say that the omission of the word "permanent" was not accidental. We do not think that in this place the word "permanent" is necessary. I must confess that I have not the equipment to deal with the point raised by the noble and learned Lord, Lord Wilberforce, and I shall have to look at it. It is a point of which I have not yet appreciated the significance, and I hope that the noble and learned Lord will allow me to look at it between now and the Report stage.
§ VISCOUNT DILHORNE
I have no objection to the first part of the subsection, the words,Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust.As I understand it, it is about that part that the noble Lord, Lord Stonham, replied; and it is the part which flakes provision for the charitable trust, the American trust and maybe the discretionary trust. The words about which I feel so much doubt are the words which 51 follow, which do not seem to me to hang on to the particular proposition:and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.I cannot think that that is a necessary consequence of the first part of the provision. I am saying this now, not expecting the noble Lord to reply, but in the hope that it will be given further consideration. I support what my noble and learned friend Lord Wilberforce has said. So far as I am concerned, I do not in the least know what is meant to be comprehended by the words "an intention to defeat the trust". I put down this Amendment because I thought it was something upon which we should have an explanation. I should be grateful if before the Report stage the noble Lord could inform me of his conclusions with regard to this point, in case I may want to put down the Amendment again at that stage. I beg leave to withdraw the Amendment.
§ LORD STONHAM
On the point of information, it is my hope that in all cases noble Lords will be informed in time to allow them to put down Amendments on Report.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Clause 6 [With the intention of permanently depriving the other of it]:
§ 6.26 p.m.
THE LORD CHANCELLOR moved to add to the clause:
( ) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (unless done with the authority or for the benefit of the other) amounts to a complete usurpation as against the other of the property, although lie does not intend the other to lose the property.
The noble and learned Lord said: I beg to move the Amendment standing in the name of my noble friend Lord Stonham. This Amendment adds a new subsection to Clause 6. That clause gives a partial definition of
with the intention of permanently depriving the other of it
in the basic definition of theft in Clause 1(1). Under subsection (1) of the clause a person is to be regarded as "permanently deprived" of property belonging to him by any dealing with it which amounts, or substantially amounts, to a complete usurpation as against him of the property, and in those circumstances it is immaterial that he does not finally lose the actual property. The Amendment provides that without prejudice to the generality of subsection (1) it is a "complete usurpation" where a person having possession or control of property belonging to another parts with it under a condition as to its return which he may not be able to perform (unless he does so with the authority or for the benefit of the other) even if he does not intend the other to lose the property.
§ The object of the Amendment is to remove any possible ground for argument that the reference in subsection (1) of the clause to a "complete usurpation" does not cover certain cases where there may not be a positive intention permanently to deprive, but which at present amount to larceny or fraudulent conversion—for example where the person having possession of another's property pawns it and spends the proceeds, and his ability to redeem the property is in doubt.
§ I am, of course, aware of the Amendment which stands in the name of the noble and learned Viscount, Lord Dilhorne, to leave out Clause 6. I am never quite sure why, where there is an Amendment to leave out a clause, we always take first Amendments to the clause and then the Amendment to leave out.
VISCOUNT COLVILLE OF CULROSS
Because the Amendment to leave out the Clause is discussed on the Question, That the clause stand part.
§ VISCOUNT DILHORNE
If I may say so, the only reason why I put down an Amendment to leave out Clause 6 is to give the Government notice that it is my intention as at present advised to raise a point on the Question, That the clause stand part. It avoids taking the Government by surprise that a question will be raised.
§ THE LORD CHANCELLOR
I anticipated that the noble and learned Viscount would probably do so. I was only speaking in general. It does seem odd that, if the general view to start with is that the clause should be left out, the Committee should spend a lot of time discussing Amendments to the clause which it is intended to leave out. Here we want, I hope, to consider the position of the Bill on the assumption that, in the end, the word "permanently" remains in Clause 1; or alternatively, does not. I think the noble and learned Viscount himself took the view that, while he wanted to see "permanently to deprive" taken out of Clause 1, he was not quite sure what effect it might have on other parts of the Bill, and in particular Clause 6. The noble and learned Viscount shakes his head, but he said, when we were discussing this on March 5: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."—[OFFICIAL REPORT, col. 1303.]And later (col. 1317) he said: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".I think it would be necessary for the Committee to consider at some stage—and I suggest here, rather than later—what may or may not be necessary if the Amendment so far made in Clause 1 is maintained, or, alternatively, if those words are put back again in the Bill.
It is not my intention to divide the House on this Amendment, but I would ask noble Lords to consider it first of all on the footing that Clause 1 remains amended as it is, and, alternatively, on the footing that the words, "permanently to deprive the owner thereof" are restored. Certainly if they are restored to Clause 1, and possibly in any event, the Government would wish Clause 6 to remain, and if it is to remain, then I would submit that this Amendment is a useful Amendment to make. I beg to move.
Page 3, line 47, at end insert the said subsection.—(The Lord Chancellor.)
§ VISCOUNT DILHORNE
This is, of course, an unusual situation and one not free from difficulty, because the Government have said that they will seek when they come to Report to reinsert tie word "permanently" in Clause 1, but at the present moment it is out. The noble and learned Lord the Lord Chancellor quoted two passages from what I said at an earlier stage. One of those passages related solely to the Amendment to take out the word "permanently" from Clause 1, when I said that I doubted whether I had done that correctly, because it had been suggested that I might take out from that clause, if I was going to take out that phrase, a few more words as well. That had no bearing at all upon Clause 6, and I was in some doubt at that stage what Clause 6 did. Of course, we have been able to read it, and I have made as much study of it as I can. It might be for the convenience of the Committee, I should have thought, to consider at the present time not only this Amendment but also the question of what the whole clause does, and in the context which the noble Lord suggested, first of the Bill in its present form, and secondly if the Bill is put back into its original form.
I should like, if I may, to deal first of all with the Amendment which the noble and learned Lord the Lord Chancellor has moved. I gather that it was thought necessary to make this Amendment in consequence of what was said in the Court of Appeal recently in the case of The Queen v. Thorpe. I find it rather puzzling, having read the judgment in that case. This Amendment deals solely with the case where a man in possession of property belonging to another parts with possession of it under a condition as to its return which he may not be able to fulfil—for instance (as the noble and learned Lord the Lord Chancellor said) when he pawns someone else's property and may not be able to redeem it. The case of The Queen v. Thorpe did not relate at all to a man in possession of another's property parting with it under a condition that he might not be able to fulfil. It had nothing to do with that; it was a case of fraudulent conversion. Thorpe carried on an estate agent's business and had convened for his own use money deposited with the estate agency business. In that case, 55 Lord Justice Winn, giving the judgment of the Court, said:A person is defrauded if his property is applied by the person with whom it was entrusted in a manner which to the knowledge of that person would not have been authorised by the person to whom it belonged".This Amendment, as it is drafted, would, it seems to me, alter that—I shall be glad to know whether the noble and learned Lord the Lord Chancellor agrees—for the Amendment provides that it will not amount to complete usurpation of the property if it is applied for the benefit of the person to whom it belongs, even if he has not and would not authorise such use. I hope I have understood this Amendment correctly—I think I have. If I have, this is changing the position from what it was declared to be in the recent case of Thorpe. I should have thought it was wrong to change it in that respect. As I have said, that was a case of fraudulent conversion. This Amendment is intended to apply both to theft and to the offence of criminal deception created by Clause 15(1) of the Bill.
