ROAD TRAFFIC BILL [H.L.]

HL Deb 29 November 1973 vol 347 cc258-310

4.50 p.m.

THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)

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

Moved, that the House do now resolve itself into Committee.—(Lord Aberdate.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord GRENFELL in the Chair.]

Clause 1 [Liability of vehicle owner in respect of certain fixed penalty offences]:

LORD FOOT moved Amendment No. 1: Page 1, line 24, at end insert ("provided that such a notice shall be served within 21 days of the expiration of the period fixed for payment by the relevant fixed penalty notice.")

The noble Lord said: This is a comparatively minor Amendment to subsection (2) of Clause 1, but may I say by way of preface that when we come to the Question, That the clause stand part, shall venture to make some rather more radical criticisms of the whole of Clause 1 and indeed of Clause 2. The three Amendments which I shall submit to Clause 1 are made on the assumption that the Government will not accede to my suggestion, which I shall make later on, that the whole of Clause 1, and indeed Clause 2, should be rewritten. This Amendment, therefore, is submitted on the assumption that the clause will substantially stand at the end of the day, and so it is a comparatively minor Amendment.

Clause 1(2) provides that where the section applies a notice may be served by, or on behalf of, a chief officer of police on a person who is the owner or the presumed owner (in other words the person purporting to be the owner) of the vehicle at the time the fixed penalty notice was issued. So far as I can see, there is no provision in the clause, or indeed in the Bill, requiring that notice to be served upon the presumed owner within any limit of time. The noble Viscount is kind enough to nod at that, and I foresee therefore that he may be prepared to accede to what I am proposing, or something similar—no, I see he is now shaking his head, so I must continue. What I fear is the situation where a fixed penalty notice is either given to an individual driver or affixed to a vehicle and is not complied with during the time limit of 21 days, so that then it is open to the police to issue this notice against the owner. What is to stop them, through idleness, indifference or whatever you like, as the Bill stands at the moment, from issuing that notice, say 12 months later, or at any rate long enough afterwards, so that the owner has little opportunity of remembering what happened at the time?

This would appear to be in rather strange contrast to the requirement placed upon the owner when he receives a notice, because, as I understand it, if the owner or the presumed owner is served with a notice he is then required to comply with it, either by paying the fixed penalty or by putting in a statement, and he is required to do that within so short a period as 14 days. It seems to be in rather striking contrast with the fact that the prosecutor or the police, or whoever the authority may be, can put in their notice to the owner at their leisure, or so it appears, at any time after the time limit, if the fixed penalty notice has not been complied with. I can see no sort of sense in that, and I shall await with interest the noble Viscount's reply. I beg to move.

VISCOUNT COLVILLE OF CULROSS

The noble Lord, Lord Foot, will be explaining his more radical proposals in due course. May I just say this by way of an advance apology to him, and also to my noble friend Lord Howe (who will no doubt be in his place shortly): that the Amendments standing in the names of those two noble Lords only went down so as to be received this morning. It may therefore be that I have done less than full justice to some of their arguments. That will apply even more so to Amendments which have not been put down at all but the arguments upon which will be introduced on the Motion that the clause stand part. This is by no means a criticism of the noble Lords but it is a fact of life, and if I am therefore less than forthcoming in my reply to the noble Lord later on, I hope he will forgive me, for the reason I have given.

On this Amendment, I think there are several reasonable grounds for objecting to the period of 21 days proposed by the noble Lord. I believe this was a matter which he raised on Second Reading, and the background to it is that the police are constrained by the ordinary time limit of six months for bringing the charge which relates to the fixed penalty. The noble Lord would probably agree that we could discuss that point with Amendment No. 10, which raises the same point on excess charges, though the law is slightly different on that matter. Whenever that offence occurs, the ordinary six months' limitation for summary trial under the Magistrates' Courts Act applies. Since the object of the exercise is to get the person who offended, and if necessary get him through the statutory statement machinery that we are talking about, the prime concern is the six months' limitation which applies anyway, after which one cannot prosecute for a road traffic offence. That is the foundation of the whole thing, as any magistrate (and the noble Lord himself, as a solicitor) will know very well.

The ordinary scene that we are going to have under this procedure is really this: the enforcement authorities are constrained by that six months' limit, so if payment has not been received within the 21 days under Clause 1, or an excess charge within the time specified for payment under the local scheme or enactment, the police or the local authority will go and try to get the name of the registered owner from the registration authority—or, later on, Swansea. As soon as that is received, there is no incentive to delay the issue of the notice —that is, the notice that the clause is all about—because, as the noble Lord says, the more it is delayed the more difficult it will be to identify within the six months the person responsible. Moreover, it is going to be very difficult for the driver or the owner to remember what on earth was happening on the day in question when this occurred. So the longer one goes from the date on which the offence was actually committed or the penalty or charge incurred, the more hopeless it is to try to get people to remember accurately and work the thing out.

Thus, we have not put a time limit into this Bill for the serving of the notice, any more than we have, for instance—and indeed Parliament agreed with this—where, under Section 85 of the Road Traffic Regulation Act 1967, owners are required to give information identifying drivers for other alleged offences. A similar procedure is used there and a notice is issued with which you have to comply, and you have to say who was driving the car on that occasion. There does not seem to us to be any good reason for preventing enforcement authorities from issuing a notice at any time within the six months when they get the information; but obviously there would be no point in serving it so late in the period that they would not be able to get the matter to prosecution or to serve the notice within the six months. So there is every incentive here to get them to serve the notice as soon as possible.

There is in fact a particular snag about the 21 days which the noble Lord has suggested in his Amendment. If 21 days were to pass without their having got the answer from the registration authority —I know that normally this ought to come through quite quickly, but things do go wrong—then what happens? The police or the local authorities would go back to exactly the situation we are try- ing to avoid by this machinery, whereby an enormous amount of time is wasted trying to find out, by the means open to them now, who was driving on that occasion. It is the mere fact that at the moment the police and the local authorities cannot satisfactorily discover who was driving that has caused the Government to bring forward the whole of this machinery of owner liability. If, therefore, we make the time for serving the notice as short as that—or, really, in practical terms, if we put a limitation on it at all—we are liable to go back to exactly the system which this series of clauses in the Bill is intended to avoid. I therefore suggest to the noble Lord and to the Committee that there are practical reasons for not having a time limit of this sort and also practical reasons why a time limit of this sort is not necessary because of the ordinary underlying rule of six months under Section 104 of the Magistrates' Courts Act.

BARONESS BIRK

I am at an even greater disadvantage than the Minister, because I saw this Amendment for the first time only today, but it seems to me—and I am looking at it now from a magistrate's point of view—to have some sense. I am not saying whether it should be 21 or 28 days, but one thing we have found so often is that even when people have been involved in an accident or an incident which they could not possibly have forgotten the details of, it is awfully difficult, by the time the case comes to court, for them to remember what has happened. Where it is something like a fixed penalty, it seems to me that there is an even greater chance of either a loss of memory or an apparent loss of memory. Further, if people knew that there was a time limit, then it would seem to me that there would be fewer people who would ignore the fixed penalty anyhow. If I find one of these things on my car I am too frightened: I complete it and send it back immediately, by return of post. But I have heard a lot of people say that they just chuck them away and hope for the best.

VISCOUNT COLVILLE OF CULROSS

I am sorry, but I think the noble Baroness, if I may very respectfully say so, would be at an advantage if she were to study the Amendment a little more carefully. The point is not that the owner has to reply within a certain period; that is in the Bill now. The noble Lord, Lord Foot, is suggesting that the notice should be issued by the police or the local authority within a certain period or not at all. I am saying that if, for one reason or another, that time goes by, they will then not be able to issue the notice at all. They will then have to go back to what they do now, which is to write or investigate, and go round to try to find out by personal inquiry and other methods who was driving on that occasion. The whole thesis underlying these clauses is that this has resulted in an immense waste of police manpower and time without in fact getting to the people who were driving the cars at the time that the fixed penalty was incurred or the excess charge went up on the meter. Therefore, to put in a maximum time within which you can serve the notice will, at any rate in a large proportion of the cases, frustrate the whole object of these clauses.

BARONESS BIRK

With great respect, I do not understand. I probably explained it badly. I am saying that there should be a limit shorter than six months. I am not arguing particularly, with the noble Lord, Lord Foot, that it should necessarily be 21 days, or even two months, but I think six months is too long.

LORD AIREDALE

Would it be right to say that, although the police have only six months within which to proceed against the driver, there is no limit to the length of time within which they may proceed against the owner if the driver does not pay?

VISCOUNT COLVILLE OF CULROSS

No. I think the only thing that they could do would be to proceed against the owner, not for not paying but for not completing the notice. Therefore, the owner would not be required, beyond the six-month period, to pay the fixed penalty or the excess charge; though I concede that if, five and a half years later, they served notice under these clauses which was then not complied with, there would technically be an offence created. But I can also imagine what the magistrates' courts would do in those circumstances.

LORD FOOT

There are really two points here, are there not? There is the point which the noble Viscount was dealing with just now, and perhaps we may take a slightly closer look at that. Suppose you have a case where the fixed penalty notice is issued either by being attached to the vehicle or by being delivered to the person assumed to be the driver. He does not comply with it, and the 21-day period which he is given to comply with it runs out. It is now for the authorities, if they want to make the owner responsible, or attempt to make the owner responsible, to issue a notice. The noble Viscount says that it might be administratively inconvenient to require the authorities to do that within 21 days because that might not give them time enough to make their inquiries of the register to see who the owner was, and they might not have time to get their reply. On that point, I suggest that the convenience of the authorities ought to be balanced against the rights of the individual. It seems to me that it is a greater wrong for an individual to be confronted with a notice months after the event than it is for the authorities to be required to complete their inquiries within a fixed period of time. I do not mind whether it is 21 days or 28 days, but I suggest that there ought to be a limit on the time in which they can issue the notice.

The second point is this—and the noble Viscount almost put his finger upon it just now. Suppose the authorities issue a notice and they choose to issue it, let us say, 12 months after the event. Then the notice which is issued says, "You must either pay this fixed penalty or you must furnish a statutory statement". At that stage, what are the chances of the owner being able to complete that statutory statement satisfactorily, dealing with an event which has occurred perhaps twelve months previously? Does the noble Viscount want to consult with somebody?

VISCOUNT COLVILLE OF CULROSS

No; all I was—

LORD FOOT

I am sorry; I had not completed my point.

VISCOUNT COLVILLE OF CULROSS

I was going to apologise to the noble Lord. I wanted just one word with my noble friend, but I was going to listen to the noble Lord at the same time.

