§ Lord HARRIS of GREENWICH
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 Harris of Greenwich.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [The offence of conspiracy]:
§ Lord MORRIS of BORTH-Y-GEST moved Amendment No. 1:
§ Page 2, line 4, leave out subsection (2).
§ The noble and learned Lord said: In moving this first Amendment perhaps I might be allowed in a preliminary way to state what is my purpose in doing so and what is the purpose that governs such other Amendments as those with which I am associated in relation to Part I of this Bill, Part I being the part dealing with the law of conspiracy. My sole purpose in regard to this Amendment and in regard to those to which I have referred is the purpose of seeking to be helpful in bringing about a true and clear statement of the law, and as a part of that to try to ensure that the wording of a Bill or an Act is clear, to try to ensure that obscurity is eliminated and to try to ensure that anything that is unnecessary is cut out. I think it follows from what I have said that all these early Amendments are of such 145 a nature that if there is any difference of opinion in regard to them that difference cannot be on any of the lines that divide one political Party from another. We are here solely concerned with the law.
§ In approaching these early clauses I have found it useful to consider what is the general scope of this Part of the Bill and what is the scope of Clause 1 to which my Amendment in particular now relates. The Law Commission have embarked upon and for some years they have been engaged upon a comprehensive examination of the criminal law. They have been so engaged with a view to its codification. As we all know and recall, a great number of offences known to the law are purely common law offences. Murder, for example, is one. Incitement to commit a crime is another. Unlawful assembly is another; riots, affray causing a public nuisance, kidnapping, false imprisonment, perverting the course of justice, and conspiracy.
§ It is manifest that any programme of codifying the criminal law must be a long-term process. The Law Commission decided that it was inadvisable to consider all common law offences in one comprehensive exercise, but rather that they should consider any particular common law offence during the examination of the area of law in which it falls. So they considered as an area in itself the law of conspiracy. In so doing they aimed to bring it about that conspiracy should be an offence only if the object of the agreement was itself a criminal offence. There are various kinds of offences of conspiracy at the present time. There may be the offence of conspiring to commit a criminal offence which is a statutory criminal offence. There may be an agreement or conspiracy to commit an offence that is purely a common law offence. There may also at the present time be agreements to commit acts which are not in themselves and by themselves criminal acts.
The Law Commission in the early part of their report stated very clearly what was their general aim and their most important recommendation. They say at page 2:
Probably the most important recommendation we make in this report is that conspiracy should only be an offence if the object of the agreement is itself a criminal offence.
But in their inquiries they very soon found one immediate difficulty, and that was how were they to deal with the common law offence of conspiracy to cheat and defraud. That is purely a common law offence, and, as they have pointed out in their report, there is no substantive offence of cheating and defrauding.
May I just read a few words of their report in which they make that clear. I refer to page 10, paragraph 1.14. They said that their preliminary research,
seemed to show that it would be mainly in the field of fraud that a limitation of conspiracy would leave unacceptable gaps in this law".
This forecast, they said, had proved accurate. Then they said:
It comes as a surprise to most laymen that English law knows no generalised criminal offence of fraud. There are, of course, a very large number of statutory offences covering a wide field of fraudulent conduct but human ingenuity is great and charges of conspiracy to defraud (which is a generalised and widely defined offence) have undoubtedly been used to bring within the ambit of the criminal law conduct which most people would think merited punishment but which might otherwise have gone unpunished.
So they said that they were embarking upon an inquiry to consider fraud generally. On the same page, page 10, they say that the implementation of their proposals as to fraud—that is, this report—would have to exclude from its ambit conspiracy to defraud:
This will have to remain a common law offence pending our report on fraud offences generally.
So it comes about that they decided that until they had that further report, that common law offence would remain exactly as it is today.
So in Clause 5(2) of the Bill that is carried out. Subsection (2) says that subsection (1), which is this general provision abolishing the common law offence of conspiracy, shall not affect the offence of conspiracy at common law so far as relates to conspiracy to cheat and defraud:
subsection (1) above shall not apply in any case where the agreement in question amounts to a conspiracy to cheat and defraud".
So that offence remains. So a so do the offences referred to in the next subsection; that is, under subsection (3) the common law offence of conspiracy to corrupt public morals; so also the common law offence of conspiracy to outrage public
decency. All those offences remain. The noble Lord, Lord Harris of Greenwich, in his speech introducing the Bill explained why Her Majesty's Government had decided that those latter offences—namely, conspiracy to corrupt public morals, and conspiracy to outrage public decency—should be left as common law offences. The noble Lord said:
It was clear to the Government that the introduction of legislation on the lines of Part III of the Law Commission's Bill"—
that was the report dealing with these conspiracies to which I have referred—
would be bound to raise more fundamental questions about the general law on obscenity than it was the task of the Law Commission to examine in the context of its review of the law on conspiracy. Taking account of the limited time available in the present Session, the Government thought it better that before legislation on part of the problem was brought forward, we should take a broader look at the subject. The Government have therefore decided that a committee should be appointed to undertake a fundamental review of the laws in the field of obscenity, indecency and censorship."—[Official Report, 14/12/76; col. 804.]
§ The position is that those common law offences to which I referred are all retained. The question arose: What, then, exactly are we doing by Clause 5(1); what are we abolishing? In making some observations to your Lordships during the Second Reading debate I asked a number of questions. I indicated a slight sense of unease as to whether we were quite happy to take away some weapons from the armoury of the law merely on the ground that they had not been used for some time. I asked a number of questions of the noble Lord, Lord Harris of Greenwich, and he has most fully and courteously replied to me in a letter, for which I have thanked him and for which I thank him again. He dealt with the points that I raised.
Perhaps I might briefly refer to them. For example, I asked:
Is there today an offence of conspiracy to charge somebody falsely with a crime? Are we quite happy to eliminate that?
The noble Lord pointed out that no gap in the law would be left because he said:
There is an offence of making a false report, causing wasteful employment of the time of the police. There is an offence of perverting public justice and there is, of course, the offence of perjury. There would of course be an offence of conspiring to commit any one of those.
I asked the noble Lord whether there was an offence of conspiracy to publish a defamatory libel. I asked:
Are we unhappy at losing that?
However, the noble Lord pointed out that there is a section of the Criminal Libel Act 1843 which makes it an offence maliciously to publish any defamatory libel knowing the same to be false. I asked about conspiracy to slander and the noble Lord said that the Law Commission had been unable to trace a case in which such a charge had been brought. Lastly, I asked about the possible offence of conspiring to injure a man in his trade. In his reply the noble Lord said:
Yes, there probably is such an offence today, but there is no record that anyone has been charged with that offence for over 100 years".
Of course, as he pointed out, there may be civil liability if there is such a conspiracy. The noble Lord is reassuring us that nothing very important is at present being eliminated by Clause 5(1). The position therefore seems to be that not very much fundamental change is at present being made by Part I of the Bill. We shall still have the common law conspiracies to which I have particularly referred. We shall still have any conspiracy to commit an offence known to the law, the only difference being that such a conspiracy will in future be a statutory conspiracy rather than at common law.
§ It may be that the part of the Bill dealing with conspiracy is, in a way, an interim measure, awaiting further measures after the further reports to which the Law Commission referred and the report of the committee to which the noble Lord referred. If that is a fair summary of what this part of the Bill seeks to do, I shall turn to Clause 1.
Clause 1(1) is in these terms:
Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy in relation to the offence or offences in question.
That is virtually the present state of the law. It may be useful to print it in those words in a Bill or an Act of Parliament, but that is the law today. I point out that it does not say "involves the commission of any statutory offence"; it is
enough if it involves the commission of any offence which includes any common law offence.
I turn to subsection (2). I shall suggest that the Bill would be far better without subsection (2). That subsection reads—and I hope that your Lordships will derive great clarification from these words:
Without prejudice to the generality of subsection (1) above, for a person to be guilty of conspiracy by virtue of that subsection in relation to a particular offence both he and the other person or persons with whom he agrees must intend to bring about any consequence which is an element of that offence, even where the offence in question may be committed without that consequence actually being intended by the person committing it".
I hope that your Lordships derived great benefit and enjoyment from hearing those words. I hope that it is appropriate for me to ask: whatever do they mean? The noble Lord, Lord Harris of Greenwich, in the letter for which I have thanked him, reminded me of what the Law Commission had said. What they had said was that it is,
not merely desirable, but obligatory, that legal rules imposing serious criminal sanctions should be stated with the maximum clarity which the imperfect medium of language can attain".
I do not know whether, with that guidance, if you read those words a second or third time, your Lordships would be any nearer to an understanding of their meaning.
§ May I point out that if something is in an important Act of Parliament dealing with an important branch of the law, the law of conspiracy, these words will have to be considered, read and followed, not only by Her Majesty's judges but by all circuit judges, all recorders, all members of the Bar, all solicitors, all magistrates, all who advise magistrates. I can only feel that here is being imposed upon the legal profession and the public moments of mental worry, torment, and anguish in trying to understand what these words mean. Is it really necessary? I submit that this subsection achieves no useful purpose but achieves obscurity, and that we should be far better without it.
Are we right to torment the legal profession and the public by inviting them to have a mental wrestling up what may prove to be a cul-de-sac? In trying to understand what this subsection means, I went to the report of the Law Commission. I was quite unable to understand
what it meant until I went to this report, and I refer now to page 153. I read the notes because the Bill that is before your Lordships is very largely an addendum to the report of the Law Commission. Page 153 refers to subsection (1), which I have read, and it emphasises the word "necessarily", and then goes on:
so, for example, an agreement to beat up a night watchman will be a conspiracy to cause grievous bodily harm and not a conspiracy to murder, notwithstanding that, if the agreement were carried out and the watchman died, there would be an offence of murder. Subsection (2) emphasises "—
that is a bold assertion, that it emphasises—
that in the circumstances discussed above, even where the watchman died there would be no liability for conspiracy to murder unless the parties to the agreement actually intended to kill him".
If that was the purpose of I his subsection, may we see how far we have got? Two or three people join together and the plan is to assault the nightwatchman. They do not want to kill him but they do intend to cause him grievous bodily harm. They do cause him grievous bodily harm but, contrary to their wish, the nightwatchman is killed. It must be entirely clear that they are guilty of under, and they will be charged with murder. Is this subsection saying: "Ah, but when you charge a man with murder don't also charge him with conspiracy to murder"? Who would want to? But if that really was the purpose of this subsection may we just look at the wording again:
Without prejudice to the generality of subsection (1) above, for a person to be guilty of conspiracy by virtue of that subsection"—
we are now considering conspiracy to murder—
in relation to a particular offence both he and the other person or persons with whom he agrees must intend to bring about any consequence which is an element of that offence, even where the offence in question may be committed without that consequence actually being intended by the person committing it".
To, "bring about any consequence which is an element of that offence". Would the causing grievous bodily harm be an element in the offence of murder?
§ I wonder whether these words would really achieve the purpose they have in mind. I seriously submit to your Lordships that this Bill would be far better without this subsection. Judges, circuit judges, recorders, will have to sum up to 151 juries in conspiracy cases. They will see that Parliament has enacted new law in regard to conspiracy. They will be obliged to study these words, and unless these words are clear is it really fair to the Bar?
§ What is apt to happen? They will say: "Even if we don't understand the words, Parliament has told us that this is the law", and they may well feel obliged, in a summing up, to make some reference. They may feel obliged to try to summarise this subsection, and so often the result will be that a case will find its way to the Court of Appeal, Criminal Division, because there was here obscurity. I am not in anything that I have said being unkind to the draftsman, because I have no doubt that the draftsman here was given instructions to try to cover some rather out of the way point and I am sure that he has done his best. But I submit to your Lordships that this subsection is unnecessary, and that the clause and the Bill would be better without it. Here, as it seems to me, is the use of the obscure to conceal the unnecessary. I beg to move.
§ 3.58 p.m.
§ Viscount DILHORNE
After the most entertaining speech made by my noble and learned friend, there is nothing very much more that I would wish to say, but there are one or two things I should like to mention in support of what he has said in moving this Amendment. I hope that at the end of the day, if he is not prepared to accept the Amendment at this time, the Lord Chancellor will say that this matter will be seriously looked at again. The only case put by the Law Commission for the inclusion of subsection (2) is that it is to deal with the extraordinary possibility that where murder has been committed you would want to charge the accused with conspiracy to murder. There is no other instance put forward. There is no other illustration given.
I do not intend to repeat all that my noble and learned friend has said, but I should like to endorse what he said about the need in this particular piece of legislation for clarity; for the provisions to be unambiguous and easily understood. If you apply those tests to the first subsection I think that the first subsection passes them. The first subsection is 152 clear, unambiguous and easily understood. Subject to the later provisions of the Act, in future a criminal conspiracy must be a conspiracy to commit an offence.
When one comes to examine subsection (2), I venture to suggest that it does the direct opposite of what the Law Commission intended it to do. I put this case to the noble and learned Lord the Lord Chancellor. Is it not clear under subsection (1) that if there is a conspiracy to do grievous bodily harm, and as a result of the carrying out of that conspiracy the person affected dies, that the charge under subsection (1) can only be of conspiracy to commit grievous bodily harm because that is the conduct intended. That subsection ends:…if the agreement is carried out in accordance with their intentions, he is guilty of conspiracy in relation to the offence or offences in question".Therefore, in that case it is not necessary to add subsection (2) to subsection (1). Indeed, this is recognised by the Law Commission, which says that subsection (2) is inserted merely for the purposes of emphasis.
I put this case to the noble and learned Lord the Lord Chancellor. Take the same offence and let us assume that the conspiracy to inflict grievous bodily harm is followed by an assult on the victim which results in his death. Assault is a consequence which is an element of murder and under the wording of subsection (2),…he…must intend to bring about any consequence which is an element of that offence…".The conspirators intend to bring about an assault which is an element of the offence of murder. Then, as I read subsection (2), despite subsection (1), they can be prosecuted for conspiracy to murder even where the offence in question may be committed without that consequence being intended by the person committing it. Thus, it seems to me—I may be wrong—that the wording of this subsection does precisely the opposite of what is intended.
I hope I have made it clear to the noble and learned Lord that subsection (2) is a qualification of subsection (1). Subsection (1) says you can be guilty of conspiracy only if you conspire to commit an offence, whereas subsection (2) says you can be guilty if you conspire, in relation to a particular offence, intending 153 to bring about any consequence which is an element of that offence. So you look to see what are the elements of the murder—the infliction of grievous bodily harm; an assault. If you intend to bring about those consequences, then under subsection (2) as drafted, as I see it, you can properly be indicted with conspiracy to murder. Nobody wants that and this provision, inserted for the purposes of clarification and emphasis, does precisely the opposite of what the Law Commission intended.
My noble and learned friend Lord Morris of Borth-y-Gest referred to what will happen in practice. It is not perhaps unusual for Lords of Appeal not to be unanimous in any particular matter, but I think that in regard to the inclusion in this Bill of this subsection the Lords of Appeal in this House are unanimous that it is not necessary, and not only is it not necessary but it is wholly undesirable. My noble and learned friend Lord Salmon has asked me to say that he entirely agrees that the Bill would be improved if this subsection were left out. My noble and learned friend Lord Edmund-Davies, who is a great authority, has put his name to the Amendment. I have had a letter from another great authority on the criminal law, Lord Justice Lawton, who has authorised me to say that in his opinion this subsection is not only unnecessary but extremely dangerous and damaging.