The office boy who takes money from the till and puts it on a horse, with the intention of putting the money back in the till when the horse has won, is regarded as stealing that money. Can the case of the office boy really be distinguished from that of, for instance, a stockbroker, or someone else, who, as in the case of Thorpe, uses the money entrusted to him for his own purposes, always hoping that when the time comes he will be able to pay it back, and intending to do so? If it is necessary to make a special provision in this Bill for a case when property is pledged or parted with under a condition which the man entrusted with it may not be able to fulfil—I pose this question in all seriousness to the noble and learned Lord, the Lord Chancellor—is it not also necessary to make it clear that this is not an exceptional case and that the same will apply to the office boy, who takes from the till to bet on a horse, and to others who dishonestly appropriate or use other people's money, still intending to repay it if they can? I would submit to the Committee that if this new subsection is necessary, it really is too narrow.
In this new subsection we are, of course, again dealing really with the intention, 56 which must be proved by the prosecution, that the accused has. If I understand it correctly, this new subsection expressly provides that a man may be found to have the intention permanently to deprive another of his property, although in fact he does not intend to do so, for the proposed subsection ends with the words:although he does not intend the other to lose the property",which is another way of saying, "Although he does not intend to deprive the owner of his property permanently". All this difficulty arises in relation to this new clause, so it would seem to me, by the retention in the definition of "theft" of the ingredient, of the intention "permanently to deprive". If Clause 1 stays in its present form, I would not myself think—I may be wrong—that this particular subsection is necessary.
I should like now to turn to what I was going to say on the Question, That this clause stand part, and for that purpose let me assume that this particular Amendment is inserted in the Bill. This clause is a very curious one in many respects. It is not one which the Criminal Law Revision Committee recommended at all. We have not as yet, of course, had any explanation of what it is intended to achieve, but first may I say, with the greatest respect, that I am not very enamoured by the drafting of the clause.
If your Lordships will look at subsection (2) you will see that it provides that a person who appropriates the property of another, intending to effect a complete usurpation as against him of the property, is regarded as having the intention of permanently depriving him of it, even if he intends the owner ultimately to have it. So even if he has no intention to deprive the owner of it permanently he none the less, by virtue of this subsection, is to be regarded as having that intention if he intends complete usurpation of the property. I hope I have got that right, but I think it is what it means. So provided the right meaning is attached to the word "usurpation" the effect of this subsection is tolerably clear.
But it becomes far less clear when one contrasts it with subsection (1) of the same clause. That says:A person is to be regarded as permanently deprived of property belonging to him by any 57 dealing with it that amounts (or substantially amounts) to a complete usurpation as against him of the property,So under subsection (1) we are required to consider the dealing, and to consider whether that dealing amounts, or substantially amounts, to a complete usurpation of the property. It seems to me that in relation to that provision one would be required to apply an objective test, whereas in relation to subsection (2) the test would not be objective. Did the accused intend a complete usurpation? But under subsection (1) if such a dealing is intended by the accused then he is to be regarded as having an intention permanently to deprive, even though the owner does not finally lose his property. So it seems to me that different criteria are laid down in subsection (1) and subsection (2) to determine whether or not a person is to be regarded as having an intention permanently to deprive. I really do not think this will do.
If ever a Bill required to be drafted in the clearest possible langauge it is this Bill, and the words used in it should, so far as possible, be familiar words. I do not recollect ever having seen the word "usurpation" before in any Bill or Act. I should like to be told what exactly is the meaning of the wordscomplete usurpation as against him of the property"?I looked up the word "usurp" in the Concise Oxford Dictionary, and it is defined as follows:seize, assume (throne, office, power, property, etc.)"—and then appears the wordwrongfully".If that dictionary be right, then the effect of the clause is to provide that a person is to be regarded as having an intention permanently to deprive if he has intended wrongfully to seize the property. But relate this to the definition of "theft" in Clause 1. If "usurpation" means wrongful seizure, the definition of theft in Clause 1 will run as follows:A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of wrongfully seizing it".If he has dishonestly appropriated it, does it add anything to say that he must have done that with the intention of wrongfully seizing it? I think not.
58 What is the significance of putting in the word "complete" before "usurpation"? Does it add anything it all? Either property has been wrongfully seized or it has not. Then subsection (1) says that the dealing has substantially to amount to complete usurpation. That would appear to indicate that something less than complete usurpation is sufficient. I can foresee a lot of argument arising in the courts on whether an intended dealing substantially amounts to a complete usurpation as against the owner of the property.
Earlier in our discussions I have referred to the difficulty this clause will create for juries and for those who have to sum up to juries. It seems to me—and I may be entirely wrong about this; I can give only my own view—that juries will have to be told that the prosecution must prove a dishonest appropriation, and probably they will have to be told what "appropriation" means, for it is not a word—is it?—in common use and commonly understood. Let us suppose that they are told, and it would not be wrong for them to be told, that "appropriation" means dishonestly seizing someone else's property. Then the jury will have to be told that it must have been done with the intention of securing a complete usurpation of the rights of the person to whom the property belongs (under subsection (2)) or with the intention of dealing with it in such a way as substantially to amount to complete usurpation (subsection (1)). By this time I expect most juries would be somewhat confused.
I do not suppose any juror would have any idea of what is meant by the wordscomplete usurpation as against him of the property",and one would have to attempt to explain it. In doing that one gets no help from the Bill, for the meaning is not defined; nor, indeed, would one get help from the Report of the Committee, if one should look at it, because it is not dealt with there. The Committee did not put forward this clause. If one looks at the same dictionary as I did, one would probably tell the jury that "usurpation" meant the wrongful seizure of property, and so tell the jury that they must be satisfied beyond reasonable doubt that the accused dishonestly seized the property with the intention of wrongfully 59 seizing it. The jury might well think that the law is an ass, or that the person summing up to them fitted that description. I would say to the noble and learned Lord, the Lord Chancellor, that if this clause is to remain in the Bill I hope it will be redrafted so that its meaning is precise and plain, and I do not think it is at present.
I should now like to turn to another major point in relation to this clause. Subsections (2) and (3) make it clear beyond any shadow of doubt that a man is to be regarded as having an intention permantly to deprive when in fact he has no such intention, and I am not sure that subsection (1) is not to the same effect, but if it is, it is not so clearly expressed. When my noble friend Lord Colville of Culross had his car taken from outside the Peers' Entrance, did that dealing with it not amount (or substantially amount) to a complete usurpation as against him of his car? I should have thought it did; and if it did, then this clause provides that the person who took it is to be regarded as having had an intention permanently to deprive my noble friend of his car, and so the taker of it could be prosecuted and convicted of theft. So it seems to me that if this clause is retained in the Bill, or a clause to this effect, Clause 11 and Clause 12 are quite unnecessary.
Clause 11 deals with the removal of things from certain categories of buildings, and is put in to meet the Goya case. Clause 12 repeats the existing offence of taking and driving away a car without the owner's consent. But in the case of the Goya, was there not also a complete usurpation of the rights of those to whom the picture belonged? I have come to the conclusion that the insertion of Clause 6 really makes nonsense of the argument advanced on behalf of the Government that the word "permanently" should be retained in Clause 1 of the Bill; because this clause is of general application and, if I am right, provides that a man who has intended complete usurpation is to be regarded as having an intention permanently to deprive, even though he may have had no such intention.
