HL Deb 08 April 1971 vol 317 cc509-18

3.40 p.m.


My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 4 [Punishment of Offences]:

LORD GARDINER moved Amendment No. 1: Page 2, line 20, leave out ("ten") and insert ("seven").

The noble and learned Lord said: My Lords, I beg to move the Amendment standing in my name and in that of my noble friend Lady Serota. The sole question raised by this Amendment is whether the maximum punishment for the simple unaggravated offence of criminal damage is to be seven years' imprisonment or ten years' imprisonment.

I am sure that, this being the last item before us before we go away for Easter, the House will not complain of any step taken to shorten the proceedings this afternoon. It has therefore been made known to the usual channels that I do not propose to divide the House on this Amendment this afternoon. There is to be another stage to the Bill, and I understand why the Government wish to complete this stage before we go away. Secondly, my noble friend Lady Serota has asked me to apologise for the fact that she has been unable to remain, the preceding item having taken longer than was, I think, anticipated. But again the House will not complain of one speech rather than two, I am sure.

When we adjourned the discussion of this point on the Committee stage of the Bill there were really two outstanding points. First, it being agreed that my noble friend and I were not seeking to reduce the present penalties for these offences, and that the Government were not seeking to increase them, I found it difficult to believe that the right honourable gentleman the Home Secretary, whom we all know to be so reasonable, had realised when he stuck to his ten years that the Home Office themselves had been unable to find any case in the five years covered by the Law Commission's Report in which any sentence of more than seven years had been imposed. Therefore the noble and learned Lord the Lord Chancellor was good enough to say that he would consult further with his right honourable friend, and no doubt he will tell us what the response to that has been.

The second point was simply this. I was puzzled, on reading the Report of the Law Commission, to observe that they did not tell us whom they had consulted, but in Appendix B they gave a list of individuals and organisations under the heading of those who had offered comments on the Working Paper. Obviously a very material body to consult was the Advisory Council on the Penal System, which appeared in that list, with afterwards, in brackets, the word "consultant". It being the understanding of my noble friend and myself that they had not in fact been consulted, I put down a Question for Written Answer asking to what individuals and organisations the Law Commission had sent their Working Paper. That Question was duly answered, and we saw that the Advisory Council on the Penal System was not one of them.

It was in this confusing state of affairs that, at the Committee stage of the Bill, the noble and learned Lord the Lord Chancellor, in his reply, said that the Advisory Council on the Penal System was consulted on the paper as a whole. My noble friend tells me that she has since then received a letter from the noble and learned Lord the Lord Chancellor saying that this was not accurate. What I understand to have happened is simply that one member (I think the chairman of a sub-committee) was personally consulted, but that neither the Advisory Council nor its sub-committee was consulted; and I think the only consultation with the individual was on the compensation clauses. This raises a question as to whether this is just the usual muddle between the Lord Chancellor's Office and the Home Office. Your Lordships may remember that on the same day that we discussed this matter in Committee we also had an interesting discussion on which Minister was responsible for the state of the law.

I would venture to ask again a question which I asked then but to which I did not receive an answer and that is, what happened to the unanimous recommendation of the Estimates Committee: That the Home Office and the Treasury, in consultation with the Lord Chancellor's Office, should take immediate steps to reorganise the present division of responsibility between those Departments?

That was the result of their finding a state of muddle. I asked the noble and learned Lord, the Lord Chancellor, to say, when he replied, whether that recommendation was ever carried out; whether a meeting with the Treasury took place and, if so, what reorganisation there was.

It is curious that we should have had an example so soon to illustrate what I was saying. What I understand has happened is that although the Advisory Council were one of the first, most obvious, bodies to be consulted in the matter now before the House—a body much more important to consult, I should have thought, than the Parliamentary draftsmen of Northern Ireland or the Law Reform Committee of South Australia—the Law Commission apparently did not like to consult them because the Law Commission, in a sense, come under the Lord Chancellor and the Advisory Committee under the Home Secretary. If that is so—it is really an absurd position—one wants to know what is to happen in the future.

I speak with personal knowledge of this matter because I remember a speech by my right honourable friend Mr. Roy Jenkins, when he was Home Secretary, saying that the Law Commission were going to codify the criminal law. As the noble and learned Lord, the Lord Chancellor, knows, no Minister has any right under the Law Commissions Act to tell the Law Commission what they are to do. They are an independent, statutory body who put up their own programmes of law reform. I had to ask them whether they would be good enough to include this subject in their next programme, which they did, and I was then able, on behalf of the Government, to approve the programme.