Imagine the position of a circuit judge or recorder at the end of a long trial having to sum up to a jury, having the law, or this fraction of the law, apparently codified in this part of the Bill. He has only three courses open to him, that I can see. One is to ignore subsection (2) in his summing up; in the vast majority of cases, in 999 cases out of 1,000 that would be the right course. But it appears to be a qualification of subsection (1) and he may feel that, it being there and affecting subsection (1), he would be failing in his duty if he ignored subsection (2), so he rejects that course. Then he is left with either reading out this provision—which I will not read again; my noble and learned friend has done so and your Lordships know how easy it is to understand—or trying to paraphrase it. If he reads it out, it will only confuse and muddle the jury, and will do so wholly unnecessarily in 999 cases out of 1,000. 154 If he tries to paraphrase it, that will be even more dangerous and might well lead to the conviction, if there is a conviction, being quashed on appeal.
I do not want to pursue this matter at undue length, but in all seriousness I urge the noble and learned Lord the Lord Chancellor to say that this provision would be better omitted from the Bill. It may be that, in a sense, the Law Commission have made a slight error here, and if they have it is up to us to put it right. I know they have worked hard and have done a useful job here, but in this respect I think they have erred.
§ 4.7 p.m.
§ The LORD CHANCELLOR
It may be helpful and enable the Committee to come to a quick decision on this matter if I indicate to your Lordships a proposition which I am sure will not surprise the Committee. In view of the quality, weight and dimension of the criticism that has emerged, I am disposed to accept the Amendment. However, I shall not do so without giving some indication of the justification of what at any rate was sought to be done.
Noble and learned Lords who have spoken will I am sure readily agree that we are here dealing with one of the most difficult branches of the criminal law; namely, the quality and nature of intent in the law of conspiracy. What is being sought in the Bill is a process of codification. It is intended to be part of the process of codifying the law which Parliament has imposed on the Law Commission, and it has attempted to do so in the law of conspiracy by limiting the statutory offence of conspiracy to conspiracy to commit a criminal offence, subject to the two exceptions which the noble and learned Lord, Lord Morris of Borth-y-Gest, indicated; namely, the common law offence of conspiracy to cheat and defraud and the other offence to corrupt public morals. Those two are left for later treatment and will be dealt with, the first in a pending report from the Law Commission; the second will have to wait on the outcome of the committee of inquiry which my noble friend Lord Harris of Greenwich indicated would follow the consideration of the proposals regarding conspiracy to corrupt public morals. To that extent, therefore, 155 it is true that this is a temporary provision, but it is complete save for those two aspects of the matter.
What has been sought to be done, and what I think indeed has been conceded in the speeches made today, is that the law should require full intention and knowledge before conspiracy can be established because, as the Committee will know, the offence of conspiracy may be applied to a very wide range of offences with many different tests and the Law Commission has sought to apply the most stringent possible test. It must be borne in mind that conspiracy is essentially an inchoate offence which is committed before any prohibited act has taken place. It has been much criticised in the law as the great dragnet of the criminal law, and it is to eliminate that criticism of it that these attempts are being made. I suspect that the main ground of its unacceptability was, of course, that the penalty was at large on a conviction of conspiracy. However, while having indicated what was being sought to be done, I am bound to concede that subsection (2) may not achieve that intention and, in so far as it has sought to do so, I agree that the language as it stands is a gigantic intellectual puzzle. It may well be that it does not achieve the purpose, as the noble and learned Viscount, Lord Dilhorne, indicated.
However, I must say a word in defence of the night watchman—not in cricketing terms, but in the sombre terms of the example given. In particular circumstances, it may indeed be necessary to charge conspiracy even when an offence of murder has been committed. Two or three conspirators may take part in the attack and they would be charged with murder, but another person—perhaps the planner of the enterprise or the driver of the car—may have to be charged with conspiracy. The Bill seeks to secure that this would be conspiracy to commit grievous bodily harm where the intention of the conspirator was merely to accomplish that and not conspiracy to murder.
There it is. I do not suppose that the illustration helped a great deal to meet the criticisms of the subsection. I wholly share—and I think that the noble and learned Lord, Lord Morris, will also concede this willingly—the view that our purpose in reforming the criminal law 156 must not be to make it more obscure. I believe that that was also the purpose of the Law Commission in what it sought to do but, in all the circumstances, I am impressed with the criticisms that have been addressed and I concede that, on this occasion at any rate, the purpose that was in the mind of the criminal law reformer has not been accomplished.
§ On Question, Amendment agreed to.
§ 4.14 p.m.
§ Viscount DILHORNE moved Amendment No. 2:
§ Page 2, line 12, leave out subsection (3).
§ The noble and learned Viscount said: I should like to begin by thanking the noble and learned Lord the Lord Chancellor for the way in which he received the last Amendment and to encourage him to receive the present Amendment in the same way. I hope that I shall not be thought to be in any respect ungrateful to the Law Commission for trying to put into statutory form some words which I delivered in the course of a speech some years ago in a case called Churchill v Walton. That was an unusual case. It is an offence to use in a vehicle heavy oil on which a rebate has been allowed unless an amount equal to the rebate had been repaid to the Commissioners of Customs. A book-keeper had been convicted of conspiring to commit that offence by joining in an agreement to use such fuel in vehicles on which the amount of the rebate had not been repaid, although he did not know that it had not been repaid and was not dishonest. Those were the facts.
In the course of my speech I said—and I hope that the Committee will forgive me for repeating it—the following, which the present subsection purports to put into statutory form. I said that the question to be considered was: What did the alleged conspirators agree to do? I said:
If what they agreed to do was, on the facts known to them, an unlawful act they are guilty of conspiracy and cannot excuse themselves by saying that owing to their ignorance of the law they did not realise that such an act was a crime. If, on the facts known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts not known to them giving a different and criminal quality to the act agreed upon".
I say without hesitation that this subsection is an effort to put those words into statutory language, because those are the words cited in the Law Commission's report as being what it is endeavouring to embody in the statutory language. May I read to your Lordships how they appear:
A person shall not by virtue of subsection (1) above be guilty of conspiracy in relation to any particular offence unless he and at least one other person with whom he agrees not only intend that any acts, omissions or other behaviour which are elements of that offence shall take place but also intend or know that any facts or circumstances which are elements of that offence shall or will exist at the material time under the agreement".
§ Again, let us consider what is the position in a court when a trial is taking place. The circumstances that arose in Churchill v. Walton are extremely unusual and quite exceptional, and I should have thought that it would have been much better to leave that one case where it is—a decision of this House in which my noble and learned friends agreed with what I said—without trying to put it into this statutory language of general application. What those words mean cannot easily be understood by a jury. Again, there is the problem of paraphrasing, with all its dangers, or of ignoring the subsection completely. But this subsection starts by saying that a person shall not be guilty unless what is stated in the subsection is established. I fear that in the vast majority of cases the judge or recorder who is summing up will feel that, as this is a provision in an Act of Parliament, he must include it in his summing-up, and it can serve no useful purpose.
§ Again, I have the support of some of my noble and learned friends for the views that I have been expressing, and again this is a subsection regarding which Lord Justice Lawton has written to me to say he feels it unnecessary, undesirable and only liable to cause confusion. It is a pity that, when one gets a single exceptional decision like that in Churchill v. Walton, it should then be translated into a general proposition which is wholly inapplicable to the vast majority of cases. I hope that I have made my point clear to the noble and learned Lord the Lord Chancellor, and that he will be as accommodating on this occasion as he was on the last. I beg to move.158
§ 4.19 p.m.
§ The LORD CHANCELLOR
This raises rather more substantial and difficult matters than did my approach to the previous Amendment. The noble and learned Viscount, Lord Dilhorne, has explained that this is an attempt—and I think a gallant attempt—to give statutory effect to one of his own judicial pronouncements. To say that that was not an easy task is not intended as an impertinence. But the fact is that it related to a very difficult, and I agree perhaps exceptional, set of circumstances. But I doubt whether that combination of circumstances is so unique that there ought not to be provision for what is included in subsection (3).
The effect of subsection (3) is that even where knowledge of facts or circumstances which are elements of an offence is not required before that offence is committed (for example, in a strict or absolute liability offence), there is no liability for conspiracy to commit that offence unless the parties intend, or know, that such facts or circumstances will exist when the course of conduct they have agreed upon is realised. One illustration was in the case of Churchill v Walton, to which the noble and learned Viscount, Lord Dilhorne, referred. What is contained in the subsection would have been effective to deal with that case. But the Law Commission gives an interesting further example of the mischief which it is sought to deal with in the subsection, at paragraph 1.43 (iv) of the Law Commission's report:The formulation may be 'strict' as to a circumstance"—and this is what the subsection seeks to do—for example, taking an unmarried girl under the age of sixteen out of the possession of her parent against his will. If A and B agree to take an unmarried girl out of possession believing her to be over sixteen there would be no conspiracy unless they knew that she was under sixteen.That is another example of the principle which was applied by the noble and learned Viscount and his colleagues in the Churchill v. Walton case. Therefore, I am bound to say that I feel that in an attempt to provide for the codification of the law of criminal conspiracy as it now is, there should be an endeavour to embrace every reasonably likely set of circumstances creating a criminal offence. I think that it is appropriate to make the attempt to cover all situations as embracingly as possible, 159 and accordingly I am not disposed, at any rate at this stage, to accept the Amendment. But in the light of the criticism that has been made, I am certainly very willing to look at it again between now and the Report stage.
§ Lord EDMUND-DAVIES
In the Churchill v. Walton case the learned trial judge gave a wrong direction. In the Court of Appeal his direction was upheld. It was reversed in the House of Lords. Their recital of what happened in that case persuades me that it is desirable that there should be some statutory provision in this Bill dealing with the kind of situation which gave rise to Churchill v. Walton. So my observations are directed not to persuade the Committee that there should be no direction, but simply that the direction which is envisaged in subsection (3) seems to me so obscure and difficult as to be really a trap to the tired and overworked judge, towards the end of the day, who is called upon to direct a jury. It is really a most metaphysically drafted subsection, and I venture to think that someone ought to look at it again.
Perhaps the Committee would indulge me while I read the last sentence of the quotations of the speech of my noble and learned friend Lord Dilhorne which is to be seen on page 16 of the Law Commission's Report. My noble and learned friend said:The question is,' What did they agree to do?' If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the facts known to them what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon.I had to read that speech before I could understand exactly what subsection (3) was driving at. I hope that it can be looked at again, and that words which would be more easily followed and would therefore be likely to be of more assistance to the directing judge in giving to the jury a helpful direction, may result from my short contribution to this debate.
§ The LORD CHANCELLOR
Before the noble and learned Viscount rises to 160 his feet, I should like to say how grateful I am for these suggestions. One of the great qualities of this House as a second Chamber is the very presence here of the noble and learned Lords. But I should like to make this request to them: criticism, while not easy, is not sufficient, and if they would be kind enough to prefer alternative versions of what the noble and learned Lord, Lord Edmund-Davies, thinks would be desirable to include in the codification of the law of criminal conspiracy I should be deeply grateful to them.
§ Viscount DILHORNE
That is an invitation which I am sure my noble and learned friends and I would certainly be only too glad to accept, although in the light of my experience it is very seldom that any draft made by any Lord of Appeal of any clause or any Amendment is ever acceptable to Parliamentary draftsmen. Despite that experience over many years when I was a law officer and since, I am sure that my noble and learned friends and I would be only too glad to give what help we can because our objective is all the same. I moved the Amendment to leave out this subsection primarily because of its language. I do not object to the idea—I think there is force in it—that there should be something to deal with this particular topic. I am saying this because I hope that the draftsman will give his attention to it. I hope that it can be made clear that it is a provision which is not one which has to be relied upon or brought to the attention of the jury in every case of a charge of conspiracy. That is the danger here. Quite how one does that I do not know.
But when the noble and learned Lord Chancellor talks about the form of the language I must say that I think that the present form is wholly unacceptable. His paraphrase of it which he gave in the course of his short speech was, I thought, much more acceptable. Perhaps that could be put into statutory form, or even put into the Bill as he said it, or perhaps my language, which I thought and hoped was fairly clear, could be more precisely embodied in this, particularly the passage which my noble and learned friend Lord Edmund-Davies highly commended. I would again of course support that. We need not take up any more time on this——
§ Lord HAILSHAM of SAINT MARY-LEBONE
Before my noble and learned friend withdraws the Amendment, which I apprehend he is about to do, I should like to say something, having listened to this enchanting interchange between great minds. The first thing I wanted to say was that it really emerges that Churchill v. Walton was the case of an absolute offence, and I am wondering whether, when the noble and learned Lord comes to reconsider this matter, he should not in fact consider that the substituted words, whatever they may be, should be defined as being limited to absolute offences.
I rather question whether the point at which the draftsman has gone wrong is not that he has sought to apply to a range of offences which cover every kind of offence something which is really appropriate only to the Churchill v. Walton kind of case, with which my noble and learned friend was dealing. If in fact that is not in itself acceptable—and perhaps even if it is—I commend the words of my noble and learned friend in the Churchill v. Walton case as rather more appropriate and rather more intelligible than those which the draftsman has selected; and if in fact the draftsman cannot find any words, I believe the law has been adequately stated in Churchill v. Walton and it might be a perfectly safe bet to leave out the subsection as originally proposed.
§ Viscount DILHORNE
I am grateful to the noble and learned Lord, Lord Hailsham of Saint Marylebone, for what he has said. I am not quite sure whether the second illustration given by the Lord Chancellor was of a strict liability offence. At any rate, we can look at it all again; and I repeat that if the Lord Chancellor wishes to discuss this subject with any of us, I am sure we should be only too glad to assist if we can. Having said that, I now ask leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 4.32 p.m.
§ Viscount DILHORNE moved Amendment No. 3:
§ Page 2, line 30, leave out ("the").
§ The noble and learned Viscount said: It might be to the convenience of the Committee to consider Amendments Nos. 3, 4 and 5 together. They are put 162 down in an effort to improve the drafting of subsection (5), which appears to me to be defective. That subsection—in some respects this is rather embarrassing to me—is intended to state the effect of a decision of this House in which I appeared as Attorney-General twenty years ago. It was the case of Board of Trade v. Owen, and it was one of the instances in which the appearance of the Attorney-General was not successful. I should add that there was no question of the Attorney-General having to give his consent!
By the subsection it is intended—and I think it is desirable that it should be done—that the Bill should state the effect of the decision in Board of Trade v. Owen, and perhaps I might shortly summarise the facts of that case. The accused had been convicted of a conspiracy to defraud a German Government Department in Germany, the agreement to defraud being made in this country. The convictions were quashed, as it was held in this House, according to the headnote of a report of the case:
Conspiracy to commit a crime abroad is not indictable unless the contemplated crime is one for which an indictment would lie here.