LORD FOOT

This is the situation, is it not: that the owner may therefore be confronted with a notice twelve months after the event and he may then be unable to comply with the statutory statement which he has to furnish simply because he cannot remember who was using his car on the occasion in question. Of course, the statutory statement is not a statutory statement at all unless it names the driver at the relevant time. In order to comply with the requirements of Schedule 1, you have to name the driver of the car at the relevant time and give his present address, and also get his signature to it; or, if you cannot get his signature, you have to certify why you cannot. This is the obligation which is thrown upon an owner perhaps, as I say, twelve months or even two years after the event. If, therefore, in the event, he cannot comply with the notice and he cannot put in the statutory statement because he simply does not have the information, which has disappeared from his memory, then he can be prosecuted under subsection (4) for failing to comply with the notice. What is more, there is no six-month limitation upon that prosecution, because the offence which is being comitted by failing to comply with the notice is not an offence committed at the time when the fixed penalty notice is put on the vehicle; it is an offence committed within the time limit allowed for him under the notice delivered to the owner; that is, 14 days. At the expiry of the 14 days, if he has not put in the statutory statement, then he has committed an offence, for which he can be prosecuted and fined £100.

I ask the noble Viscount to reconsider this matter. I entirely understand that this Amendment was put down late; and if that is a matter for apology, then I apologise for it. I mentioned it on Second Reading, as the noble Viscount knows. If the noble Viscount will be good enough to say that he will have another look at this matter between now and the next stage, I shall be only too happy to withdraw this Amendment.

VISCOUNT COLVILLE OF CULROSS

I think that there are two points that the noble Lord has raised here. First of all, I am quite sure that one does not want to have a time limit either of 21 days or indeed of two months written in, because if we do that and encumber the Bill with a maximum time of this sort—other than the six months—that is in relation to the actual traffic offence, rather than failure to fill up the form—we are going to make it more complicated than is necessary. What seems to me to be the real issue is the noble Lord's second point, which is that one could come along ages afterwards and, as he said, serve a notice; there would be an offence to fail to comply, to fill in, and nobody would be able to remember because it was so long ago. Where I think I should have liked a little opportunity to do some more research is in regard to what happens about other notices of a similar sort which are now served under Section 85. Although you do not have a liability for anything else at the moment, my recollection is that if you drive your car, or if somebody drives your car, the wrong side of a traffic island, say, this is a minor road traffic offence and the policeman who sees it and fails to catch the driver at the time can find out who is the owner by going to the registration authority, and can then send a notice to the owner saying: "Who was driving the car on Thursday, October 21?"—or whenever it was— "because he went on the wrong side of the island in so-and-so street."

This happens already, and I think it will probably be found that the theoretical disadvantage that the noble Lord, Lord Foot, has spoken about has been in existence in the law for quite a long time. I do not believe that it is that that has caused the trouble; I believe it is the fact that people have either failed to answer it or have answered it wrongly, or have somehow misled the police or the local authorities, or have held on for such a long time that nothing has been able to be done, which has caused the provisions to be put in the Bill that we now seek for owner liability. Therefore, the proof of the second point is the practice of what has happened in the past. But I should like—I think the noble Lord is right—to see how this has worked. I should like to get some more information about the notices that have been going now for some six years at least. Perhaps we could revert to this matter. The noble Lord need not for one moment apologise for putting this Amendment down late. As I said before, it was only for me to apologise if I did not have a full answer to the points that were being made. Therefore, if the noble Lord would like to withdraw this Amendment for the moment, I will pursue my researches along the lines I have just indicated.

LORD FOOT

That is more than good enough for me and I am very happy to leave it there. With the leave of the Committee. I will withdraw the Amendment.

Amendment, by leave, withdrawn.

5.14 p.m.

LORD STOW HILL moved Amendment No. 2:

Page 2, line 34, at end insert— ("() The person on whom a notice under this section is served under the provisions of subsection (2) of this section shall before the expiry of the appropriate period pay the fixed penalty unless either

1. (a) he was not the owner of the vehicle at the relevant time and in compliance with the notice furnishes a statutory statement of facts to that effect, or
2. (b) within that period the fixed penalty has been paid by some other person.").

The noble and learned Lord said: Nobody who listened to the discussion on the Amendment of the noble Lord, Lord Foot, could be under any impression other than that this is a most complex procedure. Ministers on Second Reading explained the object of it and I think we all would support that. This is clearly in principle a most useful and sensible innovation. The only objectives I would seek to achieve in the Amendment which is down in my name and in the names of my noble friends are, first, to introduce a little more clarity in an area in which I think there is perhaps just some room for doubt on the drafting. That is the first objective. Secondly, perhaps to make the clause as it is at present drafted a little more effective still than it would be if it remained unchanged.

May I address myself to the first point. If one looks at subsection (3) one finds what a notice under the clause is to contain. It is to be in the prescribed form; shall give particulars of the alleged offence and of the fixed penalty concerned, and then the provision reads: and shall require the persons on whom it is served, before the expiry of the appropriate period,— either to pay the penalty or to furnish the statutory notice. If one goes to the next subsection one finds that it is an offence, if the penalty is not paid, not to serve the notice. So if you fail to comply with the second limb of that which is prescribed in subsection (2), a penalty is incurred: you commit an offence. But you do not commit an offence, as I read the clause, if you fail to pay the penalty in any circumstances.

If one goes back to Section 80 of the Road Traffic Regulation Act 1967 one sees, as I read subsection (2) of Section 80, it clearly is not an offence to fail to pay the fixed penalty. I say that because the relevant part of subsection (2) reads: he may give him the prescribed notice in writing offering the opportunity of the discharge of any liability to conviction of that offence by payment of a fixed penalty under this section".

So if one starts with the root of this branch of this legislation one finds that all the fixed penalty notice does is to give you the option of paying the fixed penalty. You are not bound to. You can remain as you please, liable to proceedings in respect of the offence involved, or you can, as it were, purge your guilt, if you wish to exercise the option, by paying the fixed penalty without further question. One then finds, as the Ministers explained to us on Second Reading, that in very large numbers of cases it is impossible to enforce the law with regard to obtaining payment of fines that are imposed, and so this new change, this useful change, is introduced.

I should have thought as a matter of language that people who read subsection (2), and who find that the language of Section 80 has been departed from—that is to say, the language which gives an option has been departed from—and find that this new notice under Clause 1 shall require the person either to pay the penalty or to furnish the statement, would think that the objective is to make failure an offence in both cases. If you are in a position to furnish a statutory defence which exonerates you, well and good; if you are not, well, you must pay the penalty. And one would have thought that the language implied that failure to pay the penalty in those circumstances was an offence.

Therefore, for the sake of clarity, that being my first objective as I have explained, I would submit that the clause should say in terms: Is it, or is it not, an offence to fail to pay the penalty? Is the optional procedure still valid, or has it been superseded by a requirement in the notice to pay a penalty, failure to comply with which requirement itself constitutes an offence? As I read Clause 1, it is not an offence to fail to pay the penalty which is specified in the notice provided for under Clause 1. The only circumstances in which one can render oneself liable to proceedings are those described in subsection (4) or in a later subsection, subsection (7). I think I have analysed it correctly, and the noble Lord nods his head so that leads me to think that my supposition is correct. I submit therefore that in those circumstances it would be desirable to make that clear so as to leave no doubt as to whether it is an offence in any circumstances not to pay the fixed penalty.

I should like to refer to the language of subsection (8)(c) of this clause, which again talks about, conviction of the person so served of an offence under subsection (4) above in respect of a failure to comply with the notice … The implication seems to be that a failure to comply with the notice may constitute an offence although the reference there is only to an offence under subsection (4). Therefore in the first place I ask the Ministers to be so good as to see whether the language can be made a little more certain in its effect.

The second submission I wish to make, I put forward simply for the purpose of raising with the Ministers the question as to whether the new clause could be made a little more effective. I wonder whether it would not be desirable to make it an offence, if you are the person who committed the original offence and you have had a fixed penalty notice served upon you, and, payment not having been made, you now have a notice under this subsection—that is to say, the authorities have to take a second step against you: they have not yet secured payment—saying in effect: "You have had the option of paying; you have not exercised that option; we now give you this further notice. If you do not pay now it will be an offence."

The machinery here is complex. As I have said, my object is simply to try to get this a little more effective and to raise with the Ministers the question whether it would not be desirable, in the circumstances that I have described, to make it an offence, when the second notice has been served upon you, not to pay the penalty if you are the person who ought to pay it. Those are the grounds of this Amendment. I shall be quite content if the Ministers say that they will look at it, without giving me an answer to-day, and try to clarify the language and possibly to make the clause a little more effective on the lines that I have suggested. I beg to move.

5.24 p.m.

VISCOUNT COLVILLE OF CULROSS

The noble and learned Lord, Lord Stow Hill, has, as one would expect, correctly analysed the relationship with Section 80 of the 1967 Act. Certainly when one looks at subsection (3) of this clause and sees the words, shall require the person … to pay the fixed penalty or to secure its payment … I take his point that there is indeed an option, and it may be that the word "require" needs reconsideration; and I should like to think about that.

I am entirely with the noble and learned Lord in trying to get this clause as clear as possible. From the point of view of the ordinary person faced with the application of the machinery that we are now discussing, one ought perhaps to have a look at the first Schedule to the Bill, because not only does that set out rather more clearly what is going to be in the statement the person is required to make under subsection (3)(d) —that is the statutory statement—but one must also bear in mind that there will be, as is often the case, some helpful Notes to explain yet further what we have not set out in detail in the Schedule because it is probably better done by Notes than by setting it out in statutory form in a Schedule to a Bill of this sort. So I think the ordinary person is likely to be more affected by the layout of the form than by the way in which it fulfils the conditions as set out in Schedule 3.

Certainly I am all for clarity, and the noble and learned Lord is quite right when he says that this is, inevitably, I think, rather a complicated piece of language to express what is fairly simple in terms of theory. Unless I have misunderstood his argument I do not think there is anything wrong with subsection (8)(c), because one can indeed be convicted of an offence under subsection (4); that is, the offence of failing to send back the statutory statement of facts.

LORD STOW HILL

If I may say so I entirely agree with what the noble Viscount has just said in regard to subsection (8). My only point on that was that a reference to a requirement in a notice seems by implication to suggest that when the notice "requires" something, failure to comply with that requirement may be an offence. That is the only point.

VISCOUNT COLVILLE OF CULROSS

The noble and learned Lord's argument is so densely constructed and so condensed that I should like to see it in writing in order to do full justice to it.