It may be argued that with Clause 6 in the Bill, why do I want to take the word "permanently" out of Clause 1? 60 This clause makes the word "permanently" in Clause 1 of no practical effect. The answer is that if Clause 1 remains as it is now, then this clause is unnecessary. It is a complicated way of doing what the removal of the word "permanently" achieved. But if that word is put back, I should like to see this clause remain, more clearly expressed, for with it in the Bill a dishonest appropriation without the intention permanently to deprive is to be regarded as one with that intention. So I am in a slight difficulty about this, depending on what happens at the Report stage. I should have thought that the right course would be for the Government, if they want to put the word "permanently" back, to move to leave out this clause. But they are not doing that, and so before deciding what I shall do with regard to my Amendment or on the Question Clause stand part, I really should like to hear from the Government, having trailed my coat to a considerable extent, but having, I think, raised points of some substance and points which certainly trouble me and require to be dealt with.
§ LORD MORRIS OF BORTH-y-GEST
I think the noble and learned Viscount has raised points of the greatest importance upon which all of us, those who hold on another matter differing views from the noble and learned Viscount, would like the guidance of those sponsoring this Bill. The noble and learned Viscount has persuaded the Committee that the word "permanently" should be left out of Clause 1. The possibility has been mentioned that that word "permanently" might be restored to the clause at Report stage. I should like to ask whether in that eventuality Clause 6 is needed at all. As the noble and learned Viscount has said, it was not in the Bill drafted for the Report of the Committee. I think the wording of it may lead to a good deal of confusion.
I do not want to repeat anything the noble and learned Viscount has said, but in regard to the words, "amounts (or substantially amounts) to a complete usurpation", what do those words mean? We have in Clause 3 of the Bill the words, "Any assumption by a person of the rights of an owner". Having that clause, do we really need Clause 6 at all? It seems to me that Clause 6 is to be considered to be a deeming clause. It says 61 "to be regarded"; it is a deeming clause. As it stands, might it not have the result that the undergraduate who takes a bicycle, borrows a bicycle knowing that he ought not to, dishonestly borrows it, is to be deemed to be a thief? The noble and learned Viscount has raised this point and has raised it very clearly. In cases where there is dishonest borrowing, many of us have taken the view that it would be unfortunate to make them cases of theft.
I should like the guidance and help of the noble and learned Lord, if he comes to speak on this clause, as to whether Clause 6 is needed at all; and if it is to be retained whether it would not have, or might not have, the effect that the dishonest borrower would be deemed to be permanently depriving the owner of the property. Would the dishonest borrower not be dealing with the thing in such a way that it amounts, or substantially amounts, to a complete usurpation? If you take a bicycle and ride it away, is that or is that not a dealing with it that amounts, or substantially amounts, to a complete usurpation? If you get on to the saddle of the bicycle and ride away, is that a usurpation against the owner of the property? I happen to be one who takes the view that it would be better if we did not make dishonest borrowing into theft. The Committee have taken a different view, but if there is a possibility that the Committee might at some stage take the view that dishonest borrowing should be so regarded and should not be made theft, then is this clause necessary in that eventuality, and would it not have the effect of making the dishonest borrower into a thief?
VISCOUNT COLVILLE OF CULROSS
I want to ask only two small questions. First of all, on the Amendment itself, I suppose that it is right that the extension of the phrase "complete usurpation" which is contained in the Amendment is intended also to be covered by subsection (2) of Clause 6, which is really the subsection which turns "complete usurpation" into an intention permanently to deprive. If that if so, I should have suggested that the new subsection the noble and learned Lord the Lord Chancellor has proposed would more elegantly go in between subsection (1) and sub- 62 section (2) rather than after subsection (2).
When the noble and learned Lord is considering some of the major points raised in the debate on the Question whether the clause stand part, could be help on another point? Clause 6 only applies to the definition "permanently deprives" in Clause 1. It does net apply to "permanently deprives" in Clause 15, unless I have misread subsection (3) of Clause 1, because that says: "The five following sections", which includes Clause 6, should apply "only for purposes of this section" unless the Bill says anything else; and in Clause 33, Clauses 4 and 5 are applied generally but not Clause 6. If "permanently deprives" means what Clause 6 says it means for the purposes of theft, what does "permanently deprives" mean for the purposes of criminal deception?
§ LORD AIREDALE
While Cause 6 is being so minutely dissected, may I say a word or two about the expression "amounts (or substantially amounts)"? Is it not rather curious for an expression like this to be used in an Act of Parliament? I should have thought that it could cause very great confusion. I can see learned counsel in a given case saying to the judge: "My Lord, the facts in this case do not amount to complete usurpation because it is insubstantial; it does not substantially amount to complete usurpation". But his opponent would then say that the Act does not say, "substantially amounts to complete usurpation"; it says "amounts (or substantially amounts) to complete usurpation". I would imagine at that point the learned judge would say that it was a gnat pity that Parliament did not make up its mind whether it meant amounts to complete usurpation or substantially amounts to complete usurpation. Surely we must make up our minds before this clause has been dispensed with whether we mean "amounts" or whether we mean "substantially amounts". We cannot have it both ways by putting some words in brackets. This, surely, is most unsatisfactory.
VISCOUNT ST. DAVIDS
On the whole, I suppose that I am as intelligent as most jurors, and I feel somewhat like a juror in this noble Committee as I am not, as most other speakers are, legally 63 trained. I must say that if I were on a jury, and were addressed in the way the noble and learned Viscount, Lord Dilhorne, suggested, I should be thrown into utter confusion. Indeed this discussion has got me in that state already. But, to return to the bicycle which is dishonestly borrowed: if after being dishonestly borrowed that bicycle had been pawned, under the definition in the Bill it would have been stolen. I think that is clear. Surely the point of this particular clause is that when it was pawned the borrower of the bicycle had put it out of his power to return it because he might not be able to find the money to reclaim it.
To take another case, supposing that after dishonestly borrowing this bicycle, the person concerned then leaves it in the street and it subsequently vanishes, somebody else having dishonestly borrowed it and taken it elsewhere, surely he has just as much put it out of his power to return it as if he had pawned it. In fact he has put it even more out of his power, because he does not know where it is. How on earth can he ever return it? Surely, he has disposed of it as thoroughly as the man who pawned it. I should like this point to be considered.
§ LORD WILBERFORCE
I do not want to prolong this debate unduly, but I should like to make two points. The first is that when we were discussing Clause 1 I was one of those who voted in favour of removing the word "permanently", mainly because I thought that to do so would dispense with the necessity of retaining this clause. I was most interested and glad to hear my noble and learned friend Lord Morris of Borth-y-Gest, who took the opposite view on Clause 1, also supporting the deletion of this clause. So this clause is not loved by anybody, whether by those who like "permanently" or those who do not. It leads one to think that it cannot be a good clause.
I need not expand on the obscurity of it because my noble and learned friend Lord Dilhorne has gone fully into that; but I should like to say just one word about the new subsection (3), which is proposed from the Government side. I must say that I always distrust a piece 64 of legislation which is tailormade to meet a particular decision. It looks as if this subsection, which is a complicated one, is put in to deal with a particular decision given in the case of Thorpe. The worst of doing that is that, in meeting one case, you carefully devise the subsection to deal with all the elements in that one case and you then let in a great many others that you have not thought of. I suspect that there may be such cases.