That headnote is really not quite accurate, and that may account in some degree for the inaccuracy in the drafting of this subsection; for the point of that case was that the conduct that the accused had agreed and intended to commit in Germany, and conspired to pursue, was not a conspiracy triable in this country, because what was proposed to be done was not a crime triable under the law of England. It is consequently wrong to refer to that conduct, the conduct abroad, as conduct constituting an offence.
It was just because that conduct abroad did not constitute an offence under English law, triable in England, that the convictions were quashed. But that is what this subsection says, for your Lordships will see that it begins by referring to "conduct constituting any offence" taking place "outside England and Wales". The conduct does not constitute any offence if it takes place outside England and Wales for the purposes of this subsection. Those words are wrong and unnecessary, and I have attempted to redraft the subsection in, I hope, a less cumbrous form. The effect of these three Amendments which I am discussing together will be this, if I
may read it out to the Committee. The subsection would then read:
Subject to subsection (6) below, where in pursuance of any agreement conduct is to take place outside England and Wales which would if committed in England and Wales constitute an offence, a charge of conspiracy shall not lie unless that conduct abroad would also constitute an offence under the law of England and Wales.
That, I think, is the effect of the decision in Board of Trade v. Owen, and I hope that the Amendments which I propose state it with greater clarity than subsection (5).
§ It is, as I suggest, wholly wrong to refer to the conduct which is to take place outside England and Wales as, "the conduct constituting any offence". The result of the decision in Board of Trade v. Owen was that the conduct taking place abroad could not be the subject of a charge of conspiracy unless that conduct taking place constituted an offence triable under the law of England; but this treats the conduct as constituting a crime, when in the circumstances of Board of Trade v. Owen it certainly did not. I hope I have made that clear—I am trying not to take too long on this rather intricate part—but, again, I think the drafting here requires further consideration and improvement, and I shall be perfectly content if the noble and learned Lord the Lord Chancellor says that he will look at it again. I beg to move.
§ The LORD CHANCELLOR
As to the purpose of dealing with the special mischief that is contemplated in subsection (5), it is conceded that some provision has to be made to deal with the kind of situation which has been adumbrated as having arisen in Board of Trade v. Owen; and perhaps I could give another example of the situation with which the provision is seeking to deal. An agreement in Dover to commit an assault in Calais would not amount to conspiracy since an assault committed abroad would not be triable in England—or, indeed, in Wales. But an agreement in Dover to breach the Official Secrets Acts in Calais would be a conspiracy, because a breach of the Official Secrets Acts by a citizen of the United Kingdom and Colonies is an offence within the jurisdiction of our courts wherever it is committed. It is that kind of situation and proposition that we are trying to deal with in the subsection.
164 I shall certainly look again at the alternative draft which the noble and learned Viscount has put forward in his Amendments. I am not sure at the moment—and I say this with the greatest respect to him—that it is an improvement, but I will look at it and discuss it with the draftsmen; and I am sure we shall be assisted in that consideration by what the noble and learned Viscount has said.
§ Viscount DILHORNE
If I can give any further assistance on that, I will. I am not suggesting that my draft is perfect: I am merely suggesting that it is a little bit better. Having said that, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Exemptions from liability for conspiracy]:
§ 4.40 p.m.
§ Viscount DILHORNE moved Amendment No. 6:
§ Page 2, line 41, leave out from ("is") to ("a") in line 42.
The noble and learned Viscount said: Clause 2 begins with the words:
A person shall not by virtue of section 1 above be guilty of conspiracy in relation to any particular offence if he is an intended victim of that offence…".
It has been thought necessary for Parliament to provide that if you are a victim of a conspiracy to inflict grievous bodily harm on you, then you, yourself, cannot be convicted of that conspiracy. It is an unusual situation. This particular pro-vision is not to be found in the clause attached to the report of the Law Commission. It is something that has been put in since. It is not there in this particular subsection. The Law Commission report says on page 23, paragraph 1.55, which is headed "Agreements with victims":
In the case of some sexual offences, abduction or child stealing, it is possible that the intending offender may make an agreement with his victim for the commission of the offence. It is theoretically possible that, in these circumstances, a charge of conspiracy might be brought and, in that event, the intending offender would probably be found guilty. However, we know of no case in which this situation has ever arisen and we do not believe that it has any practical importance. The great majority of those whom we consulted thought that no conspiracy charge should lie against either offender or victim in such circumstances.
§ I can claim, now that it is getting on for 50 years since I was called to the Bar, to have a little experience in criminal work and I have never heard of a case of an intended victim of a conspiracy being charged with conspiracy or convicted of it. The Law Commission know of no such case. The Law Commission did not recommend that Parliament in its wisdom should make provision for a case that has never arisen and is not likely to arise. So I beg to move that the words "an intended victim of that offence" should be omitted from the Bill.
§ The words must have been inserted by the Home Office. Why, one does not know. One would like to have a reason for it. Perhaps the Home Office know of some case of which the Law Commission do not know where a victim has been found guilty of the conspiracy directed against himself. If there is no such case, what useful purpose do these words serve? I must say that I think it is going too far to ask Parliament to put a provision of this sort in the Bill if it serves no useful purpose.
§ The noble and learned Lord the Lord Chancellor may refer to the fact that there is a reference, in another connection, to the intended victim in a subsequent clause of the Bill as drafted by the Law Commission. That one we shall come to in a later Amendment. The Amendment that I am moving later is to make this Bill correspond to the Law Commission's draft in that respect; but that is a different matter from this one. This is a recommendation that it should be provided by Parliament that the intended victim should not be guilty of conspiring to hurt him-self. Your Lordships will see, if you look at page 156 of the Law Commission's Report, that in Clause 2(1) of their Bill there is no reference to this at all. I beg to move.
§ The LORD CHANCELLOR
May I ask the noble and learned Viscount whether it will be convenient for him at this stage to deal also with Amendments 9 and 10? They seem to go together.
§ Viscount DILHORNE
I did not think that they did; although I am quite prepared to do so. They are different in this respect but I can certainly deal with them together for they have some relationship. 166 In the Amendment that I am now moving we are discussing the position of the victim. If he is the intended victim this subsection provides that he cannot be guilty of the offence. The Law Commission in their subsection (2) dealt with an entirely different matter. That was that you could not be guilty of conspiracy if the only other party to the conspiracy was the intended victim. That, I think, is a necessary provision. That is why I have moved the Amendment to put it back to that. That is a very different provision from saying that the intended victim himself cannot be guilty. We are not concerned with that. It is necessary to say that if the only parties to the conspiracy are the intended victim and one other then there is no conspiracy charge. I do not think that I need add to that, but in this respect I am bringing this Bill back to the Law Commission's draft.
§ The LORD CHANCELLOR
The purpose of these three Amendments, which, to some extent at any rate, hang together, is to restore the wording of Clause 2 in relation to the intended victim to that which appears in the Law Commission's draft Bill attached to the report. But the obviously unintended effect of these Amendments, as I understand and believe, is to make it theoretically possible for the intended victim of a conspiracy to be convicted of a conspiracy but not the person who conspires only with the intended victim of the offence which is the object of the conspiracy.
The background to this difficult matter is that agreements with victims are described in paragraph 1.55 of the Law Commission's Report. Certainly it was conceded there that the matter is theoretical or largely theoretical because the Law Commission knew of no case where there had arisen a conspiracy charge between the conspirator and the victim. The great majority of those whom the Law Commission consulted thought that no conspiracy charge should lie against either the offender or the victim in those circumstances. Clause 2(2)(a) of the Law Commission's Draft Bill was intended to give effect to that policy but only provided an exemption for the person who conspires with an intended victim and not, oddly enoughly, for the intended victim himself.
167 The change that the provision in Clause 2 makes is to make it clear that the intended victim, as well as the other party, is exempt from a conspiracy charge; and that is why subsection (1) now expressly exempts the intended victim, as well as the other party, from a conspiracy charge. Subsection (2)(c) exempts the other party; subsection (1) exempts the intended victim. Without this change it would be possible for a court to find, for example, in a case of an agreement to commit buggery between a 45-year-old man and a 17-year-old youth that the youth was an intended victim. That conclusion would produce the absurd result that the man would have to be found not guilty but the youth would have to be found guilty unless the provision in Clause 2 was included. That is the reason for the language dealing with what is happily unlikely to be a frequent situation arising, but it could arise. Accordingly, I hope that, in the light of that explanation, the reason for departing from the original Law Commission draft will be accepted by the Committee.
§ Viscount DILHORNE
When there is a departure from the draft to the Bill prepared by the Law Commission it is only right that we should have a full explanation of the reasons for it. My Amendment is designed to bring this Bill back into line with it and to afford an opportunity for getting that explanation. We have now had it. Obviously, in the light of further examination, that draft is capable of improvement. Following the explanation that we have had, I ask leave to withdraw the Amendment.
§ Amendmen, by leave, withdrawn.
§ Viscount DILHORNE moved Amendment No. 7:
§ Page 2, line 42, leave out from ("who") to end of line 2 on page 3.
The noble and learned Viscount said: It may be for the convenience of the Committee to take the next two Amendments together. This is another subsection about which a learned judge, one of great experience in the criminal law, has written to me. He thinks that this subsection will be very confusing in practice. These Amendments are designed to try to make it a little clearer in its effect by the omission of unnecessary I language. The subsection provides not
only that a person shall not be guilty of a conspiracy if he is the intended victim but that if he is a person who would not be guilty of the offence or be liable to be prosecuted for the offence if he were to do the acts himself which give rise to the conspiracy. That is right and clear; but if you are going to have a conspiracy to commit a particular offence, a conspirator who could not be convicted of that offence because of some incapacity, or for some other reason, should not be liable to be convicted of conspiracy to commit it. That is what the subsection is intended to do and that it does. But there is no need to put in the words:
by virtue of any limitation"—
which is very obscure—and
This Amendment is designed to omit the words which follow "by virtue"—that is, paragraphs (a) and (b)—because they serve no useful purpose.
If the clause is amended in the light of what I propose, it will read:
A person shall not by virtue of Section 1 above be guilty of conspiracy in relation to any particular offence if he is an intended victim of that offence or a person who would not be guilty of an offence or (as the case may be) liable to be prosecuted if he were to do the acts agreed to be done himself.
You have to make that subsequential change in line 4 on page 3, because of the omission of line 45 on page 2, which refers to the acts in question. I do not know if I have made the point clear; I have dealt with it shortly. The grounds why he is not liable to be convicted of the offence or liable to be tried therefore, are wholly unnecessary to state in this Bill. I beg to move.
§ 4.56 p.m.
§ The LORD CHANCELLOR
Here again there has been a departure from the draft of the Law Commission, and I respectfully agree with the noble and learned Viscount, Lord Dilhorne, that it is right that we should therefore look carefully at any such departure. I confess that I find this particular provision one of complexity and it may be helpful if I seek to describe what at any rate is being sought to be done.
Subsection (1) in Clause 2 provides that a person shall be exempt from liability for conspiracy in relation to an offence 169 if he is an intended victim of that offence, or if he would not be guilty of an offence if he were to do the acts in question. Subsection (1) identifies two types of situation in which one party to an agreement may be exempt from liability for a particular offence and is consequently to be exempt from liability for conspiracy to commit that offence.
Paragraph (a) is intended to cover those cases where there is a limitation on the circumstances in which a person of any description may incur criminal liability by doing the acts in question under the agreement. This, I understand, is intended to reverse the effect of the case of Regina v. Whitchurch (1890) 2.4 Queen's Bench Division, page 420, where a woman was convicted of conspiring to procure her own abortion, although she was not pregnant, in spite of the fact that she could only have been convicted of the substantive offence under Section 58 of the Offences Against the Person Act 1861 had she been with child, as the section provides.
The Law Commission considered that this decision was open to criticism as going against the intention of Parliament through the circumvention of the limitation of responsibility imposed by Statute, and recommended that this should be overruled. I suspect that noble Lords will not quarrel with that view. Paragraph (a) would effectively reverse the decision in Whitchurch since the circumstances in which a woman is liable for procuring her own abortion are limited by the requirement that she must be pregnant. That really is the purpose and intent of the provision in paragraph (a).
Paragraph (b) is intended to cover those instances where the Statute creating an offence specifically exempts a particular class of persons from prosecution. An example of this is where a mother is not to be liable for conspiracy to commit an offence of child stealing under Section 56 of the Offences Against the Person Act in relation to her own child, since that section specifically provides that the mother of the child should not be liable for prosecution for the substantive offence, and that clarifies the present uncertain state of the law as it was stated in Duguid's case. The provision about an intended victim——
§ The LORD CHANCELLOR
That is so, but I ought to seek to explain the purpose of paragraph (b). The provision about an intended victim would be relevant in relation to offences like unlawful sexual intercourse with a girl under the age of 16, abduction or child stealing. It is possible that the intending offender in such cases may make an agreement with his victim for the commission of the offence, and so on. The noble Viscount is right in saying that that is the substance of the point we have dealt with before. Regarding what I have said about Clause 2(1)(a) and the circumstances referred to in that subsection as a basis on limitation, that is a provision which ought to be dealt with and which, as at present advised, I venture to think is reasonably dealt with in the words of the subsection.
§ Viscount DILHORNE
I am not very happy with the answer I have received. The noble and learned Lord has put forward the reasons why a clause of this kind is necessary to reverse the Whitchurch decision and the other one. The point I was making was that if you accept this Amendment you will be reversing those decisions without the addition of these complicating words in paragraphs (a) and (b) because, whatever be the reason why a person cannot be guilty of an offence, whether it is due to a limitation on the circumstances or whether it is due to an exemption, if that person cannot be found guilty or tried for that offence, the subsection will apply. I am afraid I cannot have made myself clear to the noble and learned Lord. I am not disagreeing with him with regard to the objective of this subsecton: mine is purely a drafting Amendment. It is intended not to alter the effect but to provide clarity and to remove obscurity. I am sure the noble and learned Lord will agree with me that the ordinary deputy recorder or somebody in that category who reads these words, when the Bill is enacted, will not understand what is meant. If I am right, as I think I am, in saying that the clause operates to reverse those decisions without paragraphs (a) and (b), and can only so operate, it is better to leave out those paragraphs. I hope I have made it clear now to the noble and learned Lord, and I hope he 171 will say that he will look at this point seriously. In that event, I do not intend to press the Amendment but, as the clause now stands, it is confusing. I do not disagree with the objective. If this Amendment is accepted I think the objective becomes clear.
§ The LORD CHANCELLOR
Of course I greatly respect the authority, the experience and learning of the noble and learned Viscount, and I will gladly look at this again. However, I must say so now without commitment at this stage.
§ Lord HAILSHAM of SAINT MARY-LEBONE
I wonder whether I might say this to the noble and learned Lord. It has occurred to me, listening to this exchange, that a good deal of Clause 2(1) is unnecessary in view of the definition in Clause 1. Clause 1 proceeds on the Law Commission's principal contention, which is that a conspiracy is indictable only when it is an agreement to commit what is otherwise an offence. Supposing you look at the exemption from child-stealing in favour of the mother of the child: she is then not guilty of an offence, so how could she be guilty of a conspiracy under Clause 1, even if you do not enact the relevant words in Clause 2?