It shows an extraordinary state of muddle between the Lord Chancellor's Office and the Home Office if the Law Commission are going to take the view that although they were carrying out this programme of codification of the Criminal Law, so to speak at the original suggestion of the Home Office, because they report to the Lord Chancellor they cannot ask the valuable opinion of the Advisory Committee on the Penal System because that body comes under the Home Secretary. I still feel that it is a very simple point. I still feel that as the Government agree that they do not want to increase the penalties for these offences and I do not want to decrease them, and as the fact is that the Home Office, with all their resources, have not been able to find one single case during those five years in which a longer sentence than seven years has been imposed, that figure of seven years is the one which ought to appear in the Bill, rather than ten. I beg to move accordingly.

3.48 p.m.


My Lords, I am grateful to the noble and learned Lord for the succinct way in which he has moved this Amendment. As he told the House, on Committee I promised to consult my right honourable friend again, without commitment, because, as I explained to him, we had spoken about it twice, once after the Second Reading and once prior to the Committee stage when the noble and learned Lord and his noble friend put down the Amendment, but each time we came to the same conclusion. From every personal point of view I am sorry to say that my right honourable friend adheres to his decision about the maximum, because it is in line both with the considered opinion of the Law Commission, which was arrived at after consultation—and I told the Committee some time ago, on the Committee stage, how very weighty the figures were who had warned the Law Commission about the inadequacy of the seven-year maximum—and because of the fact, too, that it is in tine with the maximum penalty which the noble and learned Lord himself imposed for theft under Section 7 of the Theft Act 1968. It is in fact a part of the policy of this Bill to standardise maximum penalties as between offences inside the scope of the Bill and with comparable offences.

As I explained to him, and as probably he will accept on reflection, when you are putting a maximum on a penalty you deal with every conceivable case, and not only with a likely case, and you probably leave a margin above that. It simply is riot the case that courts, in practice, impose the maximum at all often—indeed I believe they practically never do in cases where there is a term of years. Where the maximum is life, life is sometimes imposed, and the matter k left to the Parole Board and to the prerogative to reduce the sentence after part of it has been served. I can never recollect a case of my own in which a maximum terms of years was imposed. No doubt they do exist, but they are very rare. My right honourable friend has adhered to his decision, and for the reasons that I gave before I personally agree with him, although it gives me some lack of satisfaction to have to disagree with the noble and learned Lord.

I am sorry about the misinformation I gave to the noble Baroness, which I put right as soon as I could when I was aware of it. It did not occur as a penalty of any muddle, as the noble and learned Lord put it, between my office and the Home Office. I was then, was I am now, speaking on behalf of the Home Office on a Home Office Bill. I was being served by Home Office officials when I gave the information, and the information came straight from the Home Office without going through my office at all. As noble Lords who were present at the Committee stage probably saw, I was asked a question by the noble Baroness, and the message came from the Box and I read it out. However, I am sorry it was not accurate. I will convey to my right honourable friend what the noble and learned Lord says about the advisability—and what the noble Baroness has conveyed to me privately—of consulting the Advisory Committee on Penal Treatment on matters of this kind. My impression is that they are concerned with broad questions of penal strategy and not with the more limited question of how you relate a statutory maximum in one set of offences to another, However, I fully appreciate that there is much to be said in favour of it.

As I understand it, in the first place they were consulted about the compensation aspect, which was a matter at that time occupying their attention. I think it is true to say that Lord Justice Widgery was shown the general result at a much later stage, and probably the individuals of the Committee were never individually consulted. At any rate, I will convey what the noble and learned Lord says about that. He also asked me a question about the Select Committee, which I regret I did not answer specifically when I came to reply to his Unstarred Question. Certainly in the few months that I have been Lord Chancellor nothing further has been done since the Select Committee's Report. I think that I can confidently say that without making a mistake. On the other hand, equally, according to my information, nothing was done during the three years after the Select Committee reported and during which the noble and learned Lord himself was Lord Chancellor. Therefore, each of us bears whatever burden of guilt there is in that proportion.

I realise that this is a matter for further discussion. I did not pretend to be dogmatic on the subject of the division of responsibilities in criminal law when I replied to the Unstarred Question. I dare say that the noble and learned Lord will realise how I feel by what he must have felt himself when he was sustaining the same burdens in much the same circumstances. At all events, I am sorry not to gratify him, but I am afraid that the answer is still, No.


My Lords, I hope that for the future the noble and learned Lord the Lord Chancellor may think fit, with his right honourable friend, to take steps to see that the Law Commission do feel free, in a proper case, to consult the Advisory Committee, because it would be too absurd that they should feel compelled to refrain from asking somebody who can give them advice in a proper case merely because they come under one Minister and the Committee come under another Minister.

I am sure that my noble friend Lady Serota will wish to consider carefully what the noble and learned Lord the Lord Chancellor has said, and I shall want an opportunity of discussing the matter with her to see whether or not we should revert to this point on the Third Reading of the Bill. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


My Lords, I think there may be some misunderstanding, because, as I understand the position, the Standing Order has been suspended and my intention had been to move the Third Reading of the Bill now. I do not know whether the noble and learned Lord. Lord Gardiner, will make some observations on that.


