HL Deb 15 March 1971 vol 316 cc246-67

3.8 p.m.


My Lords, I rise to move that this Bill be now read a second time. I must make it clear that in doing so I am speaking, at any rate this time, not formally as a Departmental Minister. Criminal law is the province of the Home Office and this is a Home Office Bill. It is, however, the product of the work of the Law Commission, and as such it takes its place with the Theft Act 1968, which resulted from the work of the Criminal Law Revision Committee, as part of the, general process of revising our criminal law with a view ultimately to codification. It was explained in one of the earlier Reports of the Law Commission that this process of gradual revision, however laborious it may seem, is a necessary preliminary to codification. As the contents of the Bill are largely technical, it was thought more for the convenience of the House that I should move the Second Reading rather than my noble friend Lord Windlesham, and I hope that this procedure meets with the convenience of the House.

The Bill as it is drafted at present differs only in small particulars from that recommended by the Law Commission—and may I pause here again to render my thanks to them in the work they have carried out. As the title of the Bill, implies, its purview is the law relating to criminal damage to property. The review of the law by the Law Commission reveals that it is in an extremely complicated and unsatisfactory state. The principal Statute involved is the Malicious Damage Act 1861 (though there are many others), and one of the principal objects of the Bill is to remove all but six sections of the Act of 1861 from the Statute Book and to substitute for its provisions a code and classification essentially different, and far simpler, in form.

The scheme of the Act of 1861 which it is proposed to abolish contains a very large number of different offences with differing penalties for each, depending on the type of property damaged, the method of damage employed, the status of the offender and the amount of damage done. From the Appendix to Archbold's Criminal Pleadings and Practice I culled a list of about thirty different statutory offences, under diverse Acts, relating to a wide variety of valuable objects; including tomb stones, hackney carriages, gas-lit street lamps and Westminster Bridge.

My Lords, the results of this "Hampton Court maze" were often tiresome and occasionally bizarre. For instance, the maximum penalty under Section 19 of the Act of 1861 for damaging hop-binds seems to be 14 years; and under other provisions the maximum penalty is life for damaging any article of silk. On the other hand, under Section 39, for damaging works of art or manuscripts in a museum the penalty is only six months. There is a considerable overlap of offences, both within the Act itself and also between offences created by the Act and offences created at common law or by other Acts of Parliament.

One of the main virtues of the Bill now before the House is that it simplifies the code and rationalises the penalties. This operation is all the more valuable because since 1861 the development of the law has meant that most of these offences will come up for final determination at petty sessional level. The Bill—and this is the nub of the matter—creates two main offences. The basic offence, as I may call it, appears in Clause 1(1), of intentionally or recklessly destroying or damaging another's property without lawful excuse; and under subsection (2) the aggravated offence, as I may call it, of damaging property with the intention of endangering life, or with reckless disregard of the possibility of endangering life. In each case the importance of the property, the degree of danger, the motivation, and so forth, are best differentiated—as in most other criminal cases—at the stage of sentence rather than conviction.

My Lords, by reading the accounts in some newspapers when the Bill was published one would not, I think, have gained the impression that this was a relatively modest measure of law reform. I think one would have thought that very new and draconian penalties were being introduced. The Bill was publicised as being a measure against hooligans and so on. This is absolutely not so. I would not expect sentences to differ—except perhaps marginally, but I think not at all—in either direction; either in the degree of greater severity, or less severity, than they are now.

Most of the charges under Clause 1(1) will be dealt with of course at petty sessions, as I have no doubt many are now, and by other legislation the jurisdiction of the magistrates' courts is limited to the imposition of a sentence of six months' imprisonment or a fine, in this case of £400. The maximum penalties on indictment sound extremely heavy; life for the aggravated offence, or damage by fire: ten years in other cases. But this is so simply because if you simplify the code and reduce about thirty different offences to two offences, each statutory offence would cover a wider spectrum of different criminal acts than if you had the thirty different offences. For instance, if you have damage to property under the basic offence, it may cover breaking a window pane, or it may cover blowing up an entire oil refinery. Between these two acts of crime, obviously, very different penalties could be contemplated.

Despite the somewhat dramatic newspaper headlines which I have read, I would not expect actual sentences to be increased or diminished when and if the Bill becomes law; except that, as I hope, additional use will be made of the power to award compensation, to which I will come in due course. Therefore the Bill is not the sensational or draconian measure which some newspapers led one to believe.