Take the words, "which he may not be able to perform". Can one ever say in this uncertain life that one is going to be certain to be able to discharge a condition? The provision seems most unnecessarily wide, though drafted no doubt, and adequate to cover, the particular case. My suspicion is that when one gets a provision of this sort, and of this most detailed character which is found necessary, it indicates that there is something basically wrong with the conception of the clause as a whole. That is usually why these "loophole" provisions have to be drafted. Much better than drafting a detailed "loophole" provision, which is what this seems to be, would be to go back to first principles and ask what the clause is trying to do. For the reasons given, I do not really believe that it is on a certain path. It seems partly unnecessary, in view of Clause 3. As my noble and learned friend Lord Morris of Borth-y-Gest has said, it seems greatly to overlap with the Goya and the bicycle cases, and altogether it seems to have but few friends.
§ 7.5 p.m.
§ THE LORD CHANCELLOR
Of course I have not so far addressed the Committee at all on Clause 6 as a whole, and evidently I should do so now. I do not do so in any way with the object of closing the discussion; on the contrary, I hope that it will continue and develop. As your Lordships know, Clause 1 provided, as introduced, that:A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.Clause 2 deals with "dishonestly", and Clause 3 deals with "appropriates", and Clause 4 with "property". Clause 5 deals with "belonging to another" Clause 6 deals with the words, "with the intention of permanently depriving the other 65 of it". Clause 6(1) really deals with "permanently deprived", and subsection (2) with intention. There was no corresponding clause in the draft Bill, and therefore this requires justification.
I was one who concurred with, and indeed supported, the noble and learned Lord, the Lord Chief Justice, in taking the view that where the criminal law, as it must do, embraces every variety of circumstance and case—a view taken by seven Judges of the greatest experience of crime; by the Director of Public Prosecutions; by the Chief Magistrate, and by leading barristers and solicitors, and academic lawyers specialising in the criminal law—they are, as a whole, more likely to be right than even one of your Lordships coming into the Chamber and considering a Committee stage, without perhaps the very wide and practical knowledge of the criminal law which those men have.
But this is an entirely different case, because the Committee did not put this clause into the Bill at all. But they did say, in paragraph 58 of the Report, that they had considered including a definition in the draft Bill to define the expression, but had decided not to do so. They pointed out that the corresponding expressionwith intent permanently to deprive the owner thereofin the definition of stealing in Section 1(1) of the 1916 Act was, as a matter of common sense, construed as including cases where the taker intends to do something with the property which, for practical purposes, is equivalent to permanent deprivation, even though he may not literally intend to deprive the owner permanently, and they were satisfied that the expression in Clause 1(1) would be construed accordingly.
Examples are where the taker intends to abandon the property in such circumstances that the possibility of its return to the owner is, to his knowledge, extremely remote, or where he intends to return it only after using it in such a way that it becomes useless to the owner—for example, if you steal a railway ticket, when you have had your free journey you expect to hand it back to the railway company, because that is the whole object with which you took it. And since the Committee's Report the Government have decided, after consulting the 66 Chairman and several members of the Committee, to include this partial definition.
This is done really for two reasons. The first is that the proposition that an intention to deal with the property in a way such as in the examples I have mentioned should be treated as amounting to an intention of permanently depriving the owner of the property, would, or might, depend to some extent, in the absence of a definition, on previous Case Law, most of which dates from the first half of the nineteenth century. It seems to the Government that it would be desirable that, so far as possible, the courts should be in a position to construe the Act as it stands without the need to refer to the previous Case Law. This aim is particularly desirable now that there is to be a criminal code, of which the Bill will eventually form part.
The second reason is that, since the Report was published, the Committee's opinion that the expression in Clause 1(1) would be construed in accordance with the previous Case Law has been questioned on the ground that, as the Bill will make a new departure in this branch of the law, the expression would not be understood, in spite of the statement in the Committee's Report,, as intended to have the same meaning as in the 1916 Act. This is without prejudice to the Amendment in the name of the noble and learned Lord, Lord Wilberforce, as to whether or not judges will be entitled to look at the Report, especially as the Case Law gives an artificial meaning to the expression and is already old. Although the Government agree with the Committee's view, there should not be any doubt that the expression should have the extended meaning, and Clause 6 is intended to secure this result.
In accordance with this object the clause begins by defining the idea of permanent deprivation and then in subsection (2) applies the definition to the offender's intention. Subsection (1) provides that a person is to be regarded as permanently deprived of property belonging to him by any dealing with the property which amounts, or substantially amounts, to a complete usurpation as against him of the property; and the subsection adds that it is immaterial that the owner does not finally lose the actual property. Applying this to the examples 67 I have mentioned, it will be seen that the offender's appropriation of the property will amount or substantially amount to a complete usurpation. The words "or substantially amount"—this is in reply to the observations made by the noble Lord, Lord Airedale—will ensure that if, for example, the taker were to return a season ticket to the owner on its last day, there would be a complete usurpation within the meaning of the Bill.
Subsection (2) follows on subsection (1) by providing that where a person appropriates property intending a total usurpation such as is referred to in subsection (1) of the clause, he is to be regarded as haying the intention of permanently depriving the owner of the property; and it goes on to provide that this shall be the case whether or not the appropriator intends the owner ultimately to have the property back. The last provision would provide for the cases to which I have referred where the offender does intend the owner to have the actual thing back, although the thing will by then be useless to the owner or the owner will have to pay for it.
There may be several views about the drafting of the clause. Usurpation was partly chosen because it is more or less a new word in this field. I do not mean that it has never been used before. I am told that Baron Park said, as a reason for holding an accused guilty of larceny, that he usurped the entire properly in the goods; and this was later repeated in other cases by Chief Justice Campbell and Baron Martin. But opinions always differ about words. I am not saying that usurpation is the best phrase that there can be, and I welcome any proposals for an alternative. If the Committee is of the opinion that this clause serves a useful purpose, as I submit, for the reasons I gave, that it does, if any Members of the Committee can suggest any better word than usurpation—which is, after all, in a sense the equivalent of converting to one's own use—the Government would be most happy to consider it.
May I now deal with particular points. I do not think that this subject was covered by the case of Thorpe. Thorpe, I thought, was a case dealing with money, and the law will still remain the same in regard 68 to coins. The noble and learned Viscount said that explaining these things to a jury would be awkward, but, of course, this question would arise only where there was some dispute as to intention. The noble Viscount, Lord Colville of Culross, asked whether Clause 6(1) applies to Clause 15(1), and the answer is, yes, Clause 15(1) does attract Clause 6(1).
In answer to my noble friend Lord St. Davids I may say that the matter of motor cars has been in the past, and is in this Bill, dealt with separately. I think we all intend that that should remain so, unless the word "permanently" comes out of the Bill. The matter I am most in doubt about on this Bill as a whole is what the ramifications may be if the word "permanently" comes out. If that were to happen, it looks as though everything in the Bill about vehicles and pictures at exhibitions would probably, though not certainly, come out. It will, for the first time, become part of our law that unauthorised borrowing is larceny. That has never been part of our law. If you borrow somebody's fountain pen when he leaves the room, unless you can honestly say, "I feel sure that if I had asked him he would not have minded", then you will be a thief. If you borrow it to write a letter, that will be larceny.
