THEFT BILL [H.L.]

HL Deb 25 March 1968 vol 290 cc854-929

5.12 p.m.

THE MINISTER OF STATE, HOME OFFICE (LORD STONHAM)

My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 26 [Evidence and procedure on charge of theft or handling stolen goods]:

(4) In any proceedings for the theft of anything in the course of transmission (whether by post or otherwise), or for handling stolen goods from such a theft, a statutory declaration made by any person that he despatched or received or failed to receive any goods or postal packet, or that any goods or postal packet when despatched or received by him were in a particular state or condition, shall be admissible as evidence of the facts stated in the declaration, subject to the following conditions:—

1. (a) a statutory declaration shall only be admissible where and to the extent to which oral evidence to the like effect would have been admissible in the proceedings; and
2. (b) a statutory declaration shall only be admissible if at least seven days before the hearing or trial a copy of it has been given to the person charged, and he has not, at least three days before the hearing or trial or within such further time as the court may in special circumstances allow, given the prosecutor written notice requiring the attendance at the hearing or trial of the person making the declaration.

VISCOUNT COLVILLE OF CULROSS moved to leave out subsection (4) The noble Viscount said: Subsection (4) of Clause 26 is dealt with in paragraph 159 of the Criminal Law Revision Committee's Report. Since, however, this draft was prepared there has been passed Section 9 of the Criminal Justice Act 1967, which seems to me to provide a general code for the admission of uncontroversial written evidence in criminal proceedings with safeguards which are rather similar to those in this subsection. I am wondering why there still need to be in this Bill these special but slightly different provisions. Incidentally, I am in favour of looking at the same time at the question of whether part of Section 41(3) of the Criminal Justice Act 1948, from which this subsection has developed, should not also be repealed, because this again is a special provision which seems to me to be covered by Section 9 of the Act of 1967.

There is the added difficulty about these statutory declarations, which was shown up by the case of Marley in 1958, that they have to be exactly in line with the statutory form set out in the Statutory Instrument which is currently in force. I should have thought that this, too, is now unnecessary and that the breadth of wording allowed by the Act of last year is more appropriate and more up to date. Therefore, I should have thought that it might conceivably have been a slip to leave this subsection in the Bill, and unless the noble Lord can tell me something that I have missed—which may well be the case—I should have thought that it was better that it should be left out. I beg to move.

Amendment moved— Page 12, line 29, leave out subsection (4).—(Viscount Colville of Culross.)

THE LORD CHANCELLOR (LORD GARDINER)

The history of the subsection which the noble Viscount seeks to leave out stems from Section 41(3), as amended, of the Criminal Justice Act 1948 under which statutory declarations are admissible only when the property was in the course of transmission by post or in the possession of any of the national boards constituted by the Transport Act 1962. Since the object of the provision is to avoid the need to call witnesses to give formal evidence which is unlikely to be disputed, the subsection makes the power apply to property in transmission generally. An alternative to the use of the subsection, if the defence agreed, would be for the evidence to be given by means of a written statement under the procedure in Section 9 of the Criminal Justice Act 1967, which came into force on January 1, 1968. This procedure is available in respect of any offence, but its requirements are stricter in some respects than those of the subsection. Accordingly, it seemed convenient to preserve the special procedure under the subsection for the cases to which it applies. In particular, a statement to be admissible under Section 9 of the 1967 Act must contain a declaration by the maker that it is true and that he recognises that he will be liable to be prosecuted for an offence similar to perjury under Section 89 of the 1967 Act if it is untrue.

I agree that there is some overlapping. I can see that there is an argument, which the noble Viscount has advanced, for saying that although it is quite true the Committee recommended this, and although it is in the Committee's draft Bill, now that we have Section 9 of the 1967 Act, why not leave it to that? But the point is that there are at present a number of other procedural provisions relating to evidence by written statement in other Statutes which remain for particular purposes notwithstanding Section 9 of the 1967 Act. Examples are Section 242 of the Road Traffic Act 1960, which provides for a certificate by a constable in a prescribed form of admissions concerning the driving or ownership of motor vehicles, and also certificates by public analysts and others under the Pharmacy and Poisons Act 1933. These were not cleared off the Statute Book by the 1967 Act, and the subsection which we are discussing, like the provisions to which I have just referred, may still be useful for its particular purpose notwithstanding the availability of the procedure under Section 9. There seems to be no sufficient reason to get rid of this, particularly since the Criminal Law Revision Committee have under review the whole subject of criminal evidence. We are trying on a fairly massive scale to recast and reform our criminal law. We cannot do it all in one Act, and as the Criminal Law Revision Committee are reviewing the whole subject of criminal evidence, I suggest that it would be convenient that this subsection should be left in the Bill and, together with other cases to which I have referred, can be looked at again by the Criminal Law Revision Committee.

The noble Viscount suggested that Section 41(3) of the Criminal Justice Act 1948 might also be repealed, but this is in fact done by Schedule 3, Part III, of the present Bill. Although for the reasons which I have given there is not a great deal in this, and although we are ready to listen to anything which other noble Lords may say to the Committee on the point, the balance of advantage on the whole lies with leaving the subsection as it is.

VISCOUNT COLVILLE OF CULROSS

I do not suppose that it really matters one way or the other. There is plainly an administrative argument for leaving the whole of this part of the criminal law to be dealt with together; but, on the other hand, I am not altogether impressed by the fact that Acts prior to 1967 contained special procedural provisions of this nature. What I question is whether it is a good idea, after Section 9 has become law, to introduce a new and extended provision. The difficulty is that there are slight differences in the procedure—the noble and learned Lord pointed out one difference—and it makes the situation that much more difficult. There is a reasonable and wide power in Section 9, which seemed to be quite suitable in the eyes of Parliament last year, and I question whether it is a good idea to add these complications in a new Bill which is being brought forward after the date of that Act. I would not press this matter, but if the noble and learned Lord is soon to be able to come along with a Bill as a result of consideration by the Criminal Law Revision Committee in relation to evidence, it may be right that we should leave this subsection in the Bill. But I should not have thought that it was an altogether satisfactory situation. I will not press the matter at this stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 26 agree to.

Clause 27:

Orders for restitution

27.—(1) Where goods have been stolen, and a person is convicted of any offence with reference to the theft (whether or not the stealing is the gist of his offence), the court by or before which the offender is convicted may on the conviction exercise any of the following powers:—

1. (a) the court may order anyone having possession or control of the goods to restore then to any person entitled to recover them from him; or
2. (c) on the application of a person who, if the first-mentioned goods were in the possession of the person convicted, would be 858 entitled to recover them from him, the court may order that a sum not exceeding the value of those goods shall be paid to the applicant out of any money taken from the person convicted on his apprehension.

5.20 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), after "on", to insert: application made at the time of, or, with leave of the court, within seven days after". The noble Viscount said: I accept what the Committee said in paragraph 162 of their Report, that it is really only in clear cases that the criminal courts find it suitable to make orders for the restitution of property, and that they should leave the more complex cases to be dealt with in the ordinary civil courts and for the matters to be pleaded to in the ordinary way. I very much approve of a restatement in less complex terms of the law on this point, but I am a little concerned about the procedure.

I have in practice met something rather like this when it comes to awards of compensation by the criminal courts under Section 4 of the Forfeiture Act 1870. I think perhaps it would be convenient if at this stage I spoke only to the first Amendment, because it is a slightly different point. There we have a situation where a person is meant to apply for his compensation, and in this Bill, again, we have the person applying for his restitution. But the difficulty is that in so many of these cases nobody does apply. It may be that the accused pleads not guilty, in which case perhaps the person who has lost the goods is there as a witness and he may have an opportunity. But, of course, if the accused pleads guilty the loser is probably not there at all. It is not the prosecution's job to make the application on his behalf, and it is certainly not the job of the defence. What happens as a rule is that, if it is done at all, it is done by the court, and that can be a rather haphazard business. It may be that the court does not think about it. Some courts probably do it more often than others.

What I suggest is that the person who could have the restitution order made in his favour should be given the opportunity of applying at the time of the conviction, but that if he does not hear about the conviction, because he was not there, he should be able to go back to the court—and it should be quite clear in the Bill—up to seven days afterwards and make his application then. I suggest that when we are clarifying the law, it is really not satisfactory to leave the Bill, without laying down any sort of procedure whereby the loser is told of his right to apply or is given a chance to do it. If we are seeking to make things better in the criminal law, then I suggest that this is a provision which might well be inserted in the Bill. I beg to move.

Amendment moved— Page 13, line 10, after ("on") insert the said words.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount made it clear that he was concerned that there should be some procedure in cases of this kind, and, in particular, that the injured person, as it were, who was not there at the time the case was tried should have an opportunity to apply within seven days. As I think the noble Viscount will agree, the whole procedure in Clause 27 is essentially a summary one, and the courts can be expected to use it only where the title to the stolen property is clear and where there is no dispute about it.

In our view, it would be inconsistent with the essentially summary nature of the procedure to provide for the court to consider an application after the criminal proceedings had been disposed of. Nor does it seem appropriate that the person entitled to restitution should be unable to get the benefit of the clause merely because (perhaps not knowing when the proceedings are taking place) he has not made an application. I do not know whether the noble Viscount has considered the other side of the coin there. I think it is relevant that there has been criticism of the provision, which is broadly analogous to this, in Section 4 of the Forfeiture Act 1870, which he quoted, as amended by last year's Criminal Law Act. The criticism has been precisely because that provision requires an application to be made by the aggrieved person.

As I am quite sure the noble Viscount is aware, Clause 27 is not the only, and certainly not the simplest, means by which a person who has had property stolen can recover it after the conviction of the thief. If the title to the property is clear, there is nothing to stop the police simply handing it back to the owner without any order of the court; and that is what frequently happens. In fact I suppose that is what happens in most cases of this kind. Clause 27, which the noble Viscount gave, in effect, a moderate welcome, caters for the exceptional cases in which it is desired, perhaps by the prosecution for their protection, that the court should formally order the restitution.

We think that it would be an unnecessary complication to introduce rules of procedure as to applications and time limits. In any event, to allow applications up to seven days later might in some circumstances be impracticable—for example, at courts of quarter session, which may sit for only a few days at intervals of several weeks. Therefore, on balance I think that the provision as it appears is correct and that the noble Viscount's underlying fear that the aggrieved person may lose an opportunity does not arise in practical terms.

VISCOUNT DILHORNE

I listened with interest to what the noble Lord, Lord Stonham, said about this Amendment. I think it is true that a restitution order is very seldom made nowadays, because the police know to whom the property belongs and at the end of the case hand it back. That situation, I suppose, will go on to the extent that it does now. But I suppose also that this subsection (4) is intended to be used more widely than the present power to order restitution, and I think the subsection is generally desirable for it clarifies the position in some respects.

Having said that, I cannot think that the court is likely to make an order for restitution without someone applying for it. It may be that the police apply for the order to be made in favour of X, or it may be X himself who applies for it. I do not think any rule of procedure is required to make it necessary that an application should be made. I am not at all sure that it is not inherent in this subsection that there should be an application, because I do not think a court would be likely to exercise this power frequently—at any rate, of its own initiative. With regard to having a time within which the application can be Made—and this Amendment proposes a period of seven days—I would say to my noble friend that there might, I think, be very great difficulties in complying with that. But I entirely agree with my noble friend's thought behind this Amendment.

I should like to ask the noble Lord, Lord Stonham, this question. If the owner of the property does not apply for a restitution order, is the answer that he can get restitution by applying in the magistrates' court for an order under the Police Property Act, and that that would seem to be a safeguard of the owner's position? I do not think it would be appropriate now to consider the impact of this part of the clause on paragraph (a). Perhaps one can do that on a later Amendment. But I think that the owner of the property, bearing in mind his powers under the Police Property Act, will be able, and will be allowed, to apply after conviction, and further, that the court will not be likely to act in the absence of an application.

VISCOUNT COLVILLE OF CULROSS

Before the noble Lord answers that point, I wonder whether he could confirm what my noble and learned friend has said. There has to be an application under paragraph (b) and under paragraph (c), because the Bill says so, and in both cases it has to be an application by a person entitled to recover. But under paragraph (a) there has not got to be an application. How does the court act? Is my noble and learned friend right when he says that, despite the fact that the Bill says there does not have to be an application, there does have to be an application? And, if so, who makes it, and when? Could the noble Lord just tell me how he sees this working?

I do not want to press this point. I am perfectly prepared to accept that a time limit afterwards would be difficult; but I want to know how this system is going to work when, after all, the Criminal Law Revision Committee said: Sometimes a restitution order has been of practical value in enabling an owner to get his property back quickly … The person in possession, whether the police or not, may wish to have the authority of a court before handing over property to which the criminal or somebody else might claim to be entitled". It is to protect the person who has the property. Is it he who makes the appli- cation under paragraph (a)? Who is it? Could the noble Lord tell me?

LORD STONHAM

I agree with the noble and learned Viscount that the court is not likely to make an order for restitution unless someone applies for it, and I also agree that in any case it is likely that these orders will be exceptional. The provision is for the exceptional case, and I instanced—and I think this is the answer to the noble Viscount—the kind of case where the prosecution, for their own protection, would ask the court to make an order. But with regard to the noble and learned Viscount's other question, most certainly the rightful owner could still rely on the Police Property Act and make application for the return of the property.

If, as is the case, we are considering only this Amendment, I would point out that it would provide seven days for an application to be made, with all the disadvantages which I mentioned, to one of which the noble Viscount, Lord Colville of Culross, nodded his head when I mentioned quarter sessions. It is hedged around with disadvantages. But the only case in which an application would be made within the seven days would be where the rightful owner of the property heard about the case, heard about the prosecution, and then came to the court and made it. But he would still have the powers left to him under the Police Property Act, and nothing in this clause takes away any of that power. All it does is to provide, in the exceptional case, when the prosecution want it, the right to apply to the court for an order. I hope that with those explanations the noble Viscount will feel able to withdraw his Amendment.

VISCOUNT COLVILLE OF CULROSS

I will certainly do that, but in view of what the noble Lord has said I cannot understand why he does not want to have an application under paragraph (a), because it follows clearly from what he has said that that is what is going to happen. Perhaps, without my inviting him to speak again, he would just look at that point, if that is really the practical side of it and what he expects to happen. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.34 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1)(a), after "goods" to insert "subject to hearing him if he should so desire". The noble Viscount said: This Amendment raises another practical point, and if the noble Lord, Lord Stonham, does not like the way I have phrased it that does not worry me very much, if he will just explain how the provision is expected to work. The discussion on the last Amendment really leads to the next point, that the court may order anyone having possession or control of goods to restore them to the person entitled. This is fairly wide, and I should have thought that there might be something to be said for providing in the Bill an opportunity for a person wishing to object to the making of such an order to be heard. I looked at Archbold (it is paragraph 850, I think, which deals with the situation as it now is), which says—and this is in line with what the noble Lord has said already—that in cases of difficulty or complication it is usual to refuse an order and leave the prosecutor to his other legal remedies. But I am not certain how the court is necessarily going to know about the complexities and difficulties.

Then there is the other point, which appears on at any rate one other authority, that in any case a person against whom such an order is likely to be made, or is going to be made, can be heard by counsel in opposition to it. This is a case called Macklin. I wonder if the noble Lord can tell me whether it is intended that this old rule of law under this provision should continue. If so, why should there not be something said in the Statute about it directly? I quite see that one does not want to have a long battle over a restitution order, and I am not suggesting for a moment that that should be the case. But if the court is to use this very wide power only in plain cases, I should have thought that at any rate it would be a useful safeguard to allow the court itself to be warned against a marginal misuse of the power. I beg to move.

