CRIMINAL DAMAGE (NORTHERN IRELAND) ORDER 1977

HL Deb 17 February 1977 vol 379 cc1759-65

3.44 p.m.

Lord DONALDSON of KINGS-BRIDGE rose to move, That the draft Criminal Damage (Northern Ireland) Order 1977, laid before the House on 3rd February, be approved. The noble Lord said: My Lords, the noble Lord, Lord Belstead, will recall that the Government's intention to introduce this order was announced by my right honourable and learned friend the Attorney-General in another place on 2nd July 1976. The purpose of the order is to restate and modernise the law of Northern Ireland in relation to offences of damage to property. The order applies to Northern Ireland, with certain modifications necessary to take account of other Northern Ireland Statutes, the provisions of the Criminal Damage Act 1971 which apply to England and Wales. The 1971 Act was based on the Law Commission's Report, Offences of Damage to Property, published in July 1970.

The Act has worked well in England and Wales and the existing law relating to offences of damage to property is contained principally in the Malicious Damage Act 1861. This Act is complicated and unsatisfactory. It contains a multiplicity of offences based on the type of property damaged, the method used, the precise nature of the offender's intent and the extent of the damage done. It provides a wide variety of penalties, many of which are now difficult to justify. For example, while the destruction of works of art under Section 39 carries a maximum penalty of six months' imprisonment, the maximum penalty for destruction of hop bines is 14 years. Many of the provisions of the Act are obsolete and are never invoked. There is a considerable overlap of offences both within the principal Act and with offences at Common Law or created by other Acts of Parliament.

From the point of view of both the police and the public, it is desirable that the law in this area, as in other areas, should be as simple and as straightforward as possible. With this objective, the 1971 Act created offences which are less complex and more rational than those which previously applied. The order will apply these new offences to Northern Ireland. It follows from what I have said that the Criminal Damage Order is not a radical piece of new criminal law; nor is it specifically designed to deal with acts of terrorism. It is essentially a matter of applying to Northern Ireland the simplified offences of criminal damage which have applied in England and Wales since 1971 and which have worked successfully there.

The three main effects of the order are as follows. First, it simplifies the law relating to offences of criminal damage and provides the courts with a more flexible range of sentences. Secondly, it creates a new offence of threatening to destroy or damage property. This will be useful in Northern Ireland against hoax bombers and in other situations where there are threats to cause damage to property which are not adequately covered by the law as it stands. Thirdly, it creates an offence of possessing anything with intent to destroy or damage property. I hope that noble Lords will find it helpful if I now run through and briefly explain the more important articles of the order.

Article 3 creates the two main offences of the order. The first is the simple offence of destroying or damaging another's property, intending to destroy or damage it or being reckless as to whether destruction or damage would be caused. The second main offence is the aggravated one of destroying or damaging any property intending to endanger the life of another or being reckless as to whether the other's life would be endangered. The article provides that any offence of destroying or damaging property by fire shall be charged as arson. The Common Law offence of arson is abolished. The new statutory definition of arson has a wider meaning than that at Common Law, which is restricted to the burning of houses. In my view, the definition in the 1971 Act, which is repeated in the order, is more in keeping with the general public understanding of what the term "arson" means.

Article 4 follows the wording of Section 2 of the 1971 Act. It creates a general offence of threatening to destroy or damage property. The threat must be to destroy or damage either property belonging to the person threatened or to a third party, or the threatener's own property in a way which he knows is likely to endanger the life of another, whether it be the person to whom the threat is made or another person. To be an offence, the threats must be made without lawful excuse, which is defined in the order in the same way as in the Act, and intending that the person threatened should fear if the threat would be carried out.

Article 5 is based on Section 3 of the Act. It creates the offence of having the custody or control of anything intending to use it (or cause or permit another to use it) without lawful excuse to destroy or damage property belonging to another or to destroy any property in a way in which the offender knows is likely to endanger the life of another. The essential element of this offence is the intention to cause damage whether or not the article in question is held lawfully.

Article 6 provides the penalties for offences under the order. For the aggravated offence under Article 3 and all offences of arson, the maximum is life imprisonment. For the simple offence where the destruction or damage is not caused by fire and for threats under Article 4, the offences of possession under Article 5, 10 years. These are the maximum penalties for cases of trial on indictment; that is, in a higher court. The maxima where cases are tried summarily are two years' imprisonment, or a fine up to £500, or both.

Article 9 enables magistrates' courts to try, with the consent of the prosecution, all offences created by the order except the aggravated offence under Article 3(2). In this respect the order differs from the comparable provision in the 1971 Act under which cases may be tried summarily with the accused's consent. The difference is necessary to take account of the accused who just says nothing. It would be unfortunate if all such cases, no matter how trivial, had to go to a higher court for trial.

Article 9 also removes the right of the accused to opt for trial by a higher court where he is dealt with summarily for an offence under the order. This is the general provision under which a person may elect to go for trial if the offence carries a maximum sentence of more than six months' imprisonment. Article 9 will not be a new provision in Northern Ireland; it merely restates the existing law contained in Section 6 of the Protection of the Person and Property Act (Northern Ireland) 1969 which relates to broadly similar offences under the Malicious Damage Act. This provision was included in the 1969 Act which was passed following the early disturbances in Northern Ireland to avoid wasting the time of higher courts on cases of a fairly minor nature.

Article 10 provides generally for the ordering of compensation for the destruction of, or damage to, property and for the method of enforcing orders of compensation. I should also mention Article 13(5) of the order which has no parallel in the 1971 Act. The House will be aware that under the Northern Ireland (Emergency Provisions) Act 1973 a range of offences of a kind associated with terrorism are treated as scheduled offences. This means that when tried on indictment, that is in a higher court, they are heard by a single judge sitting without a jury. The House will know of the reason for that arrangement.

