§ 4.29 p.m.
§ Report received.
§ Clause 1 [The offence of conspiracy]:
Lord HAILSHAM of SAINT MARY-LEBONE moved Amendment No. 1:
Page 1, line 8, after first ("person") insert ("knowingly").
§ The noble and learned Lord said: My Lords, in rising to move this Amendment, I suggest that it might be convenient to group this with Amendments Nos. 2 and 3. I understand that this will be agreeable for discussion by the Government because I have received a message from the noble and learned Lord the Lord Chancellor to that effect.
§ Viscount DILHORNE
My Lords, I have not been approached on this, but it is certainly agreeable to me.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I hope that with that weighty support it will now be agreeable to the House. I rise to move this Amendment, which is in fact very closely linked with the subsequent Amendments, with a serious purpose in mind and with the idea of making a serious contribution to an important debate. I was privileged to receive from the Lord Chancellor copies of a correspondence which had passed between him and my noble and learned friend Lord Dilhorne about the debate which we held on the same subject at the Committee stage of the Bill. We were both allowed to see the comments on that 540 debate made by the Parliamentary draftsmen who had had to do with the drafting of the Bill, and I expect with the drafting of the Amendment which stands in the name of the noble Lord, Lord Harris of Greenwich.
The debate arose in this way. In every important criminal offence there are two separate factors: there is the prohibited act—in the case of conspiracy the agreement—which is, I think, unfortunately, with their usual contempt for the Latin language, labelled by lawyers the actus reus; and there is the guilty state of mind, more appropriately labelled by lawyers the mens rea, the guilty state of mind with which the offence has to be committed before a verdict of guilty is supported. The purpose of Clause 1 is, as one supposes, to give effect to the recommendation of the Law Commission that the guilty act, the prohibited act in conspiracy, should in the main for the future, and subject to Clause 5, be an agreement to commit what is a criminal offence. This presents few difficulties where the criminal offence is one which intrinsically carries a guilty intention with it. For instance, if I agree with somebody to sell on his behalf the contents of a van, that is a perfectly innocent act, unless I happen to know that the contents of the van are stolen goods, in which case, quite obviously, under Clause 1, I should be guilty of conspiracy. The difficulty arises, as I see it, when the offence which constitutes the subject matter of the agreement is one which contains, as many modern offences do, no guilty intention at all. For instance, supposing I agree with the noble and learned Lord, Lord Gardiner, that he should drive my motor car, this is a perfectly innocent agreement on my part, but, of course, if he has no licence or no insurance policy or is disqualified from driving, then he is guilty of an absolute offence under the criminal law for which he can be subjected to penalties.
Various cases had arisen until the case of Churchill v. Walton, which gave rise to the discussion in Committee, in which the Court of Appeal, or its predecessor the Court of Criminal Appeal, had given the impression that where there was an agreement between two parties which had the effect of breaching regulations or breaching the criminal law, under a Statute which provided for no guilty intent as a necessary ingredient of the 541 offence, a perfectly innocent party to that agreement might be guilty of conspiracy notwithstanding that he did not know the facts relevant to the circumstances which would have given rise to the illegality of what was proposed. In a case called Churchill v. Walton my noble and learned friend Lord Dilhorne delivered a judgment of the House in its Judicial capacity which got rid of this heresy, if I may so call it, on the part of the Court of Appeal, I am going to read a passage of the judgment in a moment. If I may say so ; it was a very valuable contribution to ,' criminal jurisprudence in this rather limited field and enabled people to form perfectly innocent agreements provided that they did not know the facts which gave rise to criminality in the other party to the agreement.
The difficulty is purely a question of draftsmanship, and it seems to me to involve nothing else at all. It does seem to me that the draftsmen of the Bill, both in the form in which the Bill was originally presented to the House and in the form which subsequently appears as an Amendment in the name of the noble Lord, Lord Harris of Greenwich, have been over-elaborate in the draftsmanship lo the point of being obscure. I think, with great respect, that this is a mistake. We do tend nowadays—and this is a criticism of our modern school of Parliamentary draftsmanship—to leave too little to the common sense of judges, and to try to set out in advance a sort of code of practices for judges which will cover every possible eventuality, rather than telling them in plain and unambiguous language that which Parliament really means them to do and then allowing them to sum up to juries—who, after all, are simply voters taken straight off the voting rolls—in language which jurors can understand.
I venture to say to the noble and learned Lord on the Woolsack and to the noble Lord, Lord Harris of Greenwich, that one has only to read the correspondence which has passed between the various parties to this discussion after the Committee stage to set oneself the following problem. Let us, having borne in mind the various thoughts which passed through the Parliamentary draftsman's mind, which we now know, try to translate that into a paragraph for a model summing up to a jury which will satisfy each of two simple 542 tests. The first test is that the jury should understand what on earth the judge is talking about when he delivers the paragraph. Secondly, it should pass the test of the Court of Appeal, Criminal Division, when they come to compare the paragraph with what Parliament intends. I venture, with respect, to think that it is very difficult, either in the original form in which the subsections are drafted or in the form which is now proposed, to say what the learned judge should tell the jury in a form on which they can give a reliable verdict easily, and a form in which the Court of Appeal can endorse what the judge has said.
I want to read the actual words of my noble and learned friend Lord Dilhorne in the case of Churchill v. Walton. As he is a very modest man, I know he would not have ventured to read them himself. They seem to be a model of clarity which could form the basis of any summing up to a jury. He is dealing with offences of absolute liability. He said:In cases of this kind it is desirable to avoid the use of the phrase 'mens rea', which is capable of different meanings, and to concentrate on the terms or effect of the agreement made by the alleged conspirators. 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, 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.Compare the clarity and lucidity of that statement with the two alternative texts which we are now being asked to discuss. It seems to me that we are being asked to compare a perfectly rational and obviously sensible piece of English prose which any juryman could understand with something which could only be described as legal jargon.
I venture to say that it would be perfectly all right if those words, translated into the right number of third persons, were inserted into the Bill. However, in my first Amendment I have chosen instead simply to insert the word "knowingly" in front of the word "agrees" in Clause 1(1). This may seem to be a fantastic over-simplification, but I ask the House to consider whether that is really so. Of course, there is a sense in which any agreement is entered into knowingly 543 if the word "knowingly" qualifies the word "agrees", but one has to go on reading the sentence before one gets to that absurd over-simplification.