Amendment moved— Page 13, line 13, after ("goods") insert ("subject to hearing him if he should so desire").—(Viscount Colville of Culross.)

VISCOUNT DILHORNE

I suppose that, as I said on the last Amendment, in most cases "anyone" will mean the police, but there will be some cases where it is not the police who are in possession or control of the goods. The term "anyone" is extremely wide. It will cover not only people who are present at the court and hear the case but also people who may be many miles away. There is no limit, in fact, to the power of the court to make an order against anyone to deliver up goods which are stolen and which are in his possession or under his control. I should have thought that if the person is not present at court he should be given notice, either before the hearing of the case or afterwards, that such an application is to be heard, because as the clause stands at present an order can be made against a person without his even knowing that it is contemplated making such an order. I should have thought it was essential to provide that, if he wished to be heard, he should have an opportunity of being heard before the order was made. It seems to me that it would be better if one could put in here something to say that if there is to be an application under this subsection notice should be given. If the notice is to a person who is present at the court, it can be very short notice indeed; it can be given to him there and then. But if it is someone who is miles away, I feel that he ought to be told that an application is intended to be made by someone for an order that he should hand over goods in his possession, and that he should have an opportunity, if he so wishes, of resisting it.

That brings me to what is perhaps a more serious point—and I am approaching this clause in the belief that it is likely to be more widely used than the present powers for making orders for restitution. I cannot help thinking that that is the intent which lies behind this redrafting. We have heard it said by my noble friend—indeed, the Criminal Law Revision Committee said it—that it is not intended that the court should use these powers of making an order under subsection (1)(a) except in the clearest cases. I agree that they should not be used except in the clearest cases: I think we are all in agreement about that. But what concerns me is this. Sometimes things go wrong. Sometimes orders are made when they should not be made. What happens then? I would ask your Lordships to bear in mind that the Criminal Law Revision Committee say that the breach of an order made on anyone to hand over stolen goods should be treated and punished as contempt of court, if it is an order made by quarter sessions or by assizes. But what happens if an order has been made in a case where in fact the court should not have made it? So far as I can see, there is no provision for appeal from that order. I do not see any way of getting it set aside.

I should be grateful if the noble Lord would deal with that point. It seems to me that there ought to be some safeguard whereby if a mistake has been made it can be corrected. I do not see that machinery here. I would suggest to the noble Lord, bearing in mind that everyone agrees that this procedure should be used only in the clearest cases, that there is some advantage in putting into this clause some words to act as a guide post and indicate that that is the intention. There is nothing in the clause as it now stands to give that indication. I think it would be helpful to practitioners and others to see that on the face of the clause.

LORD STONHAM

I would again remind the Committee that we are dealing with a summary procedure which is likely to be used only where the title to the goods is clear and undisputed. Although the noble and learned Viscount has now expressed a contrary view, we believe that the occasions on which a person having possession of or control over the goods would wish to be heard are unlikely to be very frequent. But certainly it is intended that he should be heard, either in person or through counsel. We think that there is no need to provide for this in the Bill. The existing law does not provide for this, yet counsel is heard now.

VISCOUNT DILHORNE

The noble Lord will appreciate that I was asking that if an order is proposed against someone some miles away he should receive notice. If he is present in court, he can be given notice orally.

LORD STONHAM

I was coming to that point. I agree with the noble and learned Viscount that if his noble friend's point were conceded, then it must not stop where it stops under his Amendment. It must go on to make provision for the person to be notified of the intention to apply for a restitution order and to say whether or not he wishes to be heard. The point is that this is contrary to the essentially summary nature of the restitution provisions in this particular clause; and we think that it would complicate them unnecessarily, since there is no reason to suppose that the courts will make restitution orders, any more than they do under the existing law, where there is any real possibility of a civil dispute as to the title to the property. We are dealing with a summary procedure, with cases where there is no dispute, or where there is unlikely to be one. I think the views that I have now expressed are supported by the fact that the Amendment is only to paragraph (a) and the noble Viscount obviously feels, as I do, that it is unnecessary to apply a similar provision to paragraphs (b) and (c) which apply only to "the person convicted" since that person would be present and could be heard by the court on the question of restitution should he so desire.

But on this occasion I am not entirely satisfied, and I should like to lock further at this point. Obviously, one cannot stop with the Amendment moved by the noble Viscount, Lord Colville. If the point is made, and if it is necessary to insert something, then we must insert something more. This is the point I will look at. I am not giving an undertaking to accept the Amendment, nor am I saying that I agree that something must be inserted; but I will look at the whole thing and come back to it later.

VISCOUNT DILHORNE

I am grateful to the noble Lord. I think it is only in relation to paragraph (a) that the problem arises. As the noble Lord, Lord Stonham, has said, in the case of paragraphs (b) and (c) one is dealing with an application to take something away from a convicted person. But paragraph (a) is very wide. The noble Lord did not touch on another point. He said that this was summary procedure and so on. But if he is thinking over this matter, I hope he will also think over the suggestion I have made: that there should be something in the clause to make it clear that it is not intended to deal with cases where there is a real contest as to the title of the property in question.

VISCOUNT COLVILLE OF CULROSS

I, too, am obliged to the noble Lord for saying that he will look at this matter again. I suppose it will now have to be decided by a court under this Bill that the person against whom the order is proposed to be made must be heard; because it cannot be assumed that Macklin runs automatically under this Bill, as under the existing law. I suppose we must have a judicial decision. There is also the point that the noble Lord will see in subsection (5). It is not only stolen property that is concerned, but also property obtained by blackmail or by criminal deception. I think that sometimes a court will find it difficult to know whether a case is as simple as it appears upon its surface. It is only to prevent the court from making an order, which is apparently irrevocable, in a case which subsequently turns out to be much more complex than they thought, simply on having heard the facts presented on a plea of guilty, that I want something done. If the noble Lord will look at that then I am sure he will take everything into account.

VISCOUNT DILHORNE

Could the noble Lord, Lord Stonham, say that he will also look into this question of what can be done if an order is made which ought not to be made, there being no power of appeal and, so far as I can see, no means of quashing such an order?

LORD STONHAM

I am sorry. I overlooked that. We have made no provision for appeal, although, as the noble and learned Viscount knows, if the accused appears in person in possession of the property then of course he can be heard. But I will look into that point.

VISCOUNT COLVILLE OF CULROSS

In the circumstances, I ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

5.47 p.m.

LORD WILBERFORCE moved, in subsection (1)(c), to leave out all words after "applicant" to the end of the paragraph. The noble and learned Lord said: this Amendment falls to be considered with Amendments Nos. 52, 53 and 59 which together raise a cognate problem to those which have thus been discussed, the whole problem of restitution and compensation. The paragraphs in the Criminal Law Revision Report which deal with this subject are paragraph 160 and a number of following paragraphs. The Committee say, in paragraph 161: The present law as to restitution of stolen property is complicated and obscure. They then trace that back to the mediæval situation where there was an appeal of larceny, an Act of 1529, the Act 21 of Henry VIII, and point out that all of that is still reflected to a large extent in the existing Statutes, the Larceny Act 1916, and so on.

I should like to say a little about this restitution procedure because my feeling is really one of regret that the Committee have not taken the opportunity (and the Government have not taken the opportunity) to modernise this branch of the law rather more than they have. There are a number of practical points with which this Part of the Bill will deal which affect individuals in a very practical way. One can summarise them under four headings. First, what is to happen to stolen property when it is found in the possession of a thief or another? To some extent the Police Property Act deals with that. Secondly, what is to happen to the proceeds of sale of the stolen property in the hands of the thief? Thirdly, what should one do about compensation for the victim of a theft? And, fourthly, what is the position of third persons to whom stolen property has been sold or pledged?

As regards this type of problem many legal systems, particularly those on the Continent, face up to the need, concurrently with criminal proceedings, to deal with the civil consequences of theft. After all, a person who has had his property stolen wants to get it back. I am sure that many of your Lordships have been asked, as I have, by members of the public, when they have been burgled or a theft has taken place, "How do I get my property back?" or, "How do I get compensated?". It is a matter which vitally affects people, and they are questions to which one finds it difficult at present to give an intelligible answer. So far as the law is concerned, and as the Committee point out, English law has never come to grips with this problem at all, partly because it has allowed itself still to be confused with mediæval laws about forfeiture and stolen property on conviction of felony, and partly just from conservatism.

Although this Bill makes one or two advances which one can welcome, I think it is a pity that it does not go further in the direction of providing a practical and effective scheme of restitution and compensation rather than retaining basically the existing provisions. I do not find myself entirely in agreement with those of your Lordships who have spoken up to now on the nature of this procedure. I do not see the basic difficulty of the court which deals with the conviction of thieves or blackmailers or persons who obtain money by false pretences (because let us remember that this clause is now dealing with all those people), in many cases going into and dealing with the civil rights which are to follow. Of course there is the case where the man pleads guilty, and it is probably not easy for the court to know exactly what the position as to title may be. But in many other cases where there has been a trial a court has had to go into this problem; the prosecution has had to prove that the property belonged, in the words of this Bill, to the person from whom it was stolen; has had to prove fraud; has had to prove blackmail; has had to show what has happened to it. All that is gone into with the standard of proof applicable in criminal cases, which is much more severe than in civil cases, and it does not seem at all necessary—as many of us seem to think it is—that the court should then throw it over to the civil courts to go into it all over again after a further delay at the expense of the wronged person; and when, probably, the convicted thief may be able to defend himself with the assistance of legal aid, that is to say, at the expense of the taxpayer.

There does not seem anything inherently right in any of that procedure, and I feel we are much too complacent in the attitude which we take when we say, "Oh well, we can deal only with the clearest possible cases, everything else must go to the civil courts and the man must prove his case". I do not believe that is at all a proper way of doing justice to people who have had their property stolen. That is by way of introduction, and I quite see that it is very difficult at this stage to embark on a more radical reconstruction of this Part of the Bill. I should like to record my personal regret that it has not been done.

I have put down a modest, practical Amendment which, I venture to suggest, perhaps helps to make the procedure a little more effective as regards compensation. As your Lordships will see, under the Bill as it stands there are two provisions for compensation, in subsection (1)(c) and in subsection (3). In each case it is said that a sum of money not, of course, exceeding the value of the goods in question or, in subsection (3) the amount owed, may be paid to an applicant who is either a victim of theft or someone who has bought stolen property, out of any money taken on his apprehension from the person convicted That is the limit put on it—money taken from him on his apprehension. That is the limit of the compensation which can be given. I suggest that is an odd and unnecessary limitation.

It is not as if this clause is dealing only with the case where the thief is caught red-handed and where the situation has to be taken as it is. As the clause itself contemplates, he has had time to sell the property, because reference is made to the proceeds of sale. He has had time to pawn it. He may have obtained a cheque. He may have money in a drawer or he may have it in the bank. Why in such a case, should compensation be excluded, if the thief does not have more than half a crown in his pocket? It does not seem very sensible.

Of course, I shall be told that there are other powers which the court has. Indeed there are, and I complain about that, because the whole thing is still left in a piecemeal condition. There is the Criminal Justice Act 1948 which enables a modest sum of money to be awarded; but that can be used only in cases where the offender is put on probation or given an absolute discharge. Then there is the Forfeiture Act 1870, to which the noble and learned Viscount has referred, which, as it originally stood, enabled £100 to be given if a man was convicted of felony. That has now been raised by the Criminal Law Act 1967 to £400, a very odd sum. I suppose it is meant to represent the inflation of money since 1870. And the Act has been amended so as to deal with indictable offences.

I cannot feel that that is very satisfactory. One wonder on what principle the liability of a train robber to repay should be limited in this way. Of course it may be said that the person robbed may sue in the courts, and your Lordships may remember that a little time ago one of the big banks did bring an action in the courts against someone who had been engaged in robbery and sued for the sum of money, or part of it, which had been lost. That is all very well if you are a large bank with millions of pounds behind you. But, again, why should they be put to the necessity of bringing a separate civil action when an order for compensation can be made? One may think of the recent case of Savundra. He was tried on a number of charges of fraud. I do not think they fall within this measure, but the same principle would apply. He was fined a large sum of money which went to the voracious Treasury, but what good is that to the victims? They do not get any of it. What one wants is an order that he should compensate the people who lost money by the fraud.

I venture to remind your Lordships that this clause is dealing with fraud as well as with theft. So I make the simple suggestion to delete in subsection (1)(c) the reference to money taken from the person convicted on his apprehension". I do the same in subsection (3); and consequentially I propose to insert a provision (which may be technically incorrect, but if so I am sure that the Government will come to my rescue) which suggests that an order made for payment of compensation can provide for payment by instalments and shall be enforceable as a civil debt. I regret that the clause does not go further. I did not feel it possible to propose a more radical reform of this machinery, but I put this modest Amendment before the Committee in the hope that the noble Lord may be able to consider it. I beg to move.

Amendment moved— Page 13, line 26, leave out from ("applicant") to end of line 27.—(Lord Wilberforce.)

VISCOUNT DILHORNE

I should like to say a word in support of my noble and learned friend. I should have thought that in practice little use would be made of the power under Clause 27(1)(a) and that the police would just hand the stolen property to the person from whom it was stolen. There may be exceptional cases such as the one referred to just now. When one comes to subsection (1)(b) and (c) it may be, and I think it would be right, that those powers would be used fairly frequently. They establish the right to divest a convicted person of some property. One has to bear in mind, I think, that paragraph (b) applies to the person who is not in possession of the stolen goods but in possession of any other goods directly or indirectly representing the first-mentioned goods (as being the proceeds of any disposal or realisation … and paragraph (c) applies, if I understand correctly, to recovering from that person a sum of money equivalent to the value of the goods. I hope that these powers will be fairly widely used, and I welcome their inclusion in this clause.

But, while I wholeheartedly agree with my noble and learned friend, I think that it is difficult to draw the line here. I do not believe that the criminal courts are able to cope with the investigation of a claim to possession of goods which involves any real difficulty. This would clog the whole machinery. It would be desirable, if it could be done, but I think that the difficulty in drawing the line between the two types of cases means that it would have to be left to the discretion of the courts. I should prefer some indication here that this is a summary procedure.

But when we come to paragraph (c) we see that it says: … a sum … shall be paid to the applicant out of any money taken from the person convicted on his apprehension. The same words are used in lines 41 and 42 of the same page. Surely this wording is far too narrow. Literally construed, does it not mean that when the police arrest a man in his house and he has a suitcase full of banknotes by him at the time of his arrest, that cannot be regarded as "money taken from the person convicted on his apprehension"? It may be that what is meant is money in his possession or under his control, and if that is so it would be better to use those words, rather than the phrase "taken from the person convicted on his apprehension."

6.3 p.m.

LORD MORRIS OF BORTH-Y-GEST

I should like to express my gratitude, as did the noble and learned Viscount, Lord Dilhorne, to my noble and learned friend Lord Wilberforce for raising these points and for having introduced us to them in the way in which he has. I think that there are practical points raised here of the utmost consequence. My noble and learned friend reminded us of what has been the traditional approach in this country to any possible tangling of what seems to be criminal remedies and civil remedies. The opening words in the chapter on "Compensation" in Archbold, to which we all refer so often, reads: Relation of civil and criminal remedies. At common law the remedies for civil injuries and crimes cannot be enforced in the same proceedings. And there is reference to old authorities.