The noble and learned Lord also cited the rather bizarre decision in Whitchurch, when a woman who was not pregnant was found guilty of conspiracy to procure her own abortion. I wonder whether, in the light of subsection (1) and the recent decision of the House of Lords in, I think, Smith, one can be indicted for an agreement to do that which is inherently impossible. I doubt it, in the light of recent decisions, and I wonder how far this is perhaps an over-elaboration—perhaps the over-egging of an otherwise excellent omelette.
§ The LORD CHANCELLOR
I will examine both the omelette and the egg, in the light of that interesting suggestion of the noble and learned Lord. It has been brought to my attention that a woman cannot be guilty of rape of herself but it ought to be possible for her to be guilty of conspiracy to rape another woman, and if sub-paragraph (a) were omitted I am told that she might be exempt.
§ The LORD CHANCELLOR
If that is a true interpretation of the consequences of leaving our paragraph (a) it would be regrettable; but perhaps it is something that we could mutually look at.
§ Viscount DILHORNE
The longer this discussion goes on, the more it seems to me that a lot of looking has got to be done at this particular provision. We all want to get it right and to make it clear. At the moment I agree with Lord Justice Lawton that it is bound to cause confusion in operation. We must make clear what it is intended to achieve and what it does achieve. If we can do that I shall be satisfied. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Viscount DILHORNE moved Amendment No. 8:
§ Page 3, line 4, leave out ("those acts") and insert ("the acts agreed to be done").
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ 5.6 p.m.
§ Lord WIGODER
I should like to raise one particular matter and I must confess to some ignorance about it. It has occurred to me only this afternoon in looking again at the wording of Clause 2(2). As I understand that clause, in its present form it would prevent a conspiracy charge from being brought against a husband and wife where they were the only two parties to the agreement, but it would permit a conspiracy charge to be brought against husband and wife if there was a third party to the agreement, however insignificant a part that third party might have played. I would ask the noble and learned Lord the Lord Chancellor whether he could help me by saying whether there has ever been any such charge produced by a husband and wife and third party for taking part in the same conspiracy, or whether it is proposed, by means of this subsection, that the existing law should now be extended.
§ The LORD CHANCELLOR
I do not know of any specific case, but the subsection does provide that 173A person shall not…be guilty of conspiracy in relation to any offence or offences if the only other person or persons with whom he agrees are"—throughout the agreement in any of the categories that are set out: that is to say—
Paragraph (a) merely puts the existing common law rule into statutory form. That is all it does. I do not know whether there are precedents in cases where it was necessary so to express it, but it is an existing common law rule and I suppose it was thought prudent, in this codification process, to include it in the Bill. I do not know whether I can help the noble Lord more than that in reply to his query.
- "(a) his spouse;
- "(b) a person under the age of criminal responsibility; and
- "(c) a person exempt under subsection (1)…".
§ Lord WIGODER
The point I was respectfully and somewhat hesitantly querying was whether it is an existing common law rule. I appreciate it is an existing common law rule that a husband cannot conspire with his spouse, but I have not understood it to be the existing common law rule that a husband can conspire with his spouse if the spouse is not the only other person who is a party to the agreement, which appears to be what this subsection says. Perhaps we might be able to reflect on this matter before the next stage.
§ Clause 2 agreed to.
§ Clause 3 [Penalties for conspiracy]:
§ Lord MORRIS of BORTH-Y-GEST moved Amendment No. 11:
§ Page 3, line 33, leave out from ("provided") to end of line 35.
§ The noble and learned Lord said: If I may, I shall speak to the subsequent Amendment at the same time as speaking to this one. I raised both these Amendments purely in the hope of achieving a little more clarification in regard to Clause 3 than I think is obtained by a reading of this clause. If I am right in thinking that there is here some obscurity then, by the terms of my Amendment, I have suggested how that obscurity, if it exists, could be remedied.174
Clause 3 has, as the side note, "Penalties for Conspiracy". It is true that in a court of law the side note does not govern any construction of the clause, but naturally, if one saw that side note one would expect that here in Clause 3 was to be found everything dealing with the appropriate penalty for conspiracy. Clause 3 begins with the words:
(1) A person guilty by virtue of section 1 above of conspiracy in relation to any offence or offences shall be liable on conviction on indictment to imprisonment for a term related in accordance with the following provisions of this section to the gravity of the offence or offences in question,
which are called "the relevant offences". Clause 1 of the Bill, as we have already discussed this afternoon, is a clause which makes statutory certain offences of conspiracy which at present are common law offences. Therefore, I come to the question: how does the matter stand in regard to a conspiracy to cheat and defraud? I ask the question: is the whole of Clause 3 related to a "person guilty by virtue of section 1 above"? I do not think that is very clear.
May I take the case of somebody who is charged with, and is convicted of, conspiracy to cheat and defraud? We go to Clause 5(2) and conspiracy to cheat and defraud, as we have already recited this afternoon, is retained as a common law offence, and subsection (2) of Clause 5 goes on to make it very clear by saying, "section 1 above shall not apply". I therefore raise the question: am I correct in thinking that this Bill does not deal at all with the penalty of one guilty of conspiracy to cheat and defraud? It does not come within the opening words of Clause 3. Subsection (4) of Clause 3 states:
Subject to the following provisions of this section, in any case other than one to which subsection (2) or (3) above applies the person convicted shall be liable to imprisonment for a term not exceeding one year.
Again, I put the question: is subsection (4) a subsection of a clause the whole of which is relating to "a person guilty by virtue of section 1 above"? If, in the case of somebody convicted of conspiracy to cheat and defraud, that not being within subsection (1), it is suggested that it comes within subsection (4), then I suggest that that could not have been the intention. It could not have been the
intention to say that if there was a conspiracy to cheat and defraud the maximum penalty is a penalty of one year.
It is quite clear what the Law Commission intended. They intended that in this case the penalty would remain at large. I refer to the bottom of page 39 and page 40, where it is quite clear and states:
Conspiracy to commit a common law offence for which no statutory maximum penalty has been provided should continue to have its penalty at large until the relevant common law offence is reduced to statutory form and given its own maximum penalty. Conspiracy to commit a common law offence for which a statute provides a maximum penalty should carry a maximum penalty which is the same as the penalty for the offence. The punishment for conspiracy to defraud, which is a common law offence for which no statutory maximum is provided, should continue to be at large until our forthcoming report on fraud is implemented.
That seems very reasonable but, again, I must ask the question: am I right in thinking that nowhere do we find that in this Bill? Ought that to be made clear? Again, as I have submitted, all concerned with this branch of the law will look to Clause 3 in the future and ask: what is the penalty for conspiracy to cheat and defraud? I ask the question: am I right in thinking that there is nothing about it in this clause? It cannot be within subsection (1), because that is relating only to conspiracies which are made statutory by Clause 1. Therefore, it would appear to me—and I repeat that I am raising this point only to get the matter clear—that this is not dealt with in the Bill.
§ Exactly the same point applies in regard to the offences retained of conspiracy to corrupt public morals, and of conspiracy to outrage public decency. May I take the offence at common law of public nuisance? That is an offence, and, presumably, one could have conspiracy to commit public nuisance. I think it is clear that public nuisances are indictable and among them are those which interfere with comfort, enjoyment or health. Many examples are given in Archbold, which is our standard book on the criminal law. A typical illustration given in Archbold is of carrying on an offensive trade, and in the example of an offence of public nuisance given on page 1600 it was alleged that the accused allowed offensive or unwholesome smells 176 to be emitted from furnaces or boilers, in which tripe was being burned or boiled. That would be a common law offence.
§ If various people joined together so that there was a conspiracy to commit that common law offence, what would be the punishment for it? Under this Bill, what would be the penalty? That would now be an offence under Clause 1, because it would be a conspiracy to commit a public nuisance. Under this Bill, the matter would be covered by Clause 3(2)(c). There would be an indictable offence punishable with imprisonment, for which no maximum term of imprisonment was provided, and the person convicted would be liable to imprisonment for life. I wonder whether the Government really intend that the penalty should be a maximum of imprisonment for life, where there is a conspiracy to commit this offence. At present, if there is a conspiracy to murder, the punishment is 10 years' imprisonment. I think it is quite right to increase that punishment, and that is done by Clause 3(2). At present the maximum penalty for conspiracy to commit murder is 10 years. In the future it is imprisonment for life. Do we intend that some of these conspiracies to which I have referred should be equated with conspiracy to commit murder? In-increasing the penalty for conspiracy to commit murder from 10 years to imprisonment for life the Legislature is showing the solemnity with which it regards that offence. If at common law the penalty for conspiracy is at large, as it is at present, it might be asked: What is the difference between saying that the penalty may be imprisonment for life and leaving it that the penalty may be at large? I think the difference is that we do not wish to equate so serious an offence as conspiracy to murder, or offences for which there is a statutory penalty of imprisonment for life, with an offence such as conspiracy to corrupt public morals or the other offences which I have mentioned.
§ If I may take the case of conspiracy to pervert the course of justice, on reading this Bill many people would pose the question—and some, I know, have already posed it—why does not the Bill preserve the offence of conspiracy to pervert the course of justice? That is a very obvious inquiry for anybody to make. The answer seems to be that there is a positive offence 177 of perverting the course of justice. I venture to think that practitioners in the criminal law have not often met that offence as an offence in itself; but there is authority that it is an offence to pervert the course of justice, and it is clearly an offence to conspire to pervert the course of justice. That being so, this offence would now be within Clause 1 of the Bill. That being so, under Clause 3 the penalty would be imprisonment for life, whereas at present the penalty would be at large. Ought not that to be made clear?
I have drafted my Amendments first to exclude Clause 3(2)(c) and then to add two paragraphs for the removal of doubt, the first being:
For the removal of doubt it is hereby declared that in the case of any offence of conspiracy at common law which is unaffected by or is preserved by the passing of this Act the penalty will continue to be at large.
I suggest that if there is nothing in the Bill about this it would be desirable to insert something on the lines of the recommendation of the Law Commission, namely to preserve the present position.
If I am right in thinking that there are these doubts, the other Amendment that I suggest is:
For the removal of doubt it is hereby declared that in the case of a person guilty by virtue of section 1 above of the offence of conspiring to prevent, obstruct, pervert or defeat the course of justice the penalty will be at large.
I submit that the Amendment has two advantages. First, the Amendment makes it clear that in this Bill the offence of conspiracy to pervert the course of justice is continuing. As I have said, on reading the Bill many people asked why the offence was left out. The Amendment would make it clear that it is not left out. Secondly, it would be more logical to do this rather than to join these offences with conspiracy to commit murder.
§ If I am right in thinking that there are the doubts or obscurities to which I have referred, I venture to submit that they would be met in the way I have suggested. I beg to move.
§ 5.26 p.m.
§ The LORD CHANCELLOR
As your Lordships will see, Clause 3(2)(c) of the Bill prescribes a maximum sentence of life imprisonment for conspiracy to commit an indictable offence punishable with imprisonment for which no maximum term of 178 imprisonment is provided. Kidnapping and perverting the course of justice are examples of indictable offences for which the penalty is at large. In respect of these offences the maximum penalty will be imprisonment for life, in compliance with the provisions of Clause 3(2). This provision is consistent with the policy of the Bill: of relating the penalty for conspiracy more closely to the penalty for the substantive offence. That is the very root principle of the penal provisions of the Bill. Where the common law offences continue to be at large, until the relevant common law offence is reduced to statutory form and given its own maximum penalty that will be the rule.
In respect of the fascinating prospect of a gentleman cooking tripe in a noxious way and being charged with conspiracy to achieve that nefarious purpose—assuming that to do so is a criminal offence—for the time being, at any rate, conspiracy to achieve that nefarious purpose would be punishable by a maximum penalty of life imprisonment. I hope, however, that quickly we shall get round to providing, in respect of that specific offence, a penalty that is more fitted to the mischief, however grievous to the nostrils of those who might be adversely affected. However, that is the form. It is, of course, a maximum penalty, pending the provision of a specific penalty for these odd examples that may arise. We cannot deal with everything in this Bill, which is confined to conspiracy.
The effect of the first Amendment of the noble and learned Lord, Lord Morris of Borth-y-Gest, would be to leave the Bill silent on the question of the maximum penalty for conspiracy to commix common law offences—for example, kidnapping. If that is the result, as I think it would be, clearly it would not be attractive to create a statutory criminal offence but to say nothing about what the penalty should be. That would be putting the law in the department of utter confusion. Faced with silence on the point in the Statute, the courts might find that the penalty is at large. However, they might find that there was no penalty for the offence, and that would obviously be an impossible state of affairs.
I do not think that there is any disagreement about what the noble and learned Lord and I want to achieve. I believe that Clause 3(2)(c) gives effect to 179 the same policy as the second new subsection which the noble and learned Lord seeks to insert by Amendment No. 12. But it generalises the policy to cover all the common law offences of this type and not simply the limited offence set out in the Amendment of preventing, obstructing, et cetera, the course of justice.
As to the question that was raised about the effect of all this on conspiracies to cheat and defraud and the conspiracy to corrupt public morals, I think it is made quite clear in subsection (1) of Clause 3 that all the penalties in Clause 3 relate only to the new offence of conspiracy which is created in Clause 1 of the Bill. The Bill does not affect in any way the penalties for conspiracies to cheat and defraud or to corrupt public morals or outrage public decency which are preserved, temporarily, as I said earlier in our debate, by Clause 5. So far as they are concerned the maximum penalty in respect of those will remain life imprisonment. So if it is an adverse effect then no adverse effect is made as to the penalty aspect of those conspiracies by the language of Clause 3. Accordingly while I am grateful to the noble and learned Lord for raising these interesting questions, I hope he will now feel reasonably reassured that the language which now exists meets the anxieties which he expressed.
§ Lord HAILSHAM of SAINT MARY-LEBONE
Before the noble and learned Lord withdraws or makes any comment on the observations of the noble and learned Lord the Lord Chancellor, I am sure that the Committee is grateful to the noble and learned Lord for what he has said. However it leaves me with the impression that the drafting of Clause 3 is not altogether happy. First, there is the general point raised by the noble and learned Lord, Lord Morris of Borth-y-Gest, about the relationship between Clause 3 and Clause 5. Subsection (4) of Clause 3 is not directly related back to subsection (1). In fact I think it is the case that those offences to which subsection (2) applies are by implication related back to Clause 1 because of the repetition of the words "relevant offence". But I think those words are not repeated in subsection (4) and I am wondering whether in fact it does not require to be 180 made plain that subsection (4) does not have the general application which at one moment the noble and learned Lord, Lord Morris of Borth-y-Gest, suggested it might conceivably have; and that can be done by a simple Amendment at the Report stage.
The other thing I would criticise in the drafting of this clause, which again comes within the ambit of what the noble and learned Lord, Lord Morris of Borth-y-Gest, was saying, is that the preoccupation of the draftsmen has been with custodial sentences. It has nowhere been made plain that the provisions of this clause are without prejudice to the powers of the court, for instance, to fine. It may well be that the court thinks it is obvious that its powers to fine for conspiracy are not being taken away, but I think it might well be considered that this should be made plain in a subsequent stage of the Bill when the noble and learned Lord the Lord Chancellor comes to reconsider the drafting of the clause.