If one gives the judges credit for having read the Law Reports in the last 10 years, if they read the word "knowingly" in subsection (1) they will immediately know that the draftsman and Parliament had in mind the decision in Churchill v. Walton. They will go to those two lucid paragraphs of my noble and learned friend and without more ado direct the jury in an intelligible way which will stand up to criticism. It is for that reason that I have tabled my first Amendment. There may be better alternatives, but at this time we need to pause for a moment in our legal discussions and ask ourselves whether the art of Parliamentary draftsmanship is not becoming over-elaborate. I beg to move.
§ Viscount DILHORNE
My Lords, I should like to begin by thanking the noble and learned Lord, Lord Hailsham of Saint Marylebone, for his very kind observations. I hope that they were justified. I agree completely with a great deal of what he has said and shall endeavour not to repeat it.
I should like to start by thanking the noble and learned Lord the Lord Chancellor for sending me the very long letter of 11 pages from the Parliamentary draftsman—perhaps I should say drafts-woman—explaining why the new clause that we are now considering is so drafted. I shall not venture to read that letter to your Lordships, fascinating though it is, although I must admit that I found some parts of it very difficult of comprehension. I am sure that that is my fault. The noble and learned Lord the Lord Chancellor suggested that when I and others had considered the letter we should have a meeting. He indicated that it might not be possible to table this Amendment on Report because we might not be able to have a meeting before the Report stage. The circumstances have not made that possible. I make no complaint about that but use it simply to lay the basis for what I am about to say. Great benefit would have been derived by all of us from a meeting on the drafting of this provision rather than having to discuss the draft now before us, because I should have hoped—I still hope—that 544 it might be possible to reach agreement about the form that the Amendment should take. I say that because I do not think there is much difference between what any of us wish to achieve.
The noble and learned Lord, Lord Hailsham, said that this was entirely a matter of draftsmanship. It is a little more than that because part of the trouble lies in the different interpretations which have been put upon the Law Commission's Report. I shall venture to suggest—and establish if I can—that the interpretation put upon that report, which has led to this new subsection begin formulated, is wrong and not warranted by the report. In my view it is not entirely a matter of draftsmanship.
I am attracted by the suggestion of the noble and learned Lord, Lord Hailsham, that the word "knowingly" should be inserted in subsection (1). However, I am not satisfied that that will go quite far enough. It certainly would be a great improvement upon the present subsection. The noble and learned Lord has dealt fully and with great clarity with the problem with which we have to contend—a conspiracy to commit an absolute offence or an offence of strict liability, as we call it. It was an offence of strict liability in Churchill v. Walton. I believe that the decision in that case fitted in with the concept that no one should be found guilty of a criminal offence without proof that he intended to do the things which constituted an offence and he knew what those things were.
First—and I hope I shall be forgiven for dealing with this in some little detail—I should like to consider this subsection in relation to offences of strict liability. The first few words of subsection (2) of Amendment No. 3 read:Where in the case of any offence—(a) liability for the offence is strict"—and I ask your Lordships to mark these words—in relation to any fact or circumstance which is an element of the offence.I find some difficulty in understanding what is meant by:fact or circumstance which is an element of the offence.The elements of an offence are usually defined in a Statute or regulation—they are contained in its definition. Facts are 545 facts; one proves facts at a trial. The proof of the facts may show that an offence was committed. What is the significance of the insertion of the word "circumstance"? Why is that added? Whatever "fact" is supposed to mean, what does "circumstance" mean? What circumstance is an element of an offence? I fear that there has been a failure to distinguish between the facts on the one hand and the ingredients of an offence on the other. Of course, Churchill v. Walton was concerned with facts.
Might I suggest that it would be better if, in relation to offences of strict liability, the subsection began as follows:Where in the case of any offence—(a) liability for the offence is strict in relation to the elements of the offence.I am inclined to think that it would be better still simply to say, "where liability is strict", for that, I am sure, would be understood by judges and all those practising at the criminal Bar. However, I should not mind the addition of the words:in relation to the elements of the offence".But the clause, as drawn, does not say that. It refers to "an element". I understand that the words "an element" are included in the subsection to deal with the kind of case mentioned in paragraph (iv) on page 19 of the Law Commission's Report. There the Law Commission points out that if A and B agree to take an unmarried girl out of the possession of her parent, believing her to be over the age of 16, there would be no conspiracy unless they knew that she was under 16 years old. I entirely agree with that. They then go on to say:This of course is the present law on the authority of Churchill v. Walton".So it is.
So I venture to suggest that there is no need to make special provision for that type of case provided you have in the Statute something which correctly embodies what was said in Churchill v. Walton. That can easily be done by deleting the last three lines of the subsection; namely:unless he intends or knows that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.This purports to give effect to paragraph 1.39 of the Law Commission Report. That is the paragraph which 546 contains the recommendations of the Law Commission. It is those recommendations that I should like to see carried into effect. It begins with the statement:We think that the law should require full intention and knowledge before a conspiracy can be established. What the prosecution ought to have to prove is that the defendant agreed with another person that a course of conduct should be pursued which would result, if completed, in the commission of a criminal offence.That part of their recommendation is fully covered by subsection (1) of the clause. Then they say:And further that they both knew any facts which they would need to know to make them aware that the agreed course of conduct would result in the commission of the offence.It is that further part which we are now trying to deal with, and it is enough, I should have thought, to make it clear what type of conspiracy you are dealing with, to provide for that. I think that can be simply done. But, as I said, this new subsection goes beyond dealing with offences of strict liability.
Now may I turn to paragraph (b) of this new clause. It reads as follows:Where in the case of any offence—(b) a person may be liable for the offence by virtue of any fault on his part which does not amount to knowledge of the existence of any such fact or circumstance (as, for example, where it is sufficient to make him liable if he is reckless as to its existence or merely negligent in not realising that it exists);a person shall nevertheless not be regarded for the purposes of subsection (1) above as agreeing to the commission of that offence unless he intends or knows that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.When I read that I simply did not understand it. I was not alone in that, for I received a letter from a distinguished judge with long experience in criminal law. He said that the Clause 1(2)(b) completely defeated him. But I now know, in the light of the information given to me, what it was intended to achieve. The draftsman was concerned with cases where something less than knowledge had to be proved to constitute the commission of the substantive crime; something where it sufficed to prove, for instance, that the accused had reasonable cause to suspect, and, instead of proving knowledge, prove he has reasonable grounds on which he ought to have known. Where that suffices knowledge is imputed, but there is no question of a fault on the 547 part of the accused, and fault in this paragraph (b) in that context is a wrong use of language.
