THEFT BILL [H.L.]

HL Deb 19 March 1968 vol 290 cc494-582

5.5 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 now resolve itself into Committee—(Lord Stonham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair.]

Clause 18:

False Statements by Company Directors, etc.

18.—(1) Where an officer of a body corporate or unincorporated association (or person purporting to act as such), with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular, he shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.

VISCOUNT DILHORNE moved, in subsection (1), after "affairs", to insert: or to induce any person to become a shareholder or member thereof or to entrust or advance any property to such body corporate or association". The noble and learned Viscount said: I think that it would be for the convenience of the Committee, and will possibly save time, if we discuss together the first four Amendments in my name on the Marshalled List. I beg to move the first one now, and, if need be, I shall move the others in due course.

Clause 18 of the Bill purports to reproduce Section 84 of the Larceny Act 1861. This matter is dealt with in paragraph 105 of the Committee's Report. Section 84 of the 1861 Act was—and I quote the Committee's words: originally intended for, and is primarily concerned with, fraudulent statements in prospectuses. It is clear from the Committee's Report that that is what Clause 18 is intended to cover. I regret to say that it does not appear to me to do so. It seems to me to be far narrower in its scope than the section which it replaces, in one very important respect. Clause 18 makes it an offence only if the written statement or account is published with intent to deceive members or creditors of the body corporate or unincorporated association. But are not prospectuses commonly issued to induce members of the public to subscribe for shares? As Clause 18 stands, it does not appear to me to cover that. It covers only publication of a prospectus which is false in a material particular if the publication is with intent to deceive someone who is already a member or creditor of the company. I cannot see any reason for narrowing the clause and giving it a more limited application than the section which it is to replace. It is to make the clause apply also where the intent is to induce members of the public to buy shares that I have tabled this Amendment.

May I turn to Section 84 of the 1861 Act? That section makes the publication of a false prospectus an offence if published with intent to deceive or defraud any member, shareholder or creditor of such body corporate or public company". That corresponds to Clause 18. But Section 84 goes on: or with intent to induce any person to become a shareholder or partner therein or to entrust or advance any property to such body corporate or public company". There is nothing in Clause 18 which corresponds to that. It seems to me that the omission leaves a wide gap in the criminal law. My Amendment is designed to fill the gap and designed, as I think was the Committee's intention, to make Clause 18 correspond to, and cover the same area as, Section 84 of the 1861 Act. Incidentally, the clause itself does not refer in terms to shareholders, and I think that there is an advantage in using words which are generally understood; and the 1861 Act does so. No reason is given in the Committee's Report for narrowing the clause; and, if it is the intention to narrow it, I hope that we shall be told why it is done—if, indeed, there is any reason for doing it. The notes in Annex 2 say that the clause corresponds to Section 84. I hope that I have said enough to show why I think that that is not the case.

I should like to turn to the next Amendment, No. 38, which seeks to leave out the words "may be". The words in the section of the 1861 Act are: which he shall know to be false in a material particular". I ask this question: is this clause intended to cover more than that? As worded it applies not only to the publication of a written statement or account, which the accused knows to be misleading, false or deceptive, but also to one which he knows may be misleading false or deceptive. May I also ask what is the intention behind the addition of the words "misleading" and "deceptive"? Either they add nothing to what is covered by the single word "false", or they extend the scope of the clause beyond that of Section 84. The Committee's Report is entirely silent about this, just as it gives no reason for the insertion of the words "may be". It was held in the case of The King v. Kylsant—a decision in this House in 1932—that a statement is false in a material particular, although no one specific statement of fact contained in it is false, if when taken as a whole what it implies is false on account of what it does not state. In the case of The King v. Bishirgion, decided in 1936, it was held that a statement may be false if there is an omission which makes that which is stated affirmatively untrue, in the sense that it creates clearly and intentionally an impression or belief in the mind of the public which is wrong.

I think it is now clearly established that the word "false" covers both a statement which is misleading and which is deceptive. Why then insert these words in this clause when they do not appear in Section 84 of the 1861 Act? If, as I think, they add nothing to the meaning of "false", surely it would be better to leave them out. If they are intended to add something, I should like to be told what in fact it is that they add. I should have thought that the courts would be likely to conclude that the words "misleading" and "deceptive" would not have been added by Parliament without good reason. But bearing in mind what the word "false" covers, as I have just said, I think it would be difficult to say what more the words "misleading" and "deceptive" in fact cover. For is not a deceptive statement a misleading one, and a misleading one deceptive? I should have thought that this was the case, but if I am wrong about that, wherein lies the difference?

I fear some of your Lordships may think that this is a somewhat hair splitting point to take, but in this Bill every single word used is of importance and will fall to be carefully considered by the courts. It is therefore essential that we should use the most precise language, and the clearest language, possible so as to leave the meaning not in doubt. It is one thing to establish that a man knew that what he was publishing was false. The questions which the jury will then have to consider in relation to that are: was this statement false in a material particular, and if so did the accused know it? As the clause stands, the questions which they will have to consider appear to be somewhat different. They will have to consider not only whether the statement was misleading, false or deceptive, but also: might it have been misleading, false or deceptive? If they answer that question in the affirmative, then they will have to go on to consider: did the accused know it might have been?

This seems to me to introduce a new element. Recklessness is not involved under the language of Section 84. A man may take the greatest care to state a complicated matter accurately, and not intending to convey any misleading impression, and yet an honest man might say that notwithstanding all the care he had taken he recognised that the statement might be misleading. No doubt the draftsman of this Bill has taken the greatest care to see that it is not misleading, but I think he might be prepared to admit that he knew that parts of it might be misleading. He might admit, for instance, that it was not readily apparent from subsection (3) of Clause 4 that if you picked a bluebell and pulled up the roots you might be convicted of stealing it. Of course a man could not be convicted under Clause 18 unless it was shown that he had an intent to deceive. But if he had such an intention he would publish a statement that was false, that was misleading, that was deceptive—not one that might be false.

Those are the reasons why I think the words "may be", "misleading" and "deceptive" would be better left out of this clause. They are not in the 1861 Act, and although this clause is meant to correspond with Section 84 of that Act, as I have sought to show it does not appear to me to do so. I think the Committee thought it did, and I this k they were wrong in so thinking. I beg to move.

Amendment moved— Page 8, line 16, after ("affairs") insert ("or to induce any person to become a shareholder or member thereof or to entrust or advance any property to such body corporate or association")—(Viscount Dilhorne.).

5.15 p.m.

LORD STONHAM

The noble and learned Viscount, Lord Dilhorne, moved Amendment No. 37A and suggested that we might consider in one discussion the next three following Amendments, and I am very grateful for that suggestion. I think he dealt with each one in turn, and I should like to deal with the matter in the same way. Clause 18 penalises a company director or other officer of a body corporate or unincorporated association who, with intent to deceive its members or creditors about its affairs, publishes a misleading, false or deceptive statement or account. The noble and learned Viscount quite rightly said that the provision which we are making here is intended to replace Section 84, of the 1861 Act, and on this point—the subject of Amendment No. 37A—he said that the Bill as it stands at present is far narrower in its scope than the provision which it is intended to replace. I accept that, but I do not accept that the Bill as a whole does not provide for a complete replacement of Section 84.

If it were accepted, Amendment No. 37A would widen the offence so as to apply to publishing a false statement with intent to induce any person to become a shareholder or member thereof"— that is, a body corporate or association— or to entrust or advance any property to such body corporate or association". As I understand the noble and learned Viscount, his Amendment would insert words similar to those included in Section 84 of the 1861 Act. But the Criminal Law Revision Committee, in revising Section 84, sought as usual in dealing with the 1861 and the 1916 Acts to get rid of repetitions or unnecessary provisions as they regarded them, and to simplify what in their view had to be preserved. The reason why they left out the words at present in Section 84 was that they thought this part of the offence under that section would be sufficiently covered by what is now subsection (1) of Clause 15, and with this the Government agree.

VISCOUNT DILHORNE

Would the noble Lord indicate where they said that in their Report?

LORD STONHAM

I cannot immediately inform the noble and learned Viscount. This I understand is the position.

VISCOUNT DILHORNE

The noble Lord said that the Committee expressed this view. I must say that I am not aware of anything in the Report which they published which expressed this view. I looked through it very carefully before putting down the Amendment, but I could find nothing in the Report to justify that statement.

LORD STONHAM

My understanding of the position (I will give the noble and learned Viscount such reference as I can when I can) is that subsection (1) of Clause 15 in fact covers a number of the Amendments which we are to discuss, and I would again ask your Lordships to consider that subsection. It says: A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable", and so on. Then it goes on: For purposes of this subsection a person is to be treated as obtaining property if he obtains ownership, possession or control of it; 'obtain' includes obtaining for another or enabling another to obtain or to retain… The noble and learned Viscount then went on to deal with the "share-pushing" part of the offence. Publishing a false statement with intent to induce a person to become a shareholder or member, assuming, as one would, that the intent is that the person induced should pay for his shares or membership, will amount to obtaining or attempting to obtain property belonging to another, contrary to subsection (1) of Clause 15. Even if the money for the shares is to go not to the offender but to the company or to somebody else the case will still be covered, because under the provision to which I have referred "obtain" includes obtaining for another or enabling another to obtain; and if by any chance the person induced is not to pay anything for the shares or membership, there seems no strong reason why the conduct should be criminal—at least, criminal under the clause.

As to deception with intent to induce a person to entrust or advance property to the body corporate or association, this again will clearly fall under subsection (1) of Clause 15 if the offender intends to deprive the victim permanently of his property, which of course will ordinarily be the case. If not, then the conduct would fall under subsection (3) of Clause 15. The noble and learned Viscount may well say that, for the reason that the Amendment is consequential on the removal of subsection (3), it should be accepted, but I would say that the argument is still valid on the ground that for all practical purposes the conduct is covered by subsection (1) of Clause 15. But in any case it can be reconsidered in the light of the form which Clause 15 ultimately takes after the Report stage.

I would remind the noble and learned Viscount that the case will certainly be covered if subsection (1) of Clause 15 is amended, as he suggested on the fourth day, to bring in the words, "inducing a person to do or to refrain from doing an act". Apart from the offences under Clause 15 and Clause 18, which we are now considering, there will still remain the elaborate provisions of the Companies Act 1948 as to the information which must be given in circulars concerning new issues of shares and debentures, and the offences under the Prevention of Fraud (Investments) Act 1958 and the Protection of Depositors Act 1963.

On the point that the noble and learned Viscount raised about the reference by the Criminal Law Revision Committee to Clause 15, I now understand that the Report did not precisely deal with this point, but the Committee did not set out to deal in the Report with every point they considered. We know, because my Department was represented on the Committee and provided their secretaries, that their views were as I have given them.

The second Amendment is to delete the words "or may be", and the noble and learned Viscount asks: are those words intended to cover more? The plain answer is that they are, because the point is that if those words were left out the effect would be that the prosecution would have to prove that the person concerned knew that the statement or account actually was false. As the clause is drafted, it will cover a case where the person concerned knows that the statement may well be false but has not troubled to check it or has deliberately shut his eyes to the possibility that it may be false. In our view, the clause as drafted, with the words "or may be" in, will cover statements made recklessly, whereas if the Amendment was accepted it would not.

It seemed to the Criminal Law Revision Committee, and it certainly seems to the Government, right that the clause should cover recklessness, and from the remarks which the noble and learned Viscount made I believe that he thinks so, too; but apparently there is a difference of opinion on this point about the actual effect of either leaving the words in or taking them out. We certainly think that it is necessary for the protection of the public to cover reckless statements. Although the corresponding offence under Section 84 of the Larceny Act 1861 does not cover recklessness, the analogous offences of fraudulently inducing persons to invest money under Section 13 of the Prevention of Fraud (Investments) Act 1958 and the Protection of Depositors Act 1963 apply to reckless statements which are misleading, false or deceptive; and the clause as it stands is therefore substantially similar in effect to those sections.

Finally, I come to the words "misleading" and "or deceptive", which, under Amendments 38A and 38B, it is proposed to leave out. The noble and learned Viscount said, "Surely they cannot have been added to the Bill without good reason". It is true that Section 84 of the 1861 Act refers only to a statement or account which is "false in any material particular", and here again the noble and learned Viscount mentioned the Kylsant case. That was a case under Section 84 of publishing a false prospectus, and the decision was that a prospectus may be "false in any material particular" if, taken as a whole, it con- veys something which is false even though no single statement in it is untrue. In our view it is clearly useful to incorporate this idea in the replacement of Section 84, and the words "misleading, false or deceptive", quite apart from being used in similar circumstances under two fairly recent Acts, convey this idea. They are also used for this purpose in the definition of the comparable offence of fraudulently inducing persons to invest money in the other Act I have mentioned.

In the Government's view, with this precedent before us the omission from Clause 18 of the words "misleading" and "or deceptive" might suggest that the offence is narrower than is in fact intended. I have endeavoured to answer all the noble and learned Viscount's questions, and I hope he will agree that I have done so.

LORD CHORLEY

I should like to say just a word or two about what the Minister has just said. I agree with him on this question of the use of the three words "misleading", "false" and "deceptive". I think the noble and learned Viscount has a very good case legally; and it is quite clear that on the Kylsant case and on other cases the word "false" has been given, and very properly given, a rather wider meaning than the ordinary layman might attach to it. But it is, I think, very important that as far as possible this Bill should meet the requirements of the ordinary layman; and to the layman what was said in the prospectus in the Kylsant case was, of course, true. It was simply that something important was left out. I have often found that even law students find it difficult to understand how a statement of which every word was true could properly be described as false. I entirely accept that in the Kylsant case it was a proper decision.

From the point of view of the person reading this Statute it might be better to have the additional words although possibly, from a strictly drafting point of view, they are not required. Therefore I would agree with the view put forward by the Minister for the retention of these words. I did not altogether agree with what he said about the words, "or may be". In effect he stated that a reckless statement of this kind ought to be punished. I will accept that; but it is difficult to get a connotation of recklessness out of the words "or may be". I should have thought it would have been better to have used the word "reckless" which is a good word in this connection. Moreover, it has been indicated by learned judges in a number of cases that a certain type of conduct when it becomes reckless is properly punished as criminal. If the draftsman means "reckless", then I suggest it would have been better to have used the word "reckless". The words "or may be" are much wider and do not necessarily connote recklessness at all.

There is another point. My noble friend referred to Clause 15(1) which to a large extent puts the present crime of obtaining by false pretences into the Bill. But there is one very important difference. In order to be found guilty of obtaining by false pretences under the present law, or, as I understand it, obtaining by deception, you have actually to obtain. The offence which is established by Clause 18 does not only punish this sort of conduct when it is successful. As I understand it—though it is possible that I have misread the words—it seems to me that the mere attempt to do this or the mere conduct which falls within the words used in the clause is enough to establish the offence. It certainly goes a great deal further than obtaining by false pretences under its form under the old Act or under its form under Clause 15(1).

It may be that in this type of case it is right to go further, because the use of false statements in connection with companies is a very serious business, and the sort of men concerned with these company statements are men who ought to know a great deal better than the ordinary kind of criminal who comes before the magistrates' courts or quarter sessions in the ordinary way. Therefore, it may be that it is right to have a much wider form of words in this case. I have not yet made up my mind about this; but it seemed to me that this was a point of some importance that I ought to mention to the Committee.

LORD HAWKE

May I ask the Minister two questions on this clause which would be of concern to the ordinary individual who may be the director or owner of a company just as much as to the lawyer? Clause 18(1) refers to a statement which may be misleading. It is extremely difficult sometimes when a company is making a statement about something, perhaps its profits for the past six months, to make a statement which some person may not twist round into meaning something different from what is intended. Could that be held to be "misleading", or is it a defence that he did not do this to deceive and that his intentions were honourable? Is that a perfect defence? That is my first question.

There has been great play made with tying-up this clause with Clause 15(1), which reads: A person who by any deception…obtains property…with the intention of permanently depriving the other of it… Some optimistic business people may make statements which they may believe but which may be misleading. They have no intention permanently to deprive a would-be lender of his property; they have every intention to repay it in, say, ten years. But one knows that through false optimism it has been a false, reckless and misleading statement. Is that the correct reading of this situation?

LORD STONHAM

So far as this particular matter raised by the noble Lord, Lord Hawke, is concerned, I would point out that the clause requires that it be a statement which "to his knowledge" may be misleading, false or deceptive. Therefore a person would not be guilty merely because the statement might be misleading, and so on, by an objective test. So far as the noble Lord's second question was concerned, again it must be by an objective test. But I am glad to have the support of my noble friend Lord Chorley in thinking that these words should be retained. It is curious; in the first of the two Amendments the Government were accused of being too narrow and I suggested that the other part is covered by Clause 15(1). On the other two points, it was suggested that we were going too wide. It may be that we have struck the happy medium.

5.36 p.m.

VISCOUNT DILHORNE

I wish I could take that view. It seems to me that the noble Lord has the worst of both worlds. That is the difference. If I may, I will now take the matters in reverse order, having heard what the noble Lord has said. It is quite true that you find the words "misleading and deceptive" in the Prevention of Frauds Act; but you do not find them in Section 84. I do not attach any great weight to that; but, personally, I should have thought it easier to explain to a jury the meaning of the word "false" (which is so clearly established) than it would be to explain the full meaning of these three words. However, that is a matter on which different views may be taken. But when it comes to the words "or may be", I was interested to hear the noble Lord say that they were there to introduce the concept of recklessness. I do not think that that is at all satisfactory as an explanation; because the way this clause is drafted does not bring that into one's mind at all. Speaking from memory (I have not looked it up), I think that the Prevention of Fraud Act uses the word "reckless". If it does, and if that is what is meant to be covered here, I think that a rewording of this clause is desirable.