§ The LORD CHANCELLOR
If I may say so, it would seem clear that we are dealing here with maxima. I hope the fact that we are dealing with maxima will not confuse a court into thinking that that is the full ambit of their penal jurisdiction.
§ Lord HAILSHAM of SAINT MARY-LEBONE
Of course we are dealing with maxima—that is quite clear, but the maximum sentence deals with custodial penalties only. It is not absolutely plain that a fine of £1,000, for instance, is less serious than imprisonment for two weeks. Some people might find it more onerous than imprisonment for two weeks. I am only suggesting that the noble and learned Lord should consider that point because, although I think common sense would indicate that what I have said and what the noble and learned Lord has said is correct, I am not quite sure that a literal-minded approach to the clause would have quite the same result.
§ Viscount DILHORNE
I am not sure that I agree with the noble and learned Lord the Lord Chancellor when he said that if Amendment No. 11, moved by my noble and learned friend Lord Morris of Borth-y-Gest, was accepted there would be no provision for maximum sentences 181 which would otherwise be covered by paragraph (c). The purpose of Amendment No. 12 is to provide for such sentences and the two Amendments go together. But, as I understand it, what he is really saying is that it does not matter if you are converting punishment at large to a maximum sentence of punishment for life because in theory if punishment at large can be passed, a sentence of imprisonment for life may be passed but that is only temporary until specific sentences are provided for these offences. If that be so and if that assurance is given, it goes a long way towards allaying my fears about it. But in reply to my noble and learned friend, the noble and learned Lord the Lord Chancellor did not deal with one point to which I attach importance; namely, doubts have been expressed to me as to whether, if this Bill is enacted, there will still be an offence of conspiracy to pervert the course of justice.
From what my noble and learned friend Lord Morris of Borth-y-Gest has said, it is clear that it will still be an offence, but I feel that it is indeed desirable that it should be put beyond doubt in this Bill that it remains an offence. It may be that one could do it by a provision in Clause 1—a removal of doubt provision—rather than in this clause, but I ask the noble and learned Lord the Lord Chancellor to give careful consideration to making that absolutely clear because I feel that it may avoid considerable difficulties in the future.
§ Lord EDMUND-DAVIES
I am a little doubtful as to whether it is satisfactory to rely upon the provision that is suggested in the Amendment moved by my noble and learned friend Lord Morris of Borth-y-Gest and the provision in his second Amendment for the removal of doubt, and so on; the provision that conspiracy to pervert the course of justice—the penalty will be at large—is sufficient to make it quite clear that there is such an offence.
§ Lord EDMUND-DAVIES
I am bound to say it would be far more satisfactory if there is any doubt about that really substantial menace today, the existence of such an offence, for it to be covered by some express provision.
§ The LORD CHANCELLOR
I will certainly pursue this and if there is any doubt about it then of course it must be expressly provided for in the Bill.
§ Viscount DILHORNE
If I may intervene for a moment, I do not think there is any doubt but a lot of people may doubt it.
§ The LORD CHANCELLOR
If it needs to be put beyond a peradventure then certainly it must be looked a t because clearly it is one of the gravest crimes that any society has to face.
Reverting to the suggestion made by the noble and learned Lord, Lord Hailsham of Saint Marylebone, on the penalty point there is, of course, a general power to fine on conviction on indictment in Section 30 of the Powers of Criminal Courts Act 1973, and that of course is not excluded by Clause 3 of the Bill; but, of course, other penalties are available, and alternatives to custodial treatment. I will certainly be happy to look at the point he has made. In the circumstances perhaps the noble and learned Lord, Lord Morris, may not be disposed to press these Amendments.
§ Lord MORRIS of BORTH-Y-GEST
May I say that I am very grateful to the noble and learned Lord the Lord Chancellor for the way in which he has given consideration to this matter. With regard to conspiracy to cheat and defraud, I rather think that the Lord Chancellor is not demurring from anything that I said; namely, that there is nothing in this Bill which deals with it. It is simply left as wholly a common law offence; there is no special penalty at common law, and there is nothing said about it in this Bill. I think the Lord Chancellor is saying, therefore, that the law is left as it is. But would it not be better to say that? I think the Lord Chancellor was saying that if I took away (c) there would be nothing dealing with this matter. I respectfully think that there will be a gap unless something is said.
183 On the other point, in regard to conspiracy to pervert the course of justice, on Second Reading I asked whether that was preserved, and the noble Lord, Lord Harris, made it very clear that in his view it was preserved. I am not challenging it, because I think there is authority—although not very familiar to the whole profession—for the view that perverting the course of justice is itself a substantive offence. Therefore, there is the offence of perverting the course of justice preserved. If I may respectfully say so, what the noble Lord, Lord Harris, said was entirely correct. But again I ask the Lord Chancellor whether he would look at this again and consider whether it would not help in the future if there were something to make that clear.
In regard to these Amendments, I said at the start that my sole purpose was to ask whether there was any matter that was not clear and that if that was so to suggest how it be dealt with. The Lord Chancellor has been good enough to say that he will consider this, without making any promise. In view of that, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Restrictions on the institution of proceedings for conspiracy.]:
§ Lord HARRIS of GREENWICH moved Amendment No. 13:
§ Page 4, line 40, after ("by") insert ("or").
§ The noble Lord said: I beg to move Amendment No. 13. This is purely a drafting Amendment which does not alter the sense. It makes the subsection grammatically correct.
§ On Question, Amendment agreed to.
§ 5.44 p.m.
§ Lord WIGODER moved Amendment No. 14:
Page 5, line 9, at end insert—
(4) Where an indictment contains both a count alleging a conspiracy to commit an offence or offences, and a count or counts alleging the commission of such offence or offences, the trial shall not begin upon both the conspiracy count, and the substantive count or counts without the leave of the trial judge, who shall only give such leave if he is satisfied that the interests of justice cannot otherwise be served.
§ The noble Lord said: The object of this Amendment is to allow for a very 184 brief discussion of a serious aspect of a very serious problem touched upon by the noble and learned Lord the Lord Chancellor in the course of his observations during the debate on the gracious Speech some weeks ago. The noble and learned Lord referred to the excessively long and complicated trials which were cluttering up some of the criminal courts to the great detriment of the proper administration of justice. I believe that there are many procedural ways in which, without resorting to some of the more drastic surgery the James Committee has recommended, it might be possible to deal with that position.
§ One way is dealt with in this suggested Amendment. I have no doubt that if one looks at the long trials that are taking place and have taken place in recent years one will find a significant number in which there are counts for conspiracy to commit an offence and also counts for committing the substantive offence, and those counts are being tried simultaneously before the jury. I would concede at once that there are some cases in which that course is desirable and proper in the administration of justice, but there are a very large number of cases in which it serves no useful purpose whatsoever. It serves no useful purpose in most cases perhaps for three reasons, up to a few minutes ago, and four reasons in future.
§ First, it is clear that if two people in fact commit an offence, as a matter of law they have committed the offence of conspiracy to commit that offence. Secondly, conversely, in, I think, every possible case, certainly every practicable case, if two people conspire to commit an offence and the offence is committed, they are as a matter of law guilty of committing the substantive offence. Thirdly, the rules of evidence as to a conspiracy count and a substantive count are, I believe, precisely the same. There has been a certain amount of confusion about that matter, and indeed in one of the many helpful communications I have received in connection with this Bill it was suggested that the rules of evidence are in some ways more oppressive in a conspiracy count than in a substantive account. I doubt whether that is in fact a correct statement of the law. Fourthly, as a result of the clause that has just been passed, Clause 3, there will no longer for practical purposes 185 be any penalty advantage in the prosecution seeking to pursue a conspiracy count in addition to the substantive count. In those circumstances, I would have suggested that in many cases to include both the conspiracy and the substantive count is unnecessary.
§ The harm that is done I would put under four headings. First, that it adds greatly to the length of the trial and very often to the confusion of the jury, who have to be directed as to additional matters of law which they need not have been troubled with had the indictment been simplified. Secondly, the prevalence of conspiracy counts does sometimes lead to the prosecution including in a long trial defendants who as a matter of common sense might well have been eliminated at a very much earlier stage. If I may give one fairly commonplace example, the large-scale bank robbery in which some of the robbers' girl friends are discovered shortly after the robbery in possession of some stolen £5 notes. One would have thought in the ordinary way that they might sensibly have been dealt with summarily on a charge of receiving a small quantity of stolen money. But so long as there is this habit of including conspiracy counts wherever possible there is a temptation to include people of that nature on the conspiracy count, to put them in the dock at the Central Criminal Court, to supply them with solicitors and counsel who have to sit there for weeks and weeks on end doing absolutely nothing, until the inevitable result is that the girl, if she is convicted, is told to go away and not be so silly on some future occasion.
§ Thirdly, one of the difficulties that arises is that it is as a matter of fact very much more difficult to persuade a defendant to plead guilty to a charge of conspiracy than to a substantive count. I am not sure that I understand quite why. It may be that the feeling about the maximum sentence impresses them. But certainly it is generally the case that it is unusual to find a defendant who is willing to plead guilty to a conspiracy count.
§ The final, and I think the overwhelming, difficulty that arises where there are both conspiracy and substantive counts is simply that juries are creatures of common sense; if they feel that the prosecution is being in any way oppressive in pursuing both conspiracy and substantive counts, the jury will take matters into their own 186 hands; they will convict of the conspiracy and acquit of the substantive offence, or they will acquit of the conspiracy and convict of the substantive offence. One can well understand the common sense of their approach. But in fact when the case goes up to the Court of Appeal—I am sure noble and learned Lords can remember many such cases when they have sat in the Court of Appeal—a very difficult problem of law sometimes arises as to whether the verdicts as a matter of law can be reconciled with each other, and the result on many occasions, very much against the merits and weigh: of the evidence, is that defendants have had their appeals allowed in the Court of Appeal.
§ I therefore suggest that there is a very strong case for taking firm action to ensure that in the majority of cases—perhaps the very large majority of cases—prosecutions are discouraged from including both conspiracy counts and counts alleging the commission of the substantive offence. There are two ways of doing this. One is by specific provision in the Statue. I have endeavoured to provide a possible draft in Amendment No. 14, which we are now discussing. This would prevent the trial beginning where there was both a conspiracy count and a substantive count unless the onus had been firmly placed upon the trial judge not to give leave unless he was convinced that that was the only sensible course. It may be that the Amendment which I have drafted is unacceptably complicated and I would welcome assistance in ways of improving it.
§ There is the alternative course that might be taken of a practice direction from the Lord Chief Justice dealing with this particular problem. That matter was touched upon in the Law Commission's report. The purpose of moving this Amendment is to discover whether any such practice direction is in the course of preparation and to indicate the hope, if I may, on behalf of the Bar that if that direction is in the course of preparation it is a stringent direction in mandatory terms.
§ However, there may be much to be said for making provision for this in the Statute rather than having a practice direction, for the simple reason that in case after case in the Court of Appeal and in the Appellate Committee of your 187 Lordships' House clear observations have been given amounting to practice directions about the danger of joining substantive and conspiracy counts unless it is absolutely necessary. Unhappily, those observations and directions have been consistently ignored by trial courts up and down the country. There is nothing more than a perfunctory discussion at the beginning of a trial in which defending counsel suggests that perhaps it is not appropriate to join the counts together. There is an equally perfunctory answer by the prosecuting counsel that on the facts of the particular case it is permissible. In all probability there is the ruling by the trial judge, who has not had time to read the papers, that perhaps the trial should continue as it is, and everyone will see where it leads them. All too often the result, unhappily, is that the case goes to the Court of Appeal on a verdict which it is impossible to support. I hope that in those circumstances the noble and learned Lord the Lord Chancellor can give some encouragement to those of us who are anxious to simplify and shorten these complicated and involved criminal trials.
§ 5.55 p.m.
§ Viscount DILHORNE
I sympathise with the views expressed by the noble Lord, Lord Wigoder. He has drawn attention to a very real problem. However, I do not like his proposed solution, whether it be a practice direction or an enactment in accordance with his Amendment.
I want to explain why I support the noble Lord's proposition that something should be done. It is becoming increasingly important that the functions of those responsible for the preferment of criminal charges should be kept quite distinct from the judicial functions. I take the view that if there is evidence to support a charge, it should not be left to an individual judge to say whether or not that charge should be preferred. He can rule that there is no case to go to the jury—that is within his province. However, we must be very careful not to extend the judicial power to limiting charges that can be preferred. Once that happens the impression could be gained that a particular charge has been preferred with the acquiescence of the Judiciary and it may appear that the Judiciary is not being 188 wholly impartial. That is why I do not like the idea put forward in the proposal of the noble Lord, Lord Wigoder, that a charge of conspiracy, joined with other offences, should be brought only with the consent of the judge. Similarly, a practice direction is open to that objection.
If something should be done in this area, the right course would be to amend the rules relating to indictments. There is great substance in what the noble Lord, Lord Wigoder, said. For many years there has been criticism of the joinder of counts of conspiracy with other counts. As the noble Lord said, efforts to prevent that in unsuitable cases do not appear to have been wholly successful. As the noble and learned Lord the Lord Chancellor said a few moments ago, very often the charge of conspiracy is included as a dragnet. That is wrong. The charge of conspiracy should not be supplementary to the charges of substantive offences; it should not come at the end of the indictment. I know of very few instances where it is proper that it should come at the end of the indictment.
At the same time there may be the case—and we have seen it—where there is a conspiracy to commit a whole series of minor offences and each offence committed must be proved in the course of establishing the overall conspiracy, the main conspiracy. The conspiracy to commit a whole series of minor offences is much more serious than each individual minor offence. There, surely, it is right to establish that conspiracy with the minor offences which must be proved. In that case the conspiracy should be the first and main count in the indictment.
I believe that one could go a long way towards obtaining what the noble Lord, Lord Wigoder, wanted by having a rule saying that if a conspiracy count is included in an indictment it must be the first count preceding those counts of substantive offences alleged to have been committed in pursuance of the conspiracy. I throw that out. I do not believe that the mere addition of conspiracy charges is entirely, or to a great degree, responsible for the length of time that trials are now taking. The custom of adding every possible count to an indictment has developed to an extent which is wholly undesirable. I believe that the noble and learned Lord 189 the Lord Chancellor would agree with me when I say that the heavier the case, the better it is if the indictment is short.
However, there is the practice which used to apply in the Army, in the Judge Advocate General's Office, particularly in the early days of the war, with which I am sure the noble and learned Lord the Lord Chancellor is familiar, of including every possible charge. When an officer was being tried by court-martial for passing dud cheques, even though there was not the slightest prospect of recovering any of the money from him, the rule was that he had to be charged in relation to every cheque. That disease seems to be spreading down to the Central Criminal Court, and I hope that it will be checked. The noble Lord, Lord Wigoder, has drawn attention to a problem which requires dealing with. I do not like his solution. I think that if you can make a slight alteration to the indictment rules it will go a long way to achieving the result he requires.
§ 6 p.m.