That has been our approach, but I entirely agree with my noble and learned friend that there is much to be said to-day for breaking down the conservatism that marks that approach. I am sure that there are practical points here which arise day after day and in regard to which it would be of the greatest assistance to courts and magistrates if there were clarity and certainty. It is a few years now since I discharged the duties of judge of assize, and sat at the proceedings in criminal courts, but, as so many noble Lords here present doubtless have, I have a continuing experience in courts of quarter session.

May I illustrate the sort of points that arise over and over again? A young man, probably in employment and earning good money, is charged with breaking into a shop and stealing a quantity of cigarettes and money from the till or with breaking into a house and stealing property. There is no doubt at all about the facts, and probably he pleads guilty. The magistrates retire to consider what should be done. There is these days a very proper horror of sending any young man to prison, even when he is over 21, and an urgent desire to avoid that and to avoid sending him to detention. Often in a situation of this sort, the magistrates, as they are discussing putting the man on probation, or fining him, will say, "But what about that poor man, who is not at all well off, whose shop was broken into and who is £50 or £60 out of pocket?", or "What about that householder we heard of who is £40 or £50 out of pocket? Can we not do something to compensate him?" They ask what are the powers of the courts. I respectfully submit to the Government that it would be a great public service if there could be clarity and certainty in regard to this matter.

My noble and learned friend has referred to some of the answers that would have to be given to the magistrates when they ask what they may do about compensation. They would be told that under Section 4 of the Act of 1870 there are certain powers but that these are limited to £100. But that is a power which applies only on application. They have not had any application. Is it right for them to go back into court and suggest that there should be one? This is something that worries magistrates. Then they would be told that under Section 11 of the Criminal Justice Act 1948 there are powers, but only if somebody is put on probation or is given a conditional or absolute discharge; and in the magistrates' court the compensation possible is limited to £100.

If the magistrates say that they want to fine the man and do not want to send him to prison, but that that will not help the shopkeeper or householder who has lost his money, and if they then ask whether they can make an order for a payment of £40 or £50, the answer would have to be, "No, not if you are fining the man". Then, if a survey of the law was being given, they would be told that by the Magistrates Courts Act 1952 the powers that were given in the 1870 Act were extended to magistrates and that by the Act of last year the £100 fixed in the 1870 Act and made applicable to magistrates under the 1952 Act had been raised to £400.

Then the magistrates might ask, "If any of this is within our powers, how is it enforced?" They would be told, "It is enforced in the same manner as an order for the payment of costs." The magistrates might ask what that was, and there might be a little uncertainty on the part of any lawyer in giving the exact answer. If this Bill is bringing the law of theft up to date, it will be to the Bill, when it becomes an Act, that the courts will look to see exactly what their powers are. I therefore support what my noble and learned friend Lord Wilberforce has said. Why should the powers of the court, in the sort of case that I have illustrated—which I can assure your Lordships is the sort of case that happens to-day over and over again; and many of your Lordships will confirm my experience—be limited to making an order merely by the fact, if it be a fact, that the man has but little money on him?

The aim of the court is to keep a man out of prison; the aim of the court is to deal with him in some appropriate way—and very often these days the most appropriate way is to let him know that crime does not pay. He will know that it does not pay if he is made to pay back. And he may be ordered to pay back over a period of time if he cannot afford very much; that is, if his means, which can be inquired into carefully, are such that it would be unjust to make a payment other than in moderate instalments. Why should not that be done? The courts look into this matter very carefully. Then, perhaps over a period of time, the man not being deprived of any of the necessities of life but possibly deprived of a few of the luxuries, and making just recompense to somebody whom he has caused to suffer loss that cannot be afforded, it will be a reminder to him that he was condemned by the country for what he did.

I know that this is a subject that is beset with difficulties and the legislation has been piecemeal. I submit to the Government that in future when we are dealing with theft courts will not want to look at the Acts of 1870, 1948 and 1952. They will not want to be limited by this provision in the 1948 Act, that if you are imposing a fine you cannot order compensation. They will wish to have the power—and it will be only a power and I agree with the noble and learned Viscount, Lord Dilhorne, that courts will act responsibly and will recognise that this is only a power—so that it can profitably and usefully be used, and I would submit to your Lordships that it would be desirable to endow the court with that power.

VISCOUNT COLVILLE OF CULROSS

I want to add only one thing to what other noble and learned Lords have said. I was looking at the terms of reference of the Criminal Law Revision Committee when they were told to produce what is now this Bill, and I see that they said that they thought that certain far-reaching changes in the present law were required on some of the points. But I rather think that the general philosophy about how to deal with restitution and compensation was not given to them as part of this operation, but has been given to some other committee: because I recall that when the Criminal Law Act of last year was under discussion certain points were raised on the Forfeiture Act 1870, and the House was then told, I think by the noble Lord, Lord Stonham, that a committee was going into the whole of this question at that time. Could the noble Lord say whether that is a correct recollection on my part; and, if so, how far the matter has proceeded? Is it like the matter that was mentioned earlier—criminal evidence—something that is going to be collected together later on and brought up to date with a completely new philosophy? If that is so, then it may be that again we shall have to be patient and wait. But if the Government are doing nothing about this, then these very searching speeches that have been made may have to be considered in the context of this Bill.

THE LORD CHANCELLOR

May I first reply to the points raised by the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble Viscount? I am one of those who have thought for a great many years, and have said so, that I do not think that we make nearly enough use in our criminal system of the principle of compensation. After all, when somebody has caused somebody else damage, whether by stealing something from him or not, it is a natural punishment that he should have to work, maybe on Saturday afternoons or evenings, to pay it back. As I say, I have never thought that nearly enough use was made of this principle. That is why I was glad when my right honourable friend the Home Secretary appointed a sub-committee of his Advisory Council on the Penal System, under the chairmanship of Lord Justice Widgery, to review the whole question of compensation and restitution in criminal cases. I cannot tell the noble Viscount exactly where they have got to, but I am told that they will report either this year or early in the new year. At any rate, they are getting on well with it. So, with reference to those observations, I entirely agree, and I am glad to know that it is in such good hands.

May I come back to the actual Amendments? The noble and learned Lord, Lord Wilberforce, said, the effect of Amendments Nos. 51 and 52 would be to widen the subsection so that payment of compensation need not necessarily be restricted to money taken from the convicted person on his apprehension, but it would be possible, under these Amendments, to order payment out of other monies that he has or may get later. It is, if I may suggest it, a little difficult in drafting, because the Amendment does not say actually who is to pay. The end of the opening paragraph of subsection (1) says that the court "may … exercise any of the following powers". Then we should have: (c) on the application of a person who, if the first-mentioned goods were in the possession of the person convicted, would be entitled to recover them from him, the court may order that a sum not exceeding the value of those goods shall be paid to the applicant". But it would not in fact say by whom it was to be paid.

Amendment No. 53, which is linked with the earlier Amendments, would add a new subsection which would provide for payments to be made by instalments, and to be recoverable as a civil debt. This provision is unnecessary under the clause as drafted, because, since the clause provides only for payment out of money taken from the offender on his apprehension, the question of payment by instalments or recovery as a civil debt does not arise.

May I remind the Committee of the approach of the Criminal Law Revision Committee in this matter? They first of all, in paragraph 160, said: Clause 24"— that is this clause, Clause 27 of this Bill— provides a summary procedure by which the criminal courts may in certain circumstances order that stolen goods should be restored to the owner, or that the owner or others who have lost by the theft should be compensated from property in the bands of the offender. The clause replaces the present law as to restitution of property, which is contained in Section 45 of the 1916 Act and a parallel provision in Section 24 of the Sale of Goods Act 1893; but it differs substantially from those provisions. Then they are entirely at one with noble and learned Lords in saying: The present law as to restitution of stolen property is complicated and obscure. This is because the enactments referred to represent the last stages of a confused history going back to early mediæval times and intimately bound up with forfeiture on conviction of felony. Originally, if the thief was convicted on an appeal of larceny brought by the owner of the goods, the owner recovered the goods; but if the thief was convicted on indictment, the stolen goods were forfeited to the Crown … They then deal with the Act of 1529.

Then, coming to Section 45 of the Act of 1916, they say: In practice Section 45 is treated having this effect; and in several reported and many unreported cases restitution orders have been made when there has been no question of the ownership having changed since the theft". They then say: According to our information, although restitution orders used to be made fairly frequently, the practice is now almost obsolete and in nearly all cases the property (which is usually in the hands of the police) is simply handed back to the owner without an order. Occasionally in cases of doubt the question of title is decided under the Police Property Act 1897 referred to in paragraph 155 (v). Sometimes a restitution order has been of practical value in enabling an owner to get his property back quickly and without the trouble and expense of civil proceedings. Then they say this: In our opinion a conviction of heft or another offence against property should not in future affect the title to the property, but the title should depend entirely on civil law. Therefore no provision is made in the Bill for revesting of property. On the contrary Clause 27(2)"— that is Clause 32 of this Bill— provides that the title to property stolen or wrongfully obtained shall not be affected by the conviction of the offender, and s. 24 of the Sale of Goods Act is repealed. Before deciding to include the repeal of s. 24 we consulted the Law Reform Committee, who were considering the rule that no one can give a better title to property than he himself possesses, and ascertained that there was no objection from their point of view to the repeal. Then paragraph 164 of the Report says: We consider however that it would be convenient … that the criminal courts should have power to make an order in a summary manner for the restoration of the physical property. Later it says: In practice the power will be exercisable only where there is no real dispute as to ownership. It would seriously hamper"— this is the point raised by the noble and learned Viscount, Lord Dilhorne— the work of the criminal courts if at the end of a trial they had to investigate disputed titles. In conformity with the provisions relating to handling stolen goods subsection (5) makes the power exercisable in respect of goods obtained by criminal deception or blackmail … I agree with the noble and learned Viscount that it would be very difficult in the mass of small larcenies, and so forth, which a magistrates' court has to get through in the course of an afternoon, if at the end of the case they had to try that which they have no experience of at all, that is, a civil claim by one or more people. If one is to go beyond what is found on a man in the small larceny case, and find his banking account, then in effect the court has to make an administration order, because he may have many other claims, including a maintenance order for support of his children. A court would then have to see whether, apart from the money in his bank, he has other property. The work of the Central Criminal Court would indeed be hung up if it had to investigate all the assets Mr. Savundra has and all the many claims, not only of people he has swindled but civil debts or maybe family debts as well.

There is, of course, now the Report of the Law Reform Committee on nemo dat qui non habet, which the Government are considering. As your Lordships may remember, it was unfortunately not unanimous, but the Government are considering that Report, which bears on this question. But while wholly agreeing that there is a very real need for a complete overhaul of our law as to compensation and restitution, that, I would submit, should not be sought to be done in this Bill; we should await the report of the Sub-Committee of the Advisory Council on the Penal System, under the chairmanship of Lord Justice Widgery, which is considering those matters. It is for those reasons that I should not advise the Committee to accept this Amendment.

6.23 p.m.

VISCOUNT DILHORNE

I am sure the whole Committee have listened with interest to what the noble and learned Lord the Lord Chancellor said, and are grateful to him for reminding them so extensively of what the Law Reform Commission has said. We are dealing, of course, with a clause which is in this Bill. I imagine that if the Committee who are now considering this subject make a report they may recommend that a new clause should be substituted for this clause. But we cannot say what will happen then. I am concerned not only with the points my noble and learned friend raised, but with the narrowness of the phrase, out of any money taken from the person convicted on his apprehension". The noble and learned Lord the Lord Chancellor said that if we made it any wider we should have to examine what was in the man's bank account and other claims on his resources. I am not suggesting—and I do not think that he would want—that the criminal courts should have power to administer an estate, or anything of that sort. But what I think this clause should cover—and I think it is a defect in the clause as it now stands—is this. It should enable the court to compensate a wronged individual, not only from money found on the person on his apprehension, but also from money found in his possession on his apprehension. I suggested (the noble and learned Lord the Lord Chancellor did not comment on it) that a possible alternative was, "from money under his possession or control"—I am not trying to draft on my feet. If he thinks that "control" is too wide, may I suggest "possession"? It is wider than. "found on him on his apprehension".

The noble and learned Lord the Lord Chancellor once again criticised the drafting of my noble and learned friend's Amendment. I must say that I wish the noble and learned Lord would not take up time doing that. He has done it once or twice. I do not mind his doing it to the Amendments I have drafted, because I never think they will meet with Parliamentary Counsel's approval. At the same time, so long as they raise the points for consideration by the Committee, and bring the point which is going to be raised to the notice of the Government, then I think they fulfil all the purpose that can be expected. If the Committee express the view that some Amendment should be made into the Bill, and we carry that Amendment, the Government can always redraft, if they think fit, at the next stage. But I suggest it would save time not to make points about the drafting of Amendments which have been drafted to give rise to particular points for discussion in this Committee.

LORD AIREDALE

The sort of example which occurs to me that shows how very narrow these words are—the words, "money taken from the person convicted on his apprehension"—is a case of this kind. Supposing a thief has sold stolen goods and he has the proceeds in his car. He is chased in his car by the police, he crashes the car and gets out of it and runs, and the police chase him and catch him. If he has the money in his wallet in his pocket when apprehended, then he comes within the words. The money is taken from him on his apprehension. But supposing, having apprehended him and taken him to the police station, the police then go back to collect the crashed car and find the money in the car. Then, of course, it seems that these words will be too narrow. The money would not have been taken from him on his apprehension. It is that kind of case, surely, for which the words deserve to be wider, so that the money found in the car, and not on the person of the person apprehended, can nevertheless be used for the purposes of paragraph (c).

LORD WILBERFORCE

May I add to what the noble Lord has said? Of course, I entirely agree with what he said, and I should like to add this. The noble and learned Lord the Lord Chancellor in replying did not really deal with the point made by my noble and learned friend Lord Morris of Borth-y-Gest. It ought to be perfectly possible, when a young man has robbed a shop or an old lady, to make an order against him to pay £1 a week out of his earnings. Why on earth should not that be done? It does not involve making an administration order or going into the whole of the assets. It is only optional. Magistrates can be trusted to see when it is useful, and to have the good sense to know when to make an order of this kind. I do not really follow the difficulty which is supposed to exist when dealing in that way with certain cases—and they are quite common cases, and simple cases, which come before magistrates every day.

Of course, I appreciate what has been said. This is part of a wider problem which is being dealt with by, it appears, the Committee set up under Lord Justice Widgery; and for a wider solution we must no doubt await that Committee, while feeling regret, as I do, that it is necessary to proceed with this Bill, which is supposed to be an up-to-date Bill, when part of it has already been overtaken, apparently, by another Committee working independently. I quite accept that, but, accepting it, I would ask the Government whether they could not consider between now and the next stage the possibility of widening these words in some way or other, as suggested by the noble and learned Viscount, Lord Dilhorne, so as not to limit it to the money taken from him on his apprehension, to deal with the case raised by the noble Lord, Lord Airedale, and possibly, to carry it a little further, so that an order for the payment of a certain sum a week can be made. Surely that would not destroy the structure of the clause, would not prejudice the working of the Widgery Committee, and would be a practical improvement in this Bill.

THE LORD CHANCELLOR

Perhaps I may first deal with these two or three points. The words "taken from the person convicted" are, of course, the words of Section 45 of the Act of 1916. I do not know whether there are any reported cases as to how widely they have been construed. I should suspect that there are none, simply because, in practice, this kind of order can be made only where the ownership is obvious and there is no dispute. But I will certainly consider the widening of these words.