But the noble and learned Lord goes on to a further point of substance; namely, the scope of the liability that we are creating. What he is doing here is to make more of an absolute liability the things for which an owner is responsible that happen to his car. I think the noble and learned Lord is trying to increase the area of liability beyond that which we have set out in the Bill. What I want to put to him and to the Committee in this connection is: what is the mischief that we are trying to cure? On the whole, I think most people would agree that those who drive motor cars, park them on yellow lines, leave them at parking meters for longer than they should, so that the yellow flag goes up —or the red one—are those who primarily ought to be responsible for their actions and ought to be the persons who pay the fines. We are really only after a piece of machinery to get over the difficulties that have arisen in practice in trying to get them so to do.

I know that the noble Lord, Lord Champion, said during the Second Reading debate that perhaps we ought to be a little tougher than we are in the Bill. I remember this argument, but I think we ought to be slow to impose upon the owner of a car almost complete liability for what anybody does to it, or with it, without at any rate giving him the chance of trying to give the other person —the driver at the time who committed the offence or incurred the penalty, or whatever it was—the opportunity to pay up instead.

In practice, there is probably very little between the noble and learned Lord, Lord Stow Hill, and what I am suggest- ing because I would expect that if the clause were written in the way this Amendment suggests the owner of the vehicle would pay but he would go round and sort it out with the person who was the driver at the time and he would see that the £2 (or whatever the sum was) was repaid to him. But that of course is exactly what would happen under the clause as it is drafted because the owner of the car, having received the notice, has the option of going round to get the person who was actually driving to pay the fixed penalty; alternatively, the owner can pay it himself, in which case no doubt he will reclaim it. It is only in the last resort, if neither of those two systems works—if neither of those two actions takes place—that we are allowing the police or the local authority, in desperation, to go to the owner himself.

One should remember that this machinery, albeit complicated, is, as it were, a method of stopping up what has become a major loophole whereby drivers escape and nobody can do anything about it in practice. We ought really to leave the liability where it is now, and where it ought to be, on the driver, and just have this fall-back power whereby, if the authorities cannot get the driver in time, they have a chance of going for the owner. I put that to the Committee as the real mischief with which, in this legislation, we are trying to deal. To go quite as far as the Amendment of the noble Lord, Lord Stow Hill, which is supported by the noble Lord, Lord Champion, and the noble Baroness opposite, might be to go too far in a Draconian sense. There is probably not a great deal in this in practice, but perhaps as a matter of purity, where the liability in the first place should lie, we ought to deal with it in the way in which the Bill is drafted. But that is not to say we cannot express it more clearly, and therefore, I will study what the noble Lord, Lord Stow Hill, has said to see whether we have got the wording here right. But on the substantive point, I hope he may be persuaded by what I say into thinking that the philosophy of this clause and Clause 2 ought perhaps to stay as it is.

LORD STOW HILL

I am most grateful to the noble Viscount for his answer which, if I may say so, seems to me to carry very considerable weight, particularly on the second point. He had kindly said that he would like to consider the first point, the question of clarity. If my noble friends who are co-signatories and the Committee are in agreement, I will ask leave to withdraw the Amendment. I am much obliged to the noble Viscount.

Amendment, by leave, withdrawn.

5.33 p.m.

EARL HOWE moved Amendment No. 3 Page 2, line 38, at end insert ("and the court may accept evidence on oath to this effect without evidence being provided to identify the person in whose possession the vehicle was at the relevant time.").

The noble Earl said: I apologise to the noble Viscount for not being in my place when he mentioned my name just now. I should also like to say that I am sorry I did not table my Amendment sooner, but I had many things to do and no chance of getting to the House in time.

From what I have heard so far, many of the Amendments seem to be on the same lines. I was not sure whether mine was going to be similar to earlier Amendments, but I think it can be taken to be different. I am hoping that if my Amendment has not been carefully studied by the noble Viscount, he will have an opportunity to take it back and look at it—it would be better still if he accepted it. My motivation in what I shall briefly say is that I want to try to satisfy myself that a motorist is not going to be "clobbered" far various offences which I feel are not his responsibility. The Amendment I am moving here is an insertion after subsection (6). It seems to me that there is a possibility of a motorist being held responsible for something that was not his fault, and resulting from what appears to me to be unfair and unjust legislation. For instance, it is possible for a motorist to have his vehicle stolen and dumped anywhere. This happens from time to time, and has happened to my friends. I should like to have some assurance from the noble Viscount that the owner will not be held responsible in court because he cannot produce evidence to show by whom the vehicle was taken. It seems to me equitable that the court should accept evidence from the owner unless there is reason to believe that he is not actually telling the truth. I hope I can get a satisfactory answer on this—one which would please the motorist. I am speaking for many motorists on this particular point. I beg to move.

LORD WELLS-PESTELL

I would have some sympathy with the Amendment put down by the noble Earl, Lord Howe, if he were to qualify it along the lines he mentioned a moment or two ago; that is, if it related to a person who had had his car stolen and therefore had no idea who had taken it. But as the Amendment stands at the moment, it seems to me seriously to hamper the court. If a person chooses to give evidence on oath, he has the right to expect the court to pay some heed to what he says; but it is also the duty of the court, when a person has elected to give evidence on oath, to cross-examine him, or at least elicit from him facts relating to the matter before the court. I should have thought that this was highly desirable if, as the Bill itself says: In any such proceedings as are referred to in subsection (5) above it shall be a defence to prove that at the relevant time the vehicle was in the possession of some other person without the consent of the", owner. I should have thought that some responsibility rested on the court to ascertain who that person was. In many cases they are known. Not every case is a case in which the car has been stolen. In many cases the owner does know who was driving at the time. Subsection (5), says that if the vehicle was in the possession of some other person without the consent of the accused". Well, if the other person was in possession of the car without the consent of the accused, by relieving the defendant of the responsibility of saying who that person was one could almost argue that he is being encouraged to compound a felony. "Felony" might not be the right word; it might be misdemeanour.

VISCOUNT COLVILLE or CULROSS

They are both abolished.

LORD WELLS-PESTELL

They are both abolished, so neither applies; but at least it means that the defendant is in a situation of defending someone who, in the circumstances, he ought not to be defending. I should have thought that on balance it would be unwise to have this Amendment in the Bill.

5.38 p.m.

VISCOUNT COLVILLE OF CULROSS

The proposition here is simple. If one's car is "pinched", left on a yellow line or a parking meter where an excess charge is then incurred, one does not then get taken up in front of the court for failing to pay the fixed penalty or excess charge. If one is served with one of the notices under this clause, and one says, "I do not know who was driving because the car was stolen", one is protected. Taking a conveyance (as it is now called) without the consent of the owner, is an offence under the Theft Act. It used to be under the Road Traffic Act, but it now comes under the Theft Act. All we intend to do here is to protect people whose cars are, in some people's simple terminology, stolen, but more likely "taken without consent", because the law has to provide for circumstances where one cannot prove an intention permanently to deprive; that is the origin of taking without consent. So that is what we are dealing with.

It then remains to be seen what in practice would happen when the person who owns the car or, indeed, the driver from whom it was taken without consent —who may not be the owner—gets brought up in front of the court. There are of course any number of examples—and those who practise in the magistrates' courts or who sit on the bench, will be familiar with them—where once the prosecution has made out a prima facie case the Statute provides a defence. The Magistrates' Courts Acts say that unless there is something in the Statute about it specially, it is for the defendant to prove that defence. But one does not have to prove it in the same way as the prosecution. One proves it on the balance of probabilities, not beyond any reasonable doubt. Let us just think what happens in most of these cases. If someone's car is stolen, then nine times out of ten he tells the police anyway. All one has to do is to say to the court, "We told the police and told them on suchand-such a day; the car was in fact stolen from outside my house on that particular morning". I should think there would be few courts in the land who would not believe that, particularly if the police, who happen to be there, can corroborate what is said.

Therefore, I think this Amendment would be quite unnecessary in practice, because, in any event, one would never have to prove who stole the car. My noble friend can be entirely reassured on that point. All one would have to establish was that someone took it away without consent. It does not make a hoot of difference if one finds out whether or not a particular person did it—indeed, one may never do so, and the police may never do so—but if one can satisfy the magistrates that the car was removed without consent, and left on a yellow line, or something like that, that should be a perfectly good defence. My noble friend Lord Howe is really going further than is necessary. This point would be covered in any event. It will only muddle things if a specific provision like this is introduced. Not only is it unnecessary but it could call in question many other things the defence might say. I suggest that we should leave it to the general principle, which is familiar to those who practise and sit as magistrates. I feel that my noble friend need not fear, on behalf of his fellow motorists—which probably includes most of us—that there will be any great difficulty about this.

LORD CHAMPION

Is it the case that in practice the police would never serve a notice on a person in the circumstances the noble Viscount has outlined; that is, if it is a case where the police have previously been informed that this car has been stolen? The notice would never be served on the owner, causing him to go to the trouble of preparing a defence, although it is not quite a defence in this case, before some court subsequently?

VISCOUNT COLVILLE OF CULROSS

What one has to do is to provide for a statutory defence where it would clearly be grossly unfair that somebody should be prosecuted. We have here in subsection (5) a conclusive presumption, and it is really to counteract that that we put in the special provision in subsection (6). I do not imagine that the police are going to act unreasonably on this sort of occasion, but as we have this presumption, I think it is right to have a specific defence.

BARONESS PHILLIPS

One does know of cases where people have had cars stolen and then received a notice saying that a parking offence has been committed. Sometimes they do not know the car has actually been stolen; it has been stolen from outside their home and the offence has been committed very quickly. I know of two cases like that. Such a possibility sets up some alarm as to whether this could extend to something more serious.

VISCOUNT COLVILLE or CULROSS

I am not sure that the noble Baroness is not really underlining what I said, that there ought to be a defence. If a car is stolen on a Friday, the owner having left it for the weekend, and it is then left on a yellow line on Saturday morning, and he comes back on Monday and finds that somebody has put a note through his door to say that the car has been found on a yellow line and is now in the police pound, he is likely to be mystified. I should have thought that at least he could establish that he had left the car outside the house on Friday, and that whoever put it on the yellow line on Saturday did so without his consent. Therefore, if we get to the stage of Clause 1(5) being applied, going 'through the whole of this rigmarole, he would need to be able to go to the court with a statutory defence such as we are providing in subsection (6). I think that what the noble Baroness says is a reinforcement of the need for this provision.

EARL HOWE

I should like to thank my noble friend for his reply. I am not a solicitor am not a lawyer of any kind, only a plain, simple, cloth-cap motorist speaking for the average motorist, who possibly drives a sports car, as I do. I think that in some cases the legal phraseology is such that one cannot fully understand it, and that is one reason why I moved this Amendment. I certainly feel a little happier about the position now, bearing in mind what the noble Viscount has said, and I am prepared to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

LORD FOOT moved Amendment No. 4: Page 2, line 38, at end insert ("or that the accused had a reasonable excuse for failing to comply with the notice.")