The expression, "without lawful excuse", occurring in Clause 1 and other clauses of the Bill, is defined or extended in Clause 5 as to the designated basic offence. This is designed to take the place of the confusing and imprecise expression in the traditional law which, as your Lordships will remember, employed the phrase. "unlawfully and maliciously". What the new definition really amounts to is either the existence of a lawful excuse as defined, or the honest belief in facts which would give rise to the existence of a lawful excuse and remove an action from the purview of the criminal law. I do not think I need elaborate on this. The language is new, but basically it follows established principles of criminal responsibility.

Clause 2 deals with threats, and it makes comprehensive provision to deal with all threats of damage to property. In order to take half-jocular threats out of the criminal law it is provided that, to be criminal under this clause, the threat must be intended to be taken seriously. The previous restriction, which was limited to written threats, is removed. I think your Lordships will agree with that a threat by telephone may be every bit as terrifying as a threat in a letter. So also is removed the curious limitation, contained in Section 50 of the principal Act, to certain types of property. The threat need not be to the property of the person receiving the threats; it can be to the property of a third party. Or where the threatened action could endanger another person's life, the threat can even be to the property of the utterer of the threat.

Clause 3 deals with the possession of any articles with the intention to use them for the purpose of the commission either of the basic or of the aggravated offence. While the possession of explosives remains an offence under Section 4 of the Explosive Substances Act 1883, there are, unfortunately, other articles which might be used, or adapted to be used, in committing acts of criminal damage. These will be covered by the present clause. Here, of course, the intention is the essential element in the offence. Clause 4 is the penalty clause which I have already explained. As I have said, or at any rate implied, it deals only with offences tried on indictment. The Summary Jurisdiction Acts limit the jurisdiction of magistrates to trying the offences summarily.

Clause 5 defines lawful excuse. Clause 6 permits search, but only on a warrant from a magistrate. Clause 7, which does not extend to the aggravated offence, gives summary jurisdiction to magistrates' courts for the basic offence. Clause 8 is of some importance, and I hope that it will be widely used. It marks a new departure in the law on compensation and it is in line with the pledge that we made in our Election Manifesto, that a criminal who damages property should be obliged to compensate his victim. With minor exceptions, existing powers to order compensation may be exercised only on application by the aggrieved party, and are subject to a maximum of £400. The present clause empowers all courts, of their own motion, to order compensation for acts of criminal damage to be paid by the offender. A higher court may order a sum limited only by what the court thinks right; on summary trial this will be limited by other legislation, as I have said, to £400.

This clause is in accordance with the recommendation of the Home Office Advisory Council on the Penal System as the result of a sub-committee under Lord Justice Widgery, as he then was—Lord Chief Justice Widgery as he will shortly become.

My Lords, Clause 9 deals with answers to interrogation made in civil proceedings. The objection to self-incrimination is abolished in the case both of the person interrogated and also of his or her spouse. Answers to such ink interrogation will not be capable of being refused; but, in compensation for that, the answers will not be capable of being subsequently used in evidence in criminal proceedings. Clause 10 is the main interpretation section. The definition of "property" does not include wild animals while still wild, or the flowers or foliage of plants growing wild. Subsection (2) defines the property interests protected.

Clause 11 deals with changes in the existing law consequential on the main purposes of the Bill. Subsection (1) abolishes arson as a substantive offence. This matter is now dealt with by the penalty clause, Clause 4. I recognise that the arguments for retaining the specific offence of arson are not negligible, as the Bar Council have pointed out; and while the Bill makes special provision for the punishment of offences where fire is used, it may be that some noble Lords will wish to give further consideration to the best way of dealing with the problem. I would, however, point out that fire is not by any means the most dangerous method of destroying things nowadays. We have had the recent example of my right honourable friend Mr. Robert Carr's house, where explosives were used. I cannot for the life of me see why fire as a particular method cannot be dealt with in the ordinary course under the sentencing provisions rather than under the substantive offence. However, as the Bar Council take another view, I must of course take the criticism seriously, and I will do so.

Your Lordships may be interested to note that subsection (2) of CIE use 11 abolishes the separate capital offence relating to dockyards, so that we have incidentally done away with one of the few remaining capital offences. But there has been no prosecution under this Act since 1777, and perhaps the practical difference to the law is not as great as might be supposed. I do not think that there is anything else in this clause calling for separate mention.

Clause 12 is technical. Your Lordships will see that the Bill in general does not extend to Scotland or Northern Ireland, and it is framed to come into force automatically three months after Royal Assent. I beg to move.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)

3.22 p.m.