As the Committee said, in regard to having to show that the accused intended permanently to deprive the other person of the goods, no great difficulty has arisen in showing this in cases where it ought to be shown. The Committee evidently carefully considered this matter and came to the conclusion that one could not say that a number of innocent people were being convicted, or people who ought to be convicted were not being proceeded against, because of the existence of the requirement of showing the intention permanently to deprive somebody of something. But what nobody has considered—the Committee did not consider it in detail at all—is what the actual effect in practice is going to be of omitting the words "permanently to deprive the owner" so that any unauthorised borrowing prima facie, unless you can show that it is not dishonest by saying, "Well, I thought if I asked him he would have agreed", becomes larceny. But I should welcome any views which members of 69 the Committee might have on this subject.
I am not seeking to stop the discussion; I think it is most useful. This is a difficult Bill, and it is particularly difficult because of the variation in the circumstances. It is easy to say that it would be a monstrous thing that a boy should be convicted of being a thief because he borrowed a bicycle pump for ten minutes, but my noble friend Lord St. Davids said it is a monstrous thing that that he should not be convicted of larceny if he does not send it back within some time or other. It is easy to take particular cases. That is why I have felt throughout that so much reliance must be placed on learned judges. The Common Serjeant was a member of the Committee, as was the Director of Public Prosecutions, the Chief Magistrate and others who are used to dealing with actual criminal cases. It is very much a question of where one draws the line. I submit that on balance Clause 6 is an improvement for the reasons which I have ventured to give, and that, if we are to have Clause 6, we should be well advised to accept the Amendment which I have ventured to move.
§ VISCOUNT DILHORNE
I have listened with close attention to all that the noble and learned Lord, the Lord Chancellor, has said about this clause. One of the difficulties is that the Committee's Report does not deal with it, and this is the first time we have heard a case put forward for the clause. It is the first time, indeed, that one has been able to expound in any degree one's objections to it. Therefore I would not ask the Committee to reach a decision to-night on whether or not this clause should remain in the Bill; nor should I oppose the Amendment which the Lord Chancellor seeks to insert in it. But that is without prejudice to what happens on Report stage. I should like the Lord Chancellor to give serious consideration to my criticisms of his Amendment, on the ground that if you are going to have anything of that sort it is too narrow. Thorpe was a case relating to money, but in Thorpe there were some dicta concerning what the position would be if there was an honest belief in ability to repay at some time in the future—as in the case of the office boy who takes money 70 out of the till to put on a horse. I am not at all sure that it is necessary to make any special provision for that case. If I may say so with great respect, I strongly support the observations of my noble and learned friend Lord Wilber-force. I think this Bill really tries to deal too much with particular problems at the expense of making quite clear what are the principles running throughout.
This is not the time to discuss whether we should or should not retain the word "permanently". I know the members of this eminent Committee as well as the noble and learned Lord does, and I have as much respect as he has for their views, their experience and all the rest of it. But they dealt in only one short paragraph with this very big question, and I ask your Lordships to contrast that with the pages in which they dealt with wild flowers and wild animals. One of the matters they did not discuss in any detail was the possible implications of the change that I proposed, except to indicate that they thought there might be a great increase in the number of prosecutions and so on—which was exactly opposite to the reasoning they advanced in relation to making the theft of wild flowers a general offence. With great respect to them, I must say that I was not greatly impressed with that.
But it is not the case that just my unauthorised borrowing would be a crime: it would have to be proved affirmatively and positively that it was dishonest. I myself do not see—there is nothing of Party in this—any real dangers in making that change. If there are any I should like to consider them. But I think that a great many of those who are against that change are more conservative in their approach to the law than I can claim to be; and I always longed to call my noble and learned friend Lord Morris of Borth-y-Gest someone who has some conservative principles. Also, I rather enjoy being in the position—although I put this Amendment forward with the utmost seriousness—of suggesting a reform and an improvement of the law and finding that at this particular time the noble and learned Lord the Lord Chancellor is resisting reform. Leaving it at that, I do not feel that we ought to oppose the insertion of this Amendment, or that we ought to ask for the clause to be taken out at this stage, and I am sure 71 that any of us who can help in deliberations on this difficult problem before the Report stage will be very glad to do so.
§ LORD PARKER OF WADDINGTON
May I just add a word, if only because I am one of those who would like to see the word "permanently" restored to the Bill. Assuming that it did happen, I am still worried by the wordsamounts (or substantially amounts) to a complete usurpation".One has, on the one hand, deprivation permanently in fact, and, on the other had, pure borrowing, and what is intended is to provide a halfway house. It may not be a complete deprivation of property, yet it is to be deemed to be such. I think that is the difficulty. I can understand many people reading the words, "amounts … to a complete usurpation" as covering the borrowing of the bicycle, or the taking of the picture or the taking of the motor car, and it may be, if "permanently" comes back into the Bill, that the better course will be to provide that any deprivation shall be deemed to be a permanent deprivation unless in effect it is a borrowing.
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clauses 7 and 8 agreed to.
§ Clause 9:
§ 9.—(1) A person is guilty of burglary if—
(b) having entered any building or part of a building as a trespasser he commits or attempts to commit any such offence.
§ (3) References in subsections (1) and (2) above to a building shall apply also to an inhabited vehicle or vessel.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD GRENFELL)
I must inform the Committee that if Amendment No. 16 is agreed to I cannot call Amendment No. 17.
§ 7.25 p.m.
VISCOUNT COLVILLE OF CULROSS moved to leave out subsection (1) and to substitute:
(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any
such offence as is mentioned in subsection (2) below.
§ The noble Viscount said: My noble and learned friend Lord Dilhorne probably had much the same point in mind when he put down Amendment No. 17 and I put down this Amendment, No. 16. It might therefore be convenient with the leave of the Committee to discuss these two Amendments together.
In paragraph 77 of their Report, the Criminal Law Revision Committee were dealing with the problem of
what should be the offences … which, if committed or attempted or intended to be committed in a building, should make trespassory entry into the building burglary".
They decided that stealing alone should not be enough, and went on to say that they would consider that some other serious offence, such as rape or causing grievous bodily harm, should also come into the concept. They then said this:
If the offender commits or attempts to commit the offence intended, he could be dealt with for this. But he may be caught before he does so. In that event he would not be guilty of any offence unless it were held that in the circumstances the entry was sufficiently proximate to constitute an attempt to commit the offence intended.
They followed that by saying:
It seems to us right that to trespass in a building with the intention of committing a serious offence against person or property should be criminal".
They then said that they wanted,
to avoid any question whether the conduct of the accused was sufficiently proximate to be an attempt".
§ I do not think the distinction which the Committee have drawn in that paragraph is the same as the distinction that is drawn in the Bill. What I think they were talking about there was the selection of would-be offences with the intention of committing which the person entered as a trespasser into the property. If that is so, then paragraph (a) of subsection (1) of Clause 9 deals with the matter. What the Committee have not, so far as I can see, described is why they need paragraph (b) at all, because although it is perfectly true that when the person goes into the building it may not at that stage be possible to charge him with attempted theft, attempted rape, or attempted grievous bodily harm, nevertheless if he has the intention then he is caught under paragraph (a). If, on the other hand, the facts are sufficient 73 to allow him to be charged with the attempt then there is no necessity, so far as I can see, to charge him with burglary as well.