The noble Lord said: This is another of the Amendments which I am moving in the hope of being able to improve the wording of this clause as it now stands, although, as I have given warning before, I shall later on make a much more radical criticism of the whole clause. This is a matter that I drew to your Lordships' attention at Second Reading, and it will not come as any surprise to the noble Viscount. May I take the case of an owner who is served with a notice under this clause, fails to comply with the requirement to pay the fixed penalty and does not put in a statutory statement as an alternative? In those circumstances, it seems to me, he opens himself to two types of proceedings. The first proceedings that can be brought against him are proceedings under subsection (4) for failing to comply with the notice. If such proceedings are brought against him under that subsection he is liable to conviction if he has failed to comply with the notice without reasonable excuse.

If one takes the case where a notice has been served upon a presumed owner which he does not in fact receive (and that can very well happen, because, under a later clause, service of this notice can be made by post), if he is then served with notice of proceedings under subsection (4) for failing to comply with the notice, it is open to him to go to the court and offer that as a reasonable excuse for not having complied, and that is all right. But what of the other proceedings to which he may be open if he fails to receive the notice—perhaps because he is away on holiday? In such proceedings can he offer the excuse that he never received the notice?

It seems to me that the other proceedings that can be taken against him, if he wholly fails to comply with the notice, are proceedings under the original Act which creates these fixed penalty offences. If you look at the Road Transport Lighting Act 1957, Section 12(1), you find that it is an offence for any person to cause or permit a vehicle to be on a road in contravention of the provisions of the Act; that is to say, for example, without proper reflectors. Supposing that is the offence which is alleged to have been committed in the first place, leaving the vehicle on a road during the hours of darkness without the proper sort of reflectors, what is to stop the authorities who have issued the notice to the presumed owner from prosecuting him under that subsection; in other words issuing a summons against him saying: "On such and such a day you caused or permitted this vehicle to be on the road in contravention of this Act"? What is his situation if he has never received the notice in the first place? He has no defence at all, because under subsection (5) of this clause it is provided that once he has been served with the notice (and of course service is complete once the posting of the notice has been proved), if he has not paid the fixed penalty—and obviously he has not because he has not received the notice —then unless he is not the owner of the vehicle and has put in a statutory statement to that effect, which of course he has not done because he has not received the notice anyway, it shall be conclusively presumed that he was the driver of the vehicle at the relevant time.

Therefore, if you take the case of a person who has never received the notice and is then issued with proceedings for the original offence under a section of the Lighting Act he cannot come to the court and plead that he has a reasonable excuse for not having complied with the notice, because once it has been proved that the notice has been served and he has not put in a declaration that he is not the owner it has to be conclusively presumed—it cannot be argued about at all—that he was the driver of the car. Thus he is denied the opportunity of putting forward the defence he would have been able to put forward if he had been charged under subsection (4) with failing to comply with the notice.

The noble Viscount may say it is unlikely that in those circumstances, where somebody had failed altogether to comply with the notice, the authorities would prosecute for the original offence. That may be so; but there may be a temptation for the authorities to prosecute the man for the original offence rather than for failing to comply with the notice because they may say to themselves, "He has not complied with this and we can more easily prove this matter than we can by prosecuting for failing to comply with the notice." The authorities may take the view that if they prosecute for failing to comply with the notice he may come forward with some defence whereas if they prosecute for the original offence he will not have any defence and therefore a conviction will be achieved.

I want to prevent the possibility of that sort of thing which the noble Viscount would no doubt regard as a misuse of the Act. It is all very well to say that the authorities do not do these things when it can be avoided because sometimes these things do happen. All I seek to do by this Amendment is to make available to a person, whether he is charged under subsection (4) or with the original offence, the defence that he had a reasonable excuse for not complying with the notice.

VISCOUNT COLVILLE OF CULROSS

I do not want to prevent any other noble Lords from adding to the arguments of the noble Lord, Lord Foot, but may I tell the Committee straight away that I think the noble Lord has a point and that we ought to deal with it. However, I think there are other ways of doing it, and perhaps the Committee will allow us to look at the point to see whether we can produce a better form of words at another stage. I do not in the least wish to curtail the debate on the matter, but I think this statement may be helpful to the Committee.

LORD FOOT

I am much obliged to the noble Lord, and in the circumstances I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.54 p.m.

LORD FOOT had given Notice of his intention to move Amendment No. 5: Page 2, line 43, at end insert ("or 4 months imprisonment".).

The noble Lord said: This is an Amendment which the noble Viscount will realise at once relates to a matter of principle which we shall be discussing later on in the Bill under Clause 4 and under Schedule 5, and it would be wholly inappropriate I think for me to initiate a debate on a matter of general principle at this stage because a great variety of Amendments have been put down to the penalty clauses. I only put this Amendment forward as a marker, because here, of course, in providing only a financial penalty the Government are acting consistently with what they are doing later on in the Bill. If we should succeed later on—as indeed I hope we shall—in getting the various Amendments about penalties which have been put down by the noble Lord the Leader of the Opposition, then we shall have to come back to this and we may have to restore the four months' imprisonment; but at this stage, with the approval of the Leader of the House, I shall not move the Amendment.

5.55 p.m.

LORD FOOT moved Amendment No. 6: Page 3, line 9, at end insert ("and")

The noble Lord said: I wonder whether we might take Amendments Nos. 6 and 7 together as they are related. The first is of no importance whatsoever. Clause 1(8) is a difficult one, as I think the noble Viscount would agree, but may I try and see what its effect is? I am suggesting in this Amendment that the whole of this subsection is all right with the exception of the second half of paragraph (b) and the whole of paragrah (c). The subsection reads: Without prejudice to section 80(2) of the 1967 Act (payment of fixed penalty before proceedings are begun a bar to conviction) where a notice under this section"— that is, a notice to the presumed owner— has been served on any person— (a) payment of the fixed penalty by any person before the date on which proceedings are begun against the person so served for an offence under subsection (4) above in respect of a failure to comply with the notice shall discharge any liability of his for that offence;

If I may say so, that is obviously quite all right. That accords with the general principle that if anybody pays the fixed penalty before proceedings have begun against somebody for failing to comply with the notice then that discharges that person's liability. I suggest that the first part of paragraph (b) is also quite all right. It reads: (b) conviction of any person for the offence specified in the notice shall discharge the liability of any other person (under this or any other enactment) for that offence…

Again it seems to me that that is perfectly all right because if a vehicle is owned by somebody, 'A', and driven by somebody, 'B', and then the driver, B is convicted for the offence specified in the notice—the offence of parking or whatever it may be—that discharges the owner from liability. That is in accordance with the principles of the Bill, but when it goes on to say: conviction of any person

let us take the driver, for example— … shall discharge … the liability of any person for an offence under subsection (4) above in respect of a failure to comply with the notice;… then we are dealing with a different matter.

If the owner, or the presumed owner, is served with a notice saying to him, "Either you pay the fixed penalty or you put in a statutory declaration within a given period of time", and he fails to do anything about it, why should the subsequent conviction of the driver for the original offence of parking improperly, or whatever it may be, excuse the person who has received this notice from having to comply with it? Why should the person who receives the notice from the authorities requiring him to do something, and who is in fact guilty of an offence against the Government, be absolved from liability simply because the driver or somebody else happens to have paid the penalty for the original offence? Surely the mischief in failing to comply with the notice is the failure to comply with the notice. If you receive a notice from the authorities calling upon you to do something and you do nothing about it, surely you are committing an offence, whether or not somebody in fact pays the fixed penalty.

Then in paragraph (c) the same kind of thing occurs, but rather in reverse. That says: conviction of the person so served of an offence under subsection (4) above"— that is conviction of an owner for failing to comply with a notice— in respect of a failure to comply with the notice shall discharge the liability of any person for the offence specified in the notice; That is the original offence. Again I ask why, if the owner is served with a notice and fails to comply with it and is then convicted of failing to comply, should that absolve the original driver (if indeed the driver was somebody other than the owner), of the offence which he in fact committed, of parking in an improper place? I do not understand the logic of saying that if the owner is convicted of failing to comply with a notice, then that automatically absolves the person who committed the original offence from all liability for anything.

I can understand that this may be a useful way of tidying up and making an end to things, but it does not seem to me to have much logic or good sense behind it. It may be that the noble Viscount will be better able to explain the matter to me; in the meanwhile, I beg to move the Amendment.

6.2 p.m.

VISCOUNT COLVILLE OF CULROSS

I think I can explain it because I am not trying to pretend that this is the purest classical jurisprudence. I must remind the noble Lord, Lord Foot, of two facts: first, that he has, with impeccable accuracy, analysed subsection (8); and the other fact is that here we are dealing with people who park their cars on double yellow lines and do not pay £2 in fixed penalties. There is of course absolutely nothing wrong with the way that the noble Lord has put this from the point of view of a matter of law, but what I would put to the Committee, and it is really a matter of judgment, is whether it is worth while making the failure to fill in the statutory statement, as it were, a fairly substantial offence all by itself. The idea, as I think everybody in the Committee appreciates, is merely to stop up a fairly substantial loophole. We want to get to the people who commit these minor and tiresome road traffic offences. If we do not get them in one way we wish to get them in the other; or if we do not get one of them in one way, we will get another person in the other way.

I suggest to the Committee that we do not want to get two people for one yellow line offence, and it is that which subsection (8) is drafted to avoid. It is perfectly true that, if the Amendment were accepted, you would have a purist approach, whereby the machinery of the notice and the statutory statement of fact is promoted, as it were, into a criminal situation all by itself. But although technically it is, because you have to be able to enforce this sort of notice, I would suggest to the Committee that we must remember that we are dealing with parking tickets, double yellow lines, with pesky little traffic offences which are an awful nuisance, and which we must prevent, but which are not worth turning into a major issue of this kind. Therefore, what we have done is to say, "There is an offence, and we are going to treat it either as an offence of parking on a double yellow line or as an offence for not filling up the notice, and either of those is going to cancel out the other. It will do, and we will call it a day." That is the way it is drafted. It may not be very good logic, but I think that it is quite good sense.

LORD FOOT

I expected that that was the answer I was going to receive, and I acknowledge that there is a great deal of sense in it. One can make too much of a meal of this question. I agree about that, but I wanted to briefly introduce it because this is going to be part of my argument in a moment about the wholesale provision of this clause, which is extremely difficult to understand, and which is full at any rate of technical anomalies or ambiguities, even though they may not be of much substance. In the circumstances, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

6.5 p.m.