But may I come to the part in which I am glad to have had the support of the noble Lord, Lord Chorley; that is, the first Amendment that I moved? I really think, with great respect, that Lord Stonham's reply to that Amendment was most astonishing. When one looks at the Report one sees in paragraph 105, line 2, the firm statement from the Committee that this clause "replaces 1861 s. 84." When one looks at the notes in the Annex one sees it stated in the clearest terms that—"The clause (it was then Clause 15) corresponds to"—those are the words used—"1861 s. 84". The noble Lord, Lord Stonham, gets up and admits straight away that it does not correspond. He says that it is narrower. He says that the part which is narrower is covered by Clause 15(1), and that that was the Committee's view.

There is nothing in this Report to indicate that the Committee had that view. We are now told that, because the secretaries of the Committee were in the Home Office, it was so. But I find that very difficult to accept—and I say so frankly to the noble Lord—because the offence created by Clause 18 is entirely distinct from the obtaining of property by criminal deception with intent to deprive under Clause 15(1). I am dealing with the intent of the conduct under Clause 18, and there the conduct which is made criminal is the publication of a written statement or account which to the knowledge of the maker of it is or may be misleading, false or deceptive in a material particular and the publication is with intent to deceive. The offence is the mere publication of a false, misleading document with intent to deceive, and the only question raised by my first Amendment is as to the extent of the intention.

Contrast that with the offence under Clause 15(1). Under Clause 18 the offence can be committed without any property being obtained, without any intention of permanently depriving anyone. The publication is the gist of the offence. All I am seeking to do is to make the scope of Clause 18 correspond to Section 84, because, as it now stands—and the noble Lord does not dispute it—"False statements by company directors etc." (that is the marginal note) can be prosecuted under this clause only if made with intent to deceive members or creditors of the body corporate… —that is to say, the existing shareholders. I cannot see that where a false prospectus has been issued to induce shareholders to join a company you can say that is the same offence as obtaining property by deception under Clause 15(1).

The noble Lord's argument goes neither one way nor the other. If he is right in what he says about Clause 15(1) he has demonstrated, I think, that the whole of Clause 18 is unnecessary. I should prefer, and I should have thought it desirable, that if we are to have a clause in a Bill which is stated to correspond to an existing section dealing with this subject, it ought to cover, as the existing section does, the publication with intent to induce any person to become a shareholder or member or to entrust or advance any property to such body corporate or association. Those are words taken from Section 84 of the 1861 Act.

I am looking at this matter from the point of view of the practitioner. If you are considering under what clause the offence should be charged, and you find this clause dealing with false statements by directors, and you are familial with Section 84, and you have read the Committee's Report, you would expect to find this clause covering it. But it does not. And you are thrown back, so we are now told—you will not find any trace of it in the Committee's report—to Clause 15(1). I do not think that that will do. I hope that the noble Lord will think about what I have suggested with regard to the words "or may be". It really would be better, if you mean "recklessly" to say "recklessly". But with regard to my first Amendment, the present wording of Clause 18 does, to my mind, leave a serious gap in the existing law; and I am not in the least satisfied, so far, with what the noble Lord has said.

LORD STONHAM

With regard to the suggestion of the noble and learned Viscount that the words, "or may be" do not bring to mind the concept of recklessness, I think this is a matter of opinion. As it stands, the clause reads: Where an officer of a body corporate or unincorporated association…with intent to deceive members or creditors of the body corporate or association about its affairs, publishes or concurs in publishing a written statement or account which to his knowledge is or may be misleading, false or deceptive in a material particular… and so on. The very concept that, although to his knowledge it may be false in a material particular, yet he goes on and does nothing about it, is a virtual definition of recklessness. In my view, the whole concept is there.

VISCOUNT COLVILLE OF CULROSS

I think that my noble and learned friend Lord Dilhorne had a point. After all, the noble Lord, Lord Stonham, relied on, among other things, the 1958 Act, the Prevention of Fraud (Investments) Act, because that is where the words "misleading, false and deceptive" are found. But Section 13 of the Act says this: Any person who, by any statement, promise or forecast which he knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making "— dishonestly or otherwise— of any statement, promise or forecast… Why does not the noble Lord follow both bits of the 1958 Act?

LORD STONHAM

It appears that my noble and learned friend the Lord Chancellor is going to join in the discussion, but I must just reply to this point. The noble Viscount, Lord Colville of Culross, said that his noble and learned friend had a point. The noble and learned Viscount, Lord Dilhorne, has had a point every time. My difficulty is that nobody in the Committee ever thinks that I have a point. So far, I have accepted three Amendments, and three Amendments have been carried against the Government. At no time have I declined to look at any point, or to consider it, but at no time has any noble Lord in the Committee ever said, "Yes, I think you are right" or even that I may be right—

VISCOUNT COLVILLE OF CULROSS

I have.

LORD STONHAM

I should hope—not because I concede that noble Lords always have a point which I always look at—that noble Lords will do me the same justice; and not be like Major-General Egerton in the Civil War who, before he went into action, used to pray to Almighty God "that we may be right because as Thou knowest, we shall never change our minds".

5.47 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

If I am allowed to join in, I would do so only to suggest that the words "or may be", which are very simple English words, may be better than "recklessly". I say that because of a case that I was in, which is referred to in Archbold at page 814. On the word "reckless", it says: In The Queen v. Bates— this was in 1952— Mr. Justice Donovan ruled that the word 'reckless' in Section 12(1) of the Prevention of Fraud (Investments) Act 1939— now Section 13(1) of the Prevention of Fraud (Investments) Act 1958— was to be given its ordinary meaning and was not to be restricted to recklessness involving dishonesty and he so directed a jury. In The Queen v. Mackinnon in 1959 Mr. Justice Salmon expressed a contrary view and ruled that the word 'reckless' in the section referred to a dishonest or fraudulent statement as distinct from one which was made with an honest belief in its truth. Mr. Justice Salmon was assisted in arriving at this conclusion by the use of the term 'fraud' in the Title of the Act and by the fact that fraud is the essence of the other offences created by the Section. Mr. Justice Donovan's direction was approved by the Court of Criminal Appeal in The Queen v. Russell in 1953 but as in that case the jury had not been asked to return a verdict on account of containing the word 'reckless' this was admittedly obiter. In The Queen v. Grunwald and others"— this was in 1960— Mr. Justice Paull said he could not entirely agree with either Mr. Justice Donovan or Mr. Justice Salmon and he directed the jury that before they could convict under the section they must be satisfied of three things: that a statement or promise was in fact made; that it was a rash statement to make or a rash promise to give; that the person who made the statement or promise had no real basis of fact on which to support the statement or promise. A greater variety of judicial opinion one can hardly imagine, and this does not seem to me to suggest that the words "or may be" are frightfully complicated, whereas the word "recklessly" is frightfully simple.

LORD STONHAM

May I now continue what I was saying to the noble and learned Viscount? I do not think that he has made his point on "may be", and I do not think he has made his point on "misleading" and "deceptive". Of course, I will look at these words again, but I am bound to say that that is my view now. With regard to the point raised on Clause 15(1), there is a great deal to look at in what the noble Viscount said, and I will certainly do so. When he said that on my argument the whole of Clause 18 is redundant, I cannot agree. Clause 18 covers the part—the narrow part, if you like—of Section 64 of the 1861 Act, which is not covered by Clause 15(1), because there would or might be no obtaining of property. I hope that noble Lords will also look at these points.

VISCOUNT DILHORNE

I am not seeking to press the Committee to accept the words in the other three Amendments, though I think that they can be argued. I am not all that happy about the phraseology, and I am glad that the noble Lord has said that he will look at it. I agree about the difficulties in the construction placed on the word "reckless", but as it stands there does not enter into this any conception of "reckless". The really important Amendment is the first one. I hope the noble Lord appreciates that just as he seeks to defend the present clause on the ground that it applies even when there is no obtaining, I defend the Amendment because it is only to enlarge the intent to what it was in the 1861 Act. In view of what the noble Lord has said, I do not propose to press the Amendment now. I hope that he will meet it, because I believe that it will be a great advantage to practitioners and others to find the law relating to false prospectuses so far as possible contained in one clause of the Bill, as it was in one clause of the Larceny Act. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19:

Suppression, etc. of documents

19.—(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.

5.52 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), to leave out "dishonestly, with a view to gain for himself or another or with intent to cause loss to another", and insert "for any fraudulent purpose". The noble Viscount said: Again it might be a good idea if we discuss with this Amendment the next Amendment in the name of my noble and learned friend Lord Dilhorne, and also the two Amendments to subsection (2), because the points are very similar.

In paragraph 106 of their Report, the Criminal Law Revision Committee say that Clause 18 replaces Sections 27 to 30 of the Larceny Act 1861. Some parts of those sections relating to stealing were taken out by the 1916 Larceny Act, but there remains a residue concerned with destroying, obliterating, defacing and concealing various documents. There is a number of other offences which the Committee say are mostly covered by the residue of these sections. They mention stealing, forgery, malicious damage and offences under the Official Secrets Act, and they give an example of a case which they thought might not be caught. They say: It seemed to us that it might provide the only way of dealing with a person who, for example, suppressed a public document as a first step towards committing a fraud but did not get so far as attempting to commit the fraud". So the first subsection says, "for any fraudulent purpose". Here again in Clause 19 I want to pose the question of whether that is wider or the same as the financial test which Clause 19 produces in both its halves.

There is a rather obscure case on Section 30 of the old Act which concerns a document which gives a bailiff authority to go into a house and seize goods. If the intent of taking away that document was simply to deprive the bailiff of his authority, that would not be caught by the gain and loss criterion in the Bill. Perhaps a better test is to take an example, which may not be very common but could happen, relating to a will or some other court or Government document which relates to the guardianship of children. Suppose that a person destroys a will so as to prevent the provisions which appoint somebody guardian of certain children coming into operation. If the decision in Welham is right, and instead of destroying that will he had forged it, he would be guilty under Section 2(1)(a) of the Forgery Act of an offence and the penalty would be life imprisonment as a maximum, though I have no doubt that it would not be awarded. I do not think that that kind of case is covered by this clause. Clearly it is not covered by Clause 15(1), and the noble Lord cannot go back to that because children are not property. It is not covered by stealing or by the Official Secrets Act, and it is not forgery. It is dealt with separately.

If the Committee are right and it is an offence under existing law, it might be covered by malicious damage. I have done my research on that, and the only thing I can find is not satisfactory. We should have to combine Section 61 of the Malicious Damage Act, 1861, with Section 14 of the Criminal Justice (Administration) Act, 1914, with Section 1 of the Malicious Damage Act, 1964, and all that would happen, unless the will was less than £5, would be that an offender would only go to the magistrates' court and the maximum penalty would be two months or £5. Clause 19 says seven years' imprisonment. Just because this test of pecuniary gain or loss is put in, we have to fall back on another offence of a rather complicated nature which carries a very small penalty. I do not think that this is satisfactory.

My Amendment No. 42 relates to Section 32(2) of the Larceny Act of 1916. Here again we find that the old Act says, "with intent to defraud or injure any other person". Whatever one may think of the meaning of "defraud" in the context of the Larceny Acts. Section 32(2) goes farther than that and says, "or injury to any other person". Again the Bill which the Committee drafted replaces this with the financial test. I do not think that this can be right at all. I fancy that as a result there will be gaps left in the law. If your Lordships look at the definition of "valuable security" in Clause 19(3), I should have thought that it was perfectly possible that someone might under Clause 19(2) destroy or do something to a valuable security which comes within the prima facie meaning of this subsection, but do it not with a view to gain or intent to cause a loss but—the old case that we had before—to cover up a past defalcation. Then, of course, it is not an offence under this Bill. I would venture to suggest that it might easily be an offence under Section 32(2) of the 1916 Act, and that is said to be replaced.

Here are, I suggest, two lacunæ left in the criminal law by the insistence on this financial test in clause after clause of this Bill. I should be grateful if the noble Lord, Lord Stonham, would explain to me, if these lacunæ are in fact filled elsewhere in the Bill, how this is so, or why it is that the Government have now decided that offences of this sort shall no longer be criminal. I beg to move. Page 8, line 29, leave out from ("who") to end of line 30 and insert ("for any fraudulent purpose").—(Viscount Colville of Culross.)

VISCOUNT DILHORNE

It might be convenient for the Committee to consider the alternative Amendment, No. 40, which is in my name, at the same time as this Amendment. They are both directed to the same point, and I should like to say a few words in support of what my noble friend has said. When one looks at subsection (1) one sees that that again is intended to produce what is contained in Sections 27 and 30 of the Larceny Act 1861; and, as my noble friend has said, both those sections contain the words "for any fraudulent purpose". I take it that the words "for any fraudulent purpose" really mean about the same as the word "fraudulent", and in this Bill "dishonestly" is intended to take the place of that word. That is made clear in paragraph 39 of the Report. So, to give subsection (1) the same scope as the sections in the 1861 Act, all we want is the word "dishonestly" or the words "for any dishonest purposes".

Again, as my noble friend has pointed out, we have these expressions, which are now familiar, "with a view to gain" and so on, and "with an intent to cause loss", meaning in each case financial gain or financial loss. It does not seem to me that it can be argued that this subsection corresponds with the sections that it replaces unless it is assumed that "any fraudulent purpose" is restricted to the purpose of securing monetary gain or of inflicting financial loss.

One gets no light on this point, I am sorry to have to say, from the Committee's Report, because all that the Report says is that this limitation is in accordance with the scheme of the Bill. I find it difficult to detect any scheme in these provisions. It may be thought that the observations of their Lordships in the Welham case in this House, which was a decision on the Forgery Act, do not apply in relation to the words, "with intent to defraud ", "fraudulent" or "for any fraudulent purpose" in the Larceny Act. I do not take the view that the same words used in different cases generally require to be interpreted differently. I take the Welham decision as being applicable generally to those words unless the particular context in which they are used shows that a different interpretation was intended in a particular section; and I cannot find it in these sections.

I think that my view is reinforced by what was said recently in the Court of Appeal in a decision on the Larceny Act, and not on the Forgery Act, in which the meaning of the word "fraudulently" fell to be considered, in the cause of The Queen v. Thorpe. There, Lord Justice Winn said that a person who entrusts property to another is—and I quote his words— defrauded if his property is applied in a manner which he to the knowledge of the accused would not have authorised. He later said: If the accused person had applied the property, money or other thing to a purpose and use which he well knew would not have been authorised by the depositor of it, then he has thereby, reacting knowingly and intentionally and not through any misconception of the material facts, defrauded the depositor. So here, in a case on the Larceny Act, it was held that "defrauding" went wider than just "for the purpose of financial gain" or "causing financial loss".

This, I submit, supports the view that I have expressed, that this subsection in fact covers a narrower field than the section it replaces. Neither of the passages from the judgment which I have cited gives any support to the idea that the accused's conduct could be fraudulent only if its purpose was financial. The idea that there is an intent to defraud, fraudulent conduct, or a fraudulent purpose only when the purpose is to cause financial loss or gain emanates, I believe, from Cambridge, and is in my opinion a heresy. If, as I think. "for any fraudulent purpose" has a wider meaning than the language of this subsection, then this subsection ceases to cover conduct which up to now has been criminal, and a gap will be left in our law.

Assuming that I am wrong about this, I must go on to suggest that the effect of the subsection as it now stands is to make conduct which should be treated as criminal free from any criminal sanction. Should not a man who deliberately suppresses a will to obtain for himself custody of a child be liable to be convicted of a criminal offence? Should he not be caught by this subsection? As his purpose was not for financial gain or loss, as the subsection stands he will not be caught. If he forges a will for the same purpose, he commits a crime; if he suppresses an existing will for that purpose, he does not. That does not seem to me to be either logical or right. If he destroys an original document filed in any court of justice his object may not be financial; it might be to escape conviction for an offence. But unless it is financial, his conduct in destroying the document will not be criminal under this subsection. No doubt other examples could be given. It is for those reasons that I feel the language of this subsection is too narrow; too narrow for these modern times, and narrower, I believe, than the existing provisions in the 1861 Act.

I should now like to turn to subsection (2), about which my noble friend spoke at the same time. Here, again, we are told by the Committee that subsection (2) reproduces the substance of the offence under Section 32(2) of fraudulently procuring the execution of a valuable security. They say that the language has been altered so as to accord with other provisions of the Bill relating to offences of deception. It does not appear to me to be accurate to say that the language accords with the provisions of the Bill relating to deception when in Clause 15(1) you do not find the words "with a view to gain" et cetera. So here again we have what I have called the Cambridge heresy; and here again it is a particularly glaring instance, because whatever view may be taken of the words "intent to defraud", this Section 32(1), which purports to be reproduced in this subsection, says, as my noble friend pointed out: with intent to defraud or injure any other person ". These are important matters; they are very detailed. I feel that here, as indeed on all these matters, we have established a case for the noble Lord, Lord Stonham, to answer.

LORD STONHAM

I agree with the noble and learned Viscount that it is a detailed case that he has put forward, and certainly it is a case to answer. While it is, of course, for Parliament to discuss and come to a decision on these Bills, and indeed it is a responsibility which we must discharge, I find increasing difficulty in grasping all the arguments and certainly the references to different Bills as they are spoken. Noble Lords have quite rightly done their research, but it is exceedingly difficult on the instant to get up and answer a case of this kind. Therefore, inevitably, except when I come to the conclusion immediately that a noble Lord is most certainly wrong and I try to prove it, I must always say that an argument will have to be looked at in detail; the written word will have to be carefully studied. I say that with regard to all these points.