Of course, on the matter of practice and procedure in your Lordships' House I defer to the noble and learned Viscount, Lord Dilhorne, but since I have been here I have never yet heard it suggested that if the Government point out that an Amendment is in fact technically defective they are being in some way discourteous or taking up time in a way in which the Government have no right to do. I can never tell whether or not a Committee will accept an Amendment, and I should have thought I was failing in my duty if I did not point out, in one sentence, the respects in which these Amendments were defective.

With regard to saying "Well, at least under this Bill let us give the courts power to make an order of so much a week," one would have to decide how much that "so much a week" would be. But this is a Theft Bill. People can suffer malicious damage in all sorts of ways not covered by the Bill, and I respectfully think that the whole question of compensation and restitution is something a good deal wider than this Bill, and while a distinguished Committee are covering the whole of this field it would be wrong to act on what is within their terms of reference. As I have made plain to the Committee, I have thought for years that the natural punishment is that if you cause somebody damage you ought to be made to work to pay it back; and I am glad that that Committee has been appointed. But I suggest that this is a wider question and that on that point we ought to await the findings of the Committee. I will certainly consider again everything which noble Lords have been good enough to say, and I am much obliged for the views which have been given.

LORD WILBERFORCE

On what the noble and learned Lord has just said, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29 [Husband and wife]:

6.34 p.m.

VISCOUNT COLVILLE OF CULROSS moved to add to subsection (3)(b) "or the court". The noble Viscount said: This is the shortest possible point. It is referred to at the end of paragraph 198 of the Criminal Law Revision Committee's Report, and the second of the two provisos in Clause 29(3) apparently comes from some old Victorian Act. I have no doubt what is meant: it is not only that the prosecution should not refer to the fact that the husband or wife has not given evidence, but that the court should not either. I wonder why the Bill does not say so, because it seems to me just as damaging if the court refers to this as if the prosecution does. I beg to move.

Amendment moved— Page 15, line 16, at end insert ("or the court").—(Viscount Colville of Culross.)

LORD STONHAM

The noble and learned Viscount is quite correct. The clause as drafted at present reproduces the present law under Section 1 of the Criminal Evidence Act 1898, which, as he knows, provides that the failure of the spouse of the accused to give evidence, like the failure of the accused himself, shall not be made the subject of any comment by the prosecution. But that Act, as I am advised, does not prohibit comment by the court, and in the view of the Government it would be clearly wrong to alter the law so as to prohibit the court from commenting on the failure of the spouse to give evidence while leaving the court free to comment on the failure of the accused himself to give evidence. We think it would be wrong to change the law in the way it is suggested in respect only of offences against the other spouse and not of other offences. The question of comment on the failure of the accused or his spouse to give evidence is being considered, together with the rest of the law of criminal evidence, and in case there are any recommendations on that point the Government prefer to await the report of the Criminal Law Revision Committee.

VISCOUNT COLVILLE OF CULROSS

I think I misunderstood the situation. My impression was that at the moment the court does not comment. Of course if this is a much wider point, I must look at it again. I wish there were not so many points in this Bill which reproduce something that may be faulty. It all comes out as a nice new, clean, Bill, the subject of discussion over 17 years by a Committee consisting of 17 people, and then we find that clause after clause towards the end of the Bill will have to be altered quite soon. I do not want to prejudice this, and it will probably be right to leave this until the new Criminal Evidence Bill comes along. But it seems a great pity that a new measure of this sort should be brought in and then, when criticisms are made of it, the Government fall back so often on the fact that it is all going to be changed within the next year or so. I very much hope that this is not going to be the common practice.

LORD STONHAM

Before the noble Viscount withdraws his Amendment, if that is his intention, I must make it quite clear that in my answer I said that the present Bill reproduces the law on this particular point as it now stands. I did not say that the Criminal Law Revision Committee were bound to make a change; all I said was that they are reviewing the law of criminal evidence, and if they do suggest a change in this respect, the Government will consider it.

VISCOUNT DILHORNE

I have been thinking, while this discussion has been going on, and I cannot personally remember in any case having heard a judge comment on the failure of a husband or wife of an accused person to give evidence; and if it is the fact that such comments are really not made, then I should have thought there was a case, de bene esse, until the further review has taken place, for accepting this Amendment and putting in the words to make the matter quite clear. I feel that it would be only in the exceptional case that one could justifiably comment on the failure of the husband or wife to give evidence, and I think it might be useful if the noble Lord would look at this again.

LORD STONHAM

Of course I will look at it again. The noble and learned Viscount said he could not remember a case where the court had commented, and apparently he regarded that as sufficient grounds for providing in this Bill that they should not have the chance to do so in future.

VISCOUNT DILHORNE

Yes, I do.

LORD STONHAM

With all respect, I do not regard that as a 100 per cent. ground for such action. We are reproducing the present law, which apparently has stood for 70 years, and that seems a not unreasonable thing to do. But if, in the review of the law of criminal evidence, a change of this kind is suggested, we can consider it. When we are trying to modernise the whole of the criminal law we cannot possibly advance on all fronts at once, and if we do nothing until we can perfect everything then the best will continue to be the enemy of the good.

VISCOUNT COLVILLE OF CULROSS

I appreciate the last point and I do not want to spend a lot of time on this. But I have done my best to study the Criminal Law Revision Committee's Report, and on this specific point, in paragraph 189, they say that the Bill amends the law as to when a spouse is competent to give evidence in proceedings against the other spouse. This business about the prosecution not commenting is consequential really on that, and one would have thought that if you were amending the law upon the times when the spouse was going to be competent you would also consider the consequentials; and they have not. It is now being considered by somebody else. I cannot object to this, or insist on its being dealt with to-day, but that is the difficulty about this patchwork of legislation and the failure to justify it, on any rational or other basis, but merely maintaining the existing law.

LORD STONHAM

The noble and learned Viscount said it was not within his recollection. May I refer him to page 1310 of Archbold on the competency of witnesses, the paragraph near the top, headed "By the prosecution": Though Counsel for the Prosecution may not comment on the failure by the prisoner or the prisoner's spouse to give evidence, the judge may so comment if in his discretion he thinks it proper to do so. It mentions a whole list of caws, but certainly three on that particular point.

VISCOUNT DILHORNE

I am grateful to the noble Lord. I said I did not recollect a single instance of a case where it had happened. I do not know whether those particular cases bear on that section of the Criminal Evidence Act or other sections which are more subject to consideration in court.

VISCOUNT COLVILLE OF CULROSS

It is paragraph 1310, not page 1210, of Archbold. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30:

Effect on civil proceedings and rights

30.—(1) A person shall not be excused, by reason that to do so may incriminate him of an offence under this Act, from answering any question put to him in proceedings for the recovery or administration of any property, for the execution of any trust or for an account of any property or dealings with property, or from complying with any order made in any such proceedings; but no statement or admission made by a person shall be admissible in evidence against him in proceedings for an offence under this Act, if it is made in answering a question put or complying with an order made as aforesaid.

6.43 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (1), after "trust" to insert "for hearing of any matter in bankruptcy ". The noble Viscount said: This, I fear, is a very complicated matter, but I will try to deal with it at great speed. I think that Clause 30 is a very useful modernisation of the law on the disclosure in civil proceedings of evidence which might open the way to a subsequent criminal charge. The compensating protection is given that no statement or admission made in those proceedings should be admissible in evidence in a subsequent criminal trial. That seems fair enough, and it is a result of the judgment of the Criminal Law Revision Committee of what should be done. They argue whether or not there should be this limited protection and they decide in favour of it rather than complete immunity. The grounds are that they think it will encourage frankness in the civil proceedings mentioned in the Bill, and they say they are applying generally the rule which hitherto has been applicable only to bankruptcy proceedings.

So far the logic runs very well, until you come to paragraph 205 of the Committee's Report. They say they looked at the way the rule had worked out in bankruptcy proceedings and found it did not work at all—it did not encourage frankness in any way; and yet they propose to apply that rule to all these other proceedings. The noble Lord has a frown. May I refer him specifically to the passage? Perhaps he has not read paragraph 205. They say: According to our information the existing provisions making a disclosure inadmissible in criminal proceedings do not in practice operate as an encouragement to debtors to make disclosure. Experience seems to show that the provisions are not in general known or understood. When they are, it is usually by a debtor who is sufficiently informed (or advised) to know that any disclosure by him, though protected, may set off inquiries which will result in other evidence of the offence being obtained on which charges can be founded. I therefore infer, if he is well informed or well advised, he does not say anything.

What is the point of applying this rule to other proceedings? Is it supposed that people will be different in bankruptcy proceedings from what they are in cases mentioned in the Bill? It seems to me a complete inconsistency of approach. I may have misunderstood. I should have thought that if we were going to do this we must keep the bankruptcy proceedings in, rather than apply a rule which has hitherto worked in bankruptcy to everything else, and have no rule at all in bankruptcy. It seems to me to get the worst of both worlds. I beg to move.

Amendment moved— Page 15, line 42, after ("trust") insert ("for hearing of any matter in bankruptcy").—(Viscount Colville of Culross.)

VISCOUNT DILHORNE

When I read this part of the Report I must confess I was completely puzzled, and for the same reasons as my noble friend. If one looks at the bankruptcy provision first—that is to say, subsection (2)—one finds that the Committee abolish the protection of disclosure in bankruptcy, so much so that the result is that what is said by a person subsequently tried can be used in evidence against him. They do that for the very reason that the present protection does not in practice operate as an encouragement to debtors to make disclosures. I follow that reasoning. Therefore, they say, it is not necessary to keep it. I understand that, as my noble friend did.

But if it is right to abolish it in relation to bankruptcy where it has always been in existence, why, in subsection (1), do you establish it in all actions for the recovery or administration of property, for the execution of any trust or for an account of property or dealings with property? Because the clause provides that admissions made in those proceedings cannot be used in evidence against the accused person at a criminal trial. It seems to me absolutely inconsistent. I am sorry to be so critical of the Committee's Report, and I am afraid I have been on many occasions. They have done excellent work and I again pay tribute to them; I have no doubt that they worked very hard and very long. But something seems to have gone wrong with this part of the Report, if I have understood it, because it seems to me to have no "scheme"—which I think is the fashionable word in relation to the Bill—in this part of the Bill.

If it be the case, and I accept it from the Committee's Report, that the protection against the use of admissions made in bankruptcy proceedings in criminal proceedings in fact serves no useful purpose, why is it assumed that it will serve any useful purpose in relation to disclosures made in the other proceedings I have mentioned? I do not follow it. I do not see why it should. It seems to me that to be logical you ought not to treat admissions in bankruptcy proceedings any differently from admissions in any other proceedings of the type mentioned in subsection (1).

LORD STONHAM

The noble Viscount, Lord Colville, seemed to doubt that I had read paragraph 205. The extraordinary thing is that I was going to quote it against him, and he has now quoted it in support of his own Amendment. At least it shows that words can mean different things to different people. Clause 30(1) provides, as the noble Viscount said, that a person shall not be allowed the usual witness's privilege of refusing to answer questions on the ground that this will incriminate him if the offence that the answer would disclose is an offence under the Bill; but in return it provides that evidence of the answer shall not be admissible against him in consequent criminal proceedings for that offence. The subsection does not, as drafted, apply to questions in bankruptcy proceedings, and the noble Viscount proposes by his Amendment that it should; in other words, he wants to provide immunity from criminal proceedings arising from statements made by a bankrupt.

VISCOUNT COLVILLE OF CULROSS

Really, all I am after is consistency. The noble Lord can leave it out of bankruptcy, in which case I suggest he leaves it out altogether, or put it in for everything else, in which case he ought to put it in for bankruptcy.

LORD STONHAM

I am not at present able to do either. I am just considering the noble Viscount's Amend- ment. As I understand it, the Committee thought that in the case of ordinary civil proceedings the protection given by this subsection of Clause 30 would encourage disclosure, but that in fact this would not be the case in bankruptcy proceedings.

VISCOUNT COLVILLE OF CULROSS

Why not?

LORD STONHAM

And their view as to bankruptcy proceedings represents the experience of the Board of Trade, who also hold the same view. The Board of Trade were represented on the Committee by their solicitor. I am in this difficulty: that here we have taken a different view as a result of considering the same set of facts. The Government certainly agree with the Criminal Law Revision Committee's view that the existing rule in subsection (3) of Section 43 of the Larceny Act should not be continued; that is, that the admission; made by a bankrupt should no longer be inadmissible against him. I think, therefore, that the present change have made, the clause as drafted, is the right one. As I understand it, the noble Viscount put down this Amendment because he could not follow or could not agree—

VISCOUNT COLVILLE OF CULROSS

I cannot follow it.

LORD STONHAM

He could not follow it in its reasoning or as to why this conclusion has been arrived at. I hope that what I have now said will enable him to do so. For my part, I will have a look at all that has been said about this particular matter.

VISCOUNT COLVILLE OF CULROSS

I understand the difficulty of the noble Lord, Lord Stonham. He did not know what my Amendment was getting at, and for this I apologise to him. But he has now highlighted the difficulty, and he has made the inconsistency even worse than it was. I think I am right in saying that the only practical experience there has been of the operation of the precise rule that is found in Clause 30(1) of this Bill is in bankruptcy proceedings. The rule is different for everything else. That is the only practical experience there is, whether or not it works. It does not work. That is what the Board of Trade said; the Committee agree, and they say why.

Then we have, for some reason, in circumstances where it has never been tried, a great faith that it will work. If a bankrupt or a debtor finds that either he does not understand the matter, or is so well advised that he thinks he had better not say anything, I cannot understand why the people who are dealing with the recovery or administration of property would be either any more clever if the bankrupt did not understand it, or any worse advised or informed—if, indeed, they are advised or informed at all. It makes no sense to me at all. If the bankrupt is going to be prosecuted not on the ground of what he actually said, because this starts an investigation which otherwise would never have been started, and he is prosecuted on other facts, not making use of the evidence that he gave in the court, why on earth should not precisely the same thing apply when dealing with the other cases set out in subsection (1)? It is really this inconsistency which has been highlighted by the noble Lord. I am grateful for his promise to look at it again, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD WILBERFORCE had given Notice of his intention to move to leave out subsection (2). The noble and learned Lord said: I do not intend to move this Amendment. It has to some extent been dealt with by what was said by the noble and learned Lord the Lord Chancellor. It is linked with Amendment No. 61 which equally, if the Committee approve, I do not intend to move. Briefly, this Amendment deals with the complicated and technical point of the vesting of property which I strongly suspect I do not understand. I have some suspicion that the Criminal Law Revision Committee do not understand it, and I am quite certain that your Lordships' Committee would not understand it if I tried at this late hour to explain it. So I think it might be better to pass this by and, if the Committee agree, I propose taking it up in writing between myself and the noble Lord the Minister. I do not move this Amendment, nor, when we reach it, shall I move Amendment No. 61.

Clause 30 agreed to.

Clauses 31 and 32 agreed to.

Clause 33:

Interpretation

(2) For purposes of this Act— (a) "gain" and "loss" are to be construed as extending only to gain or loss in money or money's worth, but as extending to any such gain or loss whether temporary or permanent;

6.55 p.m.

VISCOUNT DILHORNE moved, in subsection (2), to leave out paragraph (a). The noble and learned Viscount said: Certainly I think the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Stonham, will be delighted to appreciate that this is the last Amendment in my name on the Marshalled List.