EARL HOWE moved Amendment No. 8:

Page 3, line 19, at end insert— ("(d) subsequent death of the person alleged in the statutory statement of facts to be the driver of the vehicle at the relevant time shall discharge the liability of any other person for the offence specified in the notice.")

The noble Earl said: As I said just now, I am not a solicitor and I am always baffled by legal science, so I think that I can speak for the average motorist who does look to me from time to time to try to protect him. The only time I have appeared in court was for a technical offence of exceeding the speed limit, and for which I was on the receiving end from a lawyer. I move this Amendment because I am not happy about the way things are going in the Bill on owner liability. When I read the Bill the Amendment seemed to me to be necessary to ensure that, upon the subsequent death of a person who was alleged to have been the driver of a vehicle at the relevant time, the owner of the machine is not held liable for the payment of the fixed penalty. It is not clear to me, nor apparently to others who have studied the Road Traffic Bill, that this is going to be the case. An over-zealous enforcement of the law relating to owner liability is likely to cause considerable dissatisfaction among a large number of people. I personally foresee breakers ahead unless this point is made clear in the Bill. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My noble friend is perfectly right that one does not want to get into such a dreadful situation. However, let us see how it would work in practice, and perhaps my noble friend would follow me. Would my noble friend look at Schedule 1? What would happen would be that you would get a notice saying that you have to say who was driving your car at a given time at a given place, and you have to say who owned it and, if you were not driving it, who was. If one looks at paragraph 2 of Schedule 1, one will find that one fills in the statement. Say I am the owner of the car and I fill in the statement saying that I am the owner and that Mr. X was the person driving it, and I have got Mr. X to sign it and here is his signature. I send it back and the police prosecute X, or they start prosecuting X. Unfortunately, X dies before he actually gets to court. I think that common sense would suggest that in most cases the police would then call it a day. They would not actually go back and prosecute me for X's offence because X had died. Therefore, I think that in practice one does not need to deal with those circumstances.

The other alternative is that I get one of these notices and I start filling it in knowing that X was the person driving it but has died before I can get him to put "X" on the form. In those circumstances, paragraph 2(b) is fairly conclusive, because I then say, "But I could not get X to sign it because, unfortunately, he is dead". That protects me under the Bill. I would suggest that X is automatically protected because he is dead. Therefore, nobody will get prosecuted for that offence, or indeed for having failed properly to fill up the form because I am complying with the terms of the Schedule in being unable to get X to sign it. I hope that satisfies my noble friend.

I am not taking this facetiously. I can quite see that these practical points occur to people when they look at this matter, but I hope that the Committee will be convinced that, one way or the other, the death of the driver is not going to prejudice anybody and have them prosecuted when it would be grossly unfair to do so.

LORD AIREDALE

I was happy with what the noble Viscount said until he said that the police would probably call it a day. I dare say they would, but it is surely better for the police to have it in the Bill where there is a circumstance in which Parliament expects the police to call it a day. I should have thought that was the substance of that Amendment and that it was worth putting into the Bill, so that then the police would know they had to call it a day, and everybody would be satisfied.

VISCOUNT COLVILLE OF CULROSS

With great respect, I do not think so, because if one looks at my noble friend's next Amendment—and I do not know what his argument will be, but I have some suspicion that he is going to say that it is not only death that causes this sort of thing to happen—what would one do? Supposing the driver, whom I have been describing as X, was posted on the day before yesterday on an eight-month assignment to inspect the interior of New Guinea. He would be completely out of touch with civilisation all that time. That puts the police out of time for prosecuting, because six months has elapsed. Therefore, on Lord Airedale's argument, we have to put "absence in New Guinea for six months" as well as "death" as one of the exemptions. If one starts on that path, one has only to think of all the people who fall into comas or have other dreadful things overcome them. There is really no end to the list of circumstances which one would have to provide for so as to tell the police not to prosecute in those circumstances. If by any chance my noble friend, Lord Howe, is going to suggest that things of this kind should be prescribed under the next Amendment, I shall resist it on those grounds, because you will never come to the end of the list at all or make any sense out of it. The police and other prosecuting bodies, like local authorities, are capable of adopting a sensible approach without having the most tremendous rigmarole written into an Act of Parliament.

BARONESS PHILLIPS

Ordinary citizens are somewhat disturbed by these situations. We must bear in mind that a widow can be asked to pay the tax on her late husband. I have known this to cause great hardship. There is a grave element to this matter if an owner dies and then there is a debate as to whom the car belongs and whether that person is liable. It is not quite so straightforward as the Minister has suggested.

VISCOUNT COLVILLE OF CULROSS

That may be, but my noble friend's Amendment relates to subsequent death of the person alleged to be the driver. Therefore, unless it was the owner who was the driver, I do not think the question arises. I was really on another point. If the noble Baroness wants to know what is to happen to a statutory instrument served on somebody and he is dead, and so the executors are the people responsible, the answer is that you cannot be accused of an offence after you are dead. You cannot be prosecuted when you are dead, and your executors cannot be prosecuted in your place. Therefore, you are probably all right that way as well. I am subject to correction on that point, but I do not think you can be prosecuted.

EARL HOWE

I am grateful for the support I received from the noble Lord, Lord Airedale, and the noble Baroness, Lady Phillips. The only point that worries me is when solicitors say "I think". With great respect to my noble friend, Lord Colville, I do not like "I think". I should like the police and the Judiciary to be more certain. What worries many of those in my position is that the words "I think" are not what one expects to get. I should like more certainty on this matter. That is what worries the owner. Bearing in mind what has been said, it would be a waste of time to attempt to go further with this Amendment, and I am prepared rather reluctantly to beg leave to withdraw it.

Amendment, by leave, withdrawn.

6.15 p.m.

EARL HOWE moved Amendment No. 9:

Page 3, leave out lines 20 to 22 and insert— ("() the liability of any person for an offence specified in a notice under this section shall be discharged in such other circumstances as may be prescribed.")

The noble Earl said: This Amendment is to safeguard any other possible circumstances in which in the light of experience it might be considered appropriate to exclude the liability of the owner. When the Bill becomes law, for example, it may make the owner responsible, so far as I can see, for having lent his car to someone who was going abroad. It may be necessary to make provision to cover all possible circumstances not envisaged in the Bill but affecting the liability of the owner.

VISCOUNT COLVILLE OF CULROSS

see that I guessed right on what the argument was to be. Really I have nothing to say on the majority of it, but there is one point which did not arise on my noble friend's previous Amendment. One of the things I personally very much dislike—and I hope I am speaking on behalf of the Government in this respect—is that there should be either the creation of offences, or indeed the creation of defences to criminal offences, done by Statutory Instrument. That is what is here proposed. It is proposed that further circumstances should be set out by Statutory Instrument which would constitute a defence and which no doubt would be varied and amended. Frankly, I do not like it. I would be with the noble Lord, Lord Airedale. If we are to have some provision which tells the police and the local authorities when not to prosecute, let us have it in the Bill and not in the Statutory Instrument.

I hope in the end, when my noble friend comes to look at my arguments on the last Amendment, he will believe that when a member of the Bar, albeit retired, says "I think", it may not carry very much weight but it is backed by the advice I have had from my officials. They are not without experience in these matters and in what the police do. Therefore, I suggest it is better to leave out all the other circumstances, whether death or other prescribed circumstances. I hope that when he comes to think about it my noble friend and his advisers, who are extremely experienced, will find that the answers I have given in the course of these two short debates are really satisfactory in practice.

LORD GARDINER

I see the difficulties. On the other hand, if everything is left to police practice, one finds that that practice differs enormously all over the country. We ought always to bear in mind that, quite exceptionally, in this country it is the police who prosecute. When Sir Robert Mark says the police are the least powerful police anywhere, that is quite untrue, because we must remember that it is the police who decide whether there is to be a prosecution, who is to be prosecuted and what the charges are and they prosecute. In most countries that is not so; the police do not prosecute. In Scotland the police have never prosecuted anybody. There is the procurator fiscal system, and this Government have now applied that system in Northern Ireland. We go on alone, leaving everything to the police. With so many different police forces, practice must vary very much. We should seriously bear in mind that nobody can really say what the police are going to do, certainly in any particular locality, if the whole thing is left as a matter of discretion to them. Whether people are going to be prosecuted for a criminal offence or not varies so much between different chief constables.

VISCOUNT COLVILLE OF CULROSS

This is not the first time that I have had short arguments with the noble and learned Lord about whether or not we ought to introduce the procurator fiscal system into England and Wales. When we are talking about parking meters, double yellow lines and minor road traffic offences of that sort, it is not perhaps the most appropriate time to open up this rather wider argument. I can only say this to the noble and learned Lord. Perhaps he will recall the very early days in his distinguished career when occasionally he may have appeared before magistrates. I would appeal also to other members of the Committee who are magistrates. What are the courts actually going to do in the case of a parking ticket offence when the owner is prosecuted because the police have refused to accept the fact that somebody who was named, who they know was driving, is dead and is not there to pay the fine? What is a magistrates' court going to do in practice when the police are so cussed as to insist upon prosecuting the owner in those circumstances? I do not know—the noble Baroness would be very much better qualified than I to say—but it would not altogether surprise me if they were to give an absolute discharge. I should think they would consider that the police were being thoroughly unreasonable.

BARONESS PHILLIPS

If it would assist, I would certainly give him an absolute discharge if he came in front of me at Great Marlborough Street.

EARL HOWE

I hope that when, or if, the Bill becomes an Act I shall not be saying, "I told you so; it should have been included in the Bill." It is probably presumptuous of me even to suggest that. But, having heard what my noble friend feels about it, I am prepared to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

6.20 p.m.

LORD FOOT

I gave warning that I was going to challenge Clauses Nos. 1 to 5, and may I say by way of two preliminary observations that I regret that the opportunity has not been taken in this Bill of trying to give us a complete code about fixed penalty offences? This is again another example of legislation by reference back to previous legislation. Here in this comparatively limited field of fixed penalty offences it will be necessary, in order to find out what the law is once this Bill becomes an Act, to look not only at this Act but back to Sections 80, 35 and 36 of the 1967 Act. Throughout this Bill there are constant references back to that legislation. Some of the defects in this Bill, and the way it is expressed, could have been avoided if the Government had applied their mind to trying to draw up a complete code of the liability of drivers and owners for these fixed penalty offences. Had they done so, we should not have been in some of the difficulties in which we have already found ourselves in the course of this debate in the interpretation of the words. If the Government had done that we could have looked at the Bill and seen set out the whole code about fixed penalty offences.