But, having said that, I will now try to answer to the best of my ability the points which have been raised. First of all, may I take Amendment No. 39 Moved by the noble Viscount, Lord Colville of Culross, to insert the words "for any fraudulent purpose". This is where I disagree. I understand that the broad purpose of the noble Viscount is to restore to the subsection, to attract to the subsection, as it were, the wide or wider meanings of fraud and intent to defraud which I believe are covered in the criminal law generally as a result of the decision in the forgery case, the Welham case, to which the noble and learned Viscount made reference. We debated earlier in Committee—

VISCOUNT COLVILLE OF CULROSS

I am sorry to interrupt the noble Lord, but I do not want him to get my own argument wrong. I am not saying, and I have never said, and I am certainly not in a position to say, whether or not Welham applies under the Larceny Act. Who am I to say that? All I am suggesting is that it may do, and there is some evidence to suggest that pure financial gain and loss is not the only essence of defrauding under the Larceny Acts. Therefore I am putting my Amendment forward only on the basis that it may be wider than what the Bill says. I am not trying to attract Welham.

LORD CHORLEY

May I add to that that there was a case in the Court of Appeal Criminal Division some months ago in which they used the Welham case; it was embezzlement, actually. So there is this possibility of the view taken in the Welham case being applied to this enactment when it is an Act.

LORD STONHAM

Do your Lordships see what I mean? This is the position we are in. But I want to seize on the one point arising from the noble Viscount's intervention. That is, in our view, the words which we now have in the subsection with a view to gain for himself or another or with intent to cause loss to another are for the same purpose as that for which the noble Viscount wishes to insert "for any fraudulent purpose", and they have, in our view, broadly the same effect and also, in our view, the merit of being clear. I know the noble Viscount objects to this, but the Government are firmly opposed to referring to "fraud" in the definition of any of the new offences precisely because of the difficulty which the word causes now in interpretation of the present law. Therefore we want to avoid the use of those words. The noble Lord said, quite rightly, that all our proposals in the Bill replace sections of existing legislation which include the words "for any fraudulent purpose". That is agreed. But we believe we have words which are somewhat better.

Reference has been made to the Larceny Acts, and I understood the noble and learned Viscount to say that the present clause here is not so wide as existing legislation is. He committed himself to the statement that the clause does not cover, or will cease to cover, conduct which is now criminal under the present law. He gave a number of examples, one being that if a man destroys a will he is not caught. I may have missed some qualifying words of the noble and learned Viscount. But in the words of the clause, if a man dishonestly, with a view to gain…or with intent to cause loss"—

VISCOUNT DILHORNE

The noble Lord is missing the whole point by inserting those words. I gave instances of where a man might for another motive destroy or suppress a will, and I pointed out that if he forged a will instead of suppressing an existing one he would be guilty of criminal conduct, but if he merely suppressed or destroyed an existing will with a motive other than that of financial gain to himself—and he might well have such a motive—he was not caught. The noble Lord misrepresents me, otherwise I would not have interrupted.

LORD STONHAM

I thought it possible I may have missed some words, and I said so, but the noble and learned Viscount knows that I would not knowingly misrepresent him.

May I try to deal with some of the points of the noble Viscount, Lord Colville of Culross, particularly about a will? He gave a hypothetical case, and indeed Lord Dilhorne also referred to a will. We do not believe that suppressing a will in order to obtain guardianship (which is a remote contingency, I would suggest) is covered by "fraudulent pur- pose" in the 1861 Act. This is the view we have, and this is one of the difficulties of a discussion of this kind. If I may invite comparison between what we are now proposing and Sections 82 to 84 of the Larceny Act, Clause 18 of this Bill, in our intention, only replaces Section 84 of the 1861 Act, and Section 84 goes wider than Sections 82 and 83, because each of them requires an intent to defraud, whereas Section 84 requires an intent to deceive or defraud; and it was because of the wide nature of the offence under Section 84 that the Criminal Law Revision Committee found it necessary to draw Clause 18 of this Bill (Clause 15 of their draft Bill) more widely than the offences under the Bill which depend on being committed with a view to gain or an intention to cause loss.

The noble Lord gave a hypothetical case which, as I understand it, he thought would be caught by Section 30 of the 1861 Act. Section 30 is concerned with court records and legal documents other than wills, and the appropriate provision in the law as it exists at present is in Section 29—

VISCOUNT COLVILLE OF CULROSS

That is right.

LORD STONHAM

—of the 1861 Act. An offence under Section 29 requires a fraudulent purpose, and the question of how wide the section is depends on the view taken as to the meaning of "fraudulent purpose" in the context of the Larceny Act. It may be that it would cover the noble Viscount's hypothetical case, but we do not think it has the wide meaning which in some quarters it is argued to have in the Welham case. On the other hand, if it is argued that Clause 19 is not wide enough, perhaps that argument tends to overlook that some of the things which it is desired to cover in it will probably be theft. For instance, if I take a will and burn it, whatever my motive for burning it, I shall almost certainly be stealing the will. It is true—and this is, I think, the noble and learned Viscount's point—that it might be possible to destroy a will without appropriating it, and therefore without an offence under Clause 1 of this Bill being committed, or there might be circumstances where it would be difficult to prove an appropriation; but in our view Clauses 1 to 19, taken together, do not seem to leave any serious gap, although of course I want to study the cases which the noble and learned Viscount suggested would not be covered. It seems to me, in the kind of case mentioned by the noble Lord, a remote possibility, if it arose, that a theft would not indeed be committed.

I will now turn to the further points made by the noble and learned Viscount and his reference to the Welham case as to the nature of an intent to defraud. For the reasons which I gave during earlier discussions, the Government are satisfied that the view that has been stated is not a correct view of the meaning of "fraudulent purposes" in the relevant sections of the 1861 Act, and it is relevant to say that those sections are headed by the words "as to larceny of written instruments", which in our view is a clear indication that they were intended to deal with conduct akin to larceny. I think I should also add that whatever the present law, we have tried to take the opportunity in this Bill to deal generally with the destruction and concealment of wills and other documents. But as with other clauses—and here the noble Lord does not agree—we think it is undesirable to widen the Bill without good cause, and in our opinion it would be wrong to do so because the alleged gap in the criminal law is outside the general field of theft and similar or associated offences covered by the Bill.

Some of the suggestions which have been made for amendment of the offences which it was thought they would cover might almost be taken to be outside the Long Title of the Bill. In any case, it is not clear that for practical purposes such cases as have been suggested by the noble and learned Viscount, Lord Dilhorne, any real gaps exist in this subsection as drafted. It has been said, and it may be said again, that it does not cover the dishonest destruction of a will or a share certificate out of spite, or some similar reason, but it is likely in such a case that there would have been intent to cause loss to another.

On the other hand, it does not seem to us appropriate that an offence under this subsection should extend to a person who dishonestly destroys any original document filed in any Government De- partment. I am quoting from the section, except that I am omitting words which are not directly relevant. That could make the subsection apply to a Government clerk who destroys a document in order to conceal the fact that he has delayed replying to it. We are quoting hypothetical cases, and that indeed is a fair one. In the first place I pointed out the difficulty of giving a complete, and certainly giving a highly satisfactory, reply, but I have done my best to cover as many points as possible, and I will certainly study closely everything that has been said.

VISCOUNT DILHORNE

Before my noble friend makes a further speech, as I am discussing my Amendment at the same time I should like to say that I appreciate that the noble Lord, Lord Stonham, is in a position of some difficulty and is doing his best to meet the many points that have been raised. I am sorry to disappoint him but I really cannot think his answer on this is satisfactory. It does not satisfy me. I am glad he is going to look at it again, but I should like to indicate now why I think it is unsatisfactory. He says that "fraudulent purposes" has the limited meaning of financial gain or financial loss, as if that were established by decisions. I do not think it is at all.

VISCOUNT COLVILLE OF CULROSS

Hear, hear!

VISCOUNT DILHORNE

And it is on that assumption that he says he does not think the cases instanced by my noble friend and by me were covered by the 1861 Act. That is an assumption for which I do not think there is any authority. That is the heresy which I am sorry to see the noble Lord has followed. This is fundamental; it goes to the root of this Bill, and this thesis which is put forward by the noble Lord has never been considered or discussed in the Committee's Report. One does not find a word about "fraud", "fraudulent purposes", "fraudulent intent", and so on, having this particular limited meaning.

Let us see what this thesis means. It means that when we find the very same words used in the Forgery Act they are to be given an entirely different meaning from the words when used in the Larceny Act. I find that difficult to accept. I do not think it is right, unless, as I have said, the particular context of the clause in which they are used shows that they are meant to be used with a different meaning. But putting these provisions in the Bill prevents any court in the land saying that "fraudulently" or "for a fraudulent purpose" in the Larceny Act means the same as it does in the Forgery Act. We are therefore making this clause much narrower than the existing law if the Welham decision applies also to the Larcency Acts generally, which I think it does.

I put my argument on another ground, which I do not think was followed by the noble Lord. This is a Bill to bring the criminal law up to date. We are not just trying to restate existing laws in different language; we are not saying that we shall not put something in here because it was not in the Act of 1861. I concluded my argument by suggesting that it really was illogical that a person could go to prison for forging a will if he forged it for a purpose that was not financial, but was not punished if he destroyed or suppressed an existing will, unless the motive was financial; and I was saying that, whatever may be in the 1861 Act, our existing law ought to cover those cases as well as the case where it is done for financial gain.

I know that the noble Lord is in difficulty about dealing with these points. I wish he had been a little more forthcoming in his answer. I think it would be a great mistake if this Bill were so worded as to exclude the possibility of its being held that the Welham case applies to larceny just as much as it does to fraud. Finally, when the noble Lord seeks to rely, as he did, on the wording of the old Act, and says that it shows that this offence is akin to larceny, I would ask him to bear in mind that there is nothing in the definition of "larceny" which supports the view that it must be with a view to gain or causing financial loss.

LORD CONESFORD

I shall not detain the noble Lord for more than a moment. What strikes me about this clause as it is now drafted is that it is obviously too narrow. Clearly, if you destroy or deface a will for a wholly improper motive, such as was given in an example by my noble friend Lord Colville of Culross, that ought to be within the criminal law. I offer this only as a suggestion: if the word "fraudulently" will not do, and the word "dishonestly" will not do, I wonder whether he would consider the possible use of the word "maliciously"—with an improper motive. It strikes me that if the words "fraudulently or maliciously" were used it might possibly meet some of the problems that have been raised.

LORD STONHAM

I should like to make it clear that when I mentioned that some offences, in my view, should not be in this Bill, I was not suggesting they should not continue as criminal offences. The noble and learned Viscount said just now that I was suggesting that fraudulent purpose depended only on gain or loss. I do not believe that. He said I appeared to have swallowed that heresy. It is one heresy I have not swallowed. The only suggestion I would make is that I believe this Bill may not be appropriate for some of these offences. That is all. If I am wrong, I will come back and say so. The noble and learned Viscount said that this is a Bill to bring the criminal law up to date. Indeed it is. There are some things we have not even discussed because everybody is in agreement. Great strides have been made in bringing the law up to date—penalties and so on. I should not like it to go out that because there has been a good deal of criticism of this Bill we do not agree, broadly speaking, that it does make great strides forward.

VISCOUNT COLVILLE OF CULROSS

I hasten to give the noble Lord, Lord Stonham, a point as soon as I possibly can, and of course I concede that one. Would the noble Lord think about this? First of all, he did not deal with subsection (2). I shall not go over the arguments or move the Amendment when it comes up. There it is "defraud or injure". What does the existing law mean there? It is not just "defraud", and therefore it is not just whatever limited ambit that is meant to cover under the existing law. Parliament has already given it a wider definition, and here it is being cut down. We are faced with the position that my noble and learned friend envisaged: that we shall have until such time as we produce another Bill, with perhaps another subject matter, this very strange situation that forgery of a will with non-financial interest will be a severely punishable offence and the suppression of a will with the same interest will be no offence at all.

I fully accept that there may have to be a limit on what is in the Bill, but would the noble Lord, Lord Stonham, look at the repeals? All we are asking is to avoid leaving lacunae. There may or may not be lacunae, but what the Bill does is repeal the whole of the 1861 Act and the whole of the 1916 Act. There is no room left for consideration whether or not these offences ought to be wider than they are in the Bill. There will be no criminal law governing it at all, unless I am quite wrong in my researches. If the noble Lord wants to limit his Bill to financial gain and loss, let him do so, but not repeal all the old law on the subject. Let us go on having a criminal code which deals with these anomalous cases, and which in due course will be replaced by some new Bill or series of Bills which fill up the gaps. If we are going to accept this financial limitation clause after clause in this Bill, there must be an undertaking by the Government to consider the whole matter of repeals. I am sure the noble Lord would be prepared to accept that, and I am sure the noble Lord sees the significance of what I am saying, in view of the last speech he made. If the noble Lord will say that he will take that into account (he need only nod his head) I think we have got as far as we can on Clause 19 this afternoon; and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT DILHORNE had given notice of an Amendment, in subsection (1), to leave out "with a view to gain for himself or another or with intent to cause loss to another". The noble and learned Viscount said: I do not propose to move this Amendment, in view of the clear assurance the noble Lord has given to reconsider the points I have made.

VISCOUNT DILHORNE

had given notice to move, in subsection (2), to leave out the same words. The noble and learned Viscount said: I do not move this Amendment, for the same reason.

Clause 19 agreed to.

Clause 20:

Blackmail

20.—(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—

1. (a) that he has reasonable grounds for making the demand; and
2. (b) that the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces do or do not relate to action to be taken by the person making the demand.

6.35 p.m.

VISCOUNT DILHORNE moved, in subsection (1), to leave out "A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another" and insert: obtaining any property or valuable thing or the execution, acceptance, endorsement or alteration of any valuable security or to inducing a person to do or refrain from doing any act".

The noble and learned Viscount said: I think it might be for the convenience of the Committee if Amendments Nos. 43A and 44 were discussed together. They raise one issue in relation to this clause, and it is a distinct issue from that in No. 44A in the name of the noble Lord, Lord Stow Hill, and my noble friend Lord Colville of Culross. May I say at once that I think it would be a great improvement to have just one clause dealing with what is commonly known as blackmail, but if we are to do so it is very desirable and very important that it should be what one might call a pretty comprehensive clause. One criticism of this clause is that it is not sufficiently comprehensive. You can surely blackmail to induce a course of conduct, to make a person do or refrain from doing any act, and this is, in part, recognised in the Sexual Offences Act 1956, for by Section 2 of that Act it is made an offence to procure a woman by threats, by intimidation, to have unlawful intercourse. If this clause stands as it is, it will not be an offence to procure by blackmail the consent of an adult to an act of homosexuality.

If one looks at the existing sections which this clause is intended to replace, one finds that under Section 29(1)(i) of the Larceny Act uttering any letter or writing demanding of a person with menaces and without reasonable proper cause any property or valuable thing is an offence. And subsection (1)(ii) of that section makes the sending of a letter accusing or threatening to accuse a person of a serious crime or of soliciting homosexual conduct if done with intent to extort or gain any property or valuable thing an offence. Section 29(2) deals with blackmailing someone to execute or alter or destroy a valuable security, and there we have the words again "an intent to defraud or injure any person", which must be wider than the words, "with a view to gain to himself or another or with intent to cause loss to another", because this is limited to financial gain and financial loss.

It is clear, I would suggest, that under Section 29 of the Larceny Act what is commonly called blackmail is not restricted to blackmail for a financial purpose. This Clause 20 is Section 31 of the Larceny Act makes an offence a threat to publish libellous matter, with intent to extort a valuable thing, and also an offence if done to induce any person to confer or procure for any person any appointment or office of profit or trust. So there we have the existing law giving an instance of blackmail to induce a course of conduct, which is made a criminal offence. This particular clause does not extend to cover blackmail to induce a course of conduct unless the purpose is financial gain or loss. I ask the noble and learned Lord, the Lord Chancellor, who I understand is going to reply, why this limitation of the existing law?—because that is really what it is.

Some offices give great status and even in these days are without financial rewards. The Chairman of the British Museum Trustees holds a position of great status. And I wonder if anyone holds the view that blackmail to procure the appointment of someone, or to prevent someone from getting promotion in a business, should not be criminal and dealt with by this Bill. A man who gets no promotion will suffer no financial loss, unless the failure to get the money he would have got if promoted can be regarded as financial loss. I rather doubt whether it can be. When a man says that he has lost so many pounds on a day's racing, one does not understand by that that he is including the amount he would have won if the horses he had backed had passed the post first. Should it not be made clear in this clause that blackmail, not just for financial gain or to cause loss, but also to induce any person "to do or refrain from doing" an act, is criminal?

May I turn again to the Report of the Committee? At paragraph 117 they say that "gain is ordinarily the purpose of blackmail". By that they mean, presumably, financial gain. While I would not question that statement, surely it is true to say that financial gain is by no means the sole purpose, or always the purpose, of blackmail. Why should not this clause cover other forms of blackmail as well? The paragraph reads: Gain is ordinarily the purpose of blackmail, and in this respect the offence would correspond to criminal deception, which seems right".

When one looks at the offence of criminal deception in Clause 15(1) one sees that it does not correspond.

The Committee then go on: It seems right also that the offence should apply to making a demand with intent to cause loss to another.

The Committee give an example. They say: A person might threaten to do something unpleasant to another if he would not destroy letters.

It is rather a novel conception to me that the destruction of letters always involves financial loss. The publication of old love letters may be quite embarrassing. Could the threats of a man who was extremely unpleasant to his former mistress if she did not destroy letters he had sent her be regarded as menaces with a view to financial gain or to causing financial loss? Unless it could, it will not be covered by this clause. Yet, as I understand the Committee's Report, they wanted cases of this kind, of which they gave this example, to be covered. As it stands, the clause does not seem to me to do so.