Turning to offences of recklessness and and negligence, to which it particularly refers, I would say first of all that I myself have never known, nor have I ever heard, of a conspiracy to commit an offence which involves recklessness or negligence. I should like to ask whether there ever has been one. If there has not, I cannot see any need for making provision for a situation which is never likely to arise. I think that the only common law offence involving recklessness is manslaughter. A conspiracy to commit manslaughter is just a nonsense. Nor can I see any prosecutor ever charging a conspiracy recklessly to make false or misleading statements.
Paragraph 1.41 of the Law Commission Report refers to the Working Party's proposals, and says that the Working Party framed their proposals in terms of intention and recklessness as to circumstances and consequences. That, I fear, is the cause of the reference in more than one place in this subsection to "circumstances". That formulation was rejected by the Commission, and rightly, but it has reared its head again in paragraph (b). The Commission went on to give instances of how their formula would operate—namely, that you should provide that the accused should know the facts which they would need to know to make them aware that the agreed course of conduct would result in the commission of the offence.
May I remind the House of what they were, because they are extremely relevant in relation to this subsection, and in particular to paragraph (b) If one turns to page 19 (ii), this is the formulation of the Working Party, being the definition of an offence to deal with circumstances as shown at the beginning of paragraph 1.43:This formula may require that the defendant is reckless as to circumstance, for example, making a false statement recklessly. An agreement to make a statement will not be an offence unless the defendants know that it is false. An agreement to make a statement which the defendants do not know is false is not an agreement to pursue a course of conduct which on the facts known to them will constitute an offence. If all they know is that there is a risk that the statement is false, then they will not be agreeing to pursue a course of conduct which on the facts known to them will necessarily result in the commission of 548 a criminal offence. Of course, if they proceed to make the statement and it is false they will be guilty of the substantive offence.Therefore, there is no need at all, in the view of the Law Commission, to make a special provision in the Bill in relation to cases involving recklessness, provided that their recommendation in the last part of paragraph 1.39 is carried into effect.
Look at the next paragraph:The formulation may be required"—this is the formulation of an offence in relation to circumstances—that the belief in the non-existence of a circumstance shall not be sufficient unless it is held on reasonable grounds. This can be framed either as a defence with the burden on the defendant or as part of the definition of the mental element. For example, it is an offence to sell a firearm to a person under the age of 17. It is a defence to prove that the person charged with the offence believed the other person to be of or over the age and had reasonable grounds for the belief.It then says:If A and B agree to sell a firearm to a person under 17 and believe but on unreasonable grounds that he is not over 17, they will not be guilty of conspiracy. They must know that the person to whom they intend to sell the firearm is under 17.That again indicates that in the view of the Law Commission there is no need at all to make special provision for that category of case. It is all covered by the words at the end of paragraph 139.
One finds the same thing in sub-paragraphs (i) and (ii) of paragraph 142. Paragraph 142(i) deals with prohibited consequences, wounding and so on, and says:Where an offence is so formulated, the requirement that there should be agreement to indulge in the prohibited conduct necessarily involves an intention to bring about the prohibited conduct necessarily involves an intention to bring about the prohibited consequence. Offences so framed can require in a defendant a mental element of either intention or risk-taking, but conspiracy will require nothing less than intention. It ought not to be a conspiracy to commit an offence under Section 20 of the Offences Against the Person Act to agree to throw a heavy object from a window into a crowded street, although if the object were thrown and it wounded someone the offence itself would have been committed. There has been no agreement that a course of conduct should be pursued which will necessarily result in the commission of a criminal offence.Paragraph 142 (ii) says the same thing with regard to offences which require a specified intention:In such cases an agreement to do the act will only be criminal if there is the intention thereby to bring about the prohibited consequence. To have that intention one must know the facts.549 I therefore suggest to the noble and learned Lord the Lord Chancellor that the Commission have themselves clearly stated and suggested that all that it is necessary to provide is that a person shall not be guilty of conspiracy unless he knew any facts which he would need to know to make him aware that the agreed course of conduct would result in the commission of the offence. I do not see any reason why those words should not be taken out of paragraph 139 of the Law Commission Report and put in this Bill: they are easily understood; they will not lead to any confusion or give rise to any doubt. As I see it, the particular subsection which we are considering goes far beyond the Law Commission's recommendation. I will not make any other observations on its language except to say that it seems to me to be extremely vague and obscure.
What are we to do? We have this subsection before us and the noble and learned Lord, Lord Hailsham of Saint Marylebone, has made some very well-founded criticisms of it. I hope that mine are not unfounded. It is terribly important that we should try to get this right. I tabled an Amendment to leave out the subsection in the Bill, and the first part of the Amendment in the name of the noble Lord, Lord Harris of Greenwich, is also designed to leave out that subsection, so for once we find ourselves in agreement; that subsection had better go out.
Should we not put in this subsection? I hope the Lord Chancellor will think that possibly we had better not do so tonight. I say that because if it is put in the Bill it might make subsequent amendment more difficult and more complicated. I hope that between now and Third Reading it might be possible to have a meeting at which we can discuss and debate these matters far more freely and fully than we can in the course of speeches in this Chamber, and I would hope that that would lead to acceptance of a formula effective to carry out that which is, I think, the common intention on all sides.
I said earlier that I thought it would be better perhaps, if one could not get Churchill v. Walton properly embodied in the Bill, not to try to tackle it at all. However, I think that as we are in subsection (1) putting in a statutory definition 550 of "conspiracy", it is necessary to find a formula, if one can, which deals with the position of offences of strict liability, and I cannot suggest any improvement on the wording of the Law Commission. I think that one error in this drafting has beer to try to merge too much together, instead of seeking to attempt to define—and that is not easy—what is an offence of strict liability; personally I think it would be enough just to say that. We have this reference to facts, circumstances and elements in sub-paragraph (a) which is picked up again in a somewhat confusing way at the end of the subsection. I hope I have said enough to make my reasons clear to the Lord Chancellor for thinking that the clause will not do. I have not had time to give him advance notice of all these grounds, and therefore I shall not be in the least disappointed if he is unable to give me a detailed answer this evening; we have both been engaged throughout the day on other matters.
§ 5.6 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I am grateful to the noble and learned Lords who have assisted us with their own thinking and suggestions on what is admittedly a difficult problem; namely, the setting out in statutory form of a new concept of the law of conspiracy. No one has suggested that it is an easy task and I do not come to the Committee to say, "We have a solution. Take it or leave it." Indeed, I readily respond to the suggestion just made by the noble and learned Viscount, Lord Dilhorne, that we should give further thought to this matter, as I shall indicate, and certainly I shall not be pressing Amendment No. 3.