I suggest that this debate has already illustrated that, although the object of Clauses 1 to 5 is clear, it appears to have been a matter of great difficulty for the draftsman to put it into clear language. There are still serious defects in the language which has been adopted. So serious is the difficulty in trying to understand what these clauses say that I think the object is already misunderstood, not only by people like myself, but by the noble Lord, Lord Aberdare. He misunderstood it when he was introducing the matter on Second Reading, as did the noble Lord, Lord Champion.

In moving the Second Reading of this Bill the noble Lord, Lord Aberdare, dealing with this Part of the Bill, said: The Bill preserves the basic liability of a driver. Where an owner is not a driver, it is only in special circumstances that he becomes liable. These are where he cannot persuade a driver to pay, or to sign a statement accepting liability."—[OFFICIAL REPORT, 15/11/73; col. 820.] I understand that the noble Lord was speaking with brevity and was compressing the matter. The noble Lord, Lord Champion, seemed to accept that was what the Bill said. He said (col. 829): I accept completely the necessity for the purpose behind these clauses, but I wonder whether there is any real need for owners to be relieved of any liability if they are able to furnish the chief officer of the police with the statutory statement of facts as mentioned in the clause. The suggestion behind both those quotations is that only if an owner who is served with a notice under this clause complies with it by putting in the statuttory statement with all the information which is required in Schedule 1, if he gets the driver to sign it, or certifies that he cannot get the driver to sign it, will he be absolved from all future liability. I suggest that that is not so at all.

The fact of the matter is that an owner can fully comply with the notice requiring him to put in a statutory statement yet still be liable to prosecution. I say that for this reason. First of all, the noble Lord, Lord Aberdare, was perfectly right in saying that if the owner and driver are different persons, and the owner who receives the notice can persuade the driver to pay the fixed penalty, that is the end of the matter. I agree about that. But when he suggests that if the owner sends in the requisite statutory declaration filled up as he is asked to do, complying with it in every respect, he is absolved from responsibility, that is far from being the case.

It is not unremarkable that the Minister, in introducing this, should not have understood the effect of Clause 1. If under Clause 5 a person commits, for example, an offence under the Act I was quoting just now, the Road Transport Lighting Act, which prohibits a car being left in certain roads without reflectors, et cetera, and then a fixed penalty notice is served by being attached to that vehicle and it is not complied with, a notice is served under this clause on the owner telling him that he must either pay the fixed penalty, or put in the statutory declaration. Supposing the owner puts in a statutory declaration saying, "I am the owner, so-and-so was the driver, his present address is so-and-so", and he then gets the driver to sign it at the bottom, as required by Schedule 1, he has complied fully with the notice served upon him. But he can still be prosecuted on the following day for the original offence of having caused or committed the vehicle to be left in the road contrary to the provisions of the Lighting Act.

It is provided under subsection (5) that in any proceedings brought against anybody if the defendant has been served with a notice of this kind, and has failed to pay the fixed penalty required, then unless two circumstances are fulfilled there is a conclusive presumption against him that he was the driver of the vehicle on the occasion concerned. The two conditions are that he was not the owner of the vehicle at the time, and he has put in a statutory declaration to that effect. Clearly, if the owner has put in a statutory declaration saying, "I am the owner and somebody else was the driver", he has not complied with those two conditions.

VISCOUNT COLVILLE OF CULROSS

I want to make absolutely certain that I understand the noble Lord's argument. I shall not be able to answer it this evening because I have had no notice of it, and it would be grossly wrong for me to try to tell the Committee the answer without considering it properly. But is the noble Lord taking account of this? The alleged offence specified in the notice is that somebody did leave the car on the double yellow line; not that somebody has caused a car to be left on a double yellow line; that, as I understand it, being a different offence.

LORD FOOT

I am much obliged. If you leave a car on a double yellow line, it becomes an offence in this way: you can be prosecuted under Section 12(1) of the Road Transport Lighting Act 1957 for the offence of causing or permitting a vehicle to be left on a road in contravention of the requirements of that Act. When the original notice is served by attaching it to the vehicle, it gives you notice that the offence you have committed, the thing you have done wrong, is to leave the vehicle on a double yellow line. If the authorities later decide to prosecute, they must prosecute under Section 12(1) and they must charge you with allowing the vehicle to be there at that time.

I am sorry that I have been diverted from what I was trying to say. I was trying to show that however well, and however completely, you comply with the requirement for a statutory statement, if you put it in you can still be prosecuted for causing or permitting a vehicle to be left on the double yellow line, and when you come to court on that charge you are conclusively presumed to be the driver of that vehicle although—and this is the absurdity of the thing—the statutory statement that you put in specifically denies that you were the driver of the vehicle. So the law makes an ass of itself under this provision because it asks the court conclusively to presume something which they are told in the statutory statement is not the truth.

The absurdity can be carried further. It is really almost intolerable to ask a court to presume conclusively something to be the fact which they know perfectly well is not the fact at all and is something specifically denied by the person who is being accused. Looking further on in the Bill to Clause 4(4) one finds further difficulties. That clause deals with what can be done with one of these statutory statements where a person is charged with an offence. It provides that where such a statutory statement is put in by an accused person, it shall be presumed, unless there is contrary proof, to have been signed by the accused and—this is important—shall be evidence in the proceedings of any facts stated in it tending to show that the accused was the owner, the hirer or the driver of the vehicle concerned. So in that subsection the court is to have regard to the statutory statement and to accept what it says as evidence; whereas under the other conclusive presumption the court is being asked utterly to disregard and to refuse to accept what the statutory statement says.

The final absurdity, I suggest, arises where an owner who is not the driver is charged with the offence of causing or permitting a vehicle to be on the road in contravention of an Act of Parliament and where he wants to challenge it on the facts and to say that no offence was committed at all. If he seeks to bring in support as a witness the actual driver to say, "No; the offence was not committed; I did not leave it there at all", the person who goes into the witness box as the driver and as his witness is a person who cannot go before the court and say, "I was the driver" because the court is required conclusively to presume that it is the owner who was the driver. These are the depths of absurdity into which we have been drawn in these clauses because the Government or the draftsmen have seen fit to resort to this fiction of a conclusive presumption.

What is the basic object of these five clauses? Surely it is quite simple to express it in ordinary language. Surely the object is to ensure that where one of these offences is committed and where the owner and the driver are different persons, if for any reason it is difficult or impossible to catch the driver and to penalise him, then one ought to be able to proceed against the owner. That is a principle to which I have no objection so long as it applies to matters of little moment; to offences of little moment. The principle is then a perfectly reasonable one. But should it be beyond the wit of man and the capacity of the draftsman or the Government to express that general theme in language which does not need to import these absurd conclusive presumptions about things which everybody knows to be manifestly untrue?

I would invite the Government—though this may sound very ambitious—to take these five clauses away to see whether the principle cannot be simply expressed; because the criticism I am making applies to Clause 2, in some measure to Clause 3, and is really a general criticism of all five clauses. Is it too late to ask the Government to take it away to see whether they cannot repeal the provisions of Sections 35, 36 and 80 of the 1967 Act and to bring before us in the first Part of this Bill a complete coverage of the liabilities of owner and driver in fixed penalty offences? Cannot they manage to provide us with words to express what is a very simple intention in English which everybody can understand?

What is required is this. I know it is much easier to outline than to lay down in detail; I understand that. But what is required is merely a statement of the law which says that in certain circumstances—and then one must specify those circumstances and conditions—where normally the penalty would fall upon the driver, the penalty shall in fact be transferred to the owner. That is the principle which we are all endeavouring to incorporate in these clauses. I hope it is not asking too much to ask the noble Viscount to consider that it would be to everybody's benefit to express this more satisfactorily and to incorporate within the compass of the Bill the whole of the code of law relating to fixed penalty offences.

VISCOUNT COLVILLE OF CULROSS

That is not a plea that is likely to fall on deaf ears on this side of the Committee. I appreciate that this matter is very complicated and when one considers what, at the outset, was a comparatively simple matter and sees what it has turned into, it seems a pity that we have to battle with all these words. I can promise the noble Lord, Lord Foot, that if we can find some method of expressing it more simply we will. We will look very carefully at the way he has put the matter to see whether that can be developed into an alternative method. I am sure that we should like to succeed in this as much as the noble Lord would like us to. I am not sure whether there is an opportunity here to carry out some mini-consolidation. Road traffic Bills spend their lives being consolidated. I think it was done last in 1972, and I think that the Lighting Act was incorporated into that, but I am not quite sure. At any rate, I take the noble Lord's point.

LORD FOOT

I was not suggesting that we should try to go back to the Lighting Act and try to consolidate that at this stage. All I am suggesting should be consolidated are those provisions of the 1967 Act relating to fixed penalty offences and the new provisions incorporated in Clauses 1 to 5 of this Bill.

VISCOUNT COLVILLE OF CULROSS

I was only illustrating the way in which these Road Traffic Acts get consoli- dated. I understood the noble Lord's suggestion. Will the Committee allow me to take this away? Would the noble Lord, Lord Foot, be happy with that? I cannot say, "Yes" or "No" on the basis of what he has said this afternoon. As to his first point, about this or that being absurd or preposterous, again I should like to consider it. I think that the crux of the matter is what is the definition of the offence itself for which there is, first, a fixed penalty provision and, secondly, if you do not pay the penalty, a liability to prosecution. If the offence is leaving a car, say, at a parking meter, I think we are all right. If the only offence is to cause or permit a vehicle to be left at a parking meter, it seems to me that there may be something in what the noble Lord says.

Therefore what I shall have to do is to look at the precise definition of the offences which would be specified in the notice requiring a statement. If they are susceptible only of having been committed by the driver, there is no absurdity. If they are ambiguous, so than the offences could have been committed either by the driver or someone causing or permitting the driver to do so, there is merit in what the noble Lord said. We must look at these to see which is the case. Off the cuff, I do not know. There is a large number of them and I think that we should have to look at each of them. The noble Lord has set me a certain task. If I have not fulfilled it by the next stage of the Bill I shall have to ask to be forgiven. But the noble Lord has done a service by raising these general matters and I am grateful to him.

Clause 1 agreed to.

Schedule 1 agreed to.

Clause 2 agreed to.

Clause 3 [Hired vehicles]:

6.44 p.m.

LORD STOW HILL moved Amendment No. 15: Page 7, line 3, leave out from ("prescribed") to ("and") in line 6.