So I propose by my Amendment that these words should be left out and words should be inserted in their place, so that the clause would read: A person is guilty of blackmail if, with a view to obtaining any property or valuable thing or the execution, acceptance, endorsement or alteration of any valuable security or to inducing a person to do or refrain from doing any act… and so on. If the Amendment were made I think that this clause in this respect would cover much the same field as the provisions of the Statutes which it replaces. Indeed, I have sought to adapt my Amendment to these old provisions. I have put it more generally by saying: inducing a person to do or refrain from doing any act and I should have thought that there were advantages in so doing. I have not limited it to seeking to use menaces for the purpose of seeking to secure promotion or an appointment or to stop someone being appointed. I have dealt with this matter as shortly as I can. I beg to move.

Amendment moved— Page 9, line 10 leave out from beginning to ("he") in line 11 and insert the said new words.—(Viscount Dilhorne.)

VISCOUNT COVILLE OF CULROSS

I need say only a few words, because my noble and learned friend has covered this field in rather fuller terms than I think I should have been able to. I am afraid that my Amendment on this point, No. 44, is defective, but the object was quite simple. It was to point out what seemed to me to be perfectly plainly an instance in the existing law, under Section 31 of the Larceny Act 1916, which is being replaced, where the test could quite clearly not be confined only to financial gain and loss; and I wanted to know why it was that the Government wished to confine the law in the way this Bill does.

A trust need not be paid; an office of trust need not be paid. At the present moment, it is covered by blackmail. Under the Bill it would not be covered by blackmail. There must be a reason for the change. None is given in the Report. None was given, so far as I know, in the reply to the Second Reading debate. It may be the right thing to do. But I should have thought that either we decide to leave all the matters in the present law which do not concern themselves with gain and loss as they are, to be dealt with by other legislation, or we insert a proper and comprehensive new provision in this Bill. If there is some part of the existing criminal law which is not being re- placed, I greatly hope that the noble and learned Lord will say why.

6.46 p.m.

THE LORD CHANCELLOR

Before I reply it would help me to know—because the noble Viscount says that he knows his Amendment is defective, and I have not the faintest idea about it—what it is supposed to mean. The words of the existing section are: or to induce any person to confer or procure for any person any appointment or office of profit or trust. The noble Viscount's Amendment says: any appointment of office or trust. I simply do not know what it means.

VISCOUNT COLVILLE OF CULROSS

It is perfectly true that my Amendment is quite defective. I am simply concerned with the trust. I am concerned with the procuring, or inducing a person "to confer or procure for any person any trust". That is something that may not be paid. That is the point that I am making. It may not be paid. There may be no financial involvement at all, so far as I can make out.

THE LORD CHANCELLOR

I am much obliged. This is an important clause which we have not seen before. In the interests of time, I will not read Sections 29, 30 and 31 of the Act which are our present laws and how extraordinarily complicated they are, trying to embrace every conceivable kind of thing! The Committee found that they were obscure and most complicated. Of course, the first of these, which is in Section 29(1)(i) of the Act, is the offence of uttering any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing. Then, subsection (1)(ii) and (iii) deal with accusing or threatening to accuse a person of any of certain serious offences with intent to extort or gain any property. Subsection (2) deals with compelling or inducing a person, by force, or by accusing or threatening to accuse him of certain serious offences, to execute a valuable security. The offences under this section carry life imprisonment.

Section 30 applies to any person who with menaces or by force demands of any person anything capable of being stolen with intent to steal the same". The penalty there is five years' imprisonment. Section 31 applies to publishing or threatening to publish any libel or other matter with intent to extort or to procure an appointment for anybody. That carries only a two-year penalty.

As a result of the way in which the courts have interpreted "menaces" in Section 29(1)(i) the scheme of the offences in Sections 29 to 31 has become altered. Originally, in the corresponding earlier legislation, the word was understood to refer only to threats of personal injury or damage to property, and the offence was more akin to robbery; it had nothing to do with blackmail, in the sense of threatening to publish discreditable information about a person. Blackmail in the ordinary sense was dealt with mainly under Section 31. Since then, the courts have given an extended meaning to "menaces" in Section 29(1)(i), so that it covers almost any kind of threat.

While this has the result that blackmail, provided that the threat is contained in a letter or other document, is punishable with imprisonment for life, it is not entirely satisfactory because the words "without any reasonable or probable cause" give but little guidance as to when it is justifiable to use threats in support of legal or other honest demands.

Another result of the wide meaning now given to "menaces" in Section 29(1)(i) is that it completely covers Section 29(1)(ii), which applies to uttering a letter accusing or threatening to accuse a person of certain serious offences, and also most of the other provisions in Sections 29 to 31 so far as written threats are concerned. The offence under Section 30 depends on demanding with menaces or by force with intent to steal. Here also the courts have interpreted "menaces" to mean practically any threat, so that the offence under the section has been turned from what was, in effect, attempted larceny into blackmail.

The next difficulty about the existing law was the vagueness of the expression "without any reasonable or probable cause". The learned members of the Committee will remember a case involving the Motor Trade Association who maintained price maintenance, which in those days was perfectly lawful, and the Motor Trade Association were a most respectable body. They maintained prices in this way. If you joined you had to comply with the rules; if you sold under the maintained prices, you could be fined. If you did not pay the fine you could be put on the stopped list and would not get supplies from manufacturers.

The perfectly respectable secretary of the Motor Trade Association was prosecuted because they said that for him to write to people who had broken the rules and say, "If you do not pay £100 you will be put on the stopped list" was blackmail. He was convicted and the conviction was upheld in the Court of Criminal Appeal. In a subsequent civil case before the Court of Appeal the Court said that that was wrong and that it was not blackmail. The Court of Criminal Appeal said they would go on following their own decision. The matter was ultimately put right in the House of Lords, in Thorn v. Motor Trade Association, when it was held that the civil Court of Appeal was right and that the Court of Criminal Appeal was wrong, and that it was not blackmail.

Another anomaly in the present law is illustrated by the contrasting cases of Dymond and Bernhard. In Dymond a girl wrote a letter threatening to summon the prosecutor for indecently assaulting her. She was charged with uttering a letter, contrary to Section 29(1)(i). The trial judge refused to allow her to give evidence in support of her complaint of indecent assault and she was convicted. The Court of Criminal Appeal affirmed the decision. The decision proceeded on the basis that she had no reasonable or probable cause for making the demand, and that her belief that she had a reasonable or probable cause would not be a defence.

In Bernhard a Hungarian woman orally threatened a married man in England that unless he paid her money which she claimed he owed her under an agreement, in consideration of her having been his mistress, she would tell his wife and the Press of the association. She had previously consulted a Hungarian lawyer who had advised her, wrongly, that the agreement was legally valid—as it would have been in Hungary, but it was illegal in England. As there was no written threat she was prosecuted under Section 30 for demanding money with menaces with intent to steal. The defence was that there was no intention to steal because there was a "claim of right" on account of the agreement. The trial judge directed the jury that there could be no claim of right in such a case because there was no right to make the demand, and the accused was convicted. The Court of Criminal Appeal, however, quashed the conviction, on the ground that her belief that she was entitled to the payment was a claim of right, so there was no "intent to steal".

As the Criminal Law Revision Committee pointed out in paragraph 114 of the Report, the effect of these decisions is that a mistaken belief in the existence of a reasonable or probable cause is not a defence to a charge under Section 29(1)(i), but a mistaken belief in a claim of right is a defence to a charge under Section 30. They had come to the conclusion by this time that the law was so confused and unsatisfactory that it was necessary, as they said, to go back to first principles and to consider, looking separately at the two ingredients of the "demand" and the "threat", what kind of conduct should amount to blackmail. It seemed reasonably clear to them that the offence should include at least making an improper demand of a financial character, accompanied by threats; and that it should apply to a threat to injure a person or damage his property unless he paid something to which the person who made the demand did not pretend to be entitled. There was also, the Committee thought, no doubt that it should be blackmail for a person to demand something merely as the price of not revealing some discreditable conduct of which he happened to know. The difficulty arose where the person who made the demand thought that he had a valid claim.

So far as concerns the subject matter of the demand, the Committee's view was that an offence should be committed where the demand was made "with a view to gain" or "with intent to cause loss to another"; and subsection (1) provides accordingly. Gain is ordinarily the purpose of blackmail, and in this respect the offence will correspond to criminal deception. It also seemed right that the offence should apply to making a demand with intent to cause loss to another, without a gain for the offender, since although this would be unusual it might occur. Provided that the element of gain or loss is present, the subsection makes no distinctions as to the subject matter of the demand; the Committee considered that to preserve the distinctions in the present law in this respect would be inconsistent with the policy of creating uniform offences.

In relation to the Amendment proposed by the noble and learned Viscount, the objection to his previous Amendment, the one that has not been moved, was that it proposed the deletion of the words "with a view to gain for himself or another or with intent to cause loss to another" in Clause 20(1), which would have made the clause undesirably wide. The arguments against that Amendment apply equally to the present Amendment because of its inclusion of the words "to do or refrain from doing any act". Those words cover everything covered by the preceding words of the Amendment, because the Amendment is first of all very specific and narrow, then very wide. It seeks to insert, in place of the existing words: obtaining any property or valuable thing or the execution, acceptance, endorsement or alteration of any valuable security…"— that is getting somebody to hand this over. But the phrase, or to inducing a person to do or refrain from doing any act seems to include everything which precedes it, and to be enormously wide. If the proposed Amendment were made, the blackmail offence created by the Bill would go far wider than the existing law, since it would apply to acts which contained no property element; and threats of all kinds for all sorts of purposes would be criminal unless—

VISCOUNT DILHORNE

Does the noble Lord say that the existing law does not apply in relation to an appointment to a trust, to acts which do not involve property?

THE LORD CHANCELLOR

I have not yet come to the Amendment in the name of the noble Viscount, Lord Colville of Culross.

VISCOUNT DILHORNE

I made that point in my speech.

THE LORD CHANCELLOR

Yes, I will deal with that point, because it arises directly on the noble Viscount's Amendment. If the proposed Amendment were made the blackmail offence created by the Bill would go far wider than the existing law, since it would apply to acts which contain no property element; and threats of all kinds for all sorts of purposes would be criminal unless the person making them believed, and so on.

It may be said that the limitations of the existing law are no argument against extending the offence created by Clause 20 to conduct, not now criminal, which would commonly be regarded as blackmail. But not only would the offence then extend to conduct which had nothing to do with property, and was therefore outside the scope of the present Bill; it would extend also to conduct which might or might not be morally reprehensible but which probably ought not to be criminal at all, and certainly should not carry a penalty of fourteen years' imprisonment.

I think one has only to think for a moment to realise how often people say "if you don't do so-and-so, I shall do so and so"—or, in the words of the Amendment, "refrain from" doing something. In some cases it would make blackmail co-extensive with rape or attempted rape. It would be both rape and blackmail to procure sexual intercourse by threats.

Again, it is so wide that it might be blackmail to demand that someone should resign from a society or club under threat of exposing his misconduct. It seems clear that it would be unwise, without a study in depth of the implications of any change in the law, to extend blackmail beyond the restricted compass recommended by the Criminal Law Revision Committee. Blackmail is in its essence a crime of dishonesty. The almost invariable object is to get money. That is what people ordinarily mean by "blackmail". The Committee have covered the case of causing somebody loss rather than money necessarily being handed over to a blackmailer. But once you go outside that, and, having seen somebody cheating at cards in your club you say to him, rather reasonably I should have thought, "I do not want to get you into trouble, but unless you resign I shall be bound to tell the committee what I saw", and once you get away from the field of doing it dishonestly for the purpose of gain or in some cases for the purpose of causing loss to somebody else, then you widen the field enormously.

It is quite right to say that there is one case which was covered by the previous law but which is not now covered, and that is the question of appointments. The words which I think the noble Viscount meant to put down are broadly similar to those in Section 31 under which any person who with intent to induce any person to confer or procure for any person any appointment or office of profit or trust…publishes or threatens to publish any libel upon any other person…or threatens to print or publish…or prevent the printing or publishing of matter touching on any other person is guilty of an offence punishable with two years' imprisonment.

VISCOUNT COLVILLE OF CULROSS

I meant to put down exactly those words. I simply meant to reproduce the existing law.

THE LORD CHANCELLOR

That is what I imagined. The insertion of the words in the Amendment does not seem necessary. If a person blackmails to procure for himself or another any appointment or office of profit or trust which carries a remuneration or some other financial advantage, it will have been done "with a view to gain for himself or another" and will be covered by the clause as drafted. The words which it is proposed to insert would therefore extend the clause only to cover unwarranted demands with menaces to procure unremunerative appointments. Even if this should occur, it seems that most likely people would regard it as reprehensible, but not criminal.

I am quite prepared to consider this matter again, but what I cannot accept is that what has been called the theme of the Bill—that when we are dealing with dishonesty we want to see whether somebody is doing something for gain or possibly to cause other people loss—is something which comes from Cambridge. This Report is a unanimous report of 17 lawyers, 7 High Court Judges of great experience in criminal cases, the Director of Public Prosecutions, the Chief Magistrate and the Common Serjeant. The noble and learned Viscount, when my noble friend referred to the Home Office, said that there was a Home Office secretary. It was not a Home Office secretary; it was Sir Kenneth Jones, the head of the Legal Department of the Home Office.

VISCOUNT DILHORNE

I think the noble Lord, Lord Stonham, said that the secretaries came from the Home Office. I was quoting his words.

THE LORD CHANCELLOR

I am sorry. I thought he said that the Home Office were represented on it. But on this point I should have thought that one wanted to see how often this sort of peculiar case arose. I honestly do not know what a trust is, but somebody blackmails somebody in order to get an appointment—I think I understand that. An office of profit I understand. I suppose an office is some unpaid appointment or trust, whatever that means, and the question is: Is it worth covering?

All I can do, not having the enormous experience of the Committee, is to look at every case which had ever been decided under the old Section 31. When I say "had ever been decided", I mean of course "had been reported", because those are the only ones I can know about. Now, for over a hundred years, only two cases have ever been reported at all under the section and neither of them deals with this point in any way at all. One was The King v. Menage, which was in 1862. The headnote reads: Where a person indicted under the Statute for feloniously sending a letter threatening to accuse the prosecutor of an infamous crime with an intent to extort money, both the threat and the intent may be inferred, even against the declarations of the prisoner at the time and in the absence of express proof from the letter itself, from his previous and contemporaneous and even his subsequent conduct and from expressions of third parties". That does not seem to help at all. I expect the noble Viscount will take it from me that the other case does not help either, as it deals with whether a libel has to be in writing or whether it can be orally.

If the noble Viscount will find me any reported case under this section of blackmail ever having been used in relation to an appointment or office which is unpaid, then that would raise some case for saying that it might be desirable to retain this provision, but the Committee's view seems to have been that it was not really worth while keeping it. I do not know what inquiries they made themselves about whether it was worth keeping this, but unless the noble Viscount can find some case it seems sensible to accept the Committee's view about it. It would be a very extraordinary thing— would it not?—for somebody to blackmail somebody else in order to get a wholly unpaid office, although it could happen. I could conceive somebody going to the Prime Minister and saying, "Unless you make me Lord Lieutenant of Surrey I am going to reveal something unpleasant which I know about you." But it does not seem to happen in real life, and for those reasons I should have asked the Committee not to accept the Amendment. But this is just the sort of point which one would like to consider and, in view of what has been said about Cambridge, ask other members of the Committee, "Do you still feel that you were quite right about this, and have you in all your experience found any cases where people have blackmailed in order to get some unpaid office?" From that point of view one would like to consider it again.

VISCOUNT COLVILLE OF CULROSS

It is very easy to make this into a joke, and I suppose that the joke really lies at the door of Parliament in 1916. It is not my fault that I suggested these words; they are in the Act of Parliament now. I really approach this matter from a rather different point of view from that of the noble and learned Lord the Lord Chancellor. I am not suggesting that anybody goes to the Prime Minister and tries to blackmail his way into an unpaid position. What I mistrust is this fundamental reliance, in clause after clause of this Bill, on financial gain and financial loss and nothing else.

When I find that there are criminal acts, although they may be obscure in the existing law, which are outside those definitions, and I find not one single, solitary word in the Criminal Law Revision Committee's Report to explain why they are proposing to change the law, why they are proposing to narrow the criminal law, why they are proposing to abolish those criminal offences, then I am afraid that I am suspicious. I cannot help it if there were 17 extremely eminent lawyers of one sort or another who sat upon this matter. I consider it to be the job of this House and of Parliament as a whole to see whether this Bill is right. Therefore I am afraid that I am not in the least repentant about bringing this matter forward, and I should like the noble and learned Lord the Lord Chancellor to consider it in the whole terms—not only the terms of this Amendment, but in the terms of the Amendment of my noble and learned friend Lord Dilhorne—because I do not think it can be taken on its own.

LORD HAWKE

May I ask the noble and learned Lord whether he could give an assurance to somebody who is not a lawyer? Can he give an assurance that somewhere in this Bill it is a criminal offence for, for instance, a producer to say to a leading lady, "I will give you a part if you live with me", or similarly with two males, even though the acts demanded were not criminal in themselves?

THE LORD CHANCELLOR

No, it does not. This is a Bill dealing with crimes of dishonesty. The circumstances to which the noble Lord, Lord Hawke, refers, if there were threats of that kind, would amount to rape; and indeed it is one of the objections to the Amendment of the noble and learned Viscount, Lord Dilhorne, that we should then get duplication. But it certainly would not be covered by this. It would amount to the crime of rape if a woman were threatened and intercourse took place in those circumstances; but this is a Bill dealing with crimes of dishonesty.

LORD HAWKE

Does that apply to males, too? Would that apply if the subject of the threats was a male?

THE LORD CHANCELLOR

That, I am afraid, I cannot answer off-hand, but I will certainly consider it. But it is not the sort of thing with which this Bill is at all intended to deal.

VISCOUNT COLVILLE OF CULROSS

I think it is Section 2 of the Sexual Offences Act 1956.

THE LORD CHANCELLOR

I am much obliged to the noble Viscount. That covers men as well as women, does it?