My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for his clear exposition of this rather complex Bill. I agree with his comments about the extent to which this Bill has been misrepresented in some of the newspapers. As your Lordships know, I have always encouraged the Press to give us more criticism of justice and its administration than we have had in the past. I have said before that I always recognised that some of the criticism would be misplaced—this is part of the penalty that we pay for having, so rightly, a free Press. But headlines like, "Life imprisonment for vandalism", gave people the impression that if somebody now damaged a telephone box he was liable to a life sentence. There never was anything in the Bill to justify a number of the headlines that I saw in the Press.

If I stress this point, it is because I rather think that some of my noble friends may have obtained the impression from the Press that this was part of the Conservative Government's law and order campaign, and was the usual process of a Conservative Government wanting to impose swingeing penalties for crimes against property rather than crimes against people. Therefore, in fairness to the Government, I must make it plain that, although this is, technically, a Government Bill, it is really a Law Commission Bill, which has been put forward for the greater simplification and clarity of the law. It is, I think, an answer to anyone who asks: now that we have had so much law reform in the last six or seven years, can there really be anything left to do? There is in fact a great deal still to do, and this Bill is a classic example.

As your Lordships may see, in paragraph 9 of the Law Commission's Report, they say: The principal Act exhibits a variety of methods of classification of offences of damage to property, for example, by the type of property damaged and by the means used. Other offences of criminal damage are to be found in a number of other specific statutes. There is, therefore, much overlapping of offences, both within the framework of the principal Act, and between those in the Act and other offences. If one confines oneself entirely to the principal Act, one sees that there are 13 sections providing for offences and punishment for damage to buildings and their contents; 2 concerned with goods in process of manufacture, and machinery; 8 with corn and trees and vegetable products; 1 with fences; 3 with mines; 2 with damage to sea and river banks and works on rivers and canals; 32 with ponds; 2 with bridges, viaducts and toll bars; 3 with railway engines or carriages and telegraphs; 1 with works of art; 2 with cattle and other domestic animals; 3 with ships; and 2 with sea marks, wrecks and wrecked goods. Then there are provisions covering the amount of damage done, such as destroying or damaging trees, shrubs—to the extent of more than £1 in a garden, and so on. There is another of destroying or damaging trees, shrubs, et cetera to the extent of more than £5 outside a garden; or destroying or damaging trees et cetera to the extent of 1s. or more anywhere. It is high time that this law was rationalised.

The first question the Law Commission had to ask themselves was: do we really need more than one offence of unlawfully damaging somebody else's property? The Law Commission came to the conclusion, I think rightly, that some attempt ought to be made to separate the most serious cases. I agree with them that fire is a serious offence, whether one calls it arson or not. But the aggravated offence is that of damaging buildings with the intention of endangering life, or being reckless whether or not life is in danger. The House may feel that that provision is a sensible one.

I agree with the Law Commission's definition of "property", and their proposals about threats of criminal damages. I welcome the fact that they have greatly simplified the present complex legislation as to the mental element involved in this offence. The provisions as to jurisdiction were unnecessarily complicated. Some of the different offences involving fines have for no apparent reason been triable only on indictment; some only in a magistrates' court, and some in the magistrates' court with the consent of the accused. All this is now simplified. I agree that the Commission were right to recommend that we should get rid of ouster, the general effect of which was that if a dispute of title was in a sense part of the offence the magistrates could try it, but a dispute of title which was peripheral to the offence put the matter outside their jurisdiction. That is now got rid of.

I greatly welcome the provisions for compensation. I have long thought that if somebody steals another person's property, or damages it, the most natural form of punishment is that he should be compelled to work a little harder and live at a slightly lower living standard until he has paid back the person who has suffered the injury. We do not, I believe, as a whole, think enough of the circumstances of the victims of the crime, and I very much welcome the provisions for compensation.

That leaves me only with the question of penalties. Here there are two maximum penalties. First, where the accused deliberately or recklessly endangers life, and where fire is used, the maximum is a sentence of life imprisonment. For all other cases there is a maximum sentence of ten years' imprisonment. I would respectfully agree with the noble and learned Lord the Lord Chancellor that, while fire has to be regarded separately in this respect, when it comes to sentencing, it does not really matter whether the word "arson" is retained or not. Some noble Lords are, I know, not happy about the necessity for having a sentence of life imprisonment. I naturally welcome the fact that in this Bill capital punishment is being abolished for what I think a number of people do not know is still a capital offence; namely, setting fire to ships in Her Majesty's dockyards, or damaging certain machinery, and so forth, in the possession of the Minister of Technology. The noble and learned Lord the Lord Chancellor has intimated, I think, that the only reported else since the date of the Act was a case in 1777, and I am glad we are now getting rid of that.