VISCOUNT COLVILLE OF CULROSS

It is not.

VISCOUNT DILHORNE

May I say that on this occasion I hope, with some confidence, that there is no drafting defect in the Amendment; it is merely to leave out paragraph (a). We have had a long Committee stage. I do not believe that we have wasted time. None of us has wanted to raise frivolous points, or to delay this matter; we have sought only to raise points which seem to us of importance and worthy of serious consideration. It is with that object that even at this late hour I raise this question in relation to Clause 33(2)(a).

Some members of the Committee may remember that when we were discussing Clause 20, the blackmail clause, I suggested that the words in this clause "money or money's worth" had a more limited meaning than the word "property". The noble and learned Lord the Lord Chancellor disagreed. I am afraid that that has happened before, and no doubt it will happen again. He said that all property has some value. No one disagrees with that. I certainly did not. But then he went on to argue, if I understood him correctly, on the fifth day of our proceedings, at column 541, that as all property has some value, all property is "money's worth". If that argument be right then "money's worth" and "property" mean the same thing, and the terms are interchangeable. If that be right, would it not really be much better to use the word "property" and not to introduce the words "money's worth" which, so far as I am aware, are not found in any other Statute dealing with the criminal law?

Since we had that great argument upon Clause 20 I have made some researches into the matter. I cannot say that they have been as thorough as I should have liked, because I just have not had the time available. I have not been able to trace a tax case which I recall, if my recollection is right, having argued a good many years ago in the courts on the particular question of what was the meaning to be given to the words "money's worth". But such researches as I have been able to make lead me to believe that on this question I am right and the noble and learned Lord the Lord Chancellor is wrong; that "money's worth" has a more limited meaning than the word "property", and that the two expressions are not interchangeable.

The words "money or money's worth" are to be found in a number of Finance Acts, and I think maybe one or two other Statutes, such as the Law of Property Act 1925. But they are chiefly to be found in Finance Acts, dealing with taxation and not, I think, in any Act dealing with the criminal law. I do not think there is any Act in which the meaning to be given to the words "money's worth" is defined. So the noble and learned Lord the Lord Chancellor cannot, I think, in saying what the words cover, support his contention that "money's worth" means "property" by relying on any definition in a Statute.

If one looks at the volume of Halsbury's Laws of England dealing with income tax, one finds in paragraph 11, under the heading "The nature of income", the following statement: To constitute income a receipt of money or money's worth is usually necessary". If the noble and learned Lord the Lord Chancellor is right, then one would have to make it read as follows: To constitute income a receipt of money or property is usually necessary". I have never yet known a case, except where special provision has been made, where the receipt of property has been treated as equivalent to the receipt of income for tax purposes. I feel that the Lord Chancellor will find it difficult to cite an authority for his proposition.

What does money's worth mean in the context of money? I should have thought that it clearly means such things as cheques, bills of exchange, promissory notes, which are all clearly money's worth. Are not luncheon vouchers money's worth? I suggest that those words mean, and are intended to mean, anything used as money, not all forms of property. In support of this contention I should like to quote a passage from a judgment in an old case called Attorney General v. Wolverton. There the Court said: This Act excepted annuities granted without regard to pecuniary consideration or money's worth from the operation of the statute, and it was held in several instances that annuities granted in consideration of a conveyance of an estate … were granted without regard to money's worth. An estate is property, and in the case which I have just cited it was apparently held that property was not money's worth.

The noble and learned Lord the Lord Chancellor I hope will not think me tiresome for raising this point or for persisting in the point which I raised on Clause 20. I do so not to establish that I am right and he is wrong; that would give me no pleasure at all. I do it to establish, if I can, certainties as to the meaning of the expression in this particular clause. It is of great importance, because this meaning is attached to every single clause in the Bill where we find the words: with a view to gain or to causing someone else loss. It has to be the gain of money or money's worth or the loss of money or money's worth. It is because I do not believe one can possibly construe "money's worth" as meaning the same as "property" that I have based so many of my arguments on the view that this Bill, as reflected in so many of its clauses, is narrower in its scope than the provisions which it replaces, and which so often refer to the wider term of "property". I hope that if the noble and learned Lord the Lord Chancellor is not in a position to answer this question now, he will give the matter very serious consideration. If he cannot answer it now—and I do not want to press him for an answer immediately—I should be interested to know his reasons for coming to a different conclusion from that which I have expressed and the authorities which he cites in support of his proposition.

As this is the last Amendment which I am moving, I should like to deal with one other matter. The Lord Chancellor accused me of suggesting that the Criminal Law Revision Committee wanted to narrow the existing law; the reference is column 554, the fifth day of our Committee stage. I should like to make it clear that I have never suggested that, and I do not really think that anything I have said warrants that accusation. I have argued, and shall continue to argue, that by restricting the terms "intent to defraud" and "fraudulently" to cases when it can be proved that the motive was gain or loss of money or money's worth, the existing criminal law is in fact narrowed. If the Bill is passed in its present form the Criminal Law Revision Committee will have excluded any possibility that the House of Lords sitting in its judicial capacity would hold that Welham's case is equally applicable to the same words in the Larceny Act as appear in the Forgery Act—and by doing so they have created a gap between offences under the Larceny Act and the Forgery Act. I do not think any authority is cited in the Committee's Report—and I doubt whether the noble Lord can produce one—to say that the offences under the Larceny Act which are replaced by clauses in this Bill are only offences if committed with a view to gain or causing a loss. If there is any such authority I should be grateful if the noble Lord could draw my attention to it. I think that the meaning to be attached to these words "gain or loss" is fundamental to the Bill as a whole, and even at this late hour I hope that the Committee will forgive me for raising this matter. I beg to move.

Amendment moved— Page 17, line 32, leave out paragraph (a).—(Viscount Dilhorne.)

LORD STONHAM

There is no question of the noble and learned Viscount having to ask our forgiveness for raising a matter again. Though the time spent on the Bill may have been long, the Committee will agree that we have wasted no time. I disagree with the noble and learned Viscount when he says that this is the last Amendment which appears in his name on the Marshalled List. Amendment No. 58A appears in his name, and no doubt we shall be hearing from him on that subject later.

VISCOUNT DILHORNE

I did not see No. 58A down in my name.

VISCOUNT COLVILLE OF CULROSS

The noble Viscount signed it.

VISCOUNT DILHORNE

Yes, the noble Lord is quite right.

LORD STONHAM

I sometimes have to get a word in edgeways now and again when I appear to be right! Frankly, I thought that this Amendment, which would remove one of the definitions in the Bill, was consequential on other Amendments which the noble and learned Viscount has moved to delete references to "gain or loss" from other clauses, such as Clauses 15, 16, 19 and 20. As the noble and learned Viscount is aware, the thinking of the Government on this matter—

VISCOUNT DILHORNE

If the noble Lord will forgive me, I can probably save time. If I have taken the noble Lord by surprise in raising the question of money or money's worth, I should like to say that I am not pressing him for an answer to-night. If the noble Lord will write to me about the matter giving me the authorities, if any, in ample time for me to consider this before we get to Report stage, I should be quite content.

LORD STONHAM

Certainly I can give that assurance. I had thought that this would be a consequential Amendment and that it was unlikely to be moved. In the circumstances, in view of what the noble and learned Viscount has just said, it would be better to raise this matter with the other matters discussed during previous deliberations of the Committee, and we shall let him have a comprehensive reply in due course—"in due course" meaning in sufficient time for him to consider the Government's reply and to take any further action which he may think desirable.

VISCOUNT DILHORNE

In the light of that very satisfactory reply, and in the hope that I will get an equally satisfactory reply at a later stage, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.10 p.m.

LORD WILBERFORCE moved to add to the clause: ( )—(a) The provisions of this Act shall he interpreted and applied according to the plain and natural meaning of the words used, read in the context of the Act as a whole, and given a fair, large and liberal construction. (b) It shall not be permissible in any proceedings upon this Act to refer to any decisions of any Courts prior to the passing of this Act other than decisions dealing in general terms with the interpretation of Statutes. (c) Reference may be made, for the interpretation of this Act, to the NOTES ON DRAFT THEFT BILL contained in Annex 2 of Command 2977 but this commentary shall be for guidance only and shall have no binding force.

The noble and learned Lord said: This is an Amendment of a rather different character from that hitherto proposed. I hope that it will be of some appeal to those of your Lordships who are not lawyers, as it is meant to convince the popular man. As your Lordships see, it introduces some new rules as to interpretation, which I have paragraphed (a), (b) and (c), because I do not intend to present them as a package deal. Your Lordships do not have to accept all three of them. You may choose one or two or any two out of three. It sounds like a permutation for a football pool. But, at any rate, there they are for your Lordships' consideration.

They are motivated by two main thoughts. The first is to enable consideration to be given to the general principles on which Statutes ought to be interpreted. As your Lordships may know, the interpretation of Statutes is a major subject in the law particularly as English law gets, as it does, more and more statutory every day. It has been recognised as a major and important subject by the Law Commission, who have carried out an extensive and elaborate study of it in a paper which I understand is shortly to be published, and it has been recognised as a major subject for law reform.

The broad point which is being canvassed nowadays by the Law Commission, and by lawyers generally, is that the courts of justice ought to adopt a more liberal and less technical approach to the interpretation of Statutes. That has behind it really two assertions, with one of which I am in sympathy and with the other of which I am not. That with which I am not in sympathy is the assertion that judges, and lawyers in front of judges, tend to be too literalistic, too narrow in their interpretation, too closely adhering to the words rather than to the spirit. I do not believe that that is right, but it is something which is said. The other assertion, with which I am in sympathy, is the complaint that the law in its drafting, as it is presented to Parliament and passed by Parliament, is too legalistic, too complicated and (if your Lordships will forgive the word) too gobbledegook, and that it ought to be simpler and more intelligible to the plain man.

That brings us to this Theft Bill which is supposed to simplify the law. It is presented to us on that basis. It is supposed to make the law more intelligible to the ordinary man. It is meant to get rid of a lot of lawyers' terms—"larceny", "embezzlement", "fraudulently", "receiving"", "false pretences", "possession". All those have gone, and instead we have "theft", "appropriation", "dishonestly", "come by" (not one of my favourites, but there it is), "gets" and the terrible word, "usurpation", which, at any rate, is new. Those are the main substitutions which have been made for the previous legal expressions, and they have been done deliberately.

Your Lordships will find in paragraph 34 of the Criminal Law Revision Committee's Report the Committee's view that the use of those words is desirable that they will soon be understood by juries and ordinary men, and that their use is an advantage. But—and this is the point—if those substitutions are to be successful, then surely we need something like paragraph (a) in my Amendment to make it work. That is the first though, the general thought, about interpretation of Statutes.

The second thought—and I venture to think it important—is this. This is a codification of the law and a modernisation. It takes a whole section of the criminal law out of various Acts, out of the Common Law, and puts them together in a reasonably modern new dress. It changes the substance of the law and gets rid of a lot of old rubbish, as your Lordships may remember the noble Lord, Lord Stow Hill, very amusingly explained to us on the Second Reading. Therefore, in all seriousness, I venture to suggest that a new start is needed from this Bill now before Parliament, in order that its words may be understood detached from all the cumbrous background out of which it has been extracted.

It is obvious to your Lordships that this subject is one of general application and importance, because we are now embarking on an age of codification. There is a huge programme in the pipeline. We are continually being told, and rightly told, that there are many other Bills about the criminal law, about other subjects of the law, on their way to come before Parliament, and that this is the time when we must get the principle of interpretation of these Bills right; otherwise, the whole of this process will fail. unless something like this is done, the reforms will be largely useless, at any rate to the common man. They may actually be damaging, because in relation to each piece of legislation one will have, first of all, a reference to the preceding infrastructure of the old law and, secondly, consideration of the new law.

I should like to quote briefly from one or two statements which have been made on this Bill by Ministers, to show that, so far as their statements go, they largely support what I have said. On the Second Reading the noble Lord, Lord Stonham, said this: When the further work now planned has been completed the law on any criminal matter will be much more readily ascertainable than at present, because the need to consult old Statutes and judicial decisions will be largely obviated."—[OFFICIAL REPORT, 15/2/68, col. 212.] Again, at column 268, criticising those of your Lordships who were lawyers and who had been making speeches he said: I think they find it difficult to come to this new way of thinking, to relinquish the old cases, mementi curiae. But we shall hammer these things out in Committee. I have many other quotations from the noble Lord, Lord Stonham, but I will not multiply them. He is always very clear and very consistent, and he has said the same thing on a number of other occasions.

The noble and learned Lord the Lord Chancellor has said the same thing on a number of occasions, and perhaps I may refer to two of his observations in order to show—though it is not necessary—that his heart is in the right place. He said: One of the difficulties, of course, about retaining this very old phraseology is that people want to go off to look at the old cases. Really, the object of this Bill, as I understand it, is to have, so far as possible, a complete code in words which people can understand, and which stand on their own."—[OFFICIAL REPORT, 7/3/68, col. 1497–8.] Again, on March 11, at column 66, he said very much to the same effect: … the proposition that an intention to deal with the property in a way such as in the examples I have mentioned should be treated as amounting to an intention of permanently depriving the owner of the property, would, or might, depend to some extent, in the absence of a definition, on previous Case Law, most of which dates from the first half of the nineteenth century. It seems to the Government that it would be desirable that, so far as possible, the courts should be in a position to construe the Act as it stands without the need to refer to the previous Case Law. This aim is particularly desirable now that there is to be a criminal code, of which the Bill will eventually form part. So I think that, in spirit at any rate, I have noble Lords on my side, though I appreciate that they may say that what I am trying to do here is not right, either in the way I am trying to do it or in its timing.

But to return to what will happen if something like this is not done, I know quite well what will happen. Judges and lawyers will say something like this, when something in the Bill is not absolutely clear, "For 500 years the law of larceny has been so-and-so. This particular section is not absolutely clear"—What section ever is?—"We must assume that Parliament has not intended to alter the law more than it has expressly done so"—which is one of the lawyer's techniques of imputing to Parliament their own inherent conservatism, for that is what they say—"and therefore we must look back at what the law was in and before 1967."

This is not a vain fear imagined by myself. Let me quote from what was said by a very eminent Judge. The Common Law is a greater force than Statute—at least, modern Statute—inasmuch as it is the inveterate representative and expression of the habits, feelings and wants of the people, while recent Statute may only be the embodiment of a crude experiment destined to be repealed after a short experience of its evils. That was said by an eminent Judge, and that is the traditional approach. One has examples of codification from other cases. The Sale of Goods Act—we all know that—is supposed to be one of our best examples of codification, and yet whenever it is referred to in the courts people refer right back to 19th century cases and say, "This was the law before; this must be what it is intending to do", and refer to a lot of cases afterwards. The same happens in the case of the Partnership Act 1890; and one could think of other examples, too.

It may be said, and it may be thought, that what I am advocating when I suggest that courts should not be allowed to look back at the old cases is some attack on the palladium of English law, the system of precedent, which is certainly one of the pillars on which our law stands. But that is not so. On the contrary, what I am advocating is put forward in a spirit of belief in the merits and abilities of English lawyers, and in their adaptability to modern times. It would, in fact, in my belief, be tremendously beneficial to English lawyers if they were to become accustomed to the use of a code as a code, and to arguing from its language, its spirit—because the code can have a spirit as much as the Common Law—instead of reading out other men's thoughts from old books.