VISCOUNT COLVILLE OF CULROSS

I am not sure.

THE LORD CHANCELLOR

It is certainly an offence against the law, but it is not a thing which it is intended should be covered by this Bill. I remember looking back when the noble Viscount was talking about the 1861 Act, and I think I am right in saying that the marginal note to the relevant sections in the 1861 Act, if I can find it, makes it clear that, again, those sections were really dealing simply with crimes of dishonesty. I remember that the marginal note has words to that effect. I am sorry, I have lost the relevant passage, but I will send it to the noble Viscount. I know that the 1861 Act has a marginal note which seems to make it quite plain that it is dealing simply with crimes of dishonesty; but I will certainly consider what both the noble and learned Viscount and the noble Viscount have said.

7.13 p.m.

VISCOUNT DILHORNE

I should like to say a word or two in reply to the noble and learned Lord the Lord Chancellor, who poked fun at the Amendment that I had drafted. I do not myself mind that at all. The noble and learned Lord the Lord Chancellor began by reminding the Committee of what the problems were which the Criminal Law Revision Committee had tackled. They are all set out in that Committee's Report, and I think a great many of us have read them. They did not, of course, bear upon the Amendment that I tabled. Then he came to the paragraph which did bear upon it, paragraph 117. The Lord Chancellor read that paragraph, but he stopped short of the example which the Committee gave, which they obviously intended to have covered, which I referred to in my speech when moving the Amendment, and which I submit to your Lordships is clearly not covered by the clause as it stands although it appears that the Committee wanted it to be covered. The noble and learned Lord did not deal with that point at all. He talked about the width of my Amendment, and said that because of the final words of it, which would make it read: with a view to…inducing a person to do or refrain from doing any act", the earlier words were entirely unnecessary. That may be; but I think it is wise to put in the earlier parts as well, because they are parts of the existing law.

When the noble and learned Lord tries to suggest that those words, and the expansion of the intent with which an offence is committed, would lead, if they were included, to a person who found a member of a club cheating at cards and who went up and demanded his resignation from the club being guilty of conduct which would amount to blackmail, I must say to the noble and learned Lord that I wholly disagree with him, because he has omitted to pay any attention or make reference to the fact that it can be blackmail only if there are unwarranted demands. In the very case he gave as his example no one would suggest for a moment that the demand for resignation in those circumstances was unwarranted.

My noble friend Lord Hawke raised a question with regard to sexual conduct. Under Section 2 of the Sexual Offences Act it is made an offence to procure a woman by threats, by intimidation, to have unlawful intercourse. Of course, if, by threats, you induce a woman to submit to rape, and she does submit, it is rape, as the noble and learned Lord the Lord Chancellor said. But it certainly is not rape merely to threaten her with a view to getting her to consent. That would be blackmail. Then my noble friend Lord Hawke raised the question of homosexual conduct. The noble and learned Lord the Lord Chancellor said that he did not know the answer to that. I would put this to him, that if by menaces the consent of an adult over 21 was procured to an act which is now lawful, thanks to Lord Arran's Act, that would not be an offence of its own. Unless it comes within this clause, it would not be criminal. But should it not be criminal?

It comes back to this. Each time we consider a clause like this, first of all the argument is whether it was or was not part of the earlier law. That is very relevant for consideration. But the real question is, irrespective of whether it was part of the earlier law or not, ought it to be part of the law now? If you are going to put into the Bill—and I welcome it—a clause entitled "Blackmail", it really ought to cover the field of conduct of blackmail, and not be limited just to blackmail for financial gain or to cause loss. It is even more limited than the word "property", to which the noble and learned Lord referred, because it has to be "money or money's worth", and there must be a distinction between "money or money's worth" and "property". The existing law refers to "property"; so this clause as it stands is narrower than the existing law. But, however that may be, surely what we ought to consider is: what should this clause cover? I believe it should cover menaces, unwarranted demands, made with a view to inducing a course of conduct.

I do not think it really is any answer merely to say that this is a Theft Bill and involves dishonesty. I think I am right in saying that not every clause of this Bill involves dishonesty when creating a criminal offence. But that, surely, is no answer. The Long Title of the Bill includes the words "similar or associated offences". Demanding with menaces has been associated with theft in the Larceny Act 1916. I cannot myself believe that it would be at all wrong to include a section which covers the whole field in a Bill of this character, but what I am sure would be wrong would be to include a section which covers only part of the field and leaves a large and important part uncovered.

I understood the noble and learned Lord the Lord Chancellor to say—and I hope he will correct me if I am wrong—that he will give very serious consideration to this. Meanwhile, I shall seek to convince him—he may be reluctant to be so convinced—that when I referred to the heresy as a heresy emanating from Cambridge those words were not wholly unjustified.

THE LORD CHANCELLOR

Apart from the last remark, I certainly confirm what the noble and learned Viscount has said. Of course it is very important to get this right, and we cannot take too much trouble with it. But apart from the unpaid appointment or office of trust, I do not think there is anything which would have been blackmail before which is not going to be blackmail now. With regard to the example which the Committee took, they might have been right or wrong. I should have thought they were right and not wrong, but they say: So far as the subject-matter is concerned we consider that the offence should be committed where the demand is made 'with a view to gain' or 'with intent to cause loss to another'. Gain is ordinarily the purpose of blackmail, and in this respect the offence would correspond to criminal deception, which seems right. It seems right also that the offence should apply to making a demand with intent to cause loss to another. The latter would be an unusual case, but it might occur". Then—and this is the sentence to which the noble and learned Viscount took exception—the Committee said: For example, a person might threaten to do something unpleasant to another if he would not destroy letters. The noble and learned Viscount said that that is not a case of loss. I thought that in law all property has some value; it may be very minimal, but it is unusual even to say that somebody can tear up your letters and they have not caused you any loss. Even pieces of paper—

VISCOUNT DILHORNE

As the noble and learned Lord will realise, under Clause 33 it is not a question of whether the letters have any value, whether they are worth just the paper they are written on or not; the question is whether they are money or money's worth. That is a different concept.

THE LORD CHANCELLOR

I would respectfully differ. I should have thought that even letters had some money's worth and some value, and that it would be a case of causing loss to someone else. Then they conclude: The present law distinguishes between demanding that a person should hand over property, execute a valuable security, or give an appointment; but it does not seem necessary to limit the offence to these cases. Other blackmailing threats are conceivable, for example a threat in order to cause a person to abandon a claim. To avoid drawing distinctions between different kinds of threats would also be in accordance with our policy of creating uniform offences". This, therefore, remains a Bill dealing with dishonesty. I regret myself that the Committee has not had the advantage of hearing the views of either of the noble and learned Lords who I feel sure know more from practical experience about these things than we do ourselves. But I will gladly consider all that.

May I withdraw a remark I made? What I had in mind was the previous dis- cussion on the previous three sections of the Larceny Act when my noble friend Lord Stonham was dealing with it and rather the same argument was being put forward by both sides. It was said on one side that this deals only with dishonesty in relation to documents; on the other hand, it was being said that there might be a will which you wanted to destroy, even though you were not going to gain anything and nobody else was going to lose. When I said that we are not really dealing with that in this Bill, what I had in mind was that the three sections in the earlier Act which were being referred to are headed by the words, "As to the larceny of written instruments". That is all that that section was meant to deal with. If you go right outside, nobody would advance the proposition that, whatever belief you had or whatever anybody thought about reasonable or probable cause, a bookmaker could not possibly be prosecuted because he said to a punter, "If you do not pay I shall report you to Tattersall's". This is common form. But when one thinks how often people threaten in the sense of saying, "Unless you do this, I shall do so-and-so"; unless this is to be limited (as it always has been in the past, with the sole exception of the unpaid offices, to cases where there is an intention to gain financially or cause somebody else to lose) it would, I should have thought, become impossibly wide and include all sorts of cases which, whatever else they have been, have never been blackmail in England before.

LORD HAWKE

I am still not clear on the point about homosexual offences. I hope that before the next stage of the Bill the noble and learned Lord will arm himself with the information to make it absolutely clear that offering a job in return for homosexual acts or threatening dismissal if homosexual acts are not performed, does indeed become blackmail either under the present Bill or under some other Bill.

THE LORD CHANCELLOR

I think there is no doubt that it does elsewhere; but not under this Bill.

VISCOUNT DILHORNE

In the light of what the noble and learned Lord Chancellor has said, I will not prolong, this matter. I think we could debate this for a considerable time. Perhaps also there could be a long debate on what is meant by "money or money's worth"; but as I understand that it is going to be looked at again, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.25 p.m.

LORD STOW HILL moved to add to subsection (1)(b) and unless it is reasonable and proper so to make and so to reinforce the demand".

The noble Lord said: I beg to move the Amendment which stands in the name of the noble Viscount, Lord Colville of Culross, and in my name, to insert into the definition of what is blackmail the words which are printed on the Marshalled List. This Amendment is directed to a rather different aspect of the definition of blackmail contained in the Bill. May I, in a word, seek to point to the change that we wish to introduce? As the clause at the moment reads, a person commits the offence of blackmail if, with the relevant intent, he makes "any unwarranted demand with menaces". If a menace is proved to have been uttered, you have to ask what is "unwarranted" in that context. Menaces are unwarranted unless the person making the menace does so in the belief—

1. (a) that he has reasonable ground for making the demand; and
2. (b) that the use of the menaces is a proper means of reinforcing the demand".

As that clause now reads, when a person is charged with blackmail and is shown to have made a threat with the object which is described in the clause, the court is, in effect, required to look into his mind and to answer simply these two questions: In the belief (and I emphasise "in the belief") of the person charged, had he "a reasonable grounds for making the demand"? That is the first question. Secondly, did he believe that the use of the menace in question was a "proper means of reinforcing the demand"?

In other words, the menace in question is warranted or unwarranted according to the answer to the question, one way or another: Did he so believe? A person, in other words, makes a menace which is not an unwarranted menace and which does not give rise to the commission of an offence under this clause if he himself genuinely believed that he had the right to make the demand which he made and that the making of the threat to reinforce the demand was a proper way of going about it. It is an entirely subjective test. The jury simply has to ask itself: Did he himself believe in a word that he was acting reasonably?

What the noble Viscount and I seek to do is to impose a further test which has to be satisfied before it can be said that a threat which has been uttered is a threat which is not an unwarranted threat. The further qualification that we seek to introduce is that not only in the belief of the accused person does his conduct have to seem to be reasonable, but that in the opinion of the jury (what-ever the accused person may think about it) it was reasonable and proper to make the demand and to seek to reinforce the demand by making that threat. In other words, what we seek to do is to add to the purely subjective test at present expressed in the clause an objective test as well. The person must himself believe that he is acting reasonably and the jury must also think, that in fact what he has done is reasonable in the circumstances.

That is the general object of this Amendment. I should like, before beginning to embark upon my argument in more detail, to make one or two general observations. The first is this. I believe that all noble Lords will agree that in the calendar of crime there is no crime so deadly as blackmail. It ruins families; it breaks up marriages; it drives the victim to despair and sometimes to suicide. That is the history of blackmail. It is a crime which is abhorred, I should have thought, as much, indeed more, than almost any other crime contained in our Common Law and in our Statute Law. It is of great importance that we should be absolutely, certainly right in the way in which we define blackmail in this completely new measure. We really must know what blackmail is and our definition of blackmail must be complete. It must be "viable", to use the term which is used in almost every context in these days. It must hold water. It must lead to sensible results. The proposition which I have advanced before your Lordships is that if the test is simply a subjective one we are placing the potential victim in a wholly unacceptable state of danger.

When I ventured to make a similar point on Second Reading of this Bill I took for the purpose of illustrating my argument the case of a lady who was pregnant as the result of her association with a man who was married and who refused to accept any responsibility for the child that was on the way. In the opinion of the woman concerned, he was behaving in an altogether disgraceful way. If she had threatened to write to the Press; threatened to tell his wife who knew nothing about it; threatened to burn his house down, threatened to throw bricks through the window—uttered all sorts of threats—a jury might well conclude that she herself thought it was a perfectly reasonable and proper thing to do. I do not want to run away from the wording in the clause of which I remind your Lordships. The words are: … in the belief … that he has reasonable grounds for making the demand; and … that the use of the menaces is a proper means of reinforcing the demand.

Consider that hypothetical case. The woman in question cannot procure from the man responsible any maintenance for the child. A jury may well think that if she uttered a threat of the sort that I have described, she was genuinely of the belief, first, that she had reasonable grounds for making the demand for maintenance—most juries would think that she had—and secondly, they might well think that the woman in question honestly believed that the use of menaces, the use of the threat to burn down the man's house, to tell his wife, to ruin him, to expose him, to write to the Press, was a proper means of reinforcing her demand.

The more vicious she was, the more venomous she was in her hatred of the man, the more likely would the jury be to believe that, in point of fact, she genuinely entertained the opinion which she had to establish with regard to her conduct. In the dock might be a person wholly incapable of any moderation at all, bristling with hatred, utterly unreasonable, jaundiced, vicious, evil in every way. The more the person accused was possessed of those qualities the more likely would it be that the jury thought that person entertained the belief set out in the terms of this Bill. To create that as a defence to a charge of blackmail was, I should have thought, of very very doubtful wisdom.

The noble Viscount, Lord Colville of Culross, and I seek to introduce the further safeguard that it must be for the jury, in addition, to come to the conclusion that the threat of the behaviour in question was reasonable and proper, that is to say, was in their opinion as a matter of fact reasonable and proper. In the case which I have instanced, if the woman had threatened to burn down the man's house, to throw acid on his wife—anything of the sort—no jury would think that was a reasonable and proper way to behave, even if she, being carried away by the full force of her venom, thought it was. In those circumstances, if the jury thought that a threat of that sort, whatever she thought about it, was an unreasonable threat, she would be convicted of the offence of blackmail. That is as I believe the law should be, and the noble Viscount, as I know because we have discussed it, also shares that view. I hope to commend that view to your Lordships.

When I ventured to advance that argument on Second Reading I was rather taken to task by my noble friend Lord Chorley, who reproved me, saying he was sorry to find that apparently I had aligned myself with those who feel that the guiltiness of a person's mind ought to be measured in objective terms. Stung by that reproof I repaired to the Library and searched my conscience, but I am bound to say that I am still completely impenitent: I am sorry not to be, able to say that in the presence of the noble Lord. I still think, with great respect to him, that I am right.

Perhaps I may, in passing, refer to one other aspect of the argument which the noble Lord, Lord Chorley, used in his refutation of that which I had sought to put before your Lordships' House. He said that, after all, the case of Bernhard, to which the noble and learned Lord, the Lord Chancellor, referred, was almost exactly the same as the case that I had instanced. If I may just remind your Lordships, the case of Bernhard was that of a Hungarian lady who had come to this country and who had, I think, had a child by someone, and had threatened to tell his wife, to write to the Press, and so on. If I may say so with great respect to the noble Lord, Lord Chorley, that case was utterly different from the one which I instanced, for two reasons. In the first place, in that case the accused person had actually got an agreement to pay maintenance from the man who was the father of her child; and secondly, as the noble and learned Lord, the Lord Chancellor, reminded your Lordships, she had gone to the trouble of taking the advice of a lawyer who was a Hungarian and who, apparently, gave her advice which was not justified in terms of the law of this country. That was the case of a person who was seeking to enforce a demand which she genuinely believed she was entitled to in law, having been so advised by a lawyer to whom she had gone.

More than that, that was a prosecution—I looked at the case again—as the noble and learned Lord, the Lord Chancellor, said under Section 30 of the Larceny Act 1916, the issue in which was whether it could be shown that she had, in effect, sought to steal by the demands that she had made. The Court of Criminal Appeal said that she could not very well be held to be guilty of attempting to steal something which she genuinely thought she was entitled to, having received legal advice to that effect. So the issue before the Court was an entirely different one from the issue raised in the sort of case I was assuming in my argument before your Lordships' House, in which the lady in question had nothing to sustain a demand except her own sense of what general justice and right should accord to her. The case to which the noble Lord referred does not, so I submit to your Lordships and to him, in the least invalidate the argument which I am presenting.

If your Lordships should desire to look at the case—and I say this in the presence of the very distinguished Chairman of the Committee who again, I am glad to say, is here to-night—the reference the Report gives of that case, namely, 1936 2 King's Bench, page 264, is wrong. It is two volumes away—1938 2 King's Bench, page 264. I agree the fact that it is two volumes away does not make much difference to the train of my argument, but if anybody wants to look at it he will find it easier to refer to the right rather than to the wrong volume.

Again, may I respectfully say to the noble and learned Lord, the Lord Chancellor, that it does not seem to me to afford a conclusive answer to say that so many members of the Committee, of the very great learning and experience which I at once—among the foremost, I hope to do so—concede that they have, came to the view opposite to that which I am propounding to your Lordships. The Committee gave the most anxious and careful thought to the question whether you should have simply a subjective test or whether you should also have an objective test as well. I read, with the greatest of care and attention, the weighty and careful arguments deployed in the relevant paragraphs of the Report.

May I cite one or two passages, because they seem to me to have achieved a result which is almost opposite to that which they set out to achieve in defining the offences?