The starling point for discussion of subsection (2), as was emphasised in Committee, was the decision in Churchill v. Walton. As noble Lords will remember, the decision in that case required that before he could be guilty of conspiracy, a person should have full knowledge of any facts necessary for the commission of the substantive offence, even though the offence; were one of strict liability. That policy has been endorsed by the Law Commission and, in introducing the Bill, it is certainly endorsed by the Government; and, so far as I am aware, no one has ever attacked the decision in Churchill v. Walton. Indeed, it supplies a policy for 551 offences of strict liability which has not been challenged and to which we adhere.
But in a Statute which seeks to codify the law there must, so far as it is possible to achieve it, be a consistent policy to cover every type of offence, from offences of strict liability to offences requiring full mens rea. It seems to the Government, as I think it clearly seemed to the Law Commission, that the only reasonable policy following Churchill v. Walton is that, before a man can be convicted of conspiracy, it should be necessary to prove that he knew of any fact or circumstance which is an element of the substantive offence, whatever the mental element required for the substantive offence itself.
The Law Commission considered this and we have already been referred by the noble Viscount, Lord Dilhorne, to the passages in the Law Commission Report. The examples which were cited from paragraph 143 of the Law Commission's Report were introduced by the words in paragraph 141:We think it will be helpful if we give some examples of the way in which our formulation of the offence of conspiracy will operate in practice.Their formulation is included in what is now Clause 1(2) as well as in subsection (1); that is, it includes the requirement of knowledge of facts and the other matters that follow.
Two examples may be helpful to illustrate the importance of following up the policy that is adumbrated in Churchill v. Walton in other circumstances as well. There is, for instance, the situation of the offence of making a false statement reckless as to whether it is true or false. An example of that might be an agreement to issue a false prospectus reckless as to whether or not it was true, and that agreement might come to light before the prospectus has been issued. Then, another situation that ought to be coped with is the offence of taking an unmarried girl under 16 out of the possession of her parent against his will, where it is no defence to prove that one believed, on reasonable grounds, that the girl was 16 or over. In this latter case, Churchill v. Walton means that the accused can be convicted of conspiracy to commit the offence only if he can be shown to have known that the girl was under 16. In the former case, it follows that before the 552 accused can be convicted of conspiracy it should be necessary to show that the statement was false and was not merely reckless as to whether it was true or false.
I have endeavoured to explain this difficult field of the policy which I and the Government think it is necessary to deal with, and we believe that something on the lines of subsection (2) is required. In earlier discussion, it has been said that it would be unusual to have a case where the policy in subsection (2) was needed and that, where a case does arise, the courts can be left to arrive at a sensible answer and to rely on the decision in Churchill v. Walton. But the difficulty we should be in if we were to take that course is that I believe that the effect of subsection (1) without subsection (2) is to reverse Churchill v. Walton. Subsection (1) as it now stands requires intention that the actual action or omission involved in the actus reus should be performed, intention to cause any result required for the completion of the actus reus and the presence of any mens rea or other fault required for the substantive offence. In the context that we are now discussing, the last point—proof of fault required for the substantive offence—is the important one.
Using the examples I have already mentioned, it would only be necessary to prove that a girl was under 16 without regard to the state of mind of the accused in the one case and in the other case it would only be necessary to prove that the accused was reckless as to whether the statement was true or false, and that would not meet the Churchill v. Walton situation.
So I fear that we do not think that the prima facie attractive remedy of getting rid of this difficult subsection would really meet the needs of the situation, though we are by no means wedded to the words in the Bill as amended in Committee or in the draft put forward for your Lordships' consideration today. It is clear from the massive and lengthy correspondence that has passed on this matter that there are criticisms—and, if I may say so, criticisms of substance—about what has been attempted. As I have already indicated, I certainly do not propose to press Amendment No. 3 today, though I thought it useful to put it down in order to provide a focus for the discussion of the matter.
553 I have, of course, considered with care the suggestion of the noble and learned Lord, Lord Hailsham, to resolve the matter by the insertion of the word, "knowingly" in line 8 of page 1. But I am afraid that that is not enough to express the policy that I believe we have to deal with. I am extremely doubtful whether the insertion of "knowingly" in that part of Clause 1 has the effect of requiring proof of knowledge of any fact or circumstance which is an element of the actus reus. Furthermore, I am not very happy about trying to deal with this problem in subsection (1) because I think that it would complicate it a great deal and I should prefer that the subsection remained as clear a statement of the general principle as is possible without being encumbered, as this addition would encumber it, with a refinement of principle. That, at any rate, is my present view of the matter.
With regard to the suggestions that the noble and learned Viscount, Lord Dilhorne, has put forward today, I shall of course consider them with care and it may well be that a discussion of the matter between those concerned may prove helpful. I have been giving thought to yet another attempt to deal with this matter which I may perhaps be permitted to read out today and your Lordships can consider when the text appears in the Official Report tomorrow morning whether this is more satisfactory from the point of view of what we are seeking to achieve. If it were thought acceptable, I should be prepared to put it, or any suitable alteration or amendment of it that might be acceptable, forward at Third Reading. It will be on these lines:Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance which is an element of the offence, a person shall nevertheless not be guilty of conspiracy in relation to that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.I do not think for a moment that there will be an immediate response—though I hope that there will not be a rejection—to those words, but they seem to me to get pretty near to what all noble Lords have been saying. Perhaps, as the use of the words "circumstance" and "fact" has been commented upon, I should endeavour 554 to explain the various words used in the proposed redraft. The use of the word "element" of an offence in the draft is merely another expression for "ingredient". "Circumstance" is, I think, a slightly wider word than "fact", and it could, for instance, be apt to cover a matter which is to some extent a matter of law; for example, status as a British subject, or the status of being married. It may be that we will not need both "fact" and "circumstance", but if one is to go I think that the word "fact" should be eliminated rather than "circumstance", which is the wider word.
However, these are refinements of detail, but I submit that alternative possibility with, if I may say so, complete modesty because it may be that it will not fully meet the needs of the situation, although I think it will point a way forward. Perhaps I need not formally at this stage ask leave to withdraw the Amendment in case there are other observations to be made. In any event, I think that we are discussing Amendment No. 1, and so I must correct myself, because the matter of withdrawing the Amendment does not lie in my hands.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, as we are discussing Amendment No. 1, and as it is my intention in a moment or two to ask leave to withdraw it, I should like to say a few words by way of comment on the discussion that has taken place. In the first place, I should like to thank both noble and learned Lords who have taken part in the discussion for the part they have played, and even more so the number of noble Lords who are perhaps not quite so learned who have listened so patiently to what must have been an almost intolerably technical discussion on a subject of extreme intellectual difficulty.