§ What the Committee were trying to do was to cover the time between the entry of the man with the intent and the stage at which it might be possible on the facts to catch him for an attempt to commit the crime, even if he did not actually commit it. I believe that paragraph (a) is quite good enough for that, without the necessity to put in paragraph (b) at all. Indeed there is a positive vice in paragraph (b), in that the person who attempts to commit any of those offences is guilty of that attempt, quite apart from the guilt which he would attract under that paragraph for the burglary as well. I believe that the concept of burglary has therefore been extended beyond what is necessary, and that paragraph (b) should be left out as I am proposing. I beg to move.
§ Amendment moved—
Page 4, line 11, leave out subsection (1) and insert—
("(1) A person is guilty of burglary if he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below.")—(Viscount Colville of Culross.)
§ VISCOUNT DILHORNE
I should like to start what I have to say about this clause by for once saying that it is certainly a big change which the Committee have made in Clauses 9 and 10. They have cut away a great deal of dead wood and I think that, on the whole, Clause 9 is a good provision. But I am bothered about one matter. I quite recognise that it is necessary to provide that a trespasser shall be guilty of burglary not only if he has the intent to steal from the house which he has burgled, but also if he has the intent to commit rape or do any grievous bodily harm. That is common ground, and that, I think, is the existing law.
But what I think is new is paragraph (b) of subsection (1), where a person is guilty of burglary ifhaving entered any building or part of a building as a trespasser he commits or attempts to commit any such offenceas is mentioned in subsection (2). This clause means that if a person goes into a building and commits rape he can be 74 convicted of burglary. I do not think that is right, and I think it may have serious consequences, for the reason that if such a man comes before the courts again then on his record of convictions, he having gone into a house and committed rape, there will be recorded a conviction for burglary. If he has committed rape, he ought to be charged with rape. And the same applies to attempted rape: he ought to be charged with that.
I was puzzled why the Committee, with their great authority, came to the conclusion that it was necessary to include a provision that a man could be guilty of burglary if he trespassed in a building and committed or attempted to commit any of the offences mentioned in subsection (2). It is quite enough, I should have thought, to say that he trespassed with intent to commit any of the offences specified. In paragraph 76 the Committee say:But as it may sometimes be impossible to prove the intention, it seems better to make it sufficient, as an alternative, to prove that the accused (in addition to entering as a trespasser) actually committed or attempted to commit the relevant offence".I find that reasoning a little difficult to follow. If you can prove that the accused has actually committed the offence, or attemped to commit the offence, I cannot see how you should have any difficulty in proving that when he went into the building that was his intention. So I do not myself quite understand it.
Then the Report says:… it will be a double offence like some of those undercertain sections of the 1916 Act,which include offences of breaking and entering a building and committing a felony in it. As with the case of these offences it will be right to charge both the entry into the building or part and the commission of the theft or other relevant offence in it in one count in the indictment. If the prosecution proves only the offence in the building and not the trespassory entry, the jury will be able to convict the accused of the offence in the building owing to the general rule that a person charged with an offence may be convicted of a lesser offence comprised in that charge.I ask the noble and learned Lord the Lord Chief Justice to say: Is rape a lesser offence than burglary? Because if you charge a man with burglary under Clause 9 and the particulars of the charge are that he trespassed into a building and 75 there committed rape on AB, if you are not satisfied he is a trespasser it is suggested, as rape is a lesser offence than burglary, that you can convict of rape. I doubt very much if that is right.
I really do not think that a case has been made out for paragraph (b). I think it is unnecessary, and I think it may cause a considerable amount of difficulty. Suppose, for instance, a man is convicted of burglary and the particulars are that he trespassed in a building and committed rape. If he is charged with rape as a separate offence, will he be able to plead autrefois acquit or autrefois convict, whatever it may be? It seems to me to be a matter which might be of some difficulty. I do not know. I should have thought that it would be much better to confine this to burglary; trespassing with intent to commit one of these offences which are specified.
If I may just raise a minor point, subsection (2) says:… offences of stealing anything in the building … and of doing unlawful damage to the building or anything therein by fire or explosion".Now there is nothing in the Report, so far as I can recollect, which explains why it should be limited to unlawful damage by fire or explosion.
§ LORD CONESFORD
May I interrupt my noble friend? There are just two sentences at the end of paragraph 77. I do not understand the explanation, either, but it is there dealt with.
§ VISCOUNT DILHORNE
I am much obliged. They say:It seems unnecessary to extend it to other kinds of damage, and it would be difficult to draw a satisfactory line".Speaking as one who suffered some damage through his house being burgled a little time ago, but the damage not being caused by a fire or explosion, I am wondering whether it is really right to draw that distinction; and that is one of the matters which I should like the noble Lord to consider. But I hope he will agree that paragraph (b) serves no useful purpose, and should come out of this particular provision.
§ LORD PARKER OF WADDINGTON
While agreeing largely with the noble Viscount, Lord Dilhorne, as to the propriety of paragraph (b), I think it is 76 needed in certain circumstances. I quite agree with the noble Viscount that it would be, I think, unfortunate if a man had on his record a conviction for burglary when in fact he was a sexual pervert and was guilty of rape; and equally, he being a violent person, if he had on his record only a conviction for burglary when it ought to have been one for wounding with intent.
Having said that, I should think that paragraph (b) is required when the offence which he commits or attempts to commit in the building is itself stealing; and, accordingly, if paragraph (b) were confined to the offence of stealing and eliminated the other offences referred to in subsection (2), I think paragraph (b) would meet the case. After all, breaking and entering with intent and breaking and entering and larceny are common today, and when you get the latter case it is only right that the offence of breaking and entering and larceny should attract the 14 year maximum rather than what is now, or will be, the 10 year maximum for larceny. Therefore, I think paragraph (b) is needed, but that it should not extend to all the offences in subsection (2).
§ LORD ROWLEY
I should like to express my agreement with what the Lord Chief Justice has just said, but before my noble friend replies may I ask him whether he would clarify one point? In the event of a person having committed both burglary and rape, under this subsection would he be charged in the indictment merely with committing the burglary, or would he be charged with committing what I think is the much more serious offence—in fact, one of the worst offences any man could commit—of rape? I hope my noble friend will be able to clarify my mind on that point when he replies.
§ LORD AIREDALE
Before the Minister replies, may I ask what is the purpose in this clause of referring to entering "part of a building"? Most buildings are divided into separate parts, and it is difficult, if not impossible, to enter more than one part of a building at one time. Surely in common parlance anyone who enters a part of a building enters the building. I know, of course, that part of a person can enter a building, as when somebody stretches his arm 77 through an open window and takes something off the windowsill inside; but that is quite a different point. What is the rather pedantic-looking purpose of referring to entering "part of a building"? Why not just leave it as "a building"?