If some principle such as this were accepted, there would be tremendous benefit to drafting, and one really ought to think of the drafting of Statutes because unless lawyers and judges can do something like this, can work from codes and apply them in their spirit rather than in their letter, we shall go on getting this detailed legislation which dots every "i" and crosses every "t" and multiplies one labyrinth after another. So one would be helping, and vitally helping, the process of clearer and better drafting.

Lastly, it would be of tremendous benefit to legal education if one were to accept some principle such as this, because I want students to be relieved of the burden of looking back at all this old stuff—the case about the coin, the case about the man who picked up property outside a shop, the case of a man who had more sacks of coal on his lorry than he knew. They should not have to spend their time having to study this sort of thing. They should be looking to see what theft is about. What does theft mean? What is its social causes? What is the cure for it? What is the nature of it? That is what they should be thinking about, instead of burrowing around in a lot of old, anti- quated books. I am quite certain that your Lordships would be blessed by generations of students to come if you were to accept the principle which I am putting forward.

To come to the Amendment, may I just briefly explain the purpose of it? In the first place, of course, no doubt the drafting of each paragraph is defective, and I am quite prepared to accept any criticism which may be made of it. I am quite willing to bear that. So far as paragraph (a) is concerned, what I suggest is, the plain and natural meaning of the words … in the context of the Act as a whole", and I suggest a fair, large and liberal construction should be given. I may be told that that is going too far. I may be told that this is a criminal Statute, and that it ought to be strictly construed I do not believe that. I believe that criminal Statutes ought to be fairly construed, like other Statutes, because the public has the right to a fair deal. It has just as much right to justice as the accused person, and there is no reason why courts should not construe criminal Statutes—fairly, of course—in the same way as other Statutes. But those words can be discussed, and if your Lordships do not like them then of course they can be dispensed with.

As regards paragraph (b), I lay down a mixed principle, that no decisions of any courts prior to the passing of this Bill should be referred to. I should have liked to leave it at that, but as a compromise I have put in the words, other than decisions dealing … with the interpretation of Statutes". I do not like that myself. I do not believe that you can interpret Statutes by books or by previous decisions. I would be quite content not to have those cases referred to, either. But most lawyers are against me on that. Most lawyers think you can get help from cases about the interpretation of Statutes, so I put those words in.

Then as regards paragraph (c), that is an important principle which I think will certainly some day gain acceptance. Whether it does on this occasion remains to be seen. What I have done here is to suggest, simply by way of illustration, that the commentary which your Lordships will find at the end of the Report of the Criminal Law Revision Committee should be used as guidance on the interpretation of the Act, but not having any binding force. I quite recognise that that commentary, as it stands, will not do. It is a very good commentary, but it would have to be adapted in a number of ways before it could in fact be used even as the basis of guidance in the interpretation of the Act. I did not frankly feel that it would be right to burden the public service with copying it all out with amendments, or to burden your Lordships with the duty of reading it. The reference to the commentary as made was enough, I thought, to give your Lordships an idea of what I had in mind. But if the principle were accepted, there would not be the slightest difficulty in editing up the commentary so as to be a very useful guidance to the courts on the interpretation of the Act, by which, however, they would not be bound.

Those are three principles. I put them all before your Lordships. I am in favour of them all. Your Lordships may not like some of them. Any one of them would be some help, I think, on the interpretation of this Bill. I at any rate commend them for your Lordships' consideration, not only for the purpose of this Bill, but in relation to the whole programme of law reform to follow. I apologise for having detained your Lordships at some length, but this is a subject which I believe to be important and in which I personally believe. I beg to move.

Amendment moved— Page 17, line 39, at end insert the said subsection.—(Lord Wilberforce.)

VISCOUNT DILHORNE

I should just like to say a word, if I may, in relation to the Amendment moved by my noble and learned friend. I am in general agreement with all that he has said, except that I rather doubt whether he has gone quite far enough. I say that with the greatest hesitation, but the Amendment that he has moved and also his speech relate only to looking at earlier decisions. I am not at all sure that if we are to adopt this basis we ought not to extend that to say that really you ought not to look at the Statutes which the provisions of this Bill are intended to replace. Because if you look at the Annex here, as I have pointed out several times, you find the statement, "This clause corresponds with such-and-such a section of the Larceny Act 1861", or of the Larceny Act 1916. That will mean that the courts will immediately, if there is any doubt in relation to the interpretation of the clause in the Bill, look back at the old Act. I think it is hard to say that you must not look back at the old cases on the old Act, but that it is permissible to look back at the old Act. I think it would be better—and this is where I think I am in favour of going a little further than my noble and learned friend—to exclude reference to the old Act as well, and then you would start de novo with this code.

LORD WILBERFORCE

If I could just help the noble and learned Viscount, that is what I had in mind in referring to the commentary, when I mentioned editing. I certainly would suggest the removal from it of references such as he has mentioned, which say, "This represents" or "This reproduces" such-and-such a previous section. That, I quite agree, would have to be removed out of the commentary in the process of making it suitable.

VISCOUNT DILHORNE

I am very glad that my noble and learned friend and I find that we are in agreement on that. I thought myself that paragraph (b) would have to be extended to apply perhaps not only to decisions but also to earlier Statutes. I must say it is a new approach, and I do not want to detain the Committee except to give my general support to what my noble and learned friend has said.

7.28 p.m.

LORD LLOYD OF HAMPSTEAD

I am sure your Lordships' Committee will be most grateful to the noble and learned Lord, Lord Wilberforce, for having put forward these extremely novel, interesting and important proposals. He presented them to your Lordships as something of a lollipop for the plain man, but I venture to think that there will be many lawyers, in your Lordships' House and outside it, who will widely applaud a suggestion of this kind.

As regards paragraph (b) of the Amendment, this is, of course, a codifying Statute; it is not just consolidation, and those who have been concerned with codification have long realised the great difficulty under our system, where we have strings of cases under the old law which tend to be quoted under the new law. This point has been frequently referred to by those interested in these matters; and the Chairman of the Law Commission, Sir Leslie Scarman, has referred to the difficulty on numerous occasions in his public addresses relating to codification. The important thing is to be able to make a completely fresh start. The sort of difficulties that have been encountered with earlier codifying Statutes in this country, such as the Sale of Goods Act 1893, indicate that very great benefit would arise from a change of this kind.

Indeed, even the recent semi-codification, if I may so call it, of the Rules of the Supreme Court has encountered these difficulties and the courts have shown a certain tendency to trot out (if I may use that expression) the old cases and say: "Although the Rule has been changed verbally it was not really intended to be changed at all; and so we have gone back to the old position". So I should have thought that there was a strong case for the proposal that has been made. One can ask, "Can you stop the courts from looking at the old cases?". The answer may be that perhaps you cannot; but at any rate you can try to discourage them. If Parliament puts a specific provision of this kind into a codifying Statute while it may be putting it too high to say that it is in terrorem, it will at any rate, be a strong indication that the courts should not base their decisions on old cases.

As to the suggestion that this will relieve a generation of students from the tedious task of reviewing old cases, I am bound to say from my own experience that students derive a certain pleasure from these old friends of theirs. But at the same time I agree with the noble and learned Lord that they could be far better employed.

As to paragraph (c), this introduces for the first time the very interesting idea of using what the French call "travaux préparatoires", or what is sometimes called "legislative material" to interpret Statutes. It is put forward in a very tentative way, just to use the notes and commentary provided by the Criminal Law Revision Committee. I should have thought that one could perhaps extend it a little by permitting reference to the actual Report of the Committee as well, which could often throw considerable light on the meaning of provisions. Of course, the objection frequently put forward to the use of legislative material is that there are dangers about this, because it really amounts to using Hansard before the courts; and it is felt that the courts would be diverted from their real task if they had the labour of going through Hansard. I do not wish to make any comment on that. It would be disrespectful to your Lordships to suggest that the courts would not derive some benefit from studying Hansard, particularly in relation to the discussions that have taken place in Committee on this Bill. But at any rate the suggestion of the noble and learned Lord, Lord Wilberforce, is very narrowly confined and I should have thought that in the form in which he has put it forward, no possible objection could be raised.

As to the third point in paragraph (a), I respectfully agree that Statutes, including criminal Statutes, should be construed in a liberal and fair-minded spirit and that our old-fashioned rule about restrictive interpretation of penal Statutes has often led to very contorted constructions. It would be making a good start to adopt this bolder approach in relation to a criminal Statute, because the courts may then feel that if we can be bolder in relation to an important criminal codification Statute this will be a useful piece of education in relation to the attitude towards Statutes generally.

As the noble and learned Lord has pointed out, the Law Commission are seized of this whole problem. They have recently put out a very interesting Working Paper and they are engaged on the whole problem of statutory construction. But one hopes that it will not be necessary to wait until all this elaborate investigation has taken place before trying a tentative experiment of this kind, which I venture to think could do no harm and might well do a great deal of good. Therefore I also commend this proposal to your Lordships, and hope that, coming as it does from so eminent and learned a source as one of our distinguished Law Lords, the noble and learned Lord, Lord Wilberforce, your Lordships will give it the very close attention that it deserves. And I hope that the Government will find it possible to accept this Amendment, possibly with some minor modifications of detail.

LORD MORRIS OF BORTH-Y-GEST

I, too, should like to express my gratitude to the noble and learned Lord for having raised this matter. I share very much the general approach that was indicated in the speech of my noble and learned friend. But, having said that, I must say that I felt rather grateful to him for introducing the subject with words which, to my mind, were very reminiscent of the words seen at the head of examination questions: "Not more than two of these need be attempted." The noble and learned Lord referred to the simplification that this Bill will involve. It might almost be called, at one stage, "The Relief of Students Bill". The puzzles and problems with which students have been tormented in the past will no longer be available. But we have, of course, in the process been a little hard on the dons. We have removed from university professors and lecturers so many of their pet topics which they have used to test the intelligence of their students.

If I may avail myself of the permission given by the noble and learned Lord to be selective, I would wish to express my approval of the opening words—but to stop after the opening words: The provisions of this Act shall be interpreted and applied according to the plain and natural meaning of the words used, read in the context of the Act as a whole. I do not think I can go with my noble and learned friend in regard to the words that follow: and given a fair, large and liberal construction. I am sorry that the noble and learned Viscount, Lord Dilhorne, is not here at the moment. I was so pleased to hear him say that something liberal did not go far enough for him. The reason I would not, for myself, quite accept the concluding words is that I am not sure what they mean. Is it not enough to give words their "plain and natural meaning", read in their context? That would be a fair meaning, would it not? What is a "large and liberal construction" in a criminal Statute? Do you construe it liberally for the prosecution or liberally for the defence? So I would, for my part, welcome the opening words, although possibly they are almost inherent in our approach as it is, but should be a little reluctant to adopt the other words.

As regards the "Notes on Draft Theft Bill", in paragraph (c), I feel that the difficulty there is that it would not be easy to invite courts to consider words that have not really been studied by Parliament itself. We have not given detailed consideration to these "Notes on Draft Theft Bill." If we do, we find that they in turn refer to the Report of the Committee. Are we going to allow the courts to refer to the Report of the Committee, because it is referred to in these "Notes on Draft Theft Bill"?

As regards paragraph (b) I feel it would be going rather far to prevent the courts from ever hearing any decision. This is not a codifying Bill; this is a revising Bill: a new Bill. I should have thought that this matter could be left to the courts, to the judge, to discourage; and that it is perhaps going a little far to lay down emphatically that it shall not be possible for the courts to have reference to any decisions, save those in general terms, dealing with the interpretation of the Statutes. While, therefore, I cordially approve of the general approach of my noble and learned friend, which is such an invigorating and forward-looking one and one which we shall all wish to share, I should like to adopt the permission that he gave to express approval of the opening words and doubt whether we ought to go any further.

7.40 p.m.

THE LORD CHANCELLOR

Except on one point I am in general agreement with the noble and learned Lord, Lord Wilberforce. Possibly in the whole field of law reform the most intractable problem is that coin one side of which is our style of Parliamentary drafting and the other the interpretation of Statutes; and these difficulties I think must be cured together. Everybody would agree that there have been many examples in the last two or three years of a style of Parliamentary drafting which was so involved that the only wonder was that anybody could ever understand it at all. The draftsman's answer is that you must remember that under most civilised systems of law the Government tell the court why it is passing a particular Act, what is the mischief it is intended to prevent and how the judge is to construe it so as to give effect to what Parliament intended; so the interpretation of Statutes becomes a partnership between Parliament and the courts. It is only under our system that a judge is not allowed to know what Parliament intended. He may not look at Hansard. If the Act has flowed from the Report of a Committee, he is not allowed to read the Report. He can look simply at the Act; that is the only thing he can look at. Therefore, the Parliamentary draftsman says, "I must draft this, not so that anybody, any ordinary person, can read it and understand it; I have to draft it so that a High Court judge, looking at this and nothing else, can construe it in only one particular way."

I have thought for a long time that that is quite wrong; that first we must get rid of this system of Parliamentary drafting and draft Statutes in very much more general terms, giving a wider discretion to judges to give the words a fair and liberal construction, knowing what Parliament intended and applying Parliament's intention to the particular facts of a particular case. I agree, knowing lawyers, that if you have a code they will always want to refer to all the old cases, unless you do something to stop them. It is really absurd that, having a very good codification of the Sale of Goods Act between now and the last century, everyone is still allowed to refer to all the cases decided before that code was made.

I agree that something ought to be done about it. The only point on which I differ from the noble and learned Lord is that I doubt whether we can start in this Bill. The Law Commission is well aware of the fact that this problem exists and is a very real one, and, as my noble friend Lord Lloyd of Hampstead said, they have for some time been at work on a study of exactly what judicial interpretation is under other systems of law, and whether we ought not to have with every Bill a memorandum of some kind, rather like the old Preambles which we used to have in the 18th century, giving an explanation.

I remember once having to act for somebody who said that she had been libelled because the papers said of her, quite untruly, that she had been married at Gretna Green. She was very cross about it, and I was asked to settle pleadings for a libel action. I thought to myself, "Why is it defamatory of somebody to say that she has been married at Gretna Green?". Then I dug into the early history of Gretna Green and I came across an 18th century Statute, with the usual long Preamble, and this described minutely the awful things that went on at Gretna Green. It described exactly what the village blacksmith did, the appalling effect on respectable citizens and how it was utterly essential that Parliament should cure this. Under the old, long Preamble you knew exactly where you were.

I attended a meeting of the Law Commissioners when they considered the terms of a long document which they had themselves prepared. They then spent a week-end in Edinburgh with the Scottish Law Commission on the same matter. They published this long working paper on the whole of this field. The date, I think, has just about gone by when all the the replies were due in, and I expect a Report from the Law Commission, I hope by the summer, and certainly this year.

If we are going to do what is suggested, I doubt very much whether we should do it to one particular Bill. I should have thought that a judge should be entitled—not bound but entitled—to look at the whole Report. If a question of construction comes up, where you have a Report which explains why a particular word has been used rather than another, I cannot see why a judge should not be entitled to look at it as an aid to interpretation. But this Amendment is limited to the Annex. One point which I have known raised in argument is this: is it fair to do this in respect of the Report of a Committee which has not been told, "You have to do your Report exceptionally well because the judge will be entitled to look at it to see exactly why you did this, that or the other." At the moment Committees do it on the opposite basis; they know that a judge will not be able to look at the Report, and it may be that we ought not to start this method until Committees know that they will be in a different position.