I certainly accept the criticisms of my own rather simplistic draft, and at this stage I certainly shall not press it further, but I should like to make a comment on the Lord Chancellor's speech. I now appreciate what is in the Government's mind a good deal more plainly than I did when I rose to move the Amendment. But I respectfully suggest to the noble and learned Lord that perhaps the Government are trying to take a steam hammer to crush a nut. A conspiracy of course is an agreement, and the crime is complete 555 at the time the agreement is made, whether or not it is subsequently carried into effect. But the cases where the conspiracy is complete and prosecuted at the time when it is an inchoate agreement unexecuted by any of the parties to it are, and must be, in the nature of things extremely rare.
So we are dealing in theory with a very rare set of circumstances, in so far as we are regarding the matter as a crime which can be prosecuted before the commission of the substantive offence in question. It becomes even more rare if one makes this reflection. Let us suppose that one takes the case of the abduction of a girl under the age of 16 which has in it an element of strict liability in the sense explained by the noble and learned Lord. In those circumstances I should have thought that in 19 cases out of 20 (and probably more) provided the actual abduction takes place, the other party to the abduction will be guilty of aiding and abetting the principal offence, whether or not he is charged with a conspiracy to commit it. In other words, once the agreement is carried out he will not escape liability on any purely technical ground; if he has the degree of criminality which is required of the substantive offender, he will be guilty of aiding and abetting, of procuring or inciting the commission of the substantive offence.
It is only when one wants to get in a statement by one of the conspirators after the execution of the offence, or when one is prosecuting an agreement, no part of which has been carried out, that the extremely rarefied atmosphere that we are now exploring becomes a matter of practical politics at all, so far as I can see. For this reason I wonder whether the Government are taking a steam hammer to crush a nut, and whether the noble and learned Viscount, Lord Dilhorne, has the right approach when he goes back to the terms of the Law Commission's Report and insists that before one prosecutes a conspiracy of this kind as a conspiracy, there must be actual knowledge of the facts necessary to make up the offence of absolute liability.
It seems to me that he may be right about that. Although I recognise the philosophical point, which was made very lucidly by the Lord Chancellor, we are after all 556 legislating for juries and we are legislating for judges who have to sum up to juries. I wonder whether the extremely rarefied point which the Government have in mind to catch by the formulations which they have suggested successfully is not becoming too elaborate and too philosophical for the actual hard "nitty gritty" of the common law as it has to be carried into effect. With those words, I beg leave to withdraw the Amendment which is in my name.
§ Amendment, by leave, withdrawn.
Viscount DILHORNE moved Amendment No. 2:
Page 2, line 6, leave out subsection (2).
§ The noble and learned Lord said: My Lords, it is perhaps fortunate that we are not in Committee, because if we were in Committee discussion on the last Amendment might have been continued for a very considerable time, to the great delight no doubt of all of those who were listening. That is what has kept me silent, but perhaps I can say this without being out of order. I was greatly attracted by the suggested redraft of the noble and learned Lord the Lord Chancellor, and I undertake to look at it very carefully. The closer we stick to the recommendations in paragraph 139, the better. I think that if that is done it will cover all the cases he has mentioned. I say no more about that, and now I say merely that I beg to move this Amendment, that subsection (2), as it now stands, should be omitted from the Bill; and I think there is universal agreement that this should happen.
§ On Question, Amendment agreed to.
Lord WIGODER moved Amendment No. 1A:
Page 2, line 2, leave out from ("offences") to ("he") in line 4.
§ The noble Lord said: My Lords, I apologise for inflicting upon your Lordships a short supplementary list of Amendments. They are intended to be suggestions as to possible ways in which various parts of the Bill might be tidied up, and they arise out of discussions that I had at the very end of last week with some of my colleagues at the Bar who are rather more conversant than I am with the niceties of the law of conspiracy. 557 The first Amendment, No. 1A, involves looking again at Clause 1(1) to see whether there are included in it two lines which are unnecessary and rather unhelpful.
As at present drafted, the clause reads that a person shall be guilty of conspiracy,
…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…".
As it stands the wording appears to suggest that a person is thus guilty of the offence of conspiracy only if the agreement is that the offence shall be committed by one or more of the parties to the agreement. That would appear not be entirely appropriate in certain situations which arise. One is where the agreement is that the offence might be committed by a person who is to join the agreement in the future, and who is therefore not a party to the agreement at the time; the second is where the agreement is that the offence is to be committed by an innocent agent; and the third situation is where the agreement is that the offence is to be committed by a person who may be exempt from liability by virtue of various other clauses in the Bill.
In all those situations, the wording would not appear to be entirely happy, and one therefore looks again to see whether anything is in fact added to the clause by the inclusion of the words from line 2 to line 4,
by one or more of the parties to the agreement if the agreement is carried out in accordance with their intentions".
I would invite the noble and learned Lord on the Woolsack to look again at the clause to see whether it is not quite sufficient, and much simpler, merely to say:
…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 he is guilty of conspiracy…".
It is in the hope of simplifying that matter in that small way that I venture to move this Amendment. I beg to move.
§ The LORD CHANCELLOR
My Lords, I confess that, having had notice of this Amendment this morning, there has not been a great deal of time for its consideration, but may I say this? 558 The words which are sought to be left out limit conspiracy to an agreement that one or more of the parties to an agreement should commit a criminal offence, and that seems to us to be a reasonable and proper limitation on conspiracy. Secondly, they limit conspiracy to an agreement which will necessarily lead to an offence if the agreement is carried out in accordance with the intentions of the parties to the agreement. So, frankly, as at present advised I feel that the words in the sub-section serve a necessary purpose. If, having heard what I have said in justification of them, the noble Lord, Lord Wigoder, still feels disposed to press the matter, I will certainly undertake to look at it again between now and Third Reading. I am not being dogmatic about it, but, frankly, I feel that the words should be included in subsection (1).
§ Lord WIGODER
My Lords, I am certainly not disposed to press the matter. I am entirely satisfied with the observation of the noble and learned Lord on the Woolsack that he may perhaps reflect for a very brief moment between now and Third Reading as to whether there is not, perhaps, a little substance in the argument I have put forward. In those circumstances, with your Lordships' leave, I seek to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ The LORD CHANCELLOR moved Amendment No. 4:
Page 2, line 23, leave out subsections (4) and (5) and insert—
("(4) In this Part of this Act "offence" means an offence triable in England and Wales, except that it includes murder notwithstanding that the murder in question would not be so triable if committed in accordance with the intentions of the parties to the agreement.")