The noble and learned Lord said: This is purely a probing Amendment. Clause 3 relates to the situation in which a car has been hired to a person who wishes to drive it for a vehicle hire firm, and provisions analogous to those contained in the two previous clauses are made applicable to the vehicle hire firm as it is called. When one looks at the definition subsection, namely, subsection (7), one finds a definition of the hiring agreement which is dealt with by the clause. That definition excludes hire-purchase agreements within the Hire-Purchase Act 1965 and the similar Scottish Act from the category of hiring agreements. I should think that the general principles which underlie the reasoning and structure of Clause 3 would be, broadly speaking at any rate, as applicable to the case of a hire purchase agreement as to a simple case of hiring. After all, in the case of the hire purchase agreement the hirer has possession of the vehicle. He drives it and uses it as if it were his own but in law the property in the vehicle remains vested in the hire purchase company until the hirer exercises his option, if he does exercise it, to purchase the vehicle from the hire purchase firm. I should think in those circumstances, if one looks through Clause 3, that the general principles which underlie Clause 3 seem to be applicable also to hire purchase agreements. The object of this Amendment is to ask the Minister why in the definition hire purchase agreements have been excluded. I am not saying that I disagree, but I should like to know the reasoning which underlies the distinction that the Government have made between the two, and for that purpose I have put down this Amendment.

VISCOUNT COLVILLE OF CULROSS

I hope I can explain this to the noble and learned Lord, Lord Stow Hill, quite quickly. I think that it is sense. Under a hire purchase agreement it is generally the person who is in the process of buying the vehicle who is registered as the owner and whose name appears on the registration book. In any event, if the noble and learned Lord would be so kind as to look for a moment at Clause 5(2) he will see that there we define the owner of the vehicle as being taken to be the person by whom the vehicle is kept and used. We therefore have the ordinary case of the person who is buying his motor car on hire purchase being, for the purposes of these provisions, the owner. Therefore we want to exclude those circumstances from the special pro- visions which we have agreed for hired cars. Where the hire purchase company is in fact registered as the owner of the vehicle, and where its name appears in the log book, it is almost certainly because it is still in possession of a vehicle for some reason or it has regained the possession of the vehicle. Therefore in those circumstances they would be in the same circumstances as the hire car firm. But in the ordinary case we should have the hirer in the same position as the outright owner of a motor vehicle, and we think it would be right to deal with him as if he were the outright owner of the vehicle under Clauses 1 and 2, and not have the special provision for Clause 3.

We think that the practical aspect of this matter requires us to deal with it in this way. So it would be worth while putting in this express exclusion of the hire purchase Acts under Clause 3, to make quite sure that we do not mean the ordinary hire purchase agreement to be dealt with in this way; and also to make certain that we are not taking powers to prescribe things into hire purchase agreements and into the general hire purchase code. That is why it is there. I hope that, with that explanation, the noble and learned Lord and his noble friends will think that it is right and that the Amendment was a useful probe and extracted the information that was needed.

LORD STOW HILL

I am most grateful to the noble Viscount. His answer has completely satisfied me. With the permission of the Committee I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clause 4 [Time for bringing, and evidence in, proceedings for certain offences]:

LORD STOW HILL moved Amendment No. 16: Page 7, line 11, leave out from ("sufficient") to ("to") in line 12.

The noble and learned Lord said: This Amendment raises more a question of principle than, at any rate, the previous Amendment which I moved. It relates to the wording of subsection (1) of Clause 4 dealing with the period within which prosecutions must be brought.

VISCOUNT COLVILLE OF CULROSS

If I may interrupt the noble and learned Lord, I think this whole list of Amendments to Clause 4 is really on the same point. Will it be convenient to the Committee if we discuss them together?

LORD STOW HILL

I am obliged to the noble Viscount, and I entirely agree with what he says, although some of the Amendments deal with a slightly different aspect; namely, to leave intact the position relating to Scotland, in which the prosecutor is in effect the Lord Advocate and in consequence can be questioned in Parliament with regard to a decision that he makes on a matter of this sort. The remaining Amendments in this parcel do hang together. My Amendment merely deals with the position in England and Wales where the prosecutor will be either a police officer or a local authority. The relevant wording to which I was referring is wording in subsection (1) which requires that a prosecution by the police or local authority may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to his knowledge". The object of my Amendment is to remove the words which put that matter in the discretion of the prosecutor; in other words, which provide that it is his opinion which is to determine the point of time at which he obtained possession of the necessary information upon which to found proceedings.

When I say that it raises a matter of principle, I really refer to this. Noble Lords in all parts of the Committee will agree, I am sure, that we must always in framing our legislation do everything we can to make it appear to both sides of the fence, as it were, prosecution and defence, that the proceedings are fair. If an accused person, convicted or otherwise, feels that a procedure is an unfair procedure, that does great harm; it brings the law into disrepute, and generates hostility to the administration of the law in general. I am sure I need not emphasise that, because we all agree about it.

Rarely, in my experience, does the question arise as to whether a prosecution of this sort is out of time or not. I can remember only a few cases in which that question has arisen. But now and again, such are human affairs, the issue will arise. Somebody will find that he is being prosecuted nine months after the alleged offence was committed—and I say nine months, but it might be ten, eleven or twelve months. If he complains that the normal period for offences of the type we are considering is a period of six months, he will be told that under the relevant Statute—that is, this Bill when it becomes an Act—it is for the prosecutor to determine when the period of six months is to begin to run. The prosecutor has to ask himself at what point of time does he think, exercising his judgment on the matter, that he had the necessary information to bring proceedings.

Police and local authorities act reasonably, and they use their judgment honestly as best they can. But now and again somebody will make a bad judgment. He will seek to justify that period of nine months from the time of the committing of the offence on grounds which seem to everybody, and in particular to the accused person, utterly unreasonable. But the accused person will have to be told by the court that the court cannot interfere with the opinion of the prosecutor so long as it appears to have been taken bona fide and is not apparently a fraudulent exercise of the discretion; and if the prosecutor thinks he did not get the information until some months after the offence was committed, that is the end of it, and the accused cannot complain. That is the sort of situation which is always bound to engender a great deal of ill-feeling and make the accused person feel that he has been unjustly and unfairly treated. That is the kind of thing that in framing our legislative process we must try to avoid. I know that the noble Viscount feels strongly on these matters, and I am sure he will agree 100 per cent. on that.

It may well be said to me: "Yes; but you really are raising this matter at a very late stage. This language is in the 1972 Act and in the 1967 Act. It is a formula which Parliament has accepted on more than one occasion, and which is, as it were, sanctioned by Parliamentary practice and Parliamentary language. It is now too late to seek to reverse the current and go back to a different form of words." The form of words which I propose instead of those which appear in the Bill is one that would leave it to the court to decide when the prosecutor obtained the necessary information. If the accused person says: "This offence is alleged to have been committed nine months ago", it will be for the court to decide, after hearing an account from the prosecutor, sworn if necessary, at what date it ought to be held by the court, exercising its judicial function, that the prosecutor came into possession of the necessary information. That is, in my opinion, how the Bill should read. If it is said to me: "You are raising this much too late; you should have raised it in 1972 and in previous Acts that you had anything to do with", I would simply say that I plead guilty, but would say in extenuation that this is a very useful tidying-up measure, and the fact that an undesirable form of words —which is the way I would characterise it—has got into our legislation is not a reason why it should stay there permanently and serve as a precedent for further use in subsequent legislation. This is, after all, a tidying-up measure designed to put right a number of things which need to be looked at.

I would respectfully submit that the Committee should consider whether or not we should take this opportunity of getting it right at any rate in this Bill. It would be logical by Amendments to make the necessary changes in the earlier legislation so as to bring earlier legislation into conformity with this Bill. I mentioned the 1972 Act. I should be wholly in favour of that. But at the moment we are dealing with this Bill, and I put this Amendment forward for consideration by the noble Viscount and his colleagues upon the general grounds that it is bad in principle, and this is a good opportunity to put right a form of wording which has gone wrong and which can now and again lead to a feeling of serious injustice which we ought to avoid.

VISCOUNT COLVILLE OF CULROSS

One thing I can quite confidently say is that the noble and learned Lord could not have taken this point on the 1972 Act, because it was a consolidation Act. I just wonder—and I have not been through the process—whether there was not a period when he was an ornament of the Government of the day, when this formula was used, perhaps in the 1967 Act. But I do not want to press that too far. The truth of the matter is that the noble Lord is quite right in saying that it is now hallowed by a certain amount of good, hard use.

We have to remember what we are dealing with here. We are dealing, with two subsections of earlier clauses which relate to what is in fact dishonesty. I believe that this was a point made by the noble Lord, Lord Foot. We are looking at somebody furnishing a statement as to who was driving the vehicle at the time, knowing the information to be false; and so we are in the general area of dishonesty in filling up forms to do with motor cars. There are many such provisions in the Road Traffic Act and the noble Lord, quite rightly, says that we have got them all in the 1972 Act, in Section 180. It applies to such things as giving false information, forging licences, certificates of insurance or other driving documents, making false statements or withholding information to get such documents issued. That is the kind of general area which is covered by the very same form of words in Section 180 of the 1972 Act, which picks up all these things that have been created over a period of time, and they are put together in that Act.

I entirely agree that one does not want to do anything that is unfair. I would suppose that probably people have been prosecuted for this sort of dishonest offence from time to time, in which case the prosecution would have used their judgment as to whether they had sufficient evidence or not; and one would expect, if they had been doing so unfairly or in some monstrous way that caused great injustice, to have received representations from people or to have had information suggesting that there was here an improper piece of law and one that was being abused by prosecuting authorities which were not so strictly controlled as those in Scotland.

All I can say to the Committee is that this is really a matter of judgment. There are these offences where the prosecution have been entitled to say when they have had sufficient evidence—because it stands to reason that you do not always find out at once when someone has made a false statement or committed a forgery. We have had these things on the Statute Book for a long time, and so far as I know they are not said to have caused very terrible injustice or to have been made the subject of abuse. A very similar application is here being introduced into road traffic legislation, and therefore we have used the same formula. I think it would probably be a mistake —and the noble Lord really covered this in his speech—to have a different formula for these two small offences of dishonesty from that which applies overall elsewhere. That would really cause trouble, and we would have cases in front of the Divisional Court, and all sorts of things like that.

I await to be convinced on other than the theoretical level that we really have got something here which is of genuine concern right across the field in road traffic law and which we ought to change. I do not know that I can do better than that. So far as I know, this seems to have stood the test of time. I am open to be persuaded that it is wrong and that there have been abuses; and I would ask people, if they know about them, to be so kind as to tell me. If any noble Lords have information of this kind I shall be very glad to hear about it and to look into any instances there may be. But as at present advised, I suggest that we ought to stick to the formula which does apply overall to the rest of this kind of offence in the Road Traffic Act. If that is so, then I would prefer the Bill to be left as it is.