§ The LORD CHANCELLOR
I am most grateful to the noble Lord, Lord Wigoder, for raising this issue which, but for his initiative, as there is no express reference to this problem in the Bill, we might not have had an opportunity of discussing. He has been kind enough to mention my concern about the kind of practice which the noble and learned Viscount, Lord Dilhorne, has just been mentioning and which was instrumental in extending enormously the length of trials, because it creates complexity in the indictment and is regarded as a ground for an almost automatic grant of leading counsel.
We have had some cases of a number of people with no conflict between them in the presentation of their cases, each is charged with a conspiracy, each is represented by Queen's Counsel and a junior, on offences which are often comparatively trivial. The worst examples are affray cases. In some other cases—and I will not embarrass the scene or the persons concerned by identifying cases—the cases last for weeks. The costs run to £50,000 and £60,000 on legal aid. It is something that I am happy to say both the Bar and the Law Society, in fairness to them, have themselves been protesting about. Therefore, I am warmly in support of the 190 problem being raised and the view that something ought to be done about it.
I gather from the noble and learned Viscount, Lord Dilhorne, that he certainly does not say that there should never be joinder of a conspiracy count with counts alleging substantive offences. I notice that the Law Society wanted to go as far as that. But I am not clear in my mind at the moment, and I should be grateful to hear the views of other noble and learned Lords on this, as to whether putting the conspiracy count as the first count in the indictment would make a lot of difference. I doubt very much that it would. It would not follow that the prosecution would have to go through some process of having to prove that first before moving on to the substantive offences. It would still be as much a part of the generality of the case and of the evidence whatever number it had in the indictment. Therefore, I am bound to say that I cannot readily see how amendment of he indictment rules will be apt to deal with this mischief. We seem to be faced therefore with the alternative, if we want to deal with this matter, as I respectfully agree we should, between the statutory provision and a practice direction. I am bound to say that my own preference would be to favour the greater flexibility, in this essentially procedural matter, of a practice direction as against a statutory provision.
I am not sure that I share the apprehension of the noble and learned Viscount, Lord Dilhorne, that this is imposing upon the judge a function which would make him appear to be too partisan, too much involved in the prosecution process. After all a trial judge often has to give directions on challenges to the indictment, on striking out counts in the indictment. It is part of his job. I should have thought that a practice direction requiring that a joinder should not be permitted unless that could be justified to the judge, ought not to affront any principle of the objectivity and impartiality of the judge. Therefore, I am inclined to support the conclusion to which the Law Commission came and which I apprehended that the noble Lord, Lord Wigoder preferred; namely, that this matter should be dealt with by practice direction. I shall certainly see what can be done in that way. I am not sure what my powers are in regard to practice direction, I think it 191 must emanate from the Lord Chief Justice, but I think it is very likely that he would agree with that conclusion.
§ Lord MORRIS of BORTH-Y-GEST
I only add a word on this matter merely for the reason that the noble and learned Lord the Lord Chancellor said that he would like to hear any other expression of opinion. I very much share the approach just expressed by the Lord Chancellor because I think that it must be within the power of a judge to control the proceedings before him. I think that we have all had experience of cases where we have been confronted at a trial with a great many counts, and I think a judge can use his position to indicate that really in the public interest it is not desirable to go into a great many counts.
I, for one, was very much impressed by what the noble and learned Lord the Lord Chancellor said a little time ago in your Lordships' House about the value of pre-trial review. I should have thought that much could be done on those lines. I support the general approach of the noble Lord, Lord Wigoder. A great deal of help has been given by the courts from time to time as to what is desirable and undesirable in regard to counts. There was the case in your Lordships' House of Verrier v. DPP in 1967, and in the various notes in Archbold referring to that rule a number of various exceptions to the so-called rule are set out. Therefore, I think there is great scope to do something on the lines that the noble Lord, Lord Wigoder, suggests. It is in the public interest, for so many reasons, that expense should be spared. Indeed, one of the purposes of the third Part of this Bill will be to minimise to the greatest extent possible the work of the Crown Courts. I should have thought that a lot could be done on these lines.
While I entirely agree with what the noble and learned Viscount, Lord Dilhorne, has said, that a judge ought not to be asked to decide certain things as though he was vetoing a prosecution, if there are many counts I should have thought that it was within the general scope of a judge's power, and indeed duty, to try to bring some reason into the position so as to effect that you should not have a needless duplication of the 192 charge of conspiracy itself and the various acts. The rules that are set out in Archbold show that there are various considerations to be had in mind. Therefore, as views were invited, may I say that I, on the whole, respectfully share the approach of the Lord Chancellor.
§ Lord EDMUND-DAVIES
I rise to respond to the invitation of the noble and learned Lord the Lord Chancellor to express my gratitude to the noble Lord, Lord Wigoder, for raising this matter. I speak lest there be any in this House who think that what has been happening for the last 20 minutes or so is just laywers' talk; it is nothing of the kind. It is something which ought to engage public attention, and my belief is that great abuse has with frequency been made of the preferment of conspiracy counts where no useful purpose was served at all. Indeed, I have known conspiracy counts to be laid for the unworthy object of enabling the prosecution to get in evidence which inevitably taints a great many people, whatever warning the judge gives, when such evidence would be quite impossible to be adduced were substantive charges alone laid, and the sooner we realise that that is the case the better.
I have known strong judges (all judges are strong but some are stronger than others), when there is a conspiracy count and a large number of substantive counts—I recall my own experience when on one occasion my client was acquitted of nearly 100 substantive counts, although he went down on the conspiracy count; not all my clients have been good people, but that was an occasion when I came away thinking that justice had not been done and that it was a case where the prosecution should have been tied down, and I have known judges to tie them down—to say: "You will try the conspiracy count first, or you will try counts 5, 7 and 9 of the substantive counts and we will deal with those separately". Something of that kind should be done and the noble and learned Lord, Lord Wigoder, has it in mind to do something.
How it should be done I am not clear. I have a feeling that it is better to avoid a statutory provision. I should have thought—this is really thinking aloud on my feet, because I have not given the exact method any forethought—that in 193 all probability a provision in the indictments rules would meet the case. It could be tried out, anyway; it would fortify and give guidance to those who would like to take such a course as Lord Wigoder has commended and which I think would serve the public weal very substantially. I do not believe by any manner of means that justice is always done by such joinder and I am sure that the public purse is gravely the sufferer. Accordingly, with deference, I support the view that something be done about it, probably on the lines of a provision in the indictment rules.
§ The LORD CHANCELLOR
If the noble Lord, Lord Wigoder, will indicate his intention to withdraw the Amendment, I will see that the matter is urgently considered between now and Report and we will contrive to enable the matter to be raised again on Report. In the meantime, I might have had more positive guidance and have formed a more positive view on how best to achieve what seems to be the common view of your Lordships that something should be done.
§ Lord WIGODER
I am most grateful to the noble and learned Lords who have leant their weight to the discussion of this difficult problem. I hasten to reassure, if I can, the noble and learned Viscount, Lord Dilhorne, that I think judges already have the power to make these decisions, and it is commonplace in a trial where there is an indictment containing both substantive counts and a conspiracy count for an application to be made to the judge that the trial should proceed either on the one or the other, on grounds which are then argued. I do not think I have known a judge decline jurisdiction in coming to such a decision.
§ Viscount DILHORNE
A judge always has discretion to sever an indictment, but the point I was making was that I was doubtful about the wisdom of giving him power to say that a particular charge should not be preferred where there was evidence to support that charge.
§ Lord WIGODER
I was really regarding this as part of his power to sever, part of the power of the trial judge to say, "the trial will proceed at this stage on", whatever counts it may be, "and we will consider the position on the other counts 194 at a later stage". I was simply hoping that this discussion might eventually give rise to some firm indications to trial judges as to the grounds on which they ought properly to exercise their discretion in that situation. In the light of the gracious observations of the noble and learned Lord the Lord Chancellor, I will of course seek leave to withdraw the Amendment and, in doing so, I look forward to resuming the discussion in one form or another at a later stage.
§ Amendment, by leave, withdrawn.
§ Clause 4, as amended, agreed to.
§ Clause 5 [Abolitions, savings, consequential amendment and repeals]:
§ The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger)
I have to call the Committee's attention to the fact that if Amendment No. 15 is agreed to, I will not be able to call Amendments Nos. 16 or 17.
§ 6.17 p.m.
§ Lord BEAUMONT of WHITLEY moved Amendment No. 15:
§ Page 5, line 19, leave out subsection (3).
§ The noble Lord said: It is with considerable trepidation that I poke my fingers into this cageful of legal eagles, but I hope that my lack of familiarity with the more detailed points of the law will be pardoned and tolerated by your Lordships. The main point of what I have to say is quite simple. It is common ground that the offence in common law of conspiracy where there is no substantive crime should be abolished. That is one of the main points of the Bill, and on the face of it there is no reason why any exception should be made in general for conspiracy to corrupt public morals or outrage public decency. In fact, this is an area where the Law Commission Report is particularly strong in its criticisms.
§ However, we are told—we were told by the noble Lord, Lord Harris of Greenwich at the end of the Second Reading debate—that because the Government have not been able to find time to introduce legislation to enact the recommendations in Part III of the Law Commission Report, we should not for the time being remove these particular offences. I hasten to say 195 that I make no criticism of the Government in saying that they have not found time; it is a very complicated field and it will be a very important Bill when it is introduced.
§ This Amendment is introduced by my noble and learned friend Lord Wigoder and myself to challenge the conclusion that we should leave these offences in existence for the time being, and I do so on three grounds. The first is that we may be leaving them in existence for quite some time. So far as I know, there is no timetable for the introduction of Part III. If we were to be assured that it would be in a very short time, there might be a case. Even so, I would rather doubt it. As it is, we are leaving in for an uncertain time two offences which the Law Commission Report condemns and which I gather the Government agree should be abolished.
My second point is that by leaving them in we do not cover much area of law. I believe it is true to say that between 1763 and 1961 there were only three reported cases which fell under these particular offences, and if for 200 years the morals and decency of this country have remained in reasonably fair order without having to invoke these cases, I do not think any great harm would be done if we had another two or three years, from now on, in which they also could not be invoked. To quote the Law Commission Report in Chapter 3, paragraph 20:
These conspiracy offences have been used either as alternative charges where other charges have also been successfully brought or alternatively to fill only minor lacunae in the armoury of the law".
§ My third point is the really extremely bad effect of uncertainty in the law here. It is worse than elsewhere. There is a whole area where it is almost impossible for a person to know whether or not he is committing an offence at any particular time. I entirely agree with those who may say that if he avoids all conduct falling in the whole of this area he will be safe: undoubtedly he will, but I feel—and I am sure that I feel with the majority of noble and learned Lords here—that there should be an element of certainty whereby the citizen may know whether or not he is committing an offence.
Finally, I should like to produce two examples of the kind of area where this may happen. First, I should like to quote
from the book of the noble and learned Lord, Lord Devlin, The Enforcement of Morals. I refer to page 99 of the Oxford paperback edition. The noble and learned Lord said as a result of the Shaw case:
If, for example, a man and woman were charged with conspiring to corrupt public morals by openly living in sin, a jury today might be expected to acquit.
Noble Lords will note that the noble and learned Lord only says "might" be expected to acquit. There is no statement of certainty here. The noble and learned Lord continues:
If homosexuality were to cease to be per se criminal"—
this was written before 1967—
and two men were to be similarly charged with flaunting their relationship in public, a jury today might be expected—I think that this is what Lord Simonds and Lord Tucker would con-template—to convict.
Matters have changed since that was written and I believe that today a jury would probably not be expected to convict. The noble and learned Lord goes on to say:
The distinction can be made only on the basis that one sort of immorality ought to be condemned and punished and the other not. That is a matter on which many people besides lawyers are qualified to speak and would desire to be heard before a decision is reached. When a Minister submits the issue to Parliament, they can be heard; when a judge submits it to a jury, they cannot. The main burden of Lord Reid's trenchant criticism of the majority opinion [in Shaw's case] is that it allows and requires the jury to perform the function of the legislator.
In that, the noble and learned Lord, Lord Devlin, outlined a whole area where it is almost impossible to tell what is an offence and what is not. At the time of writing, he thought that, even after the law permitting homosexual acts in private have been passed, a homosexual couple who flaunted their affaires in public might be convicted. I think that nowadays they would not be. The position has changed at some time in the course of these years. No one knows when it changed; no one knows even whether it changed because no cases were brought in that period for this purpose. The whole area is shrouded in the kind of uncertainty which all those who respect the law wish to see done away with.
§ A last and possibly minor example came to me when reviewing a book recently which has just been serialised in 197 the Sunday papers. Your Lordships will remember a case about the practice of artificial insemination by donor. It has been suggested in the Faversham Report on Artificial Insemination that the donor, the parents and any medical man involved might well find themselves guilty of conspiracy to corrupt public morals. The point for discussion is, I believe, not whether they should be considered guilty or not but that there is complete uncertainty in this matter. In this field of vast uncertainty—in a very difficult field that is already full of different kinds of uncertainty—I do not think this situation should be tolerated any longer than is absolutely necessary. Unless the noble Lords who are in charge of this Bill can show that there are major areas of law in which demonstrable harm can be shown if we abolish these two offences, I believe that we should abolish them. I beg to move.
§ Lord SIMON of GLAISDALE
I hope that the Government will not accept this Amendment. They seem to me to be entirely justified in the course that they propose to take; namely, to appoint a committee to have a fresh look at this problem. The modern law turns on two cases—the Shaw case, which was the only one mentioned by the noble Lord, Lord Beaumont, and the Knuller case. I do not myself desire to discuss the merits of the law at all because I was Counsel before your Lordships' House in the former case and a Member of your Lordships' Appellate Committee in the latter case. There seem to me to be two conclusive reasons why there should be a fresh examination of this problem. The first is that I do not think that it has been conceived—I have not seen it anywhere accepted—how far the Shaw case has been cut down by the Knuller case. It seems to me significant that the noble Lord, Lord Beaumont, mentioned only the former case. One has only to compare the language of judgment in the two cases to see how far the Shaw case has been cut down, but that is also borne out by figures—statistics of prosecutions.
I wrote to the noble Lord, Lord Harris of Greenwich, and his colleague, the other Minister of State, very kindly supplied me with the statistics. In 1966—that is, between the Shaw and the Knuller cases—there were 16 trials in which conspiracy to corrupt public morals was 198 charged. Seventy-six persons were charged and 70 were convicted. That was the highest figure, but even in the following year there were nine trials with 31 persons charged and 23 persons convicted. If one compares that with the position after the Knuller case, one sees that in 1974 there were no trials in which conspiracy to corrupt public morals was charged and, therefore, no persons charged and no convictions. In 1975 there was one trial. Five persons were charged but all were acquitted. So, in my respectful submission, that is the first mutter that requires examination; namely, how far Shaw has been cut down by what was decided and said in Knuller.
The other matter is this. It seems to me quite wrong to consider conspiracy to corrupt public morals and conspiracy to outrage public decency as if they raised the same issues. Again, it seemed to me significant that the noble Lord, Lord Beaumont, only mentioned conspiracy to corrupt public morals. But the two offences raise entirely different issues, legal, ethical, social. The first, conspiracy to corrupt public morals, raises a very serious question: how far should the law concern itself with public morality? But the conspiracy to outrage public decency raises quite a different issue; namely, how far is the ordinary citizen entitled to expect to go out into public without the normal sense of decency being outraged?