§ The noble and learned Lord said: My Lords, this Amendment is a drafting Amendment which was prepared in response to the criticism made by the noble and learned Viscount, Lord Dilhorne, of subsections (4) and (5) of Clause 1 as they appear in the present print. Since then, I have seen the letter from the noble and learned Viscount in which he approves, with apparent enthusiasm, of the new draft that is proposed. It really has no effect on the provisions of the Bill, but I think it is a most helpful redraft. I beg to move.559
§ Viscount DILHORNE
My Lords, I should just like to say "Thank you" to the noble and learned Lord the Lord Chancellor and to those who have assisted him in making this substantial improvement in the drafting of the Bill, and to say that I am always very keen to encourage such progress.
§ On Question, Amendment agreed to.
§ 5.35 p.m.
§ Lord MORRIS of BORTH-Y-GEST moved Amendment No. 5:
Page 2, line 33, at end insert—
("(6) For the removal of doubt it is hereby declared that a conspiracy to prevent, obstruct, pervert or defeat the course of justice constitutes a conspiracy coming within subsection (1)")
§ The noble and learned Lord said: My Lords, in the course of discussions in your Lordships' House on this Bill many of your Lordships, and I among them, have expressed the view that it is desirable to have as much clarity as possible. We have of course also expressed the view that we should not have anything superfluous, and there may be some contest between those two points of view arising out of the Amendment that I move. When lawyers read this Bill and saw in Clause 5 that there was a preservation of the common law conspiracy to cheat and defraud, and a preservation, also, of the common law conspiracy in regard to outraging public morals, and so on, I think many of them raised the question "Why is the offence of conspiracy to pervert the course of justice not preserved?".
§ I raised this matter on Second Reading. I asked whether it was preserved, and I said that I rather assumed that it was because Clause 1 was believed to preserve it because it was thought that a substantive offence does exist. The noble Lord, Lord Harris, very courteously and kindly said he entirely agreed; and, indeed, one has only to look at the report of the Law Commission, on page 11, paragraph 1.19, to see that it is their view that this offence continues. At the Committee stage, when dealing with an Amendment with regard to Clause 3, I referred again to this matter and raised the question whether it might not be desirable to make it clear in the Bill, and in the words of the Bill, that this offence was preserved. 560 I did that for the reason I have already indicated: that, rightly or wrongly, many lawyers have always associated this offence with a conspiracy. In future the report of the Law Commission will not be readily referred to; nor, indeed, will debates in your Lordships' House. May it therefore not be a good thing to have it clear on the face of the Bill?
§ As recently as 1968 there was a case—the name is Grimes, and it is referred to in the Law Commission Report in the passage to which I have referred—where there were two charges and where the submission was made that there is not a common law offence of attempting to defeat the course of justice; namely, an offence lacking the element of agreement or combination, which is the element of conspiracy. It was said that it would be strange that conspiracy should often have been charged if the offence lacking the element of agreement existed at common law. The learned judge, Judge Kilner Brown, later Mr. Justice Kilner Brown, for whose opinion I have the highest respect, ruled against that submission, and in doing so said that it was true that it is customary to contemplate this type of conduct as a branch of the law concerning conspiracy as usually it involves the agreement of two or more persons, but the fact that it was not charged as conspiracy to pervert the course of justice did not invalidate the indictment.
§ If one researches into this matter one finds that there is a reference in our standard book, Archbold, at page 1474, to "many cases", which I think shows that there is a common law offence of perverting the course of justice. Many of the cases have really been akin to contempt; many of them have involved interference with a witness or the like conduct. But I readily acknowledge that if this matter were tested, I think there is plenty of authority supporting the view that there is a common law offence. Therefore, it might be said that it is unnecessary to put any provision to that effect in the Bill, In one sense, I am agreeing that it is unnecessary because on looking up the point I think it would be found that there is a common law offence and therefore the result of Clause (1) of the Bill is that the matter is fully preserved. So I raise this point merely in the interests of securing clarity without having anything that is unduly superfluous in the 561 Bill; I raise it for your Lordships' consideration. Would it be a good thing so that anyone reading this Bill should at once see that conspiracy to pervert the course of justice is preserved as an offence?
§ It may be said by the noble and learned Lord on the Woolsack or by the noble Lord, Lord Harris, that this is quite unnecessary and, in one sense, I am conceding that. But is it desirable in the interests of clarity so that there may be no misunderstanding from the start? It is in that spirit that I submit the matter for your Lordships' consideration. I beg to move.
§ The LORD CHANCELLOR
My Lords, I observe with anxiety the movement of the hand on the clock. I know of the desire of the noble and learned Lord, Lord Morris of Borth-y-Gest, to celebrate his Saint's Day in another place before very long. I shall not detain him for much longer or, indeed, if I may say so, myself. We have given thought to this Amendment, but I think it is unnecessary and undesirable to clutter up the Statute Book with a superfluous, If I thought there was any real doubt, as I said in an earlier stage in the proceedings of the Bill, whether there exists at common law an offence of perverting the course of justice, of course, I should have had no hesitation in bringing forward an Amendment on the lines that are proposed; but I do not think that there is any real doubt. Listening to the speech of the noble and, learned Lord, as he was illustrating the cases it became more and more apparent that there is no doubt about the matter.
The Law Commission considered it in its Working Paper No. 62. They referred to the case of The Queen v. Grimes, to which the noble and learned Lord referred, where Mr. Justice Kilner Brown held that "an attempt to defeat the due course of justice" was an offence known to the law even where there was no element of conspiracy. That was approved by the Court of Appeal in The Queen v. Panayiotou in 1973. In the case of The Queen v. Andrews in 1973, the Court of Appeal held that to produce false evidence in order to mislead a court and to "pervert the course of public justice" was a substantive offence and that incitement so to act could properly be charged in appropriate circumstances. I think it is clear, as the noble and learned Lord has 562 said, that the effect of the cases is to establish at common law a general offence of perverting the course of justice, so making it unnecessary to charge either a conspiracy or a more particular offence such as tampering with evidence.
I think that a useful purpose has been served in our considering this Amendment because it will undoubtedly identify the fact that the offence of perverting the course of justice is an offence, as would be a conspiracy to commit it. Accordingly, in the light of what I may say with respect he, himself, has hinted at and what I ventured to submit, the noble and learned Lord may not be disposed to press this Amendment.
§ Lord MORRIS of BORTH-Y-GEST
My Lords, may I thank the noble and learned Lord, the Lord Chancellor for dealing with the matter so fully. I think it has been apparent that there is really nothing between us in regard to the law. I thought that the matter was just worthy of consideration; that it might serve a useful purpose to raise the matter and perhaps make it abundantly clear to the profession if any doubt still exists among those who have not looked up the point. I think that it has become abundantly clear; so, while thanking the noble and learned Lord for the way in which he has dealt with the matter, may I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.46 p.m.