The question whether a sentence of life imprisonment is really necessary is a Committee point, and any noble Lord will be entitled to move any Amendment he chooses when we come to the Committee stage of the Bill. The other cases are provided for by a limit of ten years imprisonment. I think this is wrong: ten years is too high; it ought not to be more than seven years. This also being a Committee point, I should in the ordinary way, having intimated that, have left it. But with your Lordships' permission I should like to say a few words about it, because I am hoping that there may be some response from the noble and learned Lord the Lord Chancellor at the conclusion of this debate.

The Law Commission, in the usual way, sent to those whom they thought ought to be consulted a working paper, and the working paper on this point suggested a maximum sentence of seven years. This period of seven years was not obtained by the Law Commission out of their heads, or out of the air. They did their usual careful examination, and found that out of the 1½ million convicted according to Criminal Statistics the number of offences of malicious damage amounted to about 18,500 a year, which one may contrast with about 200,000 for stealing and breaking and entering. The Law Commission examined all the maximum sentences which had been given for each of the last five years, the ages of the accused and so forth. In paragraph 7 of their Report they say: We appreciate that care is necessary in drawing conclusions from these statistics, but the following inferences seem to be clear: (i) Offences of malicious damage account for about 1.3 per cent. of the total offences, compared with stealing offences which account for about 12.5 per cent. (ii) The great majority of malicious damage offences are dealt with by magistrates' courts. (iii) There are few, and only a few, cases which call for heavy sentences of imprisonment. (iv) Malicious damage offences are very prevalent among juveniles, particularly among the younger age groups, and in the case of arson well over half of all persons convicted are under 2!. Why did they say seven years? If one takes a typical year, and 1967 seems to be a typical year, one finds that out of the 18,500 cases, 18,000 were dealt with in the magistrates' courts—they are not relevant for our purpose of considering a seven-year or ten-year sentence for the worst cases—and only about 500 on indictment. They looked to see how the 500 were dealt with. In this typical year it was found that the numbers were as follows: absolute discharge, 2; conditional discharge, 17; Mental Health Orders Act 1959 orders, 35; probation, 84; fined, 50; detention centre, 17; borstal training, 40; imprisonment, 170. The Commission then sought to ascertain how many out of the 170 sent to prison had been sentenced to more than seven years' imprisonment. The answer is that for the last five years they examined there was an average of only five, and those included all the danger to life cases and all the arson cases, for which the maximum sentence under the Bill would be imprisonment for life.

It looks very much as if during the last five years probably nobody, except in the case of arson or in the danger to life cases, received a sentence of more than seven years. And if so, why do we want it? In their final Report, the Law Commission, instead of, as in the working paper, recommending a maximm of seven years, have increased this to ten years. The only reason they give is that that is what most of their commentators recommended. I have often said that one of the most useful features of the work of the Law Commission is the extent of their consultation. To show how wide their consultations are, I have sometimes read to your Lordships lists of the people they consulted. I am sure that if law reform is to be done, it must be properly done, and that the extent of consultation by the Law Commission is one of the most valuable features. Usually they put into an Appendix or Schedule a list of the persons to whom their working paper was sent—the people consulted. Sometimes, instead of doing that, they put in only a list of those who replied—the commentators. In this case that is what they have done; all we know is who replied. It is an Appendix headed, "Those who have offered comments on the Working Paper".

It begins with 13 individuals. I am quite sure that it is right that people like the Recorder of Manchester or Liverpool, prosecuting counsel at the Old Bailey, and so on, should be consulted, but I have two comments to make about this list of individuals: first, they are all lawyers; secondly, they are all men. Surely on a question of sentencing lay opinion also matters, and we are sometimes in danger of forgetting that when men are sent to prison they are not the only people who are punished, and in the case of a man sentenced to a long term of years of imprisonment the only reason why his wife and small children do not starve is because of the money provided by the State. This is a matter on which women also might have some views.

This makes it all the more important to see which are the organisations they consulted. The organisations are these: the Home Office (including consultations from time to time); the Parliamentary Draftsman, Northern Ireland; the British Insurance Association; the Justices' Clerks Society; the Law Council of Australia; the Law Reform Committee of South Australia; the Law Society; the Institute of Legal Executives; the Magistrates' Association; the Advisory Council on the Penal System (consulted); the Solicitor to the Metropolitan Police and the Association of Chief Police Officers of England and Wales. If I may say so, I am not clear that this is up to the Law Commission's usual form.