At present there are 16 offences under the Malicious Damage Act as well as the Common Law offence of arson which are classified as scheduled offences. Article 13(5) of the order amends the Act of 1973 so that offences under Articles 3, 4 and 5, with the exception of the offence of simple damage where fire is not involved, will all become scheduled offences under that Act. Provision is made, however, for the Attorney-General to certify that a scheduled offence shall not be treated as one in cases where this is appropriate. This is a provision which exists already in relation to offences which may, or may not, have terrorist overtones; for example, murder and manslaughter, and certain other offences against the person and against property.

Finally, my Lords, I think I should refer to one other provision in Article 13. This relates to the Summary Jurisdiction Act (Northern Ireland) 1953 which created the summary offence of damage to property not exceeding £25. We have thought it right to take the opportunity to increase the amount of damage to which these provisions apply to £100 to take account of the fall in the value of money over the years.

I have summarised the main provisions of the order. I am satisfied—and I can tell noble Lords that the chief constable and the Director of Public Prosecutions for Northern Ireland are of the same view—that the application of the simplified offences to Northern Ireland will help the prosecuting authorities in the daunting task which faces them in the present unhappy situation. We have the benefit of the experience of the working of the 1971 Act in England and Wales. It has worked well from the point of view of both the police and the courts. I believe that it will work equally well in Northern Ireland, and I commend the order to your Lordships.

Moved, That the draft Criminal Damage (Northern Ireland) Order 1977, laid before the House on 3rd February, be approved.—(Lord Donaldson of Kingsbridge.)

3.54 p.m.

Lord BELSTEAD

My Lords, as the noble Lord, Lord Donaldson of Kings-bridge, has explained, this order broadly corresponds to the Criminal Damage Act 1971, which extends only to England and Wales, but as I think the noble Lord made clear in his remarks, for Northern Ireland many of the articles in this order have a special significance. As the noble Lord pointed out, there are certain offences which are treated under Article 13 of this order which will be scheduled offences unique to Northern Ireland.

The first question I should like to ask concerns another Northern Ireland order, the Treatment of Offenders Order, which the noble Lord, Lord Donaldson, introduced into this House exactly a year ago today. May I say how pleasant it is to see the noble Lord speaking in the temporary absence of his noble friend Lord Melchett in Northern Ireland on Northern Irish affairs. That order provided for releases after a prisoner has served half his, or her, sentence, and for what is called a "conditional release" scheme, unique to Northern Ireland, for prisoners serving more than one year of imprisonment.

With the exception of Article 6 of this order which provides, as the noble Lord explained, for a maximum sentence of life imprisonment for arson, the other articles relating to offences in the order all carry a maximum of ten years' imprisonment. It may not be quite a lawyer's way of looking at it, and perhaps noble Lords will forgive me for that, but it struck me as I read the order that in weighing whether ten years maximum is right or not for offences under this order, it would be interesting to hear from the Government whether they believe that the early release or the conditional release schemes are working well, and whether during the short period of only a year since the order which brought those schemes into effect was passed, there is any significant evidence of a return to terrorism or crime on the part of those who have so far benefited from early or conditional releases.

The noble Lord referred to the considerable overlap of offences in this order and in other legislation. Looking at the provisions of the order it strikes me that there is some overlapping with other Statutes which has not, apparently, caused the repeal of those other Statutes in the repeal section, which is Schedule 2. For instance, Article 8, which empowers a search for things for use to destroy or damage property, if the search is authorised by a justice of the peace, would seem to me to be more than covered—and with no permission needed—by Section 17 of the Emergency Provisions Act 1973, which empowers any member of Her Majesty's Forces or the police to enter premises for the preservation of peace or the maintenance of order.

I expect that the noble Lord will say that the reason why it is not held to be covered in that way is that the Emergency Provisions Act is subject to six monthly or yearly—I forget which—renewal in the hope by the Government that the day will come when the Emergency Provisions Act will be no longer wanted; although I am bound to say that that piece of legislation, which followed from the report of the noble and learned Lord, Lord Diplock, will, I think, be with Northern Ireland for at any rate some time to come.

There is one other point, as to the award of compensation for destruction or damage of property under Article 10. I was surprised that that is not covered, at any rate to some extent, by the Northern Ireland Criminal Injuries to Property Act 1968 under which, I believe, over £40 million has been paid out during the last three years. With those few questions—and again some of them may be points about which the noble Lord would prefer to write to me—I certainly support the passage of this order. It will be useful to have the law in Northern Ireland on this subject restated and modernised in this way, and I support the passing as swiftly as possible of this order.

3.59 p.m.

Lord DONALDSON of KINGS-BRIDGE

My Lords, I am grateful for the noble Lord's reception of this order. The first question the noble Lord asked me was about the Treatment of Offenders Order. I did not expect to have this raised today, but it is a matter of so much interest to me that when I was discussing this order I talked to my colleagues about it, and they were very pleased with the way this is working. Of course it is too early to say that the people released will not go back to IRA or other violent activities, but I think there is no evidence that that is happening.

There is a quieter atmosphere in the prisons than one would expect, because there has been some trouble over new entrants as a result of the phasing out of special category; but if I may so describe them, the "old boys" are keeping fairly quiet, and the general view is that they see their release coming and this has a quietening effect. I think it is going as well as one could possibly have hoped up to date, but it is too early really to say. If the noble Lord will allow me—he knows I am not in detailed contact with Northern Ireland—on the other two questions, one of which was rather technical, I will write to him.

On Question, Motion agreed to.