§ LORD STONHAM
I am most grateful for this discussion. With regard to the last question, addressed to me by the noble Lord, Lord Airedale, I can only give an "off-the-cuff" answer, and that is that we are making quite sure. There must be circumstances when a part of a building might be segregated from the whole—
VISCOUNT COLVILLE OF CULROSS
I think this is specifically dealt with in the Report of the Criminal Law Revision Committee, and I hope it is the intention of the Government that this wording is to deal with the sort of case where somebody goes into a shop in a perfectly proper way, stays there after the shop is closed and then goes behind into the warehouse, or behind the counter, and helps himself to something there. If it were not for the expression "part of a building" he would not enter as a trespasser at all, because he came in perfectly properly as a member of the public; but he trespasses when he goes away from that area into which members of the public are entitled to go.
§ LORD STONHAM
I am grateful. On the other hand, it is possible in a block of flats for a burglar to be lawfully in one part of the building and then to burgle a flat in another part—which would be unlawful. Therefore the noble Lord, Lord Airedale, might answer, "Yes, but he is still in the building", and I would agree. He may have the lawful right to be in another part, but not to burgle that particular part.
I was grateful for the support I had from the noble and learned Lord the Lord Chief Justice and, in particular, for his giving the precise example of where paragraph (b) would be of use. The offences which are referred to in subsection (2) arestealing anything in the building or part of a building … of inflicting on any person therein any grievous bodily harm or raping any woman therein, and of doing unlawful damage to the building or anything therein by fire or explosion.We shall certainly look at the point raised by the noble and learned Viscount 78 about fire and explosion, but I do not think we could so re-word it as to go all the way and admit any damage, however trivial. But I certainly agree that he has made a valid point.
To my mind two real points have been made. One is that a person might be guilty of burglary under the Bill but might also commit, as is envisaged in subsection (2), a more serious offence—one, such as my noble friend Lord Rowley said, of rape. In our view he would be charged with both offences but the more serious offence would be the first charge. Burglary under the Hill now carries the maximum penalty of 14 years, while rape could carry life imprisonment. Certainly I see no difficulty about the man's record. If he has committed two offences, burglary and rape, he would certainly be charged with both; and rape would be number one.
§ LORD PARKER OF WADDINGTON
I doubt whether he would be charged with both; but if he were, I am sure the judge would almost certainly excuse the jury from giving a verdict on the second. Personally, on principle I dislike intensely that the prosecution should be able to choose between two different forms of offences. It is right that they should choose what is. the appropriate, the real, offence in any case. If rape has been committed or somebody has been wounded with violence, then that is the crime with which the person ought to be charged.
§ LORD STONHAM
It is, of course, a matter for the prosecution; but in our view in such a case the accused person would be charged with the more serious offence, and if he were convicted his sentence would be appropriate to that more serious offence. But we think that, in essence, in such circumstances the two offences would be committed. The more common case of a dual offence would be burglary and stealing. There two offences would be committed; and that is an argument against deleting paragraph (b), because it would create an anomaly. If a burglar stole but his having entered the building with intent to steal could not be proved for the purposes of Clause 9(1)(a), then, as the noble and learned Lord, Lord Parker, pointed out, he could be convicted only of theft with a maximum punishment of 10 years' imprisonment, 79 even though he had clearly burgled and ought to be punished like any other burglar in accordance with the maximum sentence of 14 years.
If the Amendment were accepted it would make an undesirable departure from the present law, because both Sections 25 and 26 of the 1916 Larceny Act create offences, among others, consisting of breaking and entering a building and committing a felony in it—and felony, of course, is now an arrestable offence. Subsection (1)(b) preserves this kind of double offence. If the double offence is charged but the trespassory offence (as it were, the burglary offence) is not proved, the accused could still be convicted of whatever offence he committed in the building. Therefore I cannot understand the difficulty about this double offence. It might well ensure that the accused was convicted of—it may be a lesser offence—stealing; but at least he would be convicted.
As I see it, the Amendment does not really propose any change with regard to the offence to which paragraph (b) applies. The breaking and entering offences in the Larceny Act 1916 originally hinged on an attempt to commit or the commission of a felony, now an arrestable offence. But the Larceny Act offences depend on an intent to commit or the commission of an arrestable offence. I think it was the noble and learned Viscount, Lord Dilhorne, who said that he thought this was a change in the law, a new proposal. It is a change, but it is made on the basis of the present law of burglary and related offences; and the view of the Criminal Law Revision Committee is that burglary should hinge on the offence committed, attempted or intended, which, of course, is one of the serious offences in subsection (2) of the clause. This applies to the provisions of both paragraph (a) and paragraph (b) of the clause. I feel that, particularly with the support of the noble and learned Lord, the Lord Chief Justice, we have made a case for the retention of paragraph (b) and shown that it is necessary, that it serves a useful purpose and that it ought not to be deleted.
§ VISCOUNT DILHORNE
If I heard the noble and learned Lord the Lord Chief Justice correctly, the noble Lord, Lord 80 Stonham, is claiming far more support than he ever got—far, far more. It may be because it is getting late and the noble Lord, Lord Stonham, has much to deal with—and I sympathise with him—but really he has not given us a satisfactory reply about this Amendment. Of course it is true that if a man trespassed and then committed rape the prosecution could first charge him with rape, as a separate offence, and also, under this Bill, if it is enacted, with burglary and committing rape. Then I expect the prosecution would be put to their election as to which charge to proceed upon. They might say that rape alone is a very serious offence but burglary and rape make it even more serious, so they will proceed upon the charge of burglary and committing rape, which will be one charge under this clause. I remain strongly of the opinion that you really ought not to include rape and grievous bodily harm as offences which, if committed or attempted, can constitute an element in burglary.
I completely support what the noble and learned Lord the Lord Chief Justice said. Let Clause 9(1)(a) apply to all the offences listed in subsection (2); that is to say, it would be burglary if it were done with the intent to do any of those things. But let subsection (b) apply to the committing, or attempting to commit, theft in the building. That is the compromise which I believe would be right. It would put the whole matter right when you had the record of convictions coming up before another court. I quite agree with the noble Lord, Lord Stonham—to give him this amount of comfort—that if the suggestion made by the noble and learned Lord, the Lord Chief Justice, is right, as I think it is, it would be wrong to delete the whole of paragraph (b). I am perfectly prepared to withdraw my Amendment on the understanding that between now and Report stage, the noble Lord will carefully consider all that has been said.
§ LORD STONHAM
I certainly will, and I thank the noble and learned Viscount, Lord Dilhorne, for his final, very clear proposal. Now that I have the proposition quite clearly, I will give the assurance that I will certainly look at it, including, of course, subsection (2), which deals with damage to the building.
§ LORD CONESFORD
I intervene only because it is more convenient that I should do so now than on the Question, That the clause shall stand part of the Bill. And I have the justification that the noble Lord, Lord Stonham, my noble and learned friend, Lord Dilhorne, and my noble friend Lord Colville of Culross, have also dealt with it. I think that the limitation created by the words "by fire or explosion" create an absurd result. I do not think that the two sentences at the end of paragraph 77 in the Report of the Committee give any adequate reason for it. May I give the noble Lord an example of the absurdity?
One of the things which, I know, troubles the Home Office, and troubles all of us who care about these matters, is the appalling amount of pointless vandalism which is now taking place. Suppose somebody enters premises as a trespasser and then begins to hack the furniture to pieces with an axe. Is not that about as serious an offence of burglary, within the general intention of this clause, as you could imagine? But it would entirely escape falling within the province of this clause if you have these limiting words, "by fire or explosion". I point that out, not in order to delay the proceedings now, but in order to persuade the Government that they must have a further look at this between now and the next stage.