Therefore, while I will certainly consider this matter between now and Report stage—and probably it will need more time than that in persuading some of my colleagues and myself—there is a difficulty, sympathetic as I am, in doing it in this one Bill. One would have to see which were the decisions which were not to be referred to. This Amendment is very general. One knows the difficulty of drafting it. It states: It shall not be permissible in any proceedings upon this Act to refer to any decisions of any Courts prior to the passing of this Act other than decisions dealing in general terms with the interpretation of Statutes. That, I suppose, would include any cases on the law of criminal procedure which might arise in a theft case. I am not sure.

On balance, I should be inclined to suggest that as a great deal of work has been done in this field, including the field of comparative law, by the Law Commission, and as I hope we shall have the fruits of those labours within a fairly short time, though greatly tempted by these Amendments I think it would probably be better to wait until we had the Report and could then consider these questions as affecting Statutes as a whole. We have also to some extent to consider Parliamentary procedure. I do not see why the Notes on Clauses which some Ministers have should not be given to everybody in both Houses—except perhaps those bits in square brackets. Many Amendments are put down for probing purposes, to find out what the object of a clause is. It saves a lot of time. I do not think that Members in both Houses get as much help as they might do in relation to any Resolution. That, however, is another matter.

LORD WILBERFORCE

I am grateful to the noble and learned Lord for his observations and to other of your Lord-ships who have spoken. Two points of substance have, I think, been made with reference to my proposal. One is that it should be permissible to refer to the Report of the Committee as a whole rather than merely to the Annex to the Committee's Report; but that is obviously a debatable problem. I felt, and I still feel, that it would be too great a burden on courts, particularly magistrates' courts, to entitle them to do so. Being conscientious, they would probably feel bound to look at this very elaborate Report, packed as it is with arguments, differences of views, references to old Acts and cases. It really would not be workable to let them look at the whole of this, though the High Court and Court of Appeal might. If that were the only point of difference no doubt it could be adjusted, and I certainly would defer to the views of those who thought that the Report of the Committee as a whole ought to be referred to.

The other point made was as to what decisions ought not to be referred to under paragraph (b). I was certainly intending it to refer to decisions in any matter in proceedings upon this Act. If there was some other matter which arose under another criminal proceedure provision, this prohibition would not apply and all we should exclude would be some decision which might be said to bear on the interpretation of this Act. On the general point of whether this is the right place to begin, I venture to suggest to your Lordships, why not?—precisely because of the way in which it has been presented by the Report of the Committee, which makes it clear in paragraph after paragraph that their object is to make a new start from the old law. So I am entirely following the spirit of the Committee and of the many statements made by the noble Lord, Lord Stonham, and the noble and learned Lord the Lord Chancellor during our discussions.

Perhaps I may refer to one further point made by the noble Lord, Lord Chorley, at an earlier stage. Talking about "fraudulently" as against "dishonestly", he made the point, which I thought had great validity, that there was a great danger, even if one used the word "dishonestly", in letting the courts loose upon all the old decisions about "fraudulently" in different contexts. That was a problem which had to be met, whether we substitute "dishonestly" or retained "fraudulently."

As regards the Report of the Law Commission, I am sure it will be a valuable and comprehensive document, but it will have to be considered by the Government and they will have to decide what to do with it. I very much doubt whether it will provide a general panacea suitable for the interpretation of every Statute. I urge upon your Lordships that this is a Bill which lends itself—cries out—for a new departure in this way. We ought to take the opportunity of doing so. If the Report comes out between now and the time the Bill is passed and it has some better idea than mine, there is ample means of substituting it or improving my suggestions. But I feel strongly about this. I wish to maintain my proposal. I think it is good advice which I have just received from my noble and learned friend. I am prepared to withdraw this Amendment now subject to the right to raise it again on Report stage, by which time we may know what the Law Commission is willing to recommend about it, and the Government will be able to say whether they can accept some part of my proposal, if not the whole of it. I am much obliged to noble and learned Lords who have given this Amendment their attention, and ask leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Remaining clauses agreed to.

Schedule 1 agreed to.

Schedule 2 [Miscellaneous and consequential amendments.]:

7.55 p.m.

VISCOUNT COLVILLE OF CULROSS moved to leave out paragraph 10. The noble Viscount said: My noble and learned friend Lord Dilhorne is keeping his promise in allowing me to move this Amendment. It is with a certain amount of bathos that I move on to the Post Office Act 1953, after the debate which has just taken place on the Amendment of the noble and learned Lord, Lord Wilber-force. Part I of Schedule 2 makes a number of Amendments to the 1953 Act, but when we come to paragraph 10 one looks in vain for guidance from the Criminal Law Revision Committee, because this is not one of their recommendations. It has been invented by Her Majesty's Government since then. I am bound to say that I shall take a certain amount of persuading that it is a good invention.

The existing Section 70 is a fairly harmless looking measure, dealing with the venue of a trial and making it unnecessary to go into the question of where it takes place. Now there is to be substituted a new section in the Post Office Act, which is almost exactly the same as Clause 14 of the Bill but is just sufficiently different for me to want to know what really are the differences. What on earth is the point of having one offence under Clause 14 and another offence written into the Post Office Act 1953 in not quite identical terms? Surely the sensible thing to do—because this is covered either in Clause 14 or in Section 70—is to leave one or the other cut, not to have it in both places. All things being equal, I think that it would be better to leave out Clause 14 and leave Section 70 in the Post Office Act where one would look for offences dealing with the stealing of mail bags. I beg to move.

Amendment moved— Page 20, line 41, leave out paragraph 10.—(Viscount Colville of Culross.)

LORD STONHAM

The noble Viscount suggested that we leave out Clause 14 altogether, but Clause 14 and paragraph 10 are complementary in the sense that paragraph 10 does for the law of other countries in the British postal area (Scotland, Northern Ireland, the Channel Islands and the Isle of Man) what Clause 14 does for the case of England and Wales, and there would be no sense in retaining Clause 14 and deleting paragraph 10.

The noble Viscount has referred to the existing Section 70 of the Post Office Act, so there is no need, for me to read it as he is familiar with it, but I would mention that Section 70 applies throughout the British postal area—that is to say, the separate areas of criminal jurisdiction of England and Wales, Scotland, Northern Ireland, the Isle of Man and the Channel Isles. The section clearly allows an offence committed in one of those jurisdictions to be tried, in certain circumstances, in some place within that jurisdiction other than the place where the offence was committed; and it has also been regarded as enabling an offence committed within one of the jurisdictions to be tried in another of them—for example, if the offender is apprehended within the other jurisdiction.

But it is a weakness of the section that it is obscure on this particular point, and does not clearly absolve a prosecutor, on a prosecution in one jurisdiction—for example, England and Wales—from showing that the offence took place within that jurisdiction. This is a point of particular importance if, for example, because the theft was from a cross-Border mail train, the jurisdiction where the offence took place is unascertainable. It is very necessary that the law should be clear on the matter. On the other hand, the section is unnecessary to enable offences against the mails to be tried in different places within the same jurisdiction because it substantially duplicates the general provision as to the place of the trial of offences in England and Wales in Section 11 of the Criminal Justice Act 1925 and the corresponding rules for the other jurisdictions.

The Bill accordingly replaces Section 70 by new provisions which are designed to meet the difficulty. Clause 14 deals with thefts outside England and Wales from mails in transmission between the different jurisdictions in the British postal area, and enables such thefts to be prosecuted in England and Wales as offences under the Bill. Paragraph 10, with which we are now dealing, makes parallel provision for the trial of such offences in jurisdictions outside England and Wales by inserting a new Section 70 in the Post Office Act 1953. So that under the new section a person who steals or attempts to steal a mailbag or postal packet or its contents in the course of transmission between places of different jurisdictions in the British postal area, or in the course of doing so commits any robbery, attempted robbery or assault with intent to rob, will, in whichever jurisdiction he does so, be guilty of committing or attempting to commit an offence under Section 52 of the Act—that is, the 1953 Act—which relates to such offences as stealing mailbags or postal packets or stopping a mail with intent to rob the mail (and is repealed for England and Wales by the Bill as it is covered by the Bill), or the offence of robbery et cetera referred to in subsection 70(1)(b), as if he had done so in that jurisdiction; and he will be liable to be tried and punished accordingly in that jurisdiction without proof that the offence was committed there.

The noble Viscount asked: Why have several Bills to do the same thing? Why have England and Wales and the other criminal jurisdictions to be dealt with in these different ways in two different parts of the Bill? The answer is that the offences of stealing, and so on, from the mail in Section 52 of the Post Office Act, 1953 have hitherto applied throughout the British postal area, but that section is being repealed for England and Wales in this Bill because it merely duplicates the offences of theft and robbery et cetera under the Bill. Section 70 of the 1953 Act, whether in its old form, the one that we are proposing to delete, or its new form, the one now in the Schedule, does not permit the trial of offences of stealing from the mail other than offences under that Act; and the separate provision in Clause 14 is accordingly needed to enable offences under the Bill of thefts from mails in transmission between different jurisdictions to be tried, where appropriate, in England and Wales, as offences under Clause 1 or Clause 8 of the Bill.

Therefore, the combined effect of Clause 14 and paragraph 10 is that if, say, a mailbag is stolen while in transmission between England and Scotland the thief may be tried in England and Wales by virtue of Clause 14 for an offence under Clause 1 of the Bill, or, by virtue of paragraph 10 in the Schedule, in Scotland, or theoretically in Northern Ireland, the Isle of Man or the Channel Islands for an offence under Section 52 of the Post Office Act 1953. This would be ineffective if either Clause 14 (and the noble Viscount did not question Clause 14 when we dealt with it) or paragraph 10, which he now wishes to delete, were not there.

I could say a great deal more, but I hope I have convinced the noble Viscount that the change we have made is quite necessary, and necessary for Scotland as well as for other parts of the British postal area.

LORD AIREDALE

I think this reveals a rather strange way of doing things. I can see the virtue of dealing with thefts of mails as a separate class of offences, respecting the framework of the Post Office Act 1953, and devoting nearly two pages of the Schedule to making Amendments to that particular Act dealing with thefts of mails. But then it seems that Her Majesty's Government go and spoil their record by having Clause 14 of the Bill as an isolated clause, dealing with thefts of mails, all by itself in the main part of the Bill. Surely, if the Government are going to respect the framework of the Post Office Act 1953 and have thefts of mails dealt with as a separate class of offences, the place to put Clause 14 is not where it is, but in Part I of Schedule 2, as one of the Amendments of the Post Office Act 1953. Then all thefts of mails offences will be classed together within a single framework. That is surely what the Government are trying to achieve; but they have spoilt their record by having one single solitary exception to the rule.

VISCOUNT COLVILLE OF CULROSS

The only thing, I am afraid, of which the noble Lord, Lord Stonham, has convinced me here is that there is something wrong. I fully accept that there are defects in the Post Office Act 1953 which ought to be put right. I fully accept that we want to have a complete interlocking system of jurisdictions to try anywhere else an offence which is committed anywhere in the British postal area, so that one does not have the trouble of proving the actual place where the theft occurred. Where I find it almost impossible to follow the noble Lord is in this respect. If you want to do that, why not put it in altogether? Why not insert in one place a universal offence of stealing the mails anywhere in the British Isles, or the British postal area? There may have to be some slight consequential amendments, because of the law of theft, but make those to the main offence.

At the moment, there are two offences one in England and Wales, and another one everywhere else. They are, in fact, almost exactly the same, but apparently they have to be put in twice, because you cannot have the same jurisdiction or proceedings in the same section of the Post Office Act. I am not setting up in competition with Parliamentary Counsel—far be it from me to suggest that this is the right thing for me to do—but I am unable to believe that it is impossible for Parliamentary Counsel to devise an amendment to the Post Office Act 1953 which gets all this in a single place as a single offence, with universal jurisdiction, and with no defects, having cured those that already exist.

I do not want to discuss the matter further to-night, because it is a very technical one, but I should be grateful if the noble Lord could see whether this could be done, because at the moment it seems to be a defect in the Bill. It may be that, for technical reasons, this is necessary; but it does not appeal, when one is looking at new criminal law, to find this sort of dichotomy dealing with what is meant to be the forerunner of a whole lot of codifying Bills. I see that the noble Lord has a point to make, and before I withdraw the Amendment, perhaps he would like to make it.

LORD STONHAM

I have several points to make. No doubt the profession will be relieved that the noble Viscount is not setting up in competition with Parliamentary draftsmen. I am personally relieved on his account, because he would not wear his youthful expression for very long. Of course I will do what the noble Viscount has asked, and have a look at this matter of creating one offence. But he seems to overlook, for example, the fact that this Bill does not apply to Scotland.

VISCOUNT COLVILLE OF CULROSS

What I am suggesting is that you work on the basis that you take out Clause 14 (I know I did not criticise it at the time it was before the Committee, but this point had not then been brought home to me) on the grounds, as the noble Lord, Lord Airedale, said, that we are giving up specific subjects of theft in the whole of this code, we are giving up all the old distinctions between what you do with one thing and another, and putting the whole subject into the Post Office Act. The Post Office Act applies everywhere, and not just in England and Wales. You may need a special part for England and Wales—I do not know—but you will have a universal Act, and that is where you will think of looking if you want to prosecute somebody for stealing mail bags.

LORD STONHAM

One of the difficulties is that noble Lords apparently do not listen to a case that is made against their Amendment. The noble Viscount has completely missed the point that I made, that Clause 14 and paragraph 10 of the Schedule are complementary to each other. I explained that Clause 14 was necessary for England and Wales, and that the Schedule was necessary for other parts of the British postal area. That seemed to me perfectly clear. We are not making a completely new Post Office Act in the Theft Bill; we are dealing with a point of particular difficulty which arises with regard to theft of mails. And the question of ascertaining the jurisdiction, which noble Lords completely ignored, and which is another major reason for this change, is surely one of major importance. Therefore, with the changes we have made in this Bill, both in Clause 14 and the Schedule, we have swept away any dubiety on that point, and if somebody is apprehended and accused of this offence then he can be dealt with.

Then, again, noble Lords will not imagine that we included these provisions in the Bill, including Clause 14 and paragraph 10 of the Schedule, without the fullest discussion with the Post Office. They are acceptable to them and to the other jurisdictions concerned, all of whom also have been consulted. Although some of the offences in the Post Office Act do in fact duplicate offences in the Bill, the Bill as originally drafted by the Criminal Law Revision Committee proposed to preserve those offences, amended to take account of the new law of theft in England and Wales, so as to provide a uniform code of offences concerning mails which would apply throughout the British postal area.

This scheme was provisional, as the Committee's competence was limited to England and Wales, and it gave rise to technical difficulties in relation to Scotland, and indeed possibly to other parts of the British postal area. As a result, it was decided to deal with it in this way, which I am bound to say meets the case: it meets the difficulty and it meets the present position. We are at present considering an Amendment to remove paragraph 10 of the Schedule. So far, all that I have heard has convinced me that paragraph 10—that is, a new Section 70 of the 1953 Act—is an improvement on the present position and meets a difficulty which has been felt for some time. I hope, therefore, that both the noble Lords who have spoken on this question will also consider this very carefully, as I will consider what they have said.

LORD AIREDALE

It is quite true that we now have the situation that two sections in two different Acts (or that will be the case when this Bill has been passed) will be complementary to each other. The Minister thinks that that is satisfactory. We on this side of the House say that we should take this opportunity of recodification to get these two together in one Act of Parliament. It is easier to refer to them in that way.