The LORD CHANCELLOR moved Amendment No. 6:
Page 2, line 35, leave out from ("any") to end of line 44 and insert ("offence if he is an intended victim of that offence").
§ The noble and learned Lord said: My Lords, during the discussion on Amendments Nos. 7 and 8 which the noble Viscount, Lord Dilhorne, moved during the first day in Committee, I agreed that the Government would look again at the whole of subsection (1) of Clause 2. The first Amendment leaves out the whole of subsection (1) of Clause 2 except for the provision relating to an intended victim. The second Amendment, Amendment No. 7, is merely a consequential tidying-up of subsection 2(c). I hope to deal with these Amendments briefly as I think that they will be generally welcomed; and I am 563 glad to see that the noble and learned Lord indicates his assent.
§ As your Lordships will recall from the discussion in Committee the Law Commission's Report mentions the case of R. v. Whitchurch where a woman was found guilty of conspiring to procure her own abortion, although not pregnant. This was a remarkable state of affairs, as noble Baronesses are indicating by their reaction to what I have said. In the case I have referred to, a woman was found guilty of conspiring to procure her own abortion although not pregnant. Then there was the case of a man conspiring with a mother that he should remove her child from the custody of its lawful guardian. Subsection (1) was intended to give effect to the general principle that a person should not be guilty of conspiracy if the agreement was that an offence should be committed which he could not by law commit or for which he was exempt from prosecution. As the noble and learned Lord, Lord Hailsham, pointed out in the debate, the subsection has no effect where the agreement is for the exempt person to do the act which, but for the exemption, would be an offence. Under the terms of subsection (1) of Clause 1, that could not be a conspiracy because it would not be an agreement to pursue a course of conduct which will necessarily amount to or involve the commission of an offence.
§ In the interval between the publication of the report and the introduction of the Bill into this House we took the view that subsection (1) was too wide. For example, a boy of 13 cannot be charged with rape but he can agree with a youth of 18 on a course of action involving rape by the youth. Another example is provided by an agreement between a United Kingdom citizen and a person who does not owe allegiance to the Crown to commit treason. We have also reconsidered the policy in relation to the examples of the non-pregnant woman and the mother agreeing to her child being stolen. For example, in a case where an irresponsible mother agrees to co-operate with a man for the man to abduct the child for some purpose other than to restore it to the mother's custody it would seem wrong for either party not to be liable to a charge of conspiracy. That leaves the question of the non-pregnant woman which is 564 largely theoretical—indeed, it was somewhat fanciful as we look back upon the case—because it is not the practice to prosecute a non-pregnant woman for offences of abortion, which would seem to be a simple statement of the obvious. Our conclusion here is that the policy in issue should properly be regarded as a matter of the law of abortion. In the circumstances, we now think that it is inappropriate for this Bill to be used to reverse Whitchurch with all the elaboration that that would produce in the draft. Therefore, this process of simplification will meet one of the reproaches which was made earlier in the debate that this Bill is guilty of over-elaboration. I beg to move.
§ Viscount DILHORNE
My Lords, the speech of the noble and learned Lord the Lord Chancellor has indicated into what fields the law of conspiracy can trespass and into what unlikely areas it can come. I am grateful again to the noble and learned Lord the Lord Chancellor. I will not take up time by saying more than "Thank you" and that I think it is a great improvement to the Bill.
§ On Question, Amendment agreed to.
§ The LORD CHANCELLOR moved Amendment No. 7:
Page 3, line 7, leave out paragraph (c) and insert—
("(c) an intended victim of that offence or of each of those offences.")
§ The noble and learned Lord said: My Lords, I have already spoken to this Amendment and therefore formally move it.
§ On Question, Amendment agreed to.
§ Clause 5 [Abolitions, savings, consequential amendment and repeals]:
§ 5.53 p.m.
§ Lord HARRIS of GREENWICH moved Amendment No. 8:
Page 5, line 7, leave out subsection (1) and insert—
("(1) Subject to the following provisions of this section, the offence of conspiracy at common law is hereby abolished.")
§ The noble Lord said: My Lords, I beg to move Amendment No. 8. It may be for the convenience of the House if we took Amendment No. 12 at the same 565 time. These Amendments contain transitional provisions for Part I of the Bill. The main difficulties which the provisions are designed to overcome are that conspiracy is a continuing offence so that some of them will straddle the commencement date and that the prosecution are sometimes uncertain about the timing of a conspiracy. The solution in the Amendments is that once Part I comes into force, the statutory offence of conspiracy is to be charged irrespective of when it is alleged that the offence was committed. This makes Part I have retrospective effect but, except in one respect, this will work entirely to the advantage of the accused person; for example, by limiting the penalties or requiring the Director of Public Prosecutions' consent for a prosecution in certain cases. The one exception is conspiracy to murder where the penalty is increased from 10 years to life. Paragraphs (a) and (b) of subsection (3B) take care of this by preserving 10 years where the agreement was entered into before Part I came into force.
§ Subsection (3A)(b) provides for a case where some parties to a conspiracy are charged under the common law before commencement but the identity of others comes to light afterwards. It makes it possible to charge all the parties under the common law. Subsection (3A) (c) is directed at conspiracy to trespass. Clause 9 (trespassing on the premises of foreign missions et cetera) fills the gap left by the abolition of conspiracy to trespass but without subsection (3A)(c) there could be a problem in a case where an embassy was invaded and the trespass ended before Parts I and II came into force but charges could not be made before that date. This provision allows the common law to be charged notwithstanding the fact that in general it will by then have been abolished. To ensure that this does not work to the disadvantage of the accused, the penalty in such cases is limited to one year's imprisonment, as in the case of Clause 9, rather than being left at large as it is at present. I beg to move.
§ On Question, Amendment agreed to.
Lord WIGODER moved Amendment No. 8A:
Page 5, line 12, leave out ("cheat and").
§ The noble Lord said: My Lords, it will come as no surprise if I ask leave to speak to Amendments Nos. 8A and 8B. The position, as I understand it, is that the common law offence of cheating has been abolished. For those who are erudite, I would say that I think it was abolished by the False Pretences Act of 1757, but most of us would agree that it was undoubtedly abolished, except for revenue offences, by the Theft Act of 1968. The case in 1974 of Scott v. the Metropolitan Commissioner made it perfectly clear that the appropriate way to charge people now was not by means of conspiracy to cheat and defraud, but simply conspiracy to defraud. This is the practice which is now invariably followed, and it seems undesirable to take a backward step by reintroducing the offence of conspiracy to cheat and. defraud, as is done in Clause 5 of the Bill. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, these Amendments, as the noble Lord will recognise, only appeared today and so, unhappily, we have not had a great deal of opportunity to study them. But I will certainly ensure that the point the noble Lord has raised is carefully gone into before the next stage of the Bill.