VISCOUNT COLVILLE OF CULROSS
I think that, technically, this is my Amendment. I am sure that the noble Lord, Lord Stonham, will consider the suggestion of the noble and learned Lord the Lord Chief Justice. I think that that Amendment will be a great deal better than mine, and I ask leave to withdraw my Amendment at this stage.
§ Amendment, by leave, withdrawn.
§ LORD STONHAM
I think that we have had a very good discussion on the last Amendment and I am sure that we shall do well—
VISCOUNT COLVILLE OF CULROSS
I think that the arrangement made through the usual channels was that we were to finish Clauses 9 and 10.
§ 7.55 p.m.
§ VISCOUNT COLVILLE OF CULROSS moved, in subsection (3), to leave out "an inhabited" and insert "any" 82 [vehicle or vessel]. The noble Viscount said: My Lords, this is a very simple matter of drafting, but I believe that it is another example where at the moment the language is a little obscure The Criminal Law Revision Committee made quite clear that they wished burglary to apply not only to real buildings but also to inhabited boats and vehicles such as caravans. The difficulty that is going to arise, I think, under the drafting of the Bill is that the question will be whether a vehicle or vessel has to be actually inhabited at the time of the burglary, or whether it suffices that the vehicle or vessel is sometimes inhabited and used as a dwelling. I should have thought that the charge of burglary ought to be available when somebody with the relevant intention breaks into a vehicle or vessel which is ordinarily somebody's dwelling house, even though the person dwelling there is not actually in at the time of the break-in. It is with that intention that I have put down this Amendment to make the matter quite clear. I beg to move.
Page 4, line 24, leave out ("an inhabited") and insert ("any").—(Viscount Colville of Culross).
VISCOUNT ST. DAVIDS
I have one small question on this Amendment. May we have it made clear whether it is "burglary" to break into, for example, a club where people do not normally sleep but which is used as a house during the day? For example, there are boats which are used as floating restaurants; there are caravans used as mobile shops and all sorts of other such mobile vehicles which are not actually slept in but which nevertheless contain considerable quantities of valuable goods which could be removed.
§ LORD STONHAM
It all depends on interpretation, on the question of the meaning applied to the words in the clause. As I understand it, the noble Viscount, Lord Colville of Cuirass, has doubts whether, on the existing wording in the subsection, the courts would regard a vehicle or a vessel as inhabited if nobody was in the vehicle or vessel at the time of the illegal entry, even though it might normally be inhabited. We do not think there is any danger on this point, and in our view it would be clear 83 in the context of the clause that the vehicle or vessel did not cease to be inhabited, for the purpose of the clause, merely because the occupant was out. I do not know whether I have made myself clear so far.
Even if the acceptance of the noble Viscount's Amendment would clarify the point, we think that it would also be restrictive. I invite the noble Viscount to consider this point: that it would restrict the clause because the vehicle or vessel might be inhabited although not used as a habitation. For example, a night watchman might be living on board a yacht. The vessel would be inhabited, but it would not normally be a habitation: it would be used as a yacht. This Amendment, therefore, would rule out that kind of inhabiting. It might also have the effect of applying the clause to any vehicle or vessel in use at any time as a habitation, even though it might, for example, be a caravan that had been put away for the winter, or one that had in it fittings which might be removed.
This, of course, would be going wider than the Committee contemplated, and wider than is intended in this subsection; but wherever one draws the line, there are bound to be some rather curious results. The words "inhabited vehicle or vessel" were chosen deliberately to have the effect that I have indicated. So far as the Government are concerned, the precise place where the line is drawn in this subsection is not a matter of very great importance. If it is felt that the existing line is drawn wrongly, we will not only consider it but shall be glad to have suggestions.
The point I should like to invite the noble Viscount and your Lordships to look at is my submission that the words "used as a habitation" without any other qualification might to some extent defeat the object which the noble Viscount had in mind when tabling his Amendment, by taking out of the clause, and therefore taking out of protection of the clause, a vessel which, because it had somebody living in it, was inhabited though not normally a habitation. I think there is nothing between us here in our desire to get it right. I would have accepted the noble Viscount's Amendment but for the fact that I feel that to some extent it defeats the object he has in mind.
§ VISCOUNT DILHORNE
I do not think that the wording is right here. It is true that the courts would interpret a vehicle or vessel as being inhabited, notwithstanding that the occupants were out for a short time. It then becomes a question of degree, of whether they were away for the night, for a week or a month. I agree that there is nothing between the noble Lord, Lord Stonham, and the noble Viscount as to what they want to achieve, but I do not think that these words do it. I think they are capable of being construed too narrowly—that is to say, if people normally living in a caravan were away for a week, it might be held that at the time the caravan was broken into during that week it was not an inhabited vehicle. I do not like my noble friend's word, "habitation". It is open to a slightly wrong conception. If we can make it clear what we want, I think that we should leave it to the Parliamentary draftsmen to see whether they can find better words. That is all we can do to-night.
§ LORD AIREDALE
I should have understood this discussion better if the earlier subsections referred to in this subsection referred to "dwelling houses" or "inhabited buildings". If "any building" is satisfactory in subsections (1) and (2), why, for the sake of consistency, is not "any vehicle or vessel" satisfactory in subsection (3)? If we are to have "inhabited vehicles or vessels" for the purposes of subsection (3), we had better have "dwelling houses" for the purposes of subsections (1) and (2). Since we shall not get that Amendment accepted, I should have thought the best thing would be to forget all about "habitation" for the purposes of this subsection and take out the word "inhabited".
§ LORD WILBERFORCE
Did not the immortal Bard talk about giving… to airy nothingA local habitation and a name.If so, should we not adjourn consideration of these "airy nothings"?
§ LORD STONHAM
I am quite prepared to adjourn consideration of "airy nothings", but I am not prepared to agree that the problem will be solved by leaving out the word "inhabited". What about a bicycle—that is "any vehicle"?
VISCOUNT COLVILLE OF CULROSS
I think that this requires further thought all round, and I therefore beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 9 shall be agreed to?
VISCOUNT COLVILLE OF CULROSS
Before the noble Lord answers that question, I should be grateful if he would answer the point made by the noble Lord, Lord Airedale, earlier but which, in the plethora of points with which he had to deal at that stage, he did not touch upon. The noble Lord said that an offence of breaking and entering could be committed at the present moment by a person simply putting his arm through a window and taking a purse or something valuable off the windowsill, though he docs not go into the house with the whole of his body. I have no doubt that this conception ought to continue to be covered by burglary under this Bill, and I wonder whether the noble Lord has considered whether the term "entry" is correct and sufficient to indicate that this particular action is also comprehended.
§ LORD STONHAM
My present understanding is that it is covered by the 86 word "entry". If a man puts his arm through a window, he is entering the house by part of his body. If on reflection I find there is anything to alter that view, I will let your Lordships know in writing and it can be raised on another occasion.
§ Clause 9 agreed to.
§ Clause 10 agreed to.
§ LORD STONHAM
I think we have now reached a point when your Lordships may feel that we may adjourn the Committee, and I beg to move that the House be now resumed.
§ Moved, That the House do now resume.—(Lord Stonham.)
§ On Question, Motion agreed to, and House resumed accordingly.