In paragraph 119, they cite the following case: A may be owed £100 by B and be unable to get payment. Perhaps A needs the money badly and B is in a position to pay; or perhaps A can easily afford to wait and B is in a difficulty. Should it be blackmail for A to threaten B that, if he does not pay, A will assault him—or slash the tyres of his car—or tell people that B is a homosexual, which he is (or which he is not)—or tell people about the debt and anything discreditable about the way in which it was incurred? The paragraph goes on to say that on one view that should not be blackmail, and on the other it should be, and then expresses the Committee's view, which is as follows: In our opinion this goes too far and there are some threats which should make the demand amount to blackmail even if there is a valid claim to the thing demanded. For example, we believe that most people would say that it should be blackmail to threaten to denounce a person, however truly, as a homosexual unless he paid a debt.' May I say with respect that I could not agree more? It seems to me that it would be utterly outrageous if the law of this country provided that because A owes a sum of money, B may threaten to denounce him as a homosexual whether he is or whether he is not, in order to enforce this debt, provided B thinks honestly that it is fair to do so. If this is the law, it seems to me that we are right back in the jungle, and I entirely agree with the Committee when they say that that should not be the law. That sort of threat, and the threat to slash tyres, and the examples I ventured to enumerate in giving the example of the pregnant lady, are utterly unreasonable. If citizens who, human nature being fallible and human will being weak, have put themselves in a position in which they can become victims of blackmailers are to be subject to treatment of this sort without the intervention of the criminal law, I can only repeat that surely we are right back in the jungle.

I would have thought that the conclusion from the Report so far should be that a purely subjective test was not enough, and the Committee should have gone on to embody also the objective test which the noble Viscount and I seek to put into the clause. They gave most careful thought to that and came to the conclusion that they ought not to do it. They set out their reasoning in paragraph 122, the gist of which can be put in their words: But we decided finally not to include the requirement. To require that an honest belief, in order to be a defence, should be reasonable would have the result that the offence of blackmail could be committed by mere negligence (for example, in not consulting a lawyer or, as did Bernhard, in consulting the wrong kind of lawyer)

I think that I do the Report justice when I say that that sentence contains the core of the argument which influenced the Committee against the adoption of the objective test. With great respect, is that really a realistic view? Can you by negligence accuse a man of being a homosexual? Can you by negligence say that you will burn his house down? One can by negligence indulge in conduct which on reflection one would have preferred not to have followed, and in that event most juries would say that it was not unreasonable, human beings being such as they are, for the accused in these circumstances to embark on that conduct. But if we had an objective test, it would be the right test where there was a vicious person who genuinely believed that almost any conduct was open to him to secure his objective and, in consequence, made threats utterly outrageous and intolerable in civilised society.

For these reasons, I greatly hope that the Government will give further consideration to this provision. If I may say so, with respect to the noble and learned Lord the Lord Chancellor, it is not really enough to say simply that the Committee formed a view one way with 11 the weight of experience that they have behind them. I am respectfully arguing that, after carefully weighing the different alternatives" the Committee came to a conclusion which is in the circumstances erroneous. I hope that the noble and learned Lord, or the noble Lord, Lord Stonham, will be able to inform your Lordships that they think that there is matter for serious consideration in this argument and that they will further consider it. If they are prepared to give that assurance then, speaking for myself (I cannot speak for the noble Viscount), I should be satisfied and not seek to divide the Committee. But I put it to the Government that this is a matter of grave substance. Blackmail is a hideous offence. The very name has something deadly and noisome about it. We really must get it right and not expose citizens who have the ordinary frailties to which we are all subject to predicaments which may mean utter ruin for themselves and their families and the destruction of their minds and lives. I beg to move.

Amendment moved— Page 9, line 17, at end insert ("and unless it is reasonable and proper so to make and so to reinforce the demand."—(Lord Stow Hill.)

7.47 p.m.

VISCOUNT DILHORNE

I should like to say a word in support of the powerful speech which the noble Lord, Lord Stow Hill, has made. I must say that on reading the clause I was in doubt as to whether it was intended that the test should be wholly subjective or partly subjective and partly objective. I found it difficult to construe because of the use of the words "reasonable grounds" and "proper means", both of which seem to me to indicate, in relation to consideration on grounds as distinct from the belief, and in relation to the consideration of means as distinct from the belief about them, that the intention was that an objective test would be applied and that it would be a matter for a jury to consider objectively. I found it difficult when I read the Report to see what the Committee had recommended.

The noble Lord, Lord Stow Hill, says that his Amendment is contrary to one of their recommendations. So it is, but it is not contradictory to the very next paragraph in the Report. That is why I am in a real difficulty here. In paragraph 118, dealing with reasonable grounds, the Committee say: As to the illegality of making the demand we are decidedly of the opinion that the test should be subjective, namely, whether the person in question honestly believes that he has the right to make the demand. This means in effect adopting the test whether there is a claim of right, as in 1916 s. 30, and not the test whether there is in fact a reasonable cause for making the demand, as in 1916 s. 29(1)(i). Nothing can be clearer than that.

But then, if the Bill is to adopt the test of the claim of right, why do we find in the clause the words, "reasonable grounds"? I find that very puzzling, because a claim of right may be wholly unreasonable. It may be bad in law. But however bad in law it may be, so long as it is bona fide it is a valid defence to a charge of stealing. That is obviously the intention here. So it seemed to me, on reading that, that if the Committee meant that it should be a claim of right it was wrong in the Bill to use the words, "reasonable grounds". But there is no doubt that in that paragraph they meant that part to be wholly subjective.

Then, at the end of paragraph 120, coming on to the proper means which they are there discussing, they say at the end of the paragraph: For reasons similar to those given in paragraph 118 concerning the demand we think that the only satisfactory course would be to adopt a subjective test and to make criminal liability depend on whether the person who utters the threat believes in the propriety of doing so. There again it is clear beyond doubt that they wanted the whole thing to be so far entirely objective. Then came paragraph 122, which the noble Lord, Lord Stow Hill, read, which is to the same effect. But that is followed by paragraph 123; and that paragraph, I think, causes great difficulty. The Committee are discussing what word should go before the word "means", and they consider three words: "legitimate means", "fair means" or "proper means". In the middle of the paragraph they say: Any of the three words would, we think, be suitable. 'Fair' would be a good test for a jury to apply. That must mean an objective test; it cannot be anything else. They go on to say: It might also be a little more favourable to the accused, because a jury might think that even if the accused had behaved improperly, the prosecutor behaved so badly that it was fair that he should be treated as he was. That can mean only the application by the jury of an objective test as to whether the means were fair: They go on: There seems little difference between 'legitimate' and 'proper'. On the whole, 'proper' seems the best word. 'Proper' directs the mind to consideration of what is morally and socially acceptable, which seems right on a matter of this kind: 'legitimate' might suggest that it is a purely legal question whether the accused had a right to utter the menaces. I hope that I have understood the Committee correctly. This careful choice of the word which should precede the the word "means" is obviously based on the Committee's belief that that would be a matter for the jury to consider: that they would have to consider whether the means were proper means. I find paragraph 123 (I am sorry to have to say this) wholly inconsistent with what has preceded it, because surely what they have said before is that a man when charged with this offence can say: "I honestly believed that the grounds I had for making these demands were reasonable. You may all think that that is absolutely wrong, and that no sensible person could have thought them reasonable. But that does not matter, because I honestly believed that they were reasonable grounds. What is more, although you may think that these means were grossly improper, that again does not matter. I thought that they were proper in the circumstances. That was my honest belief, and unless the prosecution can establish (if the onus is on them) that I did not have that belief, then, however unreasonable may be the grounds for my action in your opinion, however improper the means I have pursued may be in your opinion, that does not matter. You must acquit me." So far as I can see, under the clause as it now stands, a judge would have to give a direction on those lines. But I cannot think, in the light of paragraph 123, that that is what the Committee, at the very end of this long and careful consideration of this whole matter, really wanted. I cannot see how paragraph 123 fits in with that at all. So, while I wish to support the noble Lord, Lord Stow Hill, I feel that if his solution is adopted it really will accord with what, taking it as a whole, seems to me, despite the passages to which I have referred, to have been the real thought of this Committee.

I want to raise another matter in relation to this clause on which I am not clear. On whom does the onus lie of proving that the demand with menaces was unwarranted? It is expressed: and for this purpose a demand for menaces is unwarranted unless the person making it does so in the belief.… So that it is unlawful unless the person can bring himself within certain conditions. That, I should have thought, placed the onus of proof on the defence. But I do not think it is by any means clear, and lack of clarity on this is going to lead to considerable argument in the courts. I may have missed it, but I cannot find anything in the Committee's Report dealing with the party on whom the onus of proof will rest. I should have thought that it should rest upon the defence, as it is a matter peculiarly within the knowledge of the accused, and it is an exception which provides him with a defence. It is a matter of defence, and is not a matter which the prosecution ought to be required to be negative.

It is extremely difficult, as has been said already, to deal with these matters in detail in debates in Committee, and, indeed in debates on Report. I hope that this will be given serious consideration, and I would say, whatever be the view taken, that this part of this clause certainly requires to be redrafted to make it clear beyond all peradventure which is intended: whether the test is intended to be objective or subjective, or partly objective and partly subjective; and on whom the onus of proof lies. It seem to me that the question of belief must always be subjective. To the question whether the grounds are reasonable, or the means are proper, I think one can apply an objective test—and it seems that it would work all right. If a man made demands on grounds which no one could consider reasonable, and used wholly improper means to seek to enforce those demands, is it right that he should not be convicted under this clause? If a jury came to the conclusion that the grounds were reasonable and the means were proper, then there is the further question: Did he believe them to be so? To that ought to be applied the subjective test.

I do not expect the noble and learned Lord, the Lord Chancellor, at this hour (I see the noble Lord, Lord Stonham, nearly as anxiously as I am), to give a detailed answer to this to-night. I have spoken at this length only because it is a question on which I, like the noble Lord, Lord Stow Hill, feel very strongly, and I hope that with a joint effort we may be able to induce the Government to make some changes in this provision.

8.0 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

There is no point in the Bill which is more important than this, because one of the defects of the existing law is that you have one section on which things clearly are subjective, and another on which they are clearly objective. If a jury had to find whether there was reasonable and probable cause they never understood (I myself have never understood) what "probable" in that context means. It is a very unusual expression, "probable cause". And it was the objective test which caused most of the trouble. So nothing was more important than the consideration which the Committee gave to the question whether, first in relation to the demand and secondly in relation to the threat, the test should be subjective or objective.

I should like here just to say this, if I may. There seems to be, from the many times the noble and learned Viscount has said the same thing, a sort of impression growing up in the Committee that the Criminal Law Revision Committee are people who are rather anxious to narrow our criminal law, and are rather keen that people should be able to commit crimes without being punished for them. Blackmail, my noble friend Lord Stow Hill said, is a terrible crime. Of course it is a terrible crime. But whether it should be extended to things which have never previously been blackmail is quite another matter. But there cannot be any reason to suppose that a number of our most eminent Judges, and the Director of Public Prosecutions—not usually thought of as a man who wants people who have committed shocking acts not to be prosecuted and punished for them—are anxious to narrow the law in the way I have mentioned. What has been very largely running through several of these Amendments is whether, as seems to have been suggested in some quarters, the Committee have omitted all sorts of things that have been crimes before, so nobody will be able to be punished for them now, or whether that is not so, or whether, in the few cases in which it might be so, like offences without profit, they are really worth worrying about.

My difficulty at this hour is, of course, that this is a very long part of the whole section of the Report. A great deal of it has been read, but of course it was very important to decide whether the test should be subjective or objective. There can be absolutely no doubt at all of what the Committee have done. There is one passage in one paragraph which I think is perhaps confusing, but they themselves were quite clear as to what they were doing when they said: As to the illegality of the demand we are decidedly of the opinion the test should be subjective". Then they went on to say the same about the threat, and the clause itself is quite clear: unless the person making it does so in the belief—

1. "(a) that he has reasonable grounds for making the demand; and
2. "(b) that the use of the menaces is a proper means of reinforcing the demand".

So it is perfectly plain that in the section this is subjective. It is, of course, equally plain that in the Amendment which my noble friend Lord Stow Hill has moved an objective test is introduced. So we are getting back again to the position that it is what the jury think and not what the person himself thinks.

VISCOUNT COLVILLE OF CULROSS

It is both.

THE LORD CHANCELLOR

Here, of course, it is additionally complicated, because my noble friend's Amendment does something which, even under the existing law, does not happen; that is, he is saying that on one point there must be both a subjective test and an objective one.

VISCOUNT COLVILLE OF CULROSS

On both points.

THE LORD CHANCELLOR

The Amendment has the effect that the clause contains both the subjective and the objective test; that is to say, to escape being guilty of blackmail a person making a demand with menaces would have to believe that he had reasonable grounds for making the demand, and that the use of menaces was a proper means of reinforcing the demand. But the jury would also have to be satisfied that the demand and the menaces were objectively reasonable and proper.

VISCOUNT COLVILLE OF CULROSS

Hear, hear!

THE LORD CHANCELLOR

I am glad the noble Viscount agrees. As amended, the clauses would enable an accused person to be convicted even though the jury thought his conduct was reasonable and proper, if they thought that he did not think it was. This may or may not have been intended—

LORD STOW HILL

If I may say so, it was certainly intended. Two tests were propounded. I certainly intended that both should be fulfilled.

THE LORD CHANCELLOR

I am much obliged. It is agreed that it does mean this. It would mean that if the standards of the accused are rather higher than the standards of the jury, then he would be convicted because, although the jury thought that what he had done was perfectly proper, they came to the conclusion that he did not think it was himself.

LORD STOW HILL

Certainly. If he thought he was uttering an unwarranted threat, I do not see why he should not be convicted, even if the jury thought his behaviour was reasonable.

THE LORD CHANCELLOR

Then this makes a double scope. I think my noble friend would agree that this has never been the law at all in any part of this field. We have had the cases in which it is subjective; we have had cases in which it is objective; but we have never before had a case in which it is both.

In the case of the Hungarian woman, she would be liable to be convicted because she went to the wrong lawyer. She may have believed—you can get it both ways—that she is entitled to do something, but then a jury, on being apprised, "Oh, but that is not the law; she had no right to demand the money at all," would no doubt come to the conclusion it was not proper.

LORD STOW HILL

I am sorry to interrupt the noble and learned Lord the Lord Chancellor. I should have thought that certainly it was one view of Section 29 of the 1916 Act that it imposed both tests.

THE LORD CHANCELLOR

Of course, this is in effect adopting the test where there is a claim of right, as in Section 30, or the objective test as to whether there is in fact a reasonable cause for making the demand.

The Committee pointed out all the difficulties which had arisen in trying to make it objective. They say: To adopt the objective test seems to involve almost insuperable difficulty. It would be necessary either to set out the various kinds of demand it was considered should be justified or to find an expression which would define exactly these kinds but not others. The former course might clearly be possible but the tradition would have to be very adaptable, involve the risk which attempts … My noble friend has not attempted that, he has done the other. And they said: There is much room for disagreement as to what kinds of demand should or should not be treated as justified. The latter course seems impossible, having regard to the results which are followed from making liability depend on the absence of a reasonable or probable cause". Of course, in the Amendment everything will turn, I suppose, on the jury's view of what is reasonable and proper. One jury may very well take one view, one take another; and we get back all the difficulties which already exist in "reasonable and probable cause". If this is an offence of dishonesty, as it is, then it ought, I should have thought, to depend on a subjective test. If somebody, in fact, owes me money, the question, "What am I entitled to say to get paid?" is very much a matter of opinion. What is right or wrong ought primarily to depend in the offence of dishonesty as to whether or not I was entitled to do what I have done. I am clearly entitled to say, "If you do not pay me I shall see a solicitor". That is where the demand is one which lies in law. But if I honestly believe that it lies in law, I ought not to be convicted of an offence of dishonesty. The circumstances vary very much.

I am in this difficulty: that the Report is a lengthy one, but nothing can be clearer than that the Committee, having considered the whole history, and knowing the sort of cases which the courts get, through their great experience, came to a very clear conclusion that the test ought to be subjective and not objective. In view of the lateness of the hour, I will not refer further to particular passages of the Report. I will certainly consider what has been said. I think it is of great importance, and its particular importance is that, with this Amendment, Clause 20 would be stricter against the defence than Section 30 of the 1916 Act, and a whole lot of people who have never previously been able to be convicted of blackmail could be prosecuted for blackmail now. But I will certainly consider it further.

On the question of onus of proof, I should have thought that if the onus is not on the defence it is one of these cases in which there is in practice an evidential burden, and that it is not the sort of case in which, by the nature of the evidence that is called for the prosecution, the accused can get out of going into the witness box. At the end of the day, no doubt the ultimate onus would be on the prosecution.

VISCOUNT DILHORNE

While I agree with that, may I say that there is great importance in making it quite clear that the burden does not lie on the prosecution in establishing the negative—that the belief was not held. I think that ought to be made quite clear. While I am on my feet, may I say one other thing? Would the noble and learned Lord consider making it a requirement in an offence of blackmail for the consent of the Director of Public Prosecutions to be required before proceedings are instituted?

THE LORD CHANCELLOR

Certainly I will consider the latter point, and I think there is a large body of opinion in favour of making these all evidential burdens only. I think that is because there is a difficulty in directing juries satisfactorily as to the difference between the burden of proof beyond reasonable doubt and that of proving on a balance of probabilities, and it is impossible politically to impose the former on the defence. Secondly, the provisions imposing a burden of proof on the defence have little effect in practice, because juries are inclined to disregard the direction and merely decide which side they believe. Thirdly, there are objections in principle to saying that if the jury are left in doubt on an issue they should convict. But I think all this is actually under consideration by the Criminal Law Revision Committee at the present time. I will certainly consider these points.

VISCOUNT COLVILLE OF CULROSS

I have not intervened in this debate so far because I entirely agree with what the noble Lord, Lord Stow Hill, and my noble and learned friend have said, but one point arises out of the Lord Chancellor's reply. I think it is possible—and I say this with great hesitancy—that it may be a mistake to rationalise the question of whether you have subjective or objective, or both, from the premise that this is an offence of dishonesty. I know that in theory it is an offence of dishonesty, and if you follow that theory through, logic would certainly lead you, as in Clause 2 of the Bill, to impose a subjective test. On the other hand, the noble Lord, Lord Stow Hill, said—and I agree with him—that this is a particularly abhorrent offence, and it may well be that one ought not to allow one's rationalisation to overcome the real abhorrence of this offence. It may be that even if we do, in the result, produce a test which is more strict than Clause 30 and brings in people who are not covered under the law as it now stands, that may be the right thing to do. In this Bill we are talking about what the public understand these offences to be, and I do not think they would necessarily say we had made a mistake if we extended in this field a little further than the law is now, and a little further than "dishonesty" might itself suggest.