Of course it is proper to consult the police. The Magistrates' Association might in a sense be said to be a lay body, although it is a very well informed one. Obviously their comments ought to have been invited. It is not really so much use asking the Magistrates' Association about long sentences varying from seven years to ten years, because their field lies mainly in summary jurisdiction. With that exception, the only other lay body consulted at all was the British Insurance Association who may, rightly or wrongly, feel that they have a financial interest in seeing that penalties are kept high, rather than low. Whether it was necessary to consult the Law Reform Committee of South Australia I do not know. But where are what I might call the informed lay bodies, the Howard League for Penal Reform, the Institute for the Study and Treatment of Delinquency, the National Council for Civil Liberties? In the case of the Advisory Council on the Penal System, I do not understand the word "(consulted)" which is in brackets.

The Appendix is headed, "Those who have offered comments on the Working Paper". If we get to the Committee stage, there are certain questions which I hope the noble and learned Lord, if he cannot answer to-day, will be able to deal with then. The Commission sent out a list of the few cases in the last five years, including the more serious cases of danger to life and of arson, where a sentence of more than seven years' imprisonment has been imposed. Am I right in thinking that they were probably all arson or danger to life cases? Secondly, may we at some time have a full list of all the organisations which the Law Commission consulted? Because if you send to a number of people a document the effect of which is, "Do you disagree with our proposals, one of which is a maximum of seven years imprisonment for these offences? "it is inevitable that those who do not agree will write and say so, whereas the tendency for those who do agree is to let the matter go. Therefore, one would also like to know who were the people who thought that seven years' imprisonment was not enough, and their grounds. The Report itself gives no grounds at all. The Commission merely say that they altered their minds from seven to ten because that was what most of the commentators said.

I do not think I have had occasion before to criticise anything which the Law Commission have done. I am not in any way blaming Her Majesty's Government for not having gone into rather more detail on this point. But to-day, when all our prisons are crammed to bursting, and when so many thousands of prisoners are sleeping more than one to a cell, I doubt whether this is a sensible time to encourage the courts to impose longer and longer sentences, unless such sentences really are necessary. Of course, if one asks the lawyers, "Do you favour a higher figure or a lower figure?" then, human nature being what it is, there may be a disposition for them to prefer to have more power rather than less. My Lords, I will not say anything more on the point now. Subject to that exception, I warmly welcome the Bill.

3.42 p.m.


My Lords, I would begin by agreeing absolutely with the noble and learned Lord on the Woolsack and with my noble and learned friend that the Press reception of this Bill was ridiculous, and I do not wish to speak from that angle at all. I have chiefly risen to my feet to support what I knew my noble and learned friend was going to say. He has said it so fully that there is practically nothing I need add over the question of seven rather than ten years for the first or simple offence. Everybody is in full admiration of the Law Commission's work, and the consolidation of these manifold offences is clearly to everybody's advantage.

I want to say only this about the question of seven or ten years. When the Law Commission took advice from the people they consulted, did they receive any reasons for ten years rather than seven? I do not believe there are any. My own belief is that seven years is a very long sentence indeed. I do not believe that any man, before he commits a crime, ever pauses to consider whether the maximum sentence is seven years or ten, so the deterrent effect to the criminal is nil. It may be that there is a kind of newspaper effect, but, if so, I should like evidence of it. If the Government accept the increase to ten years, when a certain number of very respected figures have proposed seven, they are missing an opportunity to put their weight on the side of reason as opposed to prejudice. This is not the place for an elaborate philosophical discussion on this pint and I shall say no more on it. My noble and learned friend made an exhaustive and, to me, unanswerable case and I hope very much that this question may be looked at again.

I want to raise one other point which I think is not a Committee point but a Second Reading point, which is why I feel I must bring it up now. The third type of sentence and defence that is described, which is for the aggravated offence, few people will quarrel with. It is in effect said that the offence is equivalent to the attempt to murder, and that "life" is clearly an appropriate sentence for that within our present understanding. The offering of a sentence of life imprisonment for damage to property through fire, as a maximum sentence, puts me in a very difficult position, because I believe with a good deal of keenness in indeterminate sentences. On the other hand, I do not think indeterminate sentences will do without certain other things being done with them. It seems to me that there is a tendency in modern legislation to slip in life sentences without at the same time slipping in the necessary background which makes sense of them. The Law Commission give some weight to the first argument, which is that damage by fire, particularly to buildings and stacks, is an offence which has always been regarded with abhorrence. I do not think that this is a very strong argument for sending a man to prison for life. But the second argument which they give is much more persuasive. It is that many people who do this are mentally unbalanced and in need of treatment; yet they frequently do not qualify as being unbalanced enough to come under Section 60 of the Mental Health Act and be put in Broadmoor or somewhere like that. This is a common dilemma for people dealing with offenders.