I would emphasise that in the Knuller case, in regard to both offences, it was emphasised that outrage is a very strong term and that corrupt is a very strong term. Of course it has been a matter of high debate in our own time, reviving a famous debate of a century ago between John Stuart Mill and Fitzjames Stephen: how far the law should concern itself about morality at all. Extreme positions can be taken up. I suppose that at one extreme one gets the example of Dr. Keate, the notorious headmaster of Eton, who used to say, "Boys, if you are not pure in heart I shall flog you." At the other extreme one gets someone like the old actor Kemble, who at the time of the Oscar Wilde trial said,I don't mind what a man does so long as he doesn't do it in the street and frighten the horses.I think that few of us would take either extreme position, though most of us, I 199 think, would find ourselves nearer to Kemble than to Keate. But the two offences also lie within that spectrum, the conspiracy to corrupt public morals being much closer to the Keate concept and conspiracy to outrage public decency much closer to the Kemble concept. Therefore it is because it has not been considered I think sufficiently how far the criticisms of Shaw are still valid since the decision in Knuller and because the two offences must be considered separately that I venture to support the Government's proposal for a fresh look.
§ 6.33 p.m.
§ Lord HOUGHTON of SOWERBY
If I may intrude in the highly legalistic atmosphere of the Chamber this evening, I should like to say something on the Amendment of the noble Lord, Lord Beaumont of Whitley. I want to support him, reluctant as I am to disagree with the noble and learned Lord who has just spoken. But there is an element of politics in this situation. If the Trades Union Congress was as keen on public morals as it was on removing the charge of conspiracy from the "Shrewsbury two", then there would have been something in the Bill. The Bill creates a statutory offence of conspiracy to replace what was regarded as an objectionable application of the common law of conspiracy to the conduct of building workers on sites up and down the country during the building strike. On that occasion what caused so much anger and fuss, and intimidation of Ministers by the trade unions, was that these men went around during the building strike inciting others to join in, and were themselves involved in behaviour which might have constituted a criminal offence, had the evidence been produced to substantiate those charges.
But actually they were charged with conspiracy. It was not necessary to establish that what they did constituted a criminal offence, and they were sentenced under the common law, as I understand it, of conspiracy. The Trades Union Congress protested that this was not the way in which to deal with alleged offences of this kind. Clause 5 is as much part of the Social Contract as anything else that one can think of, because the Trades Union Congress and the trade unions were determined to get a change in the 200 law. I am quite sure that had that insistence not been so strong we should have had perhaps a little less resolve on the part of the Government to put it in the Bill.
Now let us come to subsection (3) of Clause 5. During the debate in your Lordships' House some months ago on pornography and obscenity, we were told that the Government were waiting for the report of the Law Commission. In fact if my memory serves me rightly, the report of the Law Commission had been published on the very day of our debate, and the Government said that of course they were going to give urgent consideration to it, and that they were going to press on with the matters which were so obscure, so unsatisfactory under the present law.
Then a little later a Minister of the Home Office said in my presence—and he said this in the House of Commons, too—that the Government were going to introduce legislation to deal with the utmost speed with the recommendations of the Law Commission on this wide area of contentious matters. I believed that they were really going forward to legislation because of the urgency of the matter and because of the need to clear up an unsatisfactory situation. But what have they done? They have referred it all to another committee. It has all gone somewhere else now in order to clarify what the Law Commission was asked to clarify. This is a well-known device for pushing off something when there is neither the time, nor possibly the inclination, to tackle this difficult and contentious matter while the Government have devolution around their necks in another place.
So in this position we are asked to renew the common law practice of dealing with conspiracy to corrupt public morals and to affront or outrage public decency. The Government feel that they cannot do with this side of the law of conspiracy what they are doing with the other side of the law of conspiracy. Where it relates to the "Shrewsbury two" the Government say that the common law must go; the statutory offence of conspiracy must take its place, and it must be specific. But in this area they say that the common law in relation to conspiracy to corrupt, undermine, or otherwise 201 injure public morals, or affront or outrage public decency shall remain; and the case put up for it remaining is that it would be undesirable to remove the common law element in this position while this other committee is still considering what the Law Commission said.
It seems to me that this is perpetuating a thoroughly unsatisfactory situation, to cover a period of delay in bringing about reforms. I do not think that is justified; and if one looks at paragraphs 3.18 and 3.19 of the Law Commission's Report, which one finds on page 78, one finds there the arguments for abandoning the common law and replacing it with a statutory offence of conspiracy. I thought that the noble and learned Lord who spoke just now made a fairly strong contribution in support of the Amendment when he pointed out that since the Knuller case there have been many fewer charges brought under the common law provisions and fewer convictions, suggesting, as the noble Lord, Lord Beaumont, said, that we could really manage without the common law in this field at the present time.
§ Lord SIMON of GLAISDALE
If the noble Lord will allow me to interrupt him, that was not the point. It was really that it is unreal to treat the law as if Knuller had not supervened on Shaw.
§ Lord HOUGHTON of SOWERBY
I think I understood that very well, but I thought that the construction to be placed on the noble and learned Lord's remarks was that, as a result of the second case, what I would describe as the mischief of the Shaw case was very much minimised, and that the number of cases brought and convictions obtained was reduced conspicuously after the second case in 1963. But I think we have to come to the defence of the common law provision in this field even ad interim, because what it rests upon, I believe, is a presumption by judges that they are the custodians of public morals where there is no other law that can apply to a particular case that is brought before them.
I do not think this is tolerable, even as a temporary stop-gap arrangement pending the report of the committee which is now looking at the matter. Indeed, if one looks at the judgments that 202 were delivered at the time of the Shaw case in 1962, one sees that the judges were deliberately re-establishing the prestige and power of the common law as part of their discharge of a responsibility for maintaining public morals. Indeed, hypothetical cases were cited as being a public scandal if no judges were able, under the umbrella of the conspiracy law, to put them down—cases where they could not be charged successfully under the mass of obscenity and other specific laws dealing with this matter, and had to use a dubious umbrella, going back in history in common law, as a means of dealing with this.
So I believe that we ought to delete this subsection of Clause 5 if only to show the Government that we are not prepared to continue the common law in this field any longer, especially at a moment when they are getting rid of the common law everywhere else. In those circumstances, the Government might hurry on with their review of this difficult and contentious matter, which as a political diversion they have transferred to another committee. There will no doubt be a Royal Commission appointed at the end of the day to have a look at everything that everybody else has done and said on this issue, because it is undoubtedly a very hot potato, and the Government are not looking for any more hot potatoes now than they need pick up. I am afraid that is the explanation of why we are confronted with this position this afternoon. I think there is a fundamental question here of the rights and civil liberties of the public. As the noble and learned Lord, Lord Edmund-Davies, said a few moments ago, this is not just lawyers' talk. No doubt a knowledge of the law can play a little havoc with the zeal and advocacy of the layman, but fundamentally here are the rights of citizens to be dealt with under the law of the land with specific charges brought against them and with evidence to prove them, and of not allowing the prosecution to get away with a less specific charge, under a more comprehensive umbrella, to cover the deficiencies of their evidence on more specific offences.
So I hope that we shall not lightly give way to the blandishments of the Lord Chancellor or anybody else who gets up to say that this should of course be left 203 alone until this committee has considered the matter in due course. I think that where civil liberty is involved we should act as the opportunity occurs. Here we have the opportunity to do so, and I hope we shall take it.
§ Lord WIGODER
Perhaps I may make two comments upon the Knuller case, accepting, as I do, of course, the observations by the noble and learned Lord, Lord Simon of Glaisdale, that that case in fact indicated a very much narrower residual power than appeared to have been claimed for the Judiciary by the Appellate Committee in the Shaw case. In fact, in the Knuller case, as the noble and learned Lord will recollect, the judgments were by no means unanimous. Whatever it may be that the Knuller case decided, it is still widely regarded as having left a very substantial area of uncertainty in that branch of the law—indeed, to such an extent that the Law Commission themselves refer to the uncertain extent of the two conspiracy offences under consideration, and go on to say in paragraph 3.17, in relation to the Knuller case:Yet it may be maintained, in our view convincingly, that the existence of these wider, generalised conspiracy offences effectively gives the courts such a residual power in this field. Support for this proposition may be gathered from the two leading cases of Shaw and Knuller themselves".It may be that the Law Commission are perhaps not strictly accurate in coming to that conclusion, but if they are not strictly accurate it is surely highly undesirable to have in existence a common law offence which is widely regarded, even by bodies of such high repute as the Law Commission, as being of such an uncertain nature.
The other observation about the Knuller case is that, as I think the noble and learned Lord, Lord Simon, will recollect, at least two of his brethren in the Appellate Committee indicated that there were substantive offences with which Knuller could have been charged, so that if the existence of the common law offence of conspiracy to outrage public decency had not been available for a charge, Knuller could still have been properly charged, convicted and sentenced. I would add, if I may, only one other matter in support of the observations made to this Amendment by my noble friend, and that is that there 204 appears to be no doubt that the present existence of these two forms of conspiracy can be used, and I would suggest improperly used, to get round the provisions of the Obscene Publications Act 1959; and I should have thought that it was highly undesirable that common law offences should be used in order to evade the specific intentions of Parliament.
§ Lord GOODMAN
I should like to intervene, with great brevity, to say just this. First, I am very much in agreement with the last observation of the noble Lord, Lord Wigoder. Secondly, it is of great satisfaction to me to find that I am in almost total agreement with the noble Lord, Lord Houghton, except that I certainly would not wish to diminish the authority or power of the judges at common law. But I think in this case a singularly unattractive argument is the argument that here is a matter which ought to be reviewed by another committee, bearing in mind that this is an exception to a generally enunciated rule in the first clause of this particular section of the Bill. The general rule is that you are going to abolish common law conspiracy. The onus therefore rests on those who are making this proposition to show that there is some important exception which requires you to preserve conspiracy in relation to these two matters.
We have been told, with the massive authority of the noble and learned Lord, Lord Simon, that there were almost no prosecutions at all in relation to these matters. There is, therefore, not the slightest urgency about preserving this. If, at the end of a period of time, when it might be possible to introduce new legislation—and one must bear in mind that if it escapes this Bill it will be a very long time before anything else will be done about it—it is found that the floodgates are open and that offences are being committed all over the place, the legal offence could be restored. I have the feeling that we should not accept the argument that the matter falls to be reviewed by another committee, having regard to the fact that we are asked to preserve an anomalous exception.
I think another point was overlooked by the noble and learned Lord, Lord Simon of Glaisdale. He was making the point that people are entitled to be protected against the dangers of encountering outrages against their morality 205 and decency. The point I want to make is that I do not think he sufficiently observed that we are dealing with an allegation of conspiracy and not with the substantive offence. We are not suggesting that any substantive offence that allows people to outrage public morality or decency should be abrogated. We are dealing only with matters of conspiracy. I think that it is of the first importance when moving in these areas of public morality where both sides have a high sense of righteousness—those who wish to assert public morality and those who believe that there should be a more liberal attitude—that at least the offence should be clearly and precisely defined, otherwise you move into an area of great doubt and uncertainty. I think that this is something for which the abolition of this offence is a worthy statutory intention. That we should mitigate or reduce that effect by preserving these offences, I think is a mistake.
§ Lord GARDINER
On the Second Reading I expressed the hope that the Government would reconsider their attitude on this point. I do not wish to repeat what I then said; but, if I may, I will add one or two points. I think that inadvertently the noble and learned Lord, Lord Simon, did the Law Commission an injustice as he appeared to think that they had not considered the effect of Knuller on Shaw. But it is quite plain from their report that they did so. One of their difficulties in dealing with Knuller was the difference in the views expressed, for example, on the one hand by the noble and learned Lord, Lord Morris of Borth-y-Gest, and, on the other hand, by the noble and learned Lord, Lord Simon of Glaisdale.
But they have been considering this in depth for a number of years. For a weekend at Jesus College, Cambridge, they devoted themselves solely to the question of conspiracy to public morals and decency. The views they received on this particular point from external bodies included—and this was simply on conspiracies relating to public morals and decency—those of the Association of Chief Police Officers of England and Wales and Northern Ireland, Mr. Raymond Blackburn, the British Board of Film Censors, the Josephine Butler Society, the Cinematograph Exhibitors' Association, Mr.
206 David Holbrook, the Home Office, various eminent lawyers, the Law Society, the Magistrates' Association, the Methodist Church, the National Council of Women, the Nationwide Festival of Light, the Police Superintendents' Association of England and Wales, the Prosecuting Solicitors' Society of England and Wales, the Senate of the Inns of Court and the Bar, the Sexual Law Reform Society, the Society of Conservative Lawyers, the Society of Public Teachers of Law and so on.
After years of consideration, when they finally produced their view, it is said that a committee ought to be appointed. This has taken years. I say, and I am quite sure I am right, as I said on Second Reading, that if we do not in this Bill take advantage of the opportunity to get rid of what I consider to be an odious part of the law, a conspiracy to corrupt public morals—which means in practice what any judge chooses to decide—it will take at least seven years if we begin to appoint a committee to start all over again, a committee which will get the same evidence from the same bodies all over again. It would be lamentable. I hope very much that the Governwent will give serious and sympathetic consideration to the Amendment moved by the noble Lord, Lord Beaumont of Whitley.
§ Lord HARRIS of GREENWICH
I think that we can all agree on one point and that is that one of the most controversial areas of the law on conspiracy is that relating to morality and decency. I begin by recognising—and one would be insensitive if one did not do so—that there is disappointment in many parts of the Committee that a Bill to reform the law of conspiracy leaves intact offences which have been widely criticised. But in the Government's view it is less satisfactory to try to separate conspiracies relating to public morals and decency from the laws on obscenity, indecency and censorship generally, than it is to deal with them separately from the general law of consipiracy.
When the Law Commission considered these conspiracy offences, together with the other common law offences relating to morals and decency, it was no part of its task to enter into an examination of the laws on obscenity generally—which its 207 recommendations would extend—or of the arrangements under which films are censored before they are publicly shown. It is because the Government felt that there should be a broader look at these questions than it fell to the Law Commission to undertake, before legislation on one aspect of the problem was brought forward, that Part III of the Law Commission's draft Bill was not included in the present Bill.
Certainly it is true, as my noble friend Lord Houghton has said, that there is a very substantial pressure on the Parliamentary timetable; but it is quiet untrue—and I am quite sure that my noble friend would confirm this—that in fact the committee will simply go over the same ground that the Law Commission went over. The new committee, the setting up of which I announced during my speech at Second Reading, will cover a much wider area and it is only fair to say that there has been substantial anxiety expressed over a long period of time about the present state of the law on the question of obscenity. The question to which we must address ourselves today is whether we deal with the narrow aspect of the question dealt with in this particular Amendment or allow a Departmental committee to look into the whole question, which is the position of the Government in this matter.