THE LORD CHANCELLOR

I appreciate that. But the reason why blackmail is such a terrible offence is because it is the kind of case which it is. If you are going to extend it to all sorts of cases in which people say, "If you do not resign from the club"—

VISCOUNT COLVILLE OF CULROSS

With great respect, I am not talking about that.

THE LORD CHANCELLOR

Is there any evidence that the existing law ought to be wider than it is? If so, where is the evidence, because that is the effect of what is proposed, and this very experienced Committee did not think this. Is there anybody in England who would be more likely to know than the Director of Public Prosecutions if people are not being prosecuted who ought to be? At the moment, I remain quite unsatisfied that we ought to apply blackmail to a class of things to which it has not been applied at all in the past.

VISCOUNT COLVILLE OF CULROSS

The noble and learned Lord is not taking my point. I am not talking about the gain-loss criteria at all. I am simply following the noble and learned Lord's point. He says, "If you have this double test it may be that people who can escape conviction now because they can show their belief was honest, although the jury would not say it was reasonable, would be convicted if we applied the double test." I think the public may say that is right. We have had the debate on the gain-loss criteria and I am not talking about that now. I am talking about the fact that some individual cases would be found guilty under this double test which at the present moment get off.

THE LORD CHANCELLOR

That would mean that somebody who is honest and not dishonest would be liable to 14 years' imprisonment. I cannot think that is right.

LORD STOW HILL

In view of the undertaking given by my noble and learned friend that he will carefully go into this question, which I regard as fundamental, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD AIREDALE

I do not think the discussion of this Amendment will take long. The words "do or do not" are words of emphasis which are much favoured by orators, but I do not believe that they add anything at all to the meaning of subsection (2) of Clause 20. The clause would mean exactly the same if these words were omitted. I beg to move.

Amendment moved— Page 9, line 19, leave out ("do or do not").—(Lord Airedale.)

THE LORD CHANCELLOR

At this hour, it is a great pleasure to me to agree with the noble Lord that it does not make the slightest difference whether these four words are in the clause or whether they are not, and he is quite right in saying that they are there solely for emphasis. That being so, I am entirely in the hands of the Committee and I do not propose to oppose this Amendment or to say anything, except only that I started off by saying just now, "It does not matter in the slightest whether these four words are in the clause or whether they are not". I have to confess to the noble Lord that I added the words "or whether they are not" for the purpose of emphasis. They were strictly unnecessary, but I should have thought this particular emphasis was a good one in this particular clause. It is rather a thing that one wants to emphasise, but I quite agree that it does not alter the meaning at all. Having said that, I do not mind in the slightest whether those words are included in the clause or whether they are not.

LORD AIREDALE

I think we had better put the matter to the vote, but I hope we shall be able to decide it by the strength of our voices, without having to go through the Division Lobby.

On Question, Amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21:

Handling stolen goods

21.—(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

8.19 p.m.

LORD AIREDALE moved, in subsection (1), after "benefit of" to insert "himself or". The noble Lord said: This is an Amendment to the clause which deals with persons who hitherto have been called "receivers of stolen goods" but who, after this Bill becomes law, will be called "handlers". The purpose of the Amendment is to discover whether there is a lacuna in the first subsection, where it uses the expression, almost at the end, "for the benefit of another person" and omits the handler himself, making it read (with the Amendment) for the benefit of himself or another person". Under subsection (1) it is made an offence for a person who believes goods to have been stolen dishonestly to undertake their removal or to arrange to do so for the benefit of another person, but only for the benefit of another person.

May I give an example? Suppose a well known receiver of stolen goods is approached by a thief who is a friend of his; and suppose the thief says to him, "Can you sell a stolen lawn-mower for me?". The receiver may say, No, I don't think I can, but, as it happens, I should very much like a lawn-mower myself". The thief may say to him, "Well, you've been a good friend to me in the past, and if it is any good to you you can have it for nothing if you make arrangements to collect it from my place and take it to yours". And the receiver says, "Very well, I will make the arrangements". He makes the arrangements with a third person with a van to collect the lawn-mower next Tuesday from the thief's house and to take it to the receiver's house. In the meantime the police seize the lawn-mower and come upon this proposed transaction. Presumably they would wish to prosecute the handler for an offence under this clause, and presumably under this clause as now drafted the handler would escape.

LORD STONHAM

May I interrupt the noble Lord to ask him where the police seize the lawn-mower?

LORD AIREDALE

The police seize the lawn-mower—shall we say?—either in transit or before the journey begins at all. They may raid the thief's premises and seize the lawn-mower before the journey begins and they may seize a letter in which the receiver says he is making these arrangements to have it collected. When the receiver, or "handler" as he is now to be called, is charged under this clause, he will be able to say, "Oh, but I have got a good defence here, because the transaction was not for the benefit of another person; it was for my benefit. It was not for the benefit of the thief. If I had paid him for the lawn-mower it would have been, but as he was giving it to me for nothing this does not redound to his benefit and it is only for mine". In order to bring the handler within the first subsection it seems to me that you need to insert the words "himself or" in front of "another person", so as to make it an offence if it is done for the benefit of himself or another person. I beg to move.

Amendment moved— Page 9, line 29, after ("of") insert ("himself or").—(Lord Airedale.)

LORD STONHAM

I was not wholly clear about the purpose of this Amendment before I heard the noble Lord's speech, and I am very doubtful that I am clear about it now, but I am quite certain that the case of the lawn-mower is covered, because the accused has arranged to receive the lawn-mower even before sending the van, and the benefit test does not apply to receiving. Carefully reading subsection (1) again, one sees that it says: A person handles stolen goods if (otherwise than in the course of the stealing)"— in other words not stealing— knowing or believing them to be stolen goods he dishonestly receives the goods. Whether he receives them for consideration—that is to say, gives the thief something—or in the noble Lord's case gives him nothing at all, he well knew that they were stolen goods and therefore he dishonestly receives them, and he certainly dishonestly undertook to assist in their retention.

There is another unintended effect of the noble Lord's Amendment. Let me now put up a hypothetical case of the actual stealer of goods who has temporarily put the stolen goods somewhere with the intention of later moving them elsewhere or disposing of them. He is doing so for the benefit of "himself" and he therefore will be committing the offence of receiving under Clause 21 if we amended the clause as the noble Lord suggests. The Criminal Law Revision Committee thought it was reasonable that the thief should be guilty of receiving if, after the theft, he did some of the things mentioned in subsection (1) of Clause 21 for someone else—for example, if he helped the receiver to dispose of the goods which he had himself earlier stolen. But it was not the Committee's intention, and certainly is not the Government's intention, that the thief should be guilty of an additional and more serious offence under Clause 21 if he merely took steps to dispose of the stolen goods for his own benefit; and that seems right.

There is another aspect that might bear consideration with regard to this Amendment, and that is the case of the person who does not receive the stolen goods but arranges for their disposal and then takes the proceeds; but he is already covered by the joint effect of Clauses 21 and 23. I am sure it was not the noble Lord's intention by means of his Amendment to turn a thief into a receiver and thereby make him liable for the more serious offence or more serious sentence, when in fact he is not doing any of the things referred to in subsection (1). The key words which are the real reply to the noble Lord are those at the end of the subsection, the words "or if he arranges to do so", because in the lawn-mower case the man who is to get the lawn-mower has arranged to receive; and it applies to the other words "dishonestly receives the goods". So unquestionably the case that the noble Lord cited is covered by the clause as it stands The man is caught. I think unquestionably also the effect of accepting the Amendment would do something which the noble Lord apparently does not want to do and certainly the Government do not want to do. I hope with this explanation he will feel able to withdraw his Amendment.

LORD AIREDALE

I accept that my Amendment may be faulty in the form in which it is put down if it were to have the effect of making the principal thief also capable of being found guilty of handling, because I know that the Committee were very anxious that this should not happen. But I was not satisfied with the remainder of the Minister's answer, if I may say so. I very carefully posed a case in which the handler had not yet received the goods and in fact never did receive the goods but was only making arrangements.

LORD STONHAM

I must interrupt the noble Lord when he says that he was only making arrangements. He had made the arrangements, and he is caught by the clause. There can be no equivocation about that. He is caught by the clause.

LORD AIREDALE

I am sorry, but I do not accept that the words, "for the benefit of another person" do not also apply to the words, "if he arranges to do so". It is the fact that the benefit is not for another person but solely for himself that, in the instance that I have given, enables him to escape. That is how I see it, and I am not satisfied with the reply. The Minister said at the outset that he had not quite understood what the argument was going to be in support of the Amendment. Will he kindly look at the matter again, because I really think there is a lacuna here. I am quite prepared to be persuaded otherwise, but not upon the argument so far advanced. Can I have an assurance that the matter will be looked at again?

LORD STONHAM

Certainly; I am most ready to give that assurance. I am bound to say that while of course I will look at it again, I do not think there is a vestige of a case in what has been put forward. However, I will study it and see whether there is any possibility that I am wrong, and I hope I shall be able to satisfy the noble Lord, if I am still of the opinion that I am now, that the cases that he has cited are covered. If not, I will certainly tell him so.

LORD AIREDALE

That is certainly fair enough, and I am pleased to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.32 p.m.

On Question, Whether Clause 21 shall stand part of the Bill?

VISCOUNT DILHORNE

I share the difficulty that the noble Lord, Lord Stonham, expressed a little time ago, on hearing these intricate arguments advanced across the Floor at this late hour. But I must say that on the Question, Whether the clause shall stand part, listening to the noble Lord, Lord Airedale, I thought there was a point which required consideration. That was not what led me to my feet, but I should like the noble Lord if he would to have a further look at the word "handling" which is attached to this clause. I think it is not unimportant.

Unlike all the other clauses we have been referring to, this clause makes a considerable extension in the existing law. I do not object to that at all; I am in favour of it. But "handling" seems to me an inapt word, and one which may be slightly misleading to a jury. I may be wrong, but to me "handling" implies some form of physical contact with the goods, and I do not think there is any way of avoiding that implication. But quite clearly this clause goes far wider than that. It covers anyone who dishonestly arranges the disposal or sale of stolen property. He may be miles away from the goods; he may never handle them, and they may never come into his possession or control. I think the use of this word "handle" in a case of that character may well lead to a sort of defence being put forward which ought not to be open. I do not think it is apt, and it may lead to trouble.

The meaning of "receiving" is tolerably clear, but that word alone will not do. The clause covers both receiving and dealing with stolen property. A receiver deals with it, but not all those who deal with it are receivers. I find it difficult to think that you can find one word which will correctly describe the ambit of this clause and, rather than have the word "handles", which I think is just as inapt as the word "receiving" in the sense that it does not cover the whole depth of the clause, ask the noble Lord to consider whether it would not be preferable here to use just the words "receives" and "deals with", instead of the word "handles" in line 25.

There is one question to which I should like an answer. I do not ask for an answer to-night, but I should like to have one before we get to the Report stage. To prove an offence under Clause 21 is it intended that it should be necessary to prove an intention permanently to deprive? The clause itself does not require it. It might be that this is intended. But if it is not, is it not illogical to require proof of that intention to justify Conviction for stealing and not for an offence under this clause, particularly when the borderline between the participating in the stealing and the offence which is now called "handling" is so indistinct, and I think it is recognised by the Committee that the two offences overlap? It seems to me illogical.

Of course, if a man receives stolen property with the intention of returning it to its owner he will not be guilty under this clause, for he would not have done anything dishonest in relation to the goods. But suppose at the time of his receipt he had not that intention. Suppose that another Goya is stolen and the receiver, knowing it to be stolen, decides to offer to return it if a contribution is made to a named charity. Would he be entitled to be acquitted if he were prosecuted under this clause? It could not be said that that receiver had an intention permanently to deprive. I raise this question, and I should like an answer to it. If, as may be the case, no such intent has to be proved when a man is charged under this clause, I hope that the noble and learned Lord the Lord Chancellor, and the noble Lord, Lord Stonham, would both consider that that reinforces the argument for doing away with "permanently" in the definition of theft.

8.36 p.m.

LORD AIREDALE

I should like warmly to support what the noble and learned Viscount said at the beginning of his speech. The word "handling" seems to be rather confusing if it is going to be applied, as it is in some cases under this clause, where people have never seen the goods let alone handled them—people who have made arrangements hundreds of miles away for dealing with goods with which they would never come in contact at all. Surely we could get rid of this difficulty by abandoning this expression "handling". Instead of beginning with the words, "A person handles stolen goods if" Clause 1 could begin with the words, "A person shall be guilty of an offence if". Then subsection (2), instead of beginning, "A person guilty of handling stolen goods", could begin, "A person guilty of committing an offence under the preceding subsection shall, on conviction", and so on. It seems unnecessary to import the word "handling stolen goods" into a subsection which deals not only with handling but with many other aspects of dealing with stolen goods.

LORD STONHAM

I welcome the statement by the noble and learned Viscount that he agrees that in this Bill we should enlarge the present net cover- ing the offence which we generally call "receiving". I am also glad that he is not satisfied with the word "receiving". Quite obviously, we could not use the word "receiving" and then have that in the definition. I am rather surprised that there is this thought that the word "handles" could be misunderstood by a jury, because subsection (1) really is a definition of what we mean by "handles". We say so. In other words, we give it a handle. Then we explain just what we mean by "handling".

I will certainly look at this point again, but I am grateful to the noble Lord, Lord Airedale, for drafting on his feet. I find it most difficult sitting down. Just at the moment, the suggestions that have been made do not exactly appeal to me as being an improvement. We could bring in the word "dishonestly" in the sense of "dishonestly deals in". But whether the words "deals in" would be less likely of misunderstanding, prefaced by the word "dishonestly", than "handles" as defined in the subsection—

VISCOUNT DILHORNE

I suggest that one should keep the other words. All that I am suggesting is that one should take out the word "handles" so that it reads "A person receives and deals in stolen goods". One would merely change the word "handles". One would not alter anything else.

LORD STONHAM

"Receives" and "deals in": I will certainly look at that. With regard to the points which the noble and learned Viscount raised but on which he did not require an immediate answer. I will certainly see that they are dealt with, but I can see that the clause as drafted means that the offence will apply to a person who receives or otherwise deals in stolen goods knowing or believing them to be stolen. The proposed extension to goods believed to be stolen is a substantial change which the Committee discussed in paragraph 134 of their Report. We believe that it will remedy a serious defect in the present law, which requires actual knowledge that the property is stolen to be proved by the prosecution. Often guilty knowledge, as distinct from belief, does not exist, although the circumstances of a transaction are such that the receiver ought to be guilty of the offence. A man who buys goods at a very low price from an unknown seller may not positively know that the goods were stolen and may ask no questions, but it might be clear on the evidence that he believed they were stolen and it seems to us right that the person handling the goods should be guilty if he believed they were stolen. I will certainly look at these points. Although I would not pretend that this is a major matter, your Lordships have given me a problem in finding another name which will satisfy me.

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 [Scope of offences relating to stolen goods]:

On Question, Whether Clause 23 shall stand part of the Bill?

8.43 p.m.

VISCOUNT DILHORNE

I raised a point on this clause on Second Reading. It is raised at this late hour in the hope that the noble Lord, Lord Stonham, can now deal with it. I have not tabled any Amendments to this clause—not on account of what the noble and learned Lord, the Lord Chancellor, said about the temerity of tabling Amendments to this Bill, for the Lord Chancellor has clearly established that the Bill is a child whose paternity is no longer in question, but because I want to raise this question so that I may hear from the Government the extent of the scope of this clause.

In paragraph 137 of their Report the Committee say that there does not seem to be any reported case of a prosecution for receiving the proceeds of stolen property until 1953. It is clear that such prosecutions could have been brought since at least 1861. Since that decision in 1953 such prosecutions may have become more common than they used to be. Recently I had to deal with a case in which a lorry driver was charged with receiving stolen property in the following circumstances. He had been deceived into taking his lorryload of goods to the wrong destination. He went to the destination at which he ought to have delivered his load; he was told that it was to be taken somewhere else, and the thief went on board with him and they got to a farm. The lorry was unloaded, and the lorry driver got suspicious. The thief got over £100 from the lorryload of goods and the lorry driver was given £10 or so to keep his mouth shut. It was a clear bribe for that purpose.

The lorry driver was charged and convicted of receiving stolen property I do not doubt that it was right that conduct of that sort by the lorry driver should have met with a criminal sanction, but is it right that it should be labelled "receiving stolen property", or, as it will now be, "handling stolen property"? I ask this because when one gets particulars of a man's previous convictions, one gets the nature of the offence and not very much information about it. It may well be that if that man's record shows the conviction of the offence of "receiving stolen property" or "handling stolen property", when one remembers the kind of offence for which the lorry driver was convicted, it will be unduly prejudicial if he is convicted again of some other offence.

Therefore, I should like the noble Lord, Lord Stonham, seriously to consider whether one could not give some special label, which is more apt than the label "handling stolen goods", to the offences which fall within subsection (2). This is even more important when one realises that under subsection (2) a man may be prosecuted not only for handling stolen property, or because he has handled some of the cash into which the property was converted, but also because he has handled something bought with that cash. There seems to be no limit to the way in which one can go down the chain, provided one can prove dishonesty. Subsection (2)(a) "directly or indirectly represent" is very wide, as is paragraph (b): directly or indirectly represent or have at any time represented the stolen goods". It is also important to see that the offence of handling goods covers, by virtue of subsection (4), goods obtained by blackmail, and anything into which they have been converted, and also goods obtained by criminal deception and what they have been converted into.