The correct answer, I have always thought, which I expressed in this House not long ago, is that the judge should conduct the trial, should find the man guilty, and should give him a minimum sentence to mark the punishment or guilt; but that after that minimum sentence is served it should be up to the authorities looking after the man to decide when he comes out. That is exactly what life imprisonment amounts to to-day, except that at the moment there is no minimum sentence, apart from cases of murder about which I believe there is a convention. If a man is going to be sentenced to imprisonment until he gets better, that is something quite different from sentencing a man to a fixed term, and involves sending him to a place where he can get better and where all the necessary arrangements are made to ensure that he does.

The only point of my intervening today—because this is not a debate on penal reform—is that here we have in a Law Commission Report embodied in legislation the specific recommendation that the life sentence should be used for somebody who is disturbed because he can then be kept in custody until he is fit to go out. I wish to state simply that there is a great tendency of Government to deal with the easy part of legislation without the difficult part. I trust my noble and learned friend will not mind my saying that I think my own Government did this over the implementation of the Payne Report. I am anxious that we should not slip into a system of indeterminate sentences without providing the proper safeguards to ensure that such sentences make sense. I believe that this is a Second Reading and not a Committee point and, having made it, I commend the Bill to your Lordships.

3.48 p.m.


My Lords, it is with some diffidence that I intervene in a debate which hitherto has been confined almost entirely to noble and learned Lords who are learned in the law or penologists, to raise what I am afraid is fundamentally a Committee point. However, I should like to give the noble and learned Lord the Lord Chancellor some time to think it over. If a layman may express an opinion, I welcome this Bill, particularly because it made me look at the principal Act of 1861, which, as the noble and learned Lord who sits on the Woolsack explained, gives us a remarkable list of the habits to which some of our ancestors appear to have been addicted, or at least habits which other of our ancestors thought their fellow countrymen were addicted to; and I found it very interesting reading. But, in marked contrast to that, this Bill does not specify in so many words that to slash railway carriage cushions, or to set fire to university accommodation rooms, is illegal. It is only when we come to the point which I want to raise that our descendants will have any idea of the kind of habits which some of us have, as we have been able to learn from the 1861 Act the habits of some of our ancestors.

Only in subsection (1) of Clause 10, which defines "property" as excluding the flowers, fruit and foliage of any plant, shrub or tree growing wild, is any question of property defined, and I think our descendants will see that we are apparently prepared to leave our countryside totally unprotected against vandals whereas we are prepared to protect our railway carriage cushions, although they are not actually specified in this Act; and I suspect that our descendants, who surely will have had to take some trouble to protect our countryside, will be amazed that we are prepared to let this go by default.

I should like to draw the attention of the noble and learned Lord to the fact that trees are excluded for the first time. They are specifically included in the 1861 Act. They are included in the Theft Act, whereas plants are excluded. In these times trees growing wild are of fundamental importance to foresters. They rely far more than did our ancestors in 1861 on the natural regeneration of our woodlands by trees which are naturally grown from seeds and are wild and are not to be protected in any way. I have no doubt that if, between now and the Committee stage of the Bill, the noble and learned Lord were to consult with the Forestry Commission he would find that they would regret this aspect of the Bill.

Those of us who are keen on the countryside and its beauties regret this exclusion for the same reason. One thing which we are missing more than anything else to-day is the hedgerow tree. Hedgerow trees have made up so much of the beauty of our countryside, and a few score trees in hedgerows do far more to enhance the beauty of our countryside than do hundreds, or even thousands, of acres of woodland. They are all naturally grown trees. The elm, oak, ash, thorn, growing up in hedgerows, have always contributed towards the beauty of the countryside. To-day they are totally unprotected, save in so far as many county councils have a by-law, usually protecting plants only against being dug up, but in some cases against damage. In a county which has a by-law of that nature one has the ridiculous position that a man walking along a right-of-way to which the public has access is forbidden by that by-law to do damage to a tree, but he has only to walk to the other side of the field, to which by law he has no access, and he can do with impunity all the damage he likes.

In the by-laws of the Nature Conservancy we have considerable experience of a total prohibition, such as I feel we ought to have, of damage to flowers, trees and shrubs growing in the countryside. There are many wide stretches of country to which people can go—where hikers can walk, where campers can camp, where ski-iers can ski and throw down sandwiches for the ptarmigan. The by-laws of the Conservancy forbid the plucking or collecting, not only of flowers but of "slugs and snails and puppy dogs' tails", and anything one can find there. There is no difficulty about these by-laws. There would be no difficulty if Clause 10 were amended to allow similar protection throughout the whole of the countryside, and I hope that between now and the Committee stage of the Bill the noble and learned Lord will give that matter serious consideration.

3.55 p.m.