LORD STOW HILL

Again, I am very grateful for the answer of the noble Viscount. It is a matter of judgment; it is a matter of balance. As I indicated when moving the Amendment, it is a bit late to 'change it now. I would feel that the Light course, which I shall follow, would be to ask the permission of the Committee to withdraw the Amendment, having raised it with the Government. I know that the noble Viscount, without his having said so, will give thought to it, and while on balance he may not be able to change what he said, nevertheless I should like to leave it like that, with that thought in his mind.

VISCOUNT COLVILLE OF CULROSS

Before the noble Lord does withdraw his Amendment, might I just repeat that if noble Lords who are themselves magistrates or who have connections with them —such people as my noble friend Lord Howe, for instance, with his connection with motoring authorities—know of cases where this has gone wrong, I hope they will please let me know because I genuinely would like to hear of any such cases.

Amendment, by leave, withdrawn.

7.5 p.m.

EARL HOWE moved Amendment No. 22:

Page 8, line 7, at end insert— ("(6) The conviction of a vehicle owner for an offence in respect of which he is presumed to have been the driver of the vehicle at the relevant time shall not be mentioned in any other subsequent court proceedings in respect of other alleged offences.")

The noble Earl said: I think that probably the end of Clause 4 is the proper place to insert this Amendment, and I am hoping that my noble friend will be able to tell me that this is implicit in the Bill. The object of this Amendment is to protect the motor vehicle owner or the fleet owner—or even a husband—from having his record prejudiced because of offences for which he was liable though they may not have been actually committed by him. Clearly it would seem to be unjust to allow an owner's record to be prejudiced by the inclusion of such offences, for which he is in no way responsible. Owners of large fleets of vehicles —and I expect that many of your Lordships have met this kind of thing yourselves—might be extremely vulnerable in this respect. I should like some assurance that this will not happen. I beg to move.

VISCOUNT COLVILLE OF CULROSS

All I can say is thank goodness the noble and learned Lord, Lord Gardiner, does not happen to be in his place at this moment!—because this is the sort of thing we were discussing under his own Bill: to erase the records of previous offences after a certain period. My noble friend has touched upon something which is really very much bigger than the specific issue in the Amendment—in fact, it is so big that we spent a great deal of last summer talking about it. I must frankly tell your Lordships that I do not think the Government would welcome a specific legislative provision of this sort in this Bill. It would really have to be dealt with, if it were to be dealt with in a Statute at all, in a much broader way across a much wider area. My noble friend may not have followed all the discussion that took place on the Bill during last summer, but it was quite a formidable affair in which I was heavily engaged for many a long hour—with great interest, I might add. But the practical side is fairly simple; that is, whether or not it is a good idea, I do not think these kinds of offences get entered on anybody's record. They just do not get put down at all. Therefore there is no need for this in practice, because nobody would have them on his record at all.

EARL HOWE

Again, the word "think" worries me. At any rate, there is some assurance there that this will not go down as a record of past offences. With that assurance, I am prepared to ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 4 shall stand part of the Bill?

LORD FOOT

May I ask the Minister just one question? This clause deals, among other things, with time limits for prosecution. Subsection (1) deals with that, but only in relation to offences related to false statements. May I ask the Minister this: if a person is prosecuted under subsection (4) of Clause 1 for failing to comply with a notice, what is the time limit for the prosecution of that offence? Is it the ordinary six months? If so, from what date does the six months' period begin to run? I take it that it would begin to run from the date on which the notice to put in a statutory statement expires. I wonder whether the noble Lord could answer that question.

VISCOUNT COLVILLE OF CULROSS

That is what I understand to be the case. I cannot see anything to the contrary. It is a summary offence with a £100 fine. The ordinary six months would apply; and I cannot see any other date on which it could start other than the date of failing to comply, which is when the time, extended back, expires.

LORD FOOT

I am much obliged to the noble Viscount.

Clause 4 agreed to.

Clause 5 [Provisions supplementary to sections 1 to 4 and Schedule 1]:

7.20 p.m.

LORD STOW HILL moved Amendment No. 23: Page 8, line 24, leave out from ("person") to end of line 26 and insert (`who at the relevant time was using or in physical control or in a position to take or exercise physical control over the vehicle in relation to which the alleged offence was committed").

The noble Lord said: This is an Amendment which is designed to suggest, at any rate for consideration, a rather more satisfactory definition of the "driver"—more satisfactory than the two definitions contained in Clause 5. My Amendment is described as an Amendment to line 24, but it is designed to be an Amendment to the two limbs of the definition; and perhaps, if I may shortly do so, the Committee will allow me to speak to both limbs of the definition.

The first limb, in paragraph (a), relates to offences specified in Section 80 of the 1967 Act. They are offences which will largely take place when a vehicle is parked or left unattended. The second limb relates to offences under Sections 35 and 36 of the 1967 Act. Again, those offences will often, and indeed perhaps generally, relate to a situation where a car has been left parked. I shall not read out the two definitions—they are contained in the wording of the Bill, on page 8—buit what I submit will be more satisfactory than those two definitions is a definition which better describes what one is really aiming at. I should have thought that when one is considering a parked car and one is asking who, in relation to the car, committed an offence in so leaving it, or in leaving it in a particular condition or situation, it is the person who is in a position to take charge of it and drive it away. I do not mean drive it away by stealing it, but the person who lawfully can again take control of that car.

If one looks at the second limb of the definition in the Bill, the driver is said to be: the person driving the vehicle at the time it was left in the parking place concerned".

A husband might have driven it to the parking place, gone off, and handed the key or control to his wife; she might come back, say, a quarter of an hour or half an hour later, and get into the car. The definition which I have sought to import into the Bill would in that particular situation describe the wife. The husband no longer being in control, the wife would have assumed control, and she would be the person who would be guilty of the offence if an offence was being committed in relation to the parked car. I submit that that is a more satisfactory definition of both limbs of the definition. The first limb has a curious metaphysical quality about it which needs rather an exercise of thought. The definition there relates to, the person by whom, assuming the alleged offence to have been committed, it was committed'.

That rather goes back to one's studies of Kant's Critique of Pure Reason in the old days, I think. How one assumes that an offence is committed unless one knows the driver who committed it, I do not know. So I would submit that in any event that is a good bit too abstruse.

We are dealing with a criminal provision here, and we should aim at simple language. I submit for the consideration of the Committee that the language I suggest in the Amendment I am moving is simple and describes what you are trying to describe. It relates to the person who can immediately, or in a period of time, lawfully take control of the vehicle about which one is speaking. That is the person who, in terms of this clause, surely, is contemplated as the driver, and that is the person who in my submission is described in the Amendment which I suggest. I beg to move.

VISCOUNT COLVILLE OF CULROSS

I do not want to tempt the noble Lord, Lord Foot, to intervene in opposition to the noble Lord, Lord Stow Hill, but I think the effect of this Amendment would be to make the noble Lord, Lord Foot, writhe in agony—at least, it will do when I explain what that effect will be. Because what the noble Lord, Lord Stow Hill, has done is to suggest to us that we should have two new definitions of the word "driver". It is perfectly true that the word "driver", where it relates to the fixed penalty offences, is used in a context where, of course, the fixed penalty offences are created under another Act; and I must tell the Committee quite honestly that in that context, under the other Act, there is not a very clear definition of the word "driver". But there is one which, if you look at it and construe it, and try to put it into the context of this Bill, comes out looking something like paragraph (a) in Clause 5(1). At any rate, there is no inconsistency with the use of the word "driver" where it relates to fixed penalties in the substantive legislation and the definition we have here, whereas there would be very grave inconsistencies if we adopted the noble Lord's definition.

When we come on to excess charges, in paragraph (b), the definition that we have used is exactly the same as that in, I think, Section 42(2) of the 1967 Act, where the whole question of excess charges is dealt with and "driver" is specifically defined. I do not think that, for the purposes of actually committing an offence in relation to an excess charge offence, we can have a driver defined under Section 42 of the 1967 Act in one way and, when you are dealing with what happens afterwards if he does not pay the fine, have the driver defined in a totally different way under this Bill. Certainly the possibilities of several people being prosecuted for the same thing, quite apart from the owner and driver situation—you might have several drivers being brought in as well—becomes very complicated indeed, and I think it would be wrong to have a contradictory definition in this Bill where we are really tacking something on to the excess charge arrangements under the 1967 Act.

By analogy, I would argue that since we really must define "driver" in this Bill because of the reference to excess charges—and this takes one back to the definition in the 1967 Act—then we have also to define "driver" for the purpose of fixed penalties, even though we have had to do so in a slightly ingenious way, by derivation from the provisions in the other Act, where fixed penalties are dealt with. We must have a definition for this half as well, and therefore we have tried to make one which is consistent with the parent provisions about fixed penalties. That is why we have done it in this way; and I think that to depart from it in any way at all, how ever ingenious and cunning the noble Lord's Amendment might be, would cause such appalling difficulties, and would lead us to have to amend the definitions in the two parent Acts, that it would be better to leave things alone.

I did ask my advisers about husbands and wives, one of whom put the car on the parking meter and the other of whom did not come back in time, and I was told that this was thought of in 1967 and that it was the husband who left the car on the parking meter who was held to be the driver. Somebody, I suppose, has to choose, and that is the way we have it at the moment. It may be very hard on him because it was his wife who was late, but there we are, and that is the way we have continued to handle it under this Bill. I am sorry to disappoint the noble Lord, Lord Stow Hill, but I think he will see that there is an almost insuperable argument for consistency in dealing with it in this way.

LORD STOW HILL

I am grateful to the noble Viscount. I agree that that is a very serious difficulty, and it would be difficult to have two different definitions relating to what is the same pattern of offence. If I may have the permission of the Committee to withdraw the Amendment, I beg leave to withdraw.

LORD AIREDALE

The noble Lord drew attention to the ungainly words: the person by whom, assuming the alleged offence to have been committed, it was committed". Will the Minister consider substituting these words: the person whose acts or omissions amount to an alleged offence"?

VISCOUNT COLVILLE OF CULROSS

Yes; I always consider the suggestions of the noble Lord, Lord Airedale, about better use of the English language. He often gets it better than other people. I am not absolutely certain that he has this time, but I should like to see his suggestion in print.

LORD AIREDALE

I suggest: the person whose acts or omissions are alleged to amount to an offence".

Amendment, by leave, withdrawn.

Clause 5 agreed to.

LORD ABERDARE

As we are now moving on to a quite different section of the Bill this might be a convenient moment to resume the House. I beg to move that the House do now resume.

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

On Question, Motion agreed to.

House resumed.

House adjourned at twenty-three minutes past seven o'clock.