I hope that I have understood this clause correctly, but it would be useful to break this down a little and to put some other label on this kind of offence. To see offences of the kind comprised within Clause 23(2) all put under the heading of "handling stolen goods" may be very misleading indeed when one comes to consider a person's previous convictions.

LORD STONHAM

I will certainly look at this clause in the light of what the noble and learned Viscount has said, and particularly at subsection (2). What he has in mind is clarification—to make it more readily understood in the courts. Certainly we should not be prepared to narrow the effects of this. I understood that the noble and learned Viscount generally welcomed our concept.

VISCOUNT DILHORNE

I think that I have not made my point clear. I was pointing out the width of this clause and saying that it went right down the chain. The Committee say that once the goods are tainted, anything into which they are converted is tainted. I was not complaining of that. I was saying that when one sees recorded "handling of stolen goods" on a person's previous convictions relating to something into which stolen goods have been converted, something which may have changed form half a dozen times, it is a misleading description. Again it is a question of labelling.

LORD STONHAM

Yes. I will certainly look at that. As regards the example which the noble and learned Viscount gave on Second Reading, and which he repeated to-night, about the lorry driver who got £10 out of a consignment, in my view such an offence would certainly count as handling or receiving; indeed, that would be a clear case of receiving. One would not expect him to get a heavy penalty in the courts; but certainly he is caught by the clause. And, of course, he would not have been far down the line; he was in at an early stage. But I will look at that point.

LORD AIREDALE

I noticed that subsection (3) begins with the word "But". I question whether any sentence in the English language can properly begin with the word "But". I know that a very great poet once began a famous poem And did those feet in ancient time. Perhaps that was the precedent of which the draftsman was thinking.

LORD STONHAM

There is also a much-quoted poem in the higher circles which begins with the word, "If".

LORD AIREDALE

That is all right.

LORD STONHAM

"If" is generally approved, but "But" is not. I am always in favour of short sentences and sometimes it is very difficult to avoid "But". But knowing the noble Lord's welcome proclivity for pointing out these excrudescences, I will certainly look at that one, too.

Clause 23 agreed to.

Clause 24 [Going equipped for stealing, etc.]:

8.52 p.m.

VISCOUNT DILHORNE moved, in subsection (1), after "burglary" to insert "or". The noble and learned Viscount said: I think I can move this and the other Amendment quite shortly, and I hope they can be dealt with quite shortly. When I read subsection (1) of this clause I was a little puzzled by it. It says: A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary"— I understand that— theft"— I understand that— or criminal deception. Now a pen is a very useful weapon in criminal deception for signing some document. Does this really mean that if you are carrying your own pen on the way to perform criminal deception you are guilty of two offences—first, of carrying the pen, and, secondly, of criminal deception? It does not seem to me that you could be proved to be carrying a pen for use in criminal deception, without in fact executing or attempting to execute the criminal deception.

LORD STOW HILL

What about spectacles?

VISCOUNT DILHORNE

Some people always wear spectacles. But is there any point in making this a criminal deception? If you borrow someone else's pen, that is all right. But if you take your own pen is it right that that should be an offence? That was my line of thought when I first read this subsection. Then when I read the Committee's Report to see what they were thinking about, they just said this: The offence will also cover carrying things about for use in forms of criminal deception such as confidence tricks. We all know what a conjurer takes around with him, but I did not realise that people who engaged in confidence tricks took around things of that sort.

LORD CHAMPION

What about gold bricks?

VISCOUNT DILHORNE

I do not know whether they carry gold bricks around. Nowadays, they carry the gold itself. But I do not know whether the three-card trick is regarded as a confidence trick. If so, it presumably would be criminal deception. If it would, then if you are found carrying a pack of cards on your way to the Grand National by train, I suppose you run the risk of being convicted under this clause of carrying something which is available for use for the three-card trick. But they could not prove that you were going to use it for the three-card trick unless they saw you playing or attempting to play it.

Therefore, in all seriousness, I wonder whether it is really necessary to make this extension to criminal deception. I think this is new. I am not sure that there is anything in the Larceny Act which says that carrying articles about with you for use in obtaining goods by false pretences, or money by false pretences, is a crime. I think this is quite new and unnecessary, and therefore I would prefer to see it out. I beg to move.

Amendment moved— Page 10, line 38, after ("burglary") insert ("or").—(Viscount Dilhorne.)

LORD STONHAM

The noble and learned Viscount began with a short list of articles, very innocent articles, of everyday use, and made it appear that it would be absurd if it could be alleged that such articles might be used for criminal deception, and to support a charge under this clause of the Bill. But the real test is whether or not the article is being carried for a guilty purpose, and it would be equally possible for the noble and learned Viscount to build up a long list of innocent articles which would apply equally to burglary or theft. For example, if you were wearing an ordinary scarf, it could be argued that you could use it to wear as a mask to cover your face in order to commit a burglary or something of that kind. The point is whether or not you are carrying these things with a guilty purpose. It would have to be proved that the article was for use in the course of or in connection with any burglary, theft or criminal deception. Therefore, if the objection is raised about innocent-seeming articles which could form the subject of a charge, the answer is that it could be equally the case with burglary with the same articles.

This is an extension of the present position to cover the deceiver, the confidence trickster. As my noble friend Lord Champion said, why should it be any less an offence for a chap to carry his gold brick or marked playing-cards, with which he was going to deceive people and carry out a confidence trick? Why should that be any less serious than somebody else carrying the tools of his trade with the guilty purpose of making burglarious entry? This is an extension. This is something which we thought ought to be done in order to give us a chance of picking up and charging people. Although some people may laugh about gold bricks and about this form of deception, the victims do not laugh. They can be very seriously troubled. Since the same criticisms which the noble and learned Viscount made of criminal deception could apply equally to burglary or theft, I hope he will agree that the subsection should remain as it is.

VISCOUNT DILHORNE

I simply am not satisfied with that answer at all. I am sorry, but the noble Lord has not appreciated the point. It is nonsense to say that an article such as a pack of cards can be compared with a jemmy. You have no difficulty at all, if you find a man walking about the streets near your home in the hours of darkness carrying a jemmy, in concluding that he is intending to use that for the purpose of burglary. It is no answer to say that in some cases you cannot prove it. He might have a scarf in his pocket and not be intending to use it. The question which I put to the noble Lord, and which he has not answered, is: what kind of articles does he think you can prove are being carried about for use in criminal deception, unless you are in a position to prove that the criminal deception has itself been attempted or committed? If you can prove that, you ought not to make it an additional offence to have carried the articles on the way to the criminal deception. That is the point.

I will not pursue it now, but it seems to me unnecessary, and I cannot get any assistance from the Committee's Report to explain to me what kind of articles they have in mind and why they think, in those circumstances, it is possible to prove what the intended use was in a case of criminal deception, such as one can in burglary and in theft. A man has a whole pocketful of car keys and is wandering around a line of cars and you can deduce what his purpose is. But it does not necessarily follow from the mere possession of a marked pack of cards, or of dice which are weighted, that they are ever going to be used for criminal deception.

LORD AIREDALE

We are discussing a clause which is preceded by the words, Possession of housebreaking implements, etc. and a clause the sidenote of which reads, Going equipped for stealing, etc. We have not had a single example of the kind of circumstances in which this clause would apply to a proposed offence of criminal deception, as distinct from burglary or theft; and unless the Minister is able at Report stage to give us an example of how this clause can be expected in any circumstances to apply to criminal deception, then surely the answer is going to be to leave out of the clause the words "criminal deception".

LORD STONHAM

I am beginning to get resigned to the belief that I shall never make an answer to the noble and learned Viscount on this Bill which will satisfy him.

VISCOUNT DILHORNE

The noble Lord will keep on trying, I hope.

LORD STONHAM

I shall certainly keep on trying, because I imagine that the light will eventually break with one or other of us. I do not know whether it was my way of putting it, but in his reply I think the noble and learned Viscount seized on a false analogy. It was he, in his opening speech, who was talking about a pen as an instrument that could be used for a wrong purpose. But the real comparison is not between a marked pack of cards and a jemmy, but between a marked pack of cards and an innocent article such as, for example, a screwdriver. A typical article so carried about would be a prospectus about a fraudulent mushroom firm which could be used by a confidence trickster for purposes of deception. But I will accept the invitation of the noble Lord, Lord Airedale, and come back on Report, when we reach this section of the Bill, with a much longer list.

VISCOUNT DILHORNE

I do not know whether the longer list will prove any more convincing, but I am open to be convinced, as I always am. I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 24 agreed to.

Clause 25 [Search for stolen goods]:

9.4 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (2), to leave out "An officer of police not below the rank of superintendent", and insert "A chief constable". The noble Viscount said: We might be able to deal with this Amendment quite quickly, and I shall certainly try to make my speech with such speed as I can. Subsection (2) of Clause 25 changes the law by giving power to a police officer of the rank of superintendent and above to issue a written authority for the search of premises in the conditions that are set out in the subsection. At the present moment, the only person who can do that is a chief constable. Everybody else has to go and get a warrant from a justice of the peace. The Criminal Law Revision Committee justified the change in paragraph 155(ii) of their Report by reference to the increase in the size of the police forces. I do not wish to press this Amendment to-night, but I should very much like to know what the noble Lord, Lord Stonham, has to say, and whether he can tell us if there has been a real demand from the police for this extension.

There is, I have no doubt, a balance here. On the one hand, there is the requirement of speed, whereby you can get the police into a house where there are stolen goods or where they suspect that there are; and, on the other, there is the very important need to protect the police from the results of their own occasional mistakes. One knows that they take the greatest trouble when they are going into other people's property, either if they are going to do it on the written authority of the chief constable or if they are going to do it with a warrant from a justice of the peace, but occasionally mistakes occur; and in this sort of field, where the criterion is that the person who is in occupation of the premises in question must have been convicted of dishonesty or it must be a house in which there previously lived somebody who was convicted of handling stolen goods, it is precisely the sort of circumstance where the criticism can be made out that once a person has been convicted the police do not leave him alone. I do not believe this for a moment, and I am sure it is not so; but if the police make a mistake that sort of criticism is open against them.

There was a tremendous fuss the other day—and I am sure it was justified—about a search warrant which was issued to search the house of Lady Diana Duff-Cooper, and there was an Adjournment Debate upon it in another place. That is not an exact analogy, because in that case there was a magistrate's warrant.

LORD STONHAM

And also in that case the person in occupation had not been convicted of stealing or receiving in the preceding five years.

VISCOUNT COLVILLE OF CULROSS

Of course not; but perhaps the noble Lord will let me make my point in a moment. That was a case where there was a mistake, and it was admitted in the other place by the Under-Secretary of State. What I want to use that case for is to illustrate the question of speed, because on that occasion—and this comes out of the OFFICIAL REPORT of the proceedings in another place—the anonymous telephone call which started it off arrived at New Scotland Yard at 10.45 p.m.; at 11.15 (that is, half an hour later) the station sergeant applied to a magistrate for a warrant; and at 12 o'clock (that is, only an hour and a quarter after the anonymous telephone call first arrived) four police officers were at the front door of the house concerned. If that is the sort of speed with which this can be done—and done properly, of course, in a proper case—I do not understand what the difficulty is about getting a justice's warrant. If the difficulty did arise, I could understand the need to extend the power below the rank of chief constable, but if this case is typical of the speed with which a warrant from a justice can be obtained then I do not understand what the need is for the extension.

It may be that the noble Lord, Lord Stonham, will tell us that there are cases where justices cannot be got hold of in the middle of the night with that speed, and it may be that in those circumstances this change is right, but I am very concerned that this Amendment should be considered by the Committee in the context of the need to give the police the protection they deserve and require when they are having to undertake this rather disagreeable duty. I shall certainly listen with great care to what the noble Lord says. I will not press this Amendment to-night; but I think it is important and deserving of the full consideration of the Committtee. I beg to move.

Amendment moved— Page 11, line 19, leave out line 19 and insert ("A chief constable").—(Viscount Colville of Culross.)

LORD STOW HILL

I should like to say just a word on this Amendment. I personally hope that the Government will not give way on this matter. Nobody could be more sensitive than I to criticisms made of the police from lime to time. I agree that they have a most difficult task; and they fulfil it to the admiration not only of the British public but I believe of the whole world. It would be lamentable if we considerably enlarged the risk of their coming into conflict with public complaint by making a change in the existing law which was not necessary. Personally, I do net think we are unduly enlarging that risk. An officer who has succeeded in reaching the rank of superintendent—and I am proud of such experience as I have had that enables me to form a judgment which at least satisfies me—is, I should have thought, an officer, who could be well trusted to exercise this power. Whatever the police do, now and again they will be criticised. We should try to protect them, but I believe that they are ready to face that possibility as one of the unfortunate risks of their occupation.

What is the case for this change? My noble friend Lord Stonham will doubtless tell us. I can well imagine the sort of situation in which it would be very important to have this new power in the face of the scale on which crime is now committed; and particularly crime in the form of large-scale theft. I can well imagine a situation late at night when a lorry is seen going into premises such as are described in the clause and where it is highly probable that it is loaded with a cargo of stolen cigarettes, goods stolen from docks or warehouses or something of the sort. It may be that if the premises can be examined within a very short space of time the police can bring a prosecution which, if one, two or three hours were to elapse before the search warrant was available to be used, it would be quits impossible to prove. The lorry goes into the premises and within ten or twenty minutes it is completely unloaded; the stolen goods upon it are salted away; the lorry is disguised; the number plates are changed, and all the rest. If a search warrant can be issued almost at once, that process can be interrupted and the theft detected. If a justice of the peace has to be found, perhaps roused from his bed, or if the nearest chief constable available in these very large forces has to be contacted, critical time may elapse—it may be half-an-hour, one hour or two hours—and by the time the warrant is available for use it may be quite impossible to discover any evidence of the theft.

I simply instance the kind of case in which a lorry has been "hi-jacked" or loaded with stolen goods and brought into premises where it is to be unloaded. That is a simple example. At this late hour I do not seek to multiply the examples, but I should be surprised if my noble friend Lord Stonham had not in mind, supposing the Committee wished to hear them, a great number of examples of this kind in which this power would be of great value. I am glad that the Government have made this change. I greatly hope that it will not enlarge the risk of criticism of the police, which personally I do not think will be the case, in view of the fact that an officer of the rank of superintendent will be empowered to issue the warrant.

9.13 p.m.

LORD STONHAM

I can assure my noble friend, Lord Stow Hill, while thanking him for his support and for the examples he has given, that we have no intention of giving way on this Amendment. I hope also that, after the explanation for which he asked, I shall be able to carry the noble Viscount, Lord Colville, with me. He asked first of all whether there was a demand from the police for this change. Our understanding is that the chief constables welcome the extension of the power to superintendents, while recognising that it must be exercised responsibly and at an appropriate level—for example, by the superintendent in charge of a division, or the head of a particular force's C.I.D. We shall have opportunities, by means of Home Office circulars or otherwise, to see that the importance of exercising discretion in using the power is clearly understood.

I thought that the noble Viscount, Lord Colville of Culross, made very heavy weather of this. One almost had the impression, particularly through his reference to a recent case, that either chief constables already had unlimited power or that in future superintendents would have similar power. What we are doing here is to suggest that a lesser power than that which resides in chief constables under Section 42 of the 1916 Larceny Act should be given in this Bill to superintendents. I say a lesser power because under the 1916 Act the chief officer of the police can authorise a search if the person in occupation at the time of the authorisation has been convicted at any time of any offence involving fraud or dishonesty and punishable with imprisonment, or secondly, if the occupier or any other person who has been in occupation during the past twelve months has been convicted at any time of receiving stolen property or harbouring thieves. We are limiting; we are not doing it for any time or under any period.

Under the Bill our proposal is that a conviction of the past or present occupier must have been within the preceding five years, and the restriction, therefore, will diminish a little the powers of search, especially as the occupier may well have been in prison for a good deal of the five years. The Criminal Law Revision Committee considered it was wrong that a conviction, however old, should count against a person for this purpose. Thieves and receivers should not be more alarmed than at present; they should be less alarmed, because it will not count for ever: there is a five years' limitation.

The real criticism of the noble Viscount was, in effect, that we were going lower down the ranks in granting this power, even though to only a limited extent. But the amalgamation of police forces, which has gone a very long way and is rapidly going further, will mean there will be, to take Lancashire for example, 15 or 16 chief officers who, following amalgamation, will find their present commands may well be in charge of superintendents. Take, for example, Salford, the town of my noble friend Lord Royle, which is on the edge of Manchester. Saving his presence, just as you realise you are in Salford you are through it. But Salford has a chief constable, a chief officer of police, who has these powers at the present time. We are merely saying that, sensibly and responsibly, somewhat lesser and more restricted powers should be given to superintendents. I think it is necessary, and as my noble and learned friend Lord Stow Hill has pointed out, I could give other examples. It is not merely necessary; it will greatly help in catching thieves, recovering stolen goods more quickly, and in defending the public.

VISCOUNT COLVILLE OF CULROSS

If that is so—I do not want to prolong this discussion—it must be (the noble Lord Lord Stonham did not mention this) because at present it takes too long to get a justice's warrant. This is the point I was making. I do not think he altogether understood my argument. I should like to read what he has said, and perhaps he will be so good as to read what I have said. I was on a slightly different point. In view of the hour I should like to go away and do that. Meanwhile, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

LORD STONHAM

We have not made as much progress with the Bill as we had hoped. I know that there was a general hope that we should finish the Committee stage to-night. But we have gone a long way. We have now been discussing the Bill in Committee this evening for 4½ hours, and I think it would meet the general wish of your Lordships if I now move that the House be resumed and that the Committee stage be resumed on Thursday. I beg to move.

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

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