My Lords, I want to ask the noble and learned Lord on the Woolsack two short questions, which to some extent are joined. I welcome, with him, the additional powers to grant compensation in cases of malicious damage, but I would ask first: will this power to grant compensation be joined to a power to order it? Often the court can say that damage to a certain amount has been done, but it does not order what payment shall be made, or it limits the amount of payment that can be made. If the amount of the payment is not actually ordered and it is left to the damaged person to collect in a civil court, then such amounts are, of course, generally speaking uncollectable.

There is another point that arises on this. We have already heard that the greatest amount of malicious damage is done by juveniles. Good as it is to have additional powers to order compensation, this can be done only if those concerned are brought to court. On the other hand, many of us are very keen that juveniles should not be brought to court unless it is absolutely necessary. Can the noble and learned Lord bend his mind to this dilemma, and try to think up some way in which compensation can be awarded without taking too many additional juveniles to court?

3.58 p.m.


My Lords, I should like to thank the various noble Lords who have taken part in this debate for the gratifying amount of support for the measure as a whole. I will deal, so tar as I can, seriatim with the various points that have been made. I was grateful to the noble and learned Lord, Lord Gardiner, for his welcome to the Bill and for underlining the general point that I was making, that this is a law reform Bill and not a Bill for the intensification of the war against crime. For that reason it should not be regarded as really altering (except in the sense that any simplification and rationalisation must be an improvement of the situation) the intensity of sentences, or sentencing policy, with the solitary exception of the compensation provisions, to which I have drawn attention.

I was not sure what the noble and learned Lord meant by the reference to a Conservative Government's imposing swingeing penalties for crimes against property. I was not sure whether he was clear himself. I have been in Parliament, in one House or the other, now for 31 years, and I think that for at least half of that time there has been a Conservative majority in the House of Commons, but I cannot recollect any particular statute to which that observation applies. It may be that the noble and learned Lord's research has been more extensive than mine, and I should be the last to advance any claim for superior legal knowledge. But I think I have played a part in Parliament during that time, and I am afraid that when he spoke in those terms it was part of the mythology of Party rather than part of the learning of the lawyer. At any rate, I reject any idea that Conservative Governments impose swingeing penalties for crimes against property, except in the sense that Labour Governments do, too.

The noble and learned Lord went on to make an interesting and argued case about the benefits of a seven-year maximum as against the ten-year maximum for the basic offence. I am not sure that a great deal turns on this, which is, as he candidly admitted, a Committee point; but I would ask him to consider two related matters to which I think he did not draw attention. The first is that, unless I am very much mistaken, he was himself responsible for the Theft Act 1968. Of course it was a Home Office Bill, as this one is, but I think he piloted it through the House of Lords at considerable length and with great dexterity. That Act, of course included a penalty for theft under Section 7; the penalty was ten years and not seven. You might think that a swingeing penalty for an offence against property, certainly more than the noble and learned Lord is now proposing for damage to property. I must say it would seem odd that a Labour Government should impose ten years for taking property and a Labour Opposition complains of a Conservative Government imposing a similar maximum for property destroyed altogether.

I would ask the noble and learned Lord to remember that one puts in these maxima in order to give the court a certain degree of discretion in these matters. What we are discussing is something which might amount to blowing up a nuclear power station, if that can be done without intention to endanger life, or destruction of an ordnance factory, or something considered to be a political demonstration against some of our national security property. I should have thought that ten years was not too much to put in as a maximum, although, like him, I should be surprised if in any measurable time the maximum were to be inflicted in such a case. I cannot get very excited about this subject. I would ask him to reflect again whether he was not perhaps yielding to political rather than jurisprudential considerations in that part of his speech.

The noble Lord, Lord Donaldson, also spoke about the seven years case. He, for some reason, is an addict of the indeterminate sentence. I confess honestly to him that I am not. I personally—and I know I am speaking out of turn now; the noble Lord, Lord Windlesham, will stop me after a while—do not like indeterminate sentences, particularly when the word "life" is used. I think all sentences ought to be determinate.


My Lords, would not the noble and learned Lord agree that the life sentence at present existing in this country is an indeterminate sentence?


Yes, my Lords, and that is why I do not like it. On the other hand, while we have it for a very large number of offences against the person and property and the State, I think we must look forward to the day of a more general penal measure before leaving it out of this Statute. I am going to explain to the noble Lord in a moment why he is probably right and I am probably wrong. I personally should not like a life sentence to be passed on a person who is mentally ill with the hope that the time would come when somebody would say, "Let him out, but let us still have a tab on him so that we can recall him and keep him in indefinitely". Either the case is a mental health case or it is not. If it is a mental health case, it ought to be dealt with under the Mental Health Act and not by a life sentence.