My Lords, I looked very easefully, and the Third Reading appears on the Orders of the Day for to-day, though, curiously enough, the last issue of our printed Minutes stated, "Report stage". But if the Government are particularly anxious—I think it unlikely that we should desire to revert to this matter on the Third Reading of the Bill—and the noble and learned Lord wishes to take the Third Reading to-day, I shall not oppose him.


My Lords, I am much obliged to the noble and learned Lord. I now have to call the second Amendment, standing in the name of the noble Lord, Lord Henley, before I reach that stage.

Clause 10 [Interpretation]:

3.57 p.m.

THE EARL OF CRANBROOKmoved Amendment No. 2: Page 5, line 23, leave out ("or tree").

The noble Earl said: My Lords, on behalf of the noble Lord, Lord Henley, who has asked me to say that, most unfortunately, he is unable to be present this afternoon, I beg leave to move the Amendment standing in his name.


My Lords, I am very grateful indeed, both to my noble friend Lord Cranbrook and to the noble Lord, Lord Henley, for raising this matter now, because I promised to look at it again between the Committee and Report stages. If I may revert to the problem in the form in which it was originally put to me, it revolves around the definition of "property" in Clause 10 of the Bill. My noble friend Lord Cranbrook expressed anxiety as the matter was left at the end of the day, particularly in relation to trees—he having previously discussed the question of plants and flowers—and I promised to look at the matter again.

The particular problem which occupied his attention was the question of self-regeneration, and I told him provisionally that it was my opinion that self-regenerated trees and saplings, growing inside a plantation or a stand of timber which was being properly looked after—not just being allowed to drift, as one might say—would not be growing wild within the meaning of this clause. I hold that view even more strongly today, because, if timber is being, properly afforested, it is, as I think the noble Marquess, Lord Salisbury, pointed out, a crop and any tree of the same species is part of the crop. Of course if a weed tree—say, an elderberry or something like that—sowed itself in such a plantation, it would be growing wild within the meaning of the clause. But I am quite sure, in my own mind, that if it is part of the crop it is not growing wild within the meaning of the clause.

However, I then proceeded to think of the awful possibility that I might be wrong, and I considered the matter further in the light of that possibility; because no lawyer who has any sense retains very long his belief in his own infallibility. I have now been a lawyer for forty years, so I do not retain any belief in my own infallibility. It then occurred to me, quite plainly, that the problem is an unreal one, and it is an unreal one for this reason. What the exceptions to Clause 10 cover in the definition of "property" is neither a tree nor an ordinary plant on which flowers grow. They are property and they are protected by the Bill; they are not covered by the exceptions.

In other words, if you destroy a tree or a plant, or damage a tree or a plant, you are committing malicious damage if you do it maliciously, or, as we now say, criminal damage if you do it criminally, within the meaning of the clause. What is not protected is the foliage of a tree—that is to say, its leaves, its fruit or its flowers—and the same applies to a plant. If you damage, for instance, a crabapple, you are not committing malicious damage, although if you damaged a cultivated apple in an orchard you would be. Quite clearly, if you damaged a plant or a tree by tearing off (to take the example of a plant) all its leaves in such a way that it was seriously damaged or even killed, you would be destroying the plant and not merely destroying the foliage; you would be damaging the plant and not merely damaging the foliage. Therefore, to that extent the problem does not arise.

If I may apply that second point to the point which was specifically raised by my noble friend, I think the simple answer to the question is not the more difficult answer that I gave on Committee about its growing wild, which I concede is something about which I might conceivably be wrong (although my own opinion actually coincides with the advice I have received from the experts), but that damage to a sapling of that kind would be damage to property and would not be simply damage to the foliage, damage to the fruit or damage to the flower, and therefore it is already covered by the Bill whether the sapling is growing wild or whether it is not growing wild. I feel fairly confident that this simpler answer is the true one, and that therefore the Amendment is not necessary. I was perhaps making it too difficult on Committee by trying to tackle the point at the more complex base upon which it had been put to me. I hope that that reassures people who are genuinely concerned about the protection of property from vandalism. I think myself that the Bill as drafted is adequate without the Amendment, which would omit the word "tree" from the exception; and with that assurance my noble friend may probably be able not to press it at this stage, because I really think I have gone a long way to reassure him.


My Lords, my mind is now in a maze. I can see much profit to lawyers in the future, because as I understand what the noble and learned Lord has said it would be an offence to pick a daffodil right down by the bulb because then you would be taking part of the plant itself, whereas if you chopped the flower off at the top it would not. I can see some pretty pickings for the lawyers in the future if that sort of thing is going to be the subject of litigation even in petty sessions. But having had the assurance from the noble and learned Lord, even if I do not quite understand his assurances, that my apprehensions are not well founded, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Then, Standing Order No. 42 having been suspended (pursuant to Resolution), Bill read 3ªand passed, and sent to the Commons.

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