The Amendment which the noble Lord, Lord Beaumont of Whitley, has moved takes not a broader view of the problem but a rather narrower one. It takes one particular recommendation out of the context of the Law Commission's report and implements it without regard to the consequences. It seeks to abolish certain offences without, as the Law Commission had recommended should be done, putting any others in their place. In its report, the Law Commission discussed in some detail the cases in which a conspiracy to corrupt public morals or to outrage public decency had been charged, of which there had been around 40 between 1962 and 1973. About two-thirds of these involved the showing of pornographic films on unlicensed premises while a number of others concerned the presentation of performances involving live sex or the making of and participation in obscene films. The Law Commission recommended that activities of this kind should in future be the subject of new statutory 208 offences; first, by bringing the exhibition of films within the scope of the Obscene Publications Act, and, secondly, by creating a new offence of presenting an obscene live performance.
In the Government's view, it would be unsatisfactory to nibble at the law as proposed in the Amendment when the effect may be, in a significant way, to diminish the controls which the law at present imposes. These are matters which in our judgment should be left to the new committee to deal with in the wider context of its review.
Looking at the Amendment in a more technical light, it should be remembered that, irrespective of what is contained in Clause 5(3)—which this Amendment seeks to strike out—it will be an offence under Clause 1 of the Bill to conspire to commit any criminal offence, whether created by Statute or at common law. This means that the omission of subsection (3) of Clause 5 will abolish conspiracy to corrupt public morals and to outrage public decency only if corrupting public morals and outraging public decency are not themselves substantive offences.
As I understand the law, whether such offences exist is far from settled. The noble Lord, Lord Wigoder, touched on this point. It is a question on which there are conflicting authorities, but the Law Commission expressed the view in its report that such offences existed and on that basis there would continue to be an offence of conspiracy to corrupt or to outrage public decency even if Clause 5(3) were deleted. What subsection (3) does is to make it clear that such offences are being preserved for the time being. The noble Lord, Lord Beaumont of Whitley, said that he wanted to avoid uncertainty in the law. I must say to him that to leave this out as he has recommended will only introduce more uncertainty into a part of the law which has already been criticised for not being certain enough.
§ 7.2 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
Speaking from the Opposition Benches, I must say that I agree with what the noble Lord, Lord Harris of Greenwich, has said. The question of conspiracy was referred to the Law Commission either just before or just after—I cannot remember which—I became 209 Lord Chancellor. If I were to say what I thought was the greatest achievement of the noble and learned Lord, Lord Gardiner, while he was Lord Chancellor, I would undoubtedly put the creation of the Law Commission first among his achievements. The reason I would do so is that it really enables law reform to proceed on an orderly, rational and intelligible basis—and previously it had not done so.
The only criticism I would make to the noble and learned Lord, Lord Gardiner, is that he has an enormous capacity for murdering his own children. I remember that during the time when I was Lord Chancellor we had a Criminal Law Bill which I was piloting from the Government Front Bench. No sooner had we begun, than the noble and learned Lord made a tremendous speech on this subject. I pointed out to him that it was subject to the Law Commission, much as the noble Lord, Lord Harris of Greenwich, has said that he has a committee. That was not done simply for the purpose of delay; the reason why we are in this muddle on the law of conspiracy is that Parliament has been failing in its duty to reform and rationalise criminal law for about 200 years, and the courts have been left to muddle along as best they could without any help from Parliament. It may be thought that that is a great indictment of Parliament, but it is not, because every time the Government try to reform the criminal law, it is impossible to do so without encouraging everybody to barge in with every kind of reform that they do or do not want; so it is practically impossible to get law reforms through Parliament without an absolutely inordinate waste of time.
I say as one who has not wasted time on this Bill—not very much anyway—that my view is that the Government have a real danger that they will lose this Bill. We are dealing only with Part I; when we get on to Part II and Part III and put it through the institution at the other end of the corridor, I shudder to think what is going to happen to the poor old Government and their Bill. There is a safe guide to pursuing these matters. I do not want to go into great lengths about the Government's new committee. The noble Lord, Lord Houghton of Sowerby, was unfair to the Government about that and I agreed with what the noble Lord, Lord Harris, said. 210 The guideline in law reform is to pursue the orderly method of law reform which the noble and learned Lord, Lord Gardiner, introduced.
There is the Law Commission now; there are the two Law Reform Committees and a question can be put to them and one proceeds with a view to codification—and my goodness! how slow we are on that—and when a report is produced one tries to back it. I am trying o do that in this Bill. The Law Reform Commission, in dealing with conspiracy, are trying to get to the point at which only those agreements to commit an offence become indictable as conspiracies. That is a laudable objective. I have always doubted how far it can effectively be done; but that is what they are trying to do, that is what this Bill is trying to do and it is a laudable objective. I pointed out to the noble and learned Lord, Lord Gardiner, in the previous debate that this is something which is very difficult because, Parliament having left the courts to face a situation as best they could, the courts have used the law of conspiracy, and the prosecuting authorities have used the law of conspiracy, as a means of indicting things which under most civilised systems are substantive crimes in themselves but which Parliament has not enacted to substantive crimes.
In this particular field of offences against public morals and decency—and in some of the other fields they deal with—the Law Commission reported that if one wanted to get to the place where they want to go; namely, the place where only those conspiracies which are to commit a criminal offence are indictable, one has to plug a number of holes. One has only to look at Part III of the report with which we are dealing to see the number of holes that have to be plugged. They are important. They deal with films, live exhibitions and indecent exposure of various kinds. There are several long sections.
The Government may have been right or wrong not to try to legislate Part III of the Commission's report. If they had infinite Parliamentary time at their disposal, they would have been wrong. This Bill is in danger of foundering on this kind of Amendment here and hereafter. I believe that they are right, given the situation in which they are placed— 211 partly as a result of their own folly as regards Parliamentary time—not to legislate Part III. But if one tries to abolish parts of the law of conspiracy without plugging the holes which are thereby created in the criminal law, one is acting directly contrary to the advice of the Law Commission, and that is what the noble Lord, Lord Beaumont of Whitley, is seeking to persuade the Committee to do. I am not with him.
Also, I am not with him in viewing as a reality the rather fantastic suggestion that two persons living together whether male, female or neuter, would be indictable under this branch of the law of conspiracy. I say that positively; I say it in the presence of so many noble and learned Lords that I am perfectly sure that if I am wrong at least three of them will get up and say so.
§ Lord BEAUMONT of WHITLEY
It was not my suggestion; I was quoting the noble and learned Lord, Lord Devlin.
§ Lord HAILSHAM of SAINT MARY-LEBONE
I know what the noble and learned Lord was quoting, and I think that what he was quoting was fanciful and I have said so. Nobody has greater respect for the noble and learned Lord, Lord Devlin, than I have; but it is fanciful to suggest such indictments would ever be brought. The real question that we have to decide is whether or not we are going deliberately to flout the Law Commission. I am for backing them.
§ Viscount DILHORNE
Two former Lord Chancellors have spoken and now I should like to say a few words. I find myself in a position of some difficulty. I am always glad when I am able to agree with my noble and learned friend Lord Hailsham of Saint Marylebone; and frequently I am. On this occasion I have the unusual experience of feeling great sympathy with the views expressed by the noble and learned Lord, Lord Gardiner, and the noble Lord, Lord Houghton of Sowerby. In the past it has often been the other way on.
It is distressing that we should not be able to deal in this Bill firmly and positively with this important question. The conspiracy to corrupt public morals, and what is dealt with in the subsection regarding 212 that, has been the most controversial part of the law of conspiracy for years. We have had the Law Commission's views upon it; we have had detailed and prolonged consideration by them. It is unhappy that at the end of the day further delay is to take place before this matter is cleared up one way or the other, by the appointment of another Committee however eminent and excellent.
Law reform takes a long time. I cannot help wondering whether it would take less time if a change was made, which I have advocated on every possible occasion for the past 15 years or so, in responsibility for making reform in the criminal law. I believe the real trouble here originates from the fact that the Home Office remains responsible for modernising the criminal law. That is the trouble. The noble and learned Lord, Lord Hailsham, says the obscene offences have not been made substantive offences. I agree that it would be very difficult to do that, but the Home Office have never tried. If they had tackled it and done it, then we should have had all these offences coming in under Clause 1. What is quite wrong—indeed I regard it as monstrous—is the way in which the Home Office clings to its functions of responsibility for the formulation of criminal law. Let it deal with prisons, if it can; let it deal with the Prison Service; let it deal with all those things—but let it leave law reform to the lawyers and not to the civil servants at the Home Office. Leave it to the Law Reform Commission and whoever holds the Office of Lord Chancellor. Having said how sorry I am that we have to legislate in respect of this matter with the Bill in its present form, for which the Home Office is primarily responsible, I must end by saying that if there is a question of a Division, I feel I have no alternative but—most reluctantly—to give the Home Office my support.
§ Lord BEAUMONT of WHITLEY
I should like to thank all noble Lords who have contributed to what I think has been an important debate on what everyone agrees to be an important subject. May I say to the noble and learned Lord, Lord Simon of Glaisdale, that I did not comment on Knuller because I was not really commenting on Shaw either, and I may possible have misled your Lordships—I apologise if I did—by quoting the 213 noble and learned Lord, Lord Devlin, who was at that time considering only Shaw and Knuller. Had I gone on to consider the Knuller case, I should undoubtedly have touched on the important judgment of the noble and learned Lord, Lord Simon of Glaisdale, and on his insistence on the strength of the words that are in the law. I very much hope that the Government will agree to accept these two succeeding Amendments, which I feel sure are absolutely essential. It is true that I concentrated more on conspiracy to corrupt public morals than on conspiracy to outrage public decency. That is partly because I think there is a far smaller area uncovered by such offences, if indeed there is an area at all, as outraging public decency than in corrupting public morals. It is over corrupting public morals that greater uncertainty occurs.
Two matters have arisen here, and I believe we should examine them further. One is the matter of what holes need still to be plugged and what is the area which is not covered by substantive offences. To a certain extent that is dealt with in the Law Commission's report. But not completely so, because the Law Commission was starting from the assumption that a general law on conspiracy not to commit a substantive offence was a bad thing anyway. Having decided that, the Law Commission went on to tidy up the law. I think that a large number of the offences which the noble Lord, Lord Harris, mentioned, such as live shows and the hard porn films, are substantive offences. If they are not, as the noble Lord, Lord Harris, went on to say, it is held by the law at the moment that there are general substantive offences in this field. I do not think the Government were entirely clear on how they were going to argue this particular part of the case. They appeared to be wanting to have their cake and eat it——
§ A noble Lord: To nibble it!
§ Lord BEAUMONT of WHITLEY
——in a rather unfortunate way. What I am hoping is that we can go away and have another look at this problem. In the meantime, I would ask the Government to have another look at another point in addition to this one: that is, what do they think their timetable is going to be regarding this matter of obscenity and the laws dealing with it? We have heard the noble Lord, Lord Houghton, who is an 214 eminent member of the Government Party, saying that he thinks it has been more or less shelved. We have heard the noble and learned Lord, Lord Gardiner, predict that it will be another seven years before this is looked at. If that be so, then I think we really must treat this matter of conspiracy in the context of conspiracy and not in the context of the law of obscenity.
If I may say so to the noble and learned Lord, Lord Hailsham, I think there are two separate contexts involved. I do not think it necessarily follows that you have to deal with the whole law of obscenity when dealing with this part of the law of conspiracy. With your Lordships' leave, I intend to withdraw this Amendment. Let us examine further the areas which are uncovered by substantive offences and let us invite the Government to look at the timetable for producing some law on this matter. I know they cannot give a full commitment, but let us have some kind of indication of their plans. Depending upon the results of those examinations, I would feel free to bring this matter back to your Lordships at a later stage. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Lord HAILSHAM of SAINT MARY-LEBONE
Before the next Amendment is called, I think the agreement between the channels was that four hours from the start of this Business we should stop tonight. Could I have some indication from one of the noble Lords on the Government Bench how far they propose to go on?
§ Lord HARRIS of GREENWICH
I accept the correction of the noble and learned Viscount. We shall go on to our next Business after the Question, Whether Clause 5 shall stand part?
§ 7.17 p.m.
§ Lord SIMON of GLAISDALE moved Amendment No. 16:
§ Page 5, line 22, leave out ("undermine or otherwise injure").215
§ The noble and learned Lord said: I should like, if I may, to speak to Amendment No. 17 with Amendment No. 16, because they deal with the same point. These Amendments are very short, raising very short points, and they were put down in an exploratory spirit. I was just explaining why I had put them down to the noble Lord, Lord Harris of Greenwich, and again I got a very helpful and courteous reply from his colleague, the other Minister of State. However, as I was far from convinced by the explanation given by the Home Office, I have maintained these Amendments on the Marshalled List.
The point is this. Subsection (3) preserves the offences we have just been discussing of conspiracy to corrupt public morals and conspiracy to outrage public decency. But it describes the former in a statutory form as
an agreement to engage in conduct which—'tends to corrupt, undermine or otherwise injure public morals or affronts or outrages public decency'.
One of the significant features of the Knuller case was. the emphasis that your Lordships' Appellate Committee put on the significance of the words "corrupt and outrage" in those offences, and it seems to me, on the face of it, that to add "undermine or otherwise injure" extends the scope of the common law offences and, indeed, blurs and mutes the emphasis that was put in Knuller on the strength of the word "corrupt", which is part of the protection of the individual accused while these matters are being reconsidered. Similarly, the word "affronts" added to "outrage" in relation to public decency again blurs and extends the offence. I have therefore put down the Amendments to take out the words which, in my respectful submission, extend the offence as it is understood at common law.
It is quite true that in lines 19 and 20 of page 5 the Bill speaks of an,
…offence of conspiracy at common law if and in so far as it may be committed by entering into an agreement",
so it could well be argued that that prevents any extension of the offences as they are understood at common law. But, at the very least, the Bill as drafted leaves room for argument. It leaves uncertainty in an area where your Lordships are, I think, under a duty to preserve, so far as possible, certainty and to avoid litigation
and argument as to what is meant. I therefore beg to move.
§ Lord HARRIS of GREENWICH
As the noble and learned Lord has rightly said, he has indeed been in correspondence with my honourable friend the joint Minister of State. All I want to say this evening is that I should like to consider what he has just said, and the point he has raised, and perhaps we might come back to this matter at Report stage.
§ Lord SIMON of GLAISDALE
I am very grateful to the noble Lord. I understood him to say that he would like to consider the point further, and in those circumstances I am very ready to beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ Viscount DILHORNE
I just want to say a word on this clause. After all the controversy that I have engaged in this afternoon, it really would be very wrong of me not to say "Thank you" to the Home Office for what they have done in subsections (5) and (6). In the case of Shannon in this House, there was a slight difference of opinion between noble and learned Lords, and I am sure that the noble and learned Lord, Lord Simon of Glaisdale, is as gratified as I am to find that the views which the two of us expressed are now embodied in those subsections, and we ought to thank the Home Office for that.
§ Lord HARRIS of GREENWICH
I am particularly grateful for what the noble and learned Viscount has said. If any members of the Home Office were bruised as a result of what the noble and learned Viscount said earlier, I am quite sure that they will be overjoyed to hear that he has apparently changed his views about their competence to deal with the criminal law.
§ Clause 5 agreed to.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.