Having said that, I must admit to the noble Lord that he has authority on his side and I have not. In 1967 the Court of Appeal came to the same view as he did and contrary to my own opinion. That only shows how independent the Judiciary is of any Lord Chancellor, past, present or future, and on the whole that is a very good thing. At any rate, I express my own personal feeling. I think it would be perfectly open to argument that the sentence of life as a maximum for the basic offence when fire is used is an illogicality; that is, again, something we can argue on Committee. The Bill as prepared by the Law Commission and put forward by the Government contains the life sentence in that way. The Bar Council strongly think that arson should be a separate offence. That, too, can be argued on Committee. Probably there are powerful arguments both ways. We shall see how it turns out.

My noble friend, Lord Cranbrock, made a powerful speech for the countryside, and most of us were very much impressed by his love for the countryside, which I share; but I wonder whether he really reflected about what he was saying. This is a Bill to deal with serious criminal acts. As a matter of fact, he is mistaken in thinking that plants and trees, viewed as a whole, are not within the Bill; they are. Uprooting plants and trees would be an offence if it were on somebody else's property. I am bound to say that the great enemies of hedgerow trees are not stray vandals but the owners of the property themselves and the farmers who farm it on lease. I do not know how in a Statute of this kind one could differentiate between an ordinary hedge and the standard trees in the hedgerow for which the noble Earl has so much legitimate affection. If we start making the taking of daisy chains a crime punishable by a maximum of even seven years—if I accept the figure of the noble and learned Lord—I think we should be in danger of making ourselves ridiculous. If a lover takes a wild rose from a hedgerow, undoubtedly damage to property is being committed in any ordinary sense, but I do not see how we could bring it within this Bill without making ourselves ridiculous.

My noble friend knows a great deal more about conservation than I do, but possibly in dealing with it in the ordinary sense of the criminal courts I can enter a suggestion. If you want to do good to conservation, as most of us do, by protecting rare plants and so on outside nature reserves, where they are protected by by-laws up to a point, I do not think you can use the ordinary criminal law, which is not designed for that kind of purpose. The wiser course would be to get in touch with the Department of the Environment to see whether special Statutes to deal with that objective could not be devised between scientists and Government. To use this sort of law, which is designed against criminal activity, even if by juveniles, would be a mistake and would lead us into serious trouble. If we were to try to stop blackberry picking, mushrooming and flower picking, and all that sort of thing, I do not know where we could draw the line.

The noble Viscount, Lord St. Davids, asked me two questions. Yes, the compensation would be dealt with under the ordinary Payne Committee proposals. I could not give a completely accurate compendium. It is only a court that can order compensation whether against a juvenile or an adult. It is possible for the aggrieved party to go to the county court—there is nothing in this Act to stop him doing so—but I share the view of the noble and learned Lord who spoke from the Opposition Front Bench: I have long wanted to see this rigid distinction between civil and criminal proceedings broken down in offences of this kind. One wants to keep juveniles out of court. Obviously you cannot do so if you want to have an enforceable order far compensation against them. But I personally think that one should put up with a certain amount if one is a property owner. One ought to consider that boys have stolen apples since the Garden of Eden—or at any rate since we were turned out of the Garden of Eden.


My Lords, I am sorry to interrupt the noble and learned Lord, but he must surely be aware that if a boy steals one rotten apple it is an offence against this Bill.


My Lords, it is an offence against the Theft Act as well as this Bill. But I was saying to the noble Viscount, Lord St. Davids, that on the whole property owners in the country ought to put up with a certain amount of this sort of thing. I have certainly done so in my time, so I am not preaching where I am not prepared to practise. If you want compensation you have to go to court, county court or criminal court, but I would not recommend it for small matters, and I hope property owners will take the same view.


My Lords, I am sorry to interrupt the noble and learned Lord. I am quite sure that for all minor damage he is dead right in this matter. But the fact is that it is becoming the practice—a practice of which I approve, incidentally—not to take juveniles to court, even for quite major offences, unless there is furthermore the intention of bringing care proceedings. That is where the difficulty lies here.


My Lords, if you start in the county court, that practice would not apply. However, I should have thought that your hopes of getting a substantial judgment out of most juveniles would be limited by the practicalities of the case, unless you were lucky enough to be damaged by a millionaire's son. At any rate, I think that is getting rather far from malicious damage. I am grateful to all noble Lords who have taken part in the debate and also to those noble Lords who have borne with me on this issue. I hope that this Bill may, before long, find its way to the Statute Book.

On Question, Bill read 2a, and committed to a Committee of the Whole House.