VISCOUNT COLVILLE OF CULROSS

I will take advantage of the noble Lord's invitation to consider what he has said, just as he has promised to consider my own words. I think I shall probably return to this matter at a subsequent stage. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Schedule 3 [Repeals]:

8.16 p.m.

VISCOUNT COLVILLE OF CULROSS moved, in the reference to the proposed repeal of Section 3 of the Forgery Act 1861, to delete "Section 3" and insert "Sections 3 and 5". The noble Viscount said: I hope the Committee will allow me to deal with the next four Amendments together. I have two points to make, and I think they are points of substance. These Amendments were put down really only by way of illustrating what they are. I will tell the noble Lord, first of all, what the points are, and then, as briefly as possible, illustrate them.

The first point is that I do not understand the philosophy which underlies the repeals in this Bill, because it will be within the recollection of the noble Lord, Lord Stonham, that he said, on something we were discussing the other day, that it was outside the field of theft and therefore it was outside the field of this Bill. I have understood all the way through, both in dealing with the Report and throughout the proceedings in this Committee, that we are not concerned with forgery. I think the noble Lord will confirm that that is so. We may be concerned with many other things, but the one thing we are not concerned with is forgery. There are a number of repeals in this Bill which are repeals of forgery, and I do not understand why. That is the first substantial point.

The second point is this. It is slightly more difficult to pin down, but there are one or two indications, from the measures that are being repealed, that this old subject which we have discussed so often, the criterion of financial gain and loss (or whatever it may now have turned into after my noble and learned friend Lord Dilhorne has dealt with it), is not the existing law. I will come on to that. There is one absolutely clear case, I think, where there is a repeal of an existing enactment which is being replaced in this Bill with a "financial gain and loss" criterion, whereas the old Act had no such criterion.

To deal with the first point, the forgery, I think that probably the most conspicuous example of this is in the Admiralty Powers Act 1865. There are to be repealed by this Bill Sections 6 and 7 of that Act. Section 6 deals with false affidavits, false petitions, certificates, et cetera. It is perfectly plain that it is talking in the terms of forgery—it says "utter", and words like that. Section 7 starts off, "Forgeries", and goes on to say that the parts of the Forgery Act should be read with the Admiralty Powers Act 1865 itself. I know that most of the provisions of the old Forgery Act to which it refers have in fact been repealed, but I have looked at the matter as closely as I can and I see absolutely no reason whatever to doubt that these sections deal with forgery; and if that is so, they deal with something that, as I understand it, is outside the terms of this Bill.

Of course, it is not the only one by any means that deals with forgery. For instance, Section 5 of the Naval and Military War Pensions, etc., Act 1915 is dealing with forgery as well. Then a whole collection of other enactments are repealed; for instance, Section 3 of the Yeomanry Pay Act 1884, and Section 10 of the Elementary School Teachers Superannuation Act 1898, which deal partly with forgery and partly with oral false statements. One can go on for a very long time looking at these things to see what can be the criterion which underlies them.

The other Amendment I put down was an Amendment in the Forgery Act 1861, one of the few bits which is not repealed, which funnily enough deals with false entries in bank accounts with intent to defraud; and I should have thought that that is intended to be covered by Clause 16. But it is not repealed, so here is another inconsistency. I will not go through all these, because it is really the most tedious performance, but I should be grateful if the noble Lord will, if not to-night then subsequently, let me know how this list of repeals has been put together and what is file underlying theory of it. There are many curiosities. This is not on this point at all, but if you are repealing Section 60(6) of the Food and Drugs Act 1955, which I suppose is being replaced by Clause 15(3), why not repeal the very similar provisions in Section 20(3) of the Weights and Measures Act 1963? Perhaps it is because that was passed after the Committee reported or drafted its Schedule. I just do not know. There are these various inconsistencies all the way through. Someone has pointed out that Section 11(1) of the Agriculture Credits Act 1928 seems to be covered by either theft or criminal deception, but it is not repealed. I am really most confused about this.

I now come to the second point, which concerns the question of replacing old criminal offences by this financial gain and loss structure. I think the clearest indication—and it strongly supports what I have been trying to say all the way through, that this is not the criterion under the case law—is the repeal of Section 115 of the Land Registration Act 1925. That deals with the suppression of evidence, and the noble Lord, Lord Stonham, will remember the Amendment I moved to Clause 19, to try to get rid of this wretched gain and loss prevision, which turns up here twice as it does in so many other places in the Bill. Clause 19 replaces, among other things, Section 115 of the Land Registration Act. That section says: If in the course of any proceedings before the registrar or the court in pursuance of this Act any person concerned in such proceedings as principal or agent,"— and note this; this is the intent— with intent to conceal the title or claim of any person, or to substantiate a false claim,"— that could already have been made— suppresses, attempts to suppress, or is privy to the suppression of, any document or fact,… shall be guilty of a misdemeanour. As a matter of fact, Section 183 of the Law of Property Act is being partially repealed.

LORD STONHAM

If I may interrupt the noble Viscount, I would just point out that in the Act to which he is now referring there is no reference to the substance of the Amendments he is now moving.

VISCOUNT COLVILLE OF CULROSS

I am using these four Amendments as a platform. I can make the same speech on the Question, That the Schedules stand part, if the noble Lord would prefer it, but if he looks at Schedule 3 he will find all these references. There is a reference to Section 115 of the Land Registration Act 1925, and I am saying that it is not being replaced by Clause 19 of this Bill because the intent in the old Act is much wider than the pecuniary gain and loss. I am not expecting an answer to-night, but it backs up what my noble and learned friend Lord Dilhorne was saying when he was speaking about money and money's worth. He said there was a lacuna in the law, and I am saying that in fact the lacuna is even bigger, because the old criminal intent in the Acts being repealed is wider than that. Yet there is no explanation, either from the Government or the Criminal Law Revision Committee as to why they insist all the way through on these criteria of gain and loss.

There are two choices: either we stick to a narrow definition of what should come within the terms of a Theft Bill—and if we do that, by all means let it be concerned with financial gain and loss. There is absolutely nothing wrong with that, but if we are going to do that it is essential that we should reconsider the repeals in the Schedule to this Bill, because if we are repealing old criminal offences which are wider than the ones we are putting in their place we are leaving gaps in the criminal law. Possibly these things should be put in another Bill, but we cannot confine the new Bill to a narrow field and repeal old criminal offences over a very much wider field. I leave that thought with the noble Lord. This is really supplementary to all that I have been saying throughout these proceedings about the whole question of the breadth that this Bill should or might have. I beg to move.

Amendment moved— Page 26, line 18, column 3, leave out ("Section 3 ") and insert ("Sections 3 and 5").—(Viscount Colville of Culross.)

LORD STONHAM

I am grateful for the noble Viscount's speech on these Amendments, and also for the fact that he said he is not expecting a detailed reply tonight. But some reply is called for from me and I intend to give it. The noble Viscount said that he wanted to make two main points. The first was that he does not understand the philosophy underlying the repeals in this Bill. He said that a number of the repeals deal with forgery, and he quite rightly referred to the fact that at various stages during our discussion I have said, and my noble and learned friend the Lord Chancellor has said, that this is a Theft Bill and we do not think it appropriate to bring in other offences which we do not regard as theft. This is something to which we have adhered all through.

Then we do not accept the noble Viscount's premise that in many of the cases he has mentioned we are in a position where we have left the whole area uncovered and have then resorted to repeals, which he implies means that certain offences are not covered. This is a point of difference between us. We do not accept that this is so. Of course we are always ready to look at any particular one. The noble Viscount has picked out four or five in his Amendments—

VISCOUNT COLVILLE OF CULROSS

I am sorry to interrupt the noble Lord, but if he is not careful he will confuse my two points. May I just put them again. The point relating to having or not having a forgery is a separate point from gain and loss in, for instance, Section 115 of the Land Registration Act. In the first place, I want to know why in some cases we make forgery repeals and yet in a similar field we do not make similar forgery repeals. My second point was that I want to illustrate the cases where I think we are repealing a wide old criminal offence and replacing it with a narrow one. I gave only two instances of that.

LORD STONHAM

I had not really come on to gain and loss, and I am sorry if the noble Viscount thought I was going to mix his arguments. The short answer really is that I can deal only with detailed points where he, or any other noble Lord, alleges that a particular offence is not covered. The noble Viscount mentioned forgery, and Amendment No. 59(A) deals in fact with the Forgery Act, because there, where we propose to leave out Section 3 he proposes to leave out Sections 3 and 5. As the noble Viscount is aware, Section 5 creates an offence of making false entries or alterations in books of account kept by the Bank of England containing the accounts of owners of certain kinds of stock. The offence depends on an "intent to defraud".

In the Bill we do not propose, as the noble Viscount does, to repeal Section 5, because the offence under Section 5 is in essence an offence of forgery. Because it is essentially an offence of forgery and does not depend on an intent to obtain property or on a view to gain, so it is not covered by Clause 15 or any other provision of the Bill. It depends on an intent to defraud which in this connection may mean something wider than the kind of intents I have mentioned. The Bill we are considering does not treat offences which are in essence offences of forgery, because they are superseded by offences under the Bill. This is a typical example where I say and mean that this is narrower, the Theft Bill is narrower than some others, and we do not want to take in certain offences. But, as it seemed to me, the noble Viscount suggested that by leaving out Section 3 of the Forgery Act we are in fact taking in forgery. What we are doing is saying we do not need Section 3 because it is covered by this Bill. The noble Viscount may dispute that it is covered by the Bill, but in our view we have not departed from the principle of the Theft Bill. We had considerable argument as to what Clause 15(1) would cover. Therefore, I have re-stated our intention, and I hope I have at least done something to meet the point about the underlying philosophy.

The noble Viscount spoke about the Land Registration Act. This was a case where we consulted the Land Registry. Another object of the Bill which has been frequently stated by my noble and learned friend and myself, and which has been generally approved, has been to repeal obsolete Acts, to repeal provisions, parts of Acts covered by this new Bill, and do away with the necessity to rely on so much case law. This Land Registration Act was one of many repeals which really, in our view, come under the heading of no longer necessary, because they are covered by the provisions of this Bill. The next one which the noble Viscount mentioned was the Admiralty Powers Act 1865, which in Section 6 creates an offence of producing to any person in the service of the Crown a false affidavit, and so on, in support of a claim to any pay, pension or allowance from the Admiralty, now the Ministry of Defence.

VISCOUNT COLVILLE OF CULROSS

Or "utters".

LORD STONHAM

Yes. In our view the offence again is completely covered by Clause 15(1) and the law on forgery, and therefore we think it is proper to make a repeal under this new Bill. The next one was the Pensions and Yeomanry Pay Act 1884, which should in our view be wholly repealed. There, again, we feel it is covered by this new Bill, and therefore the repeal is quite in order. Finally, the Elementary Schoolteachers Superannuation Act, which is a very similar case to the Yeomanry Act, and to which I give the same answer. Certainly not in regard to the first one, not adding subsection(5) of the Forgery Act, but with regard to those last three I will certainly look at them in accordance with the criteria the noble Viscount suggested and see whether there is any longer any need for them; but my advice is that there is not. I think when I write to the noble Viscount about them it may well depend on a difference of view as to what is covered by clauses in this Bill, particularly Clause 15 in this particular field. That is all I can say now.

VISCOUNT COLVILLE OF CULROSS

I am grateful for the trouble the noble Lord has taken. He should not think for a moment that I wish to retain any unnecessary provisions in the criminal law, and if he convinces me that these can go properly I shall be only too delighted. There is nothing between us then;. First of all, he has confirmed what I hoped he would confirm: that is, that where you have something like Section 5 of the Forgery Act, which says "with intent to defraud", that is not meant to be covered by Clause 15 of the Bill. Secondly, he has confirmed that he is not intending to repeal anything to do with forgery so as to replace it in this Bill, although, as it turns out, he is in fact repealing forgery because he thinks it is replaced by the Forgery Act and probably ought to have been repealed by that. That may be so. Those are two things for which I am obliged.

The third one is the one where I believe the noble Lord ought to think again. I do not want him to spend a lot of time on the details; I am more interested in the philosophy. I read Section 15 of the Land Registration Act. I. do not mind whether there has ever been a prosecution; I do not mind whether it is obsolete. At the time it was passed Parliament created an act which was a criminal act, and it involved an intent which is wider—and I insist upon this, unless I am incapable of understanding the English language—than one related to financial gain and loss; it is covered by Clause 19 and that has that criterion. I say this is an example—and it is not the only one I have given in these proceedings—where the old criminal law is being repealed without being replaced. The noble Lord knows these arguments perfectly well and I know he will look at them.

I have suggested to him that there is this choice. I do not mind which way the decision goes, but I would most earnestly suggest to him that he must understand that if you are going to make these repeals you ought to replace them with a criminal law which is as wide, or alternatively explain why not. There has never been any attempt to do that. The noble Lord has said that he takes the view that the old law and the law in the Bill are the same. We have quoted example after example where we do not think it is so, and of course the noble Lord could not explain at that moment because most of those points were new to him and one would not expect him to explain. I hope he will consider this matter because it is one on which I shall insist at a subsequent stage, because I feel we must get it right.

The other course is to narrow the scope of the repeals and have a rather more restricted Bill, and leave these fringe things to be dealt with at another time by another measure. I shall be just as happy with that. What I cannot accept is the failure to replace the existing criminal law. The noble Lord and I will no doubt be having discussions with other noble Lords and I hope this sort of matter will form a great deal of the consideration we shall be giving to this Bill, because I think it is profoundly important. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM: I beg to move Amendment No. 60. The only effect of this Amendment is to make the repeal of Section 64 of the Government Annuities Act 1929 apply to Scotland as well as England and Wales. That section, which penalises personation in order to obtain an annuity, is repealed by the Bill as introduced for England and Wales only (as it is superseded by Clause 15). The section is unnecessary in Scotland, and the opportunity is therefore taken, and I hope the noble Viscount approves, to repeal it for Scotland also. I beg to move.

Amendment moved— Page 28, line 9, column 3, leave out lines 9 and 10 and insert ("Section 64").—(Lord Stonham.)

On Question, Amendment agreed to.

8.40 p.m.

LORD STONHAM

I beg to move Amendment No. 62. This Amendment merely corrects a drafting error.

Amendment moved— Page 32, line 10, column 3, leave out ("(d) and").—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

The noble Lord in a few moments will carry one of the only two Amendments that he has moved in the whole of this Committee stage. I hope I may be allowed to pay him a little tribute from this side of the Committee for the prodigious amount of work that he has done in all of the six days that we have been sitting in Committee here, for the patience with which he has dealt with all the tribulations which have come from this side of the Committee, his unfailing and usual courtesy in dealing with all our questions and, what is so valuable because we know it to be true, his offer to consider later, and if necessary continuously, all the points that we have raised. It is most encouraging for members of the Opposition to have such a response from the Minister in charge of a Bill, and I am indeed most grateful to him.

LORD STONHAM

I am grateful to the noble Lord for his kind references to myself. He will accept from me that I have greatly enjoyed the work, which has taken a little longer than I expected; but he will remember that almost in the first hour I said, "We will give this Bill all the time that is needed." We have done so. We have had great help from the noble Viscount, from his noble and learned friend Lord Dilhorne, and from many others, and I think that we shall have extremely useful results.

On Question, Amendment agreed to.

Third Schedule, as amended, agreed to.

House resumed: Bill reported to the House with Amendments.