§ Amendment, by leave, withdrawn.
§ The DEPUTY SPEAKER (Lord Amherst of Hackney)
My Lords, if Amendment No. 9 is agreed to, I cannot call Amendments Nos. 10 and 11.
Lord BEAUMONT of WHITLEY moved Amendment No. 9:
age 5, line 16, leave out subsection (3).
§ The noble Lord said: I have brought this Amendment back in the same form as I produced it at Committee stage because after studying carefully what the noble Lord, Lord Harris of Greenwich, had to say at that stage, I must confess that I am not the slightest bit satisfied that he made out any kind of case whatsoever. I know that is putting it very strongly, but I hope to be able to sustain that point of view. I begin from the supposition that in the last resort we all want to abolish these two offences of 567 conspiracy to corrupt public morals and conspiracy to outrage public decency where they do not refer to a substantive criminal offence, and that the only difference between most of us is whether we should do it now or after another committee has sat and at the same time as other laws may be brought in.
§ The noble Lord, Lord Harris, in his speech produced three points—two subsidiary and one absolutely essential and substantive. I will deal with the subsidiary points first. The first was that it was better that this should be dealt with by a departmental committee dealing with the whole range of the laws of obscenity and indecency, and that these particular offences belonged in that stable. I pointed out at the time that I saw no reason why they did not belong in the general stable of offences of conspiracy rather than in that particular one. I have come across at least one possible snag in what the noble Lord, Lord Harris, was saying; that is, whether the departmental committee's brief goes so wide that it can deal with these matters.
§ I understand that, in correspondence, the Home Office have referred to the committee as "a committee on obscenity and film censorship", and the question of corrupting public morals goes a great deal wider than that. So I should like to ask the noble Lord, first, whether he is absolutely sure that the committee's terms of reference cover everything that would be covered by these offences and, therefore, by this Amendment. Secondly, I should like to ask the noble Lord what the proposed timetable is for bringing in further legislation. I realise that anything he says must not be held against him because, as we have seen quite often during the last few months, legislative timetables are not necessarily even within the Government's control. Nevertheless, I think we should have some assurance that if we put off dealing with this matter now, it will be dealt with within a reasonable time.
§ The second point I wish to raise is one made already by the noble Lord, Lord Harris, as to whether substantive offences to corrupt public morals and outrage public decency exist. I do not think that that really affects my Amendment. I agree that there is probably some uncertainty about this, although some people 568 say there is not. My own view is that the uncertainty exists. If the substantive offences do exist, then my Amendment does no harm; if they do not exist, it seems to me that it does a great deal of good in achieving what most people want to achieve, either in the long or the short-term.
§ I turn now to the substantive point made by the noble Lord. He said that I was trying to put down an Amendment to take away an area of the law without putting in something needful in its place. He cited only two examples of that, and I have been unable to find any others. The two cited by the noble Lord were the showing of pornographic films and the presentation of live sex shows. He said that it was in those cases that the conspiracy clause had been used mostly in the past and where it might be necessary in the future, because it was doubtful whether any other law caught it.
§ I do not think that is now the case. On the 25th January, 1977, in a test case decision of the Central Criminal Court, it was stated that cinema clubs showing pornographic films to their members are breaking the law. The proprietress and two doormen at the Albatross Cinema Club at Plashet Grove were found guilty of being concerned in keeping a disorderly house. That is the law which has now been shown to catch these cases and, if it catches pornographic films, I am sure that it catches to an even greater extent live sex shows. In that case, I suggest that there is no gap in the law covering these offences, and in that case I think the Government have no reason at all to resist this Amendment. I beg to move.
§ 6.5 p.m.
§ Lord SIMON of GLAISDALE
My Lords, I can well understand that the noble Lord wanted to put down this Amendment again, and I can very well understand that he wanted to raise the questions that he did in speaking to it. Nevertheless, I hope that the Amendment will not be accepted as it stands. There seem to me to be two main reasons which could be urged against it. The first is the one I mentioned when your Lordships were in Committee; namely, that the matter ought to be considered anew by the proposed committee because conspiracy to outrage public decency has never 569 been sufficiently differentiated from conspiracy to outrage public morals. Indeed, the two offences have been habitually treated as though they raised the same issues. In fact, they raise very widely differing issues: social, ethical and legal.
I do not want to go into the merits of either offence because they turn on two decisions—in one case I was the counsel and in the other a Member of the Appellate Committee of your Lordships' House—but conspiracy to outrage public decency raises an issue that is not at all the same as that raised in a conspiracy to corrupt public morals: in other words, the issue whether the law should protect the right of a person to go out in public without certain minimum and reasonable standards of decency being outraged. It is because that issue merits separate consideration, which I think it would be true to say that it will receive for the first time, that I personally very much welcome the Government's proposal to set up the committee.
That was a matter I mentioned during the Committee stage of the Bill, but I did not mention the second reason why it seems to me that this Amendment should not be accepted; namely, that it will not do, so far as I can see, what the noble Lord intends it to do. That is because Clause 1 of the Bill retains as a criminal conspiracy an agreement to do what would be a crime in an individual. I think the balance of authority is that there is a crime in an individual both to outrage public decency and to corrupt public morals.
Certainly the law is such that there would be very considerable doubt. I say that for this reason: in the case of the Director of Public Prosecutions v. Shaw, the Court of Criminal Appeal reached their decision by holding that there was an offence in an individual to corrupt public morals, and therefore an agreement to corrupt public morals was a criminal conspiracy. When the matter came to be considered by your Lordships' House, they preferred to uphold the decision of the Court of Criminal Appeal on the ground of conspiracy, but it was expressly made quite clear in the speech of the noble and learned Lord, Lord Tucker, giving the Opinion of the majority, that he did not reject the approach of the Court of Criminal Appeal.
570 Then for the offence in an individual to outrage public decency, there is a decision by the Court of Appeal in Mayling, holding that such an offence exists. In the Knuller case, my noble and learned friend Lord Kilbrandon and I held expressly that there was such a crime in an individual, and I think that my noble and learned friend Lord Morris of Borth-y-Gest, in approving Mayling, in that case took the same view. My noble and learned friend Lord Reid in Shaw, had taken the same view, but by the time of Knuller he had come to think differently. But, on the balance of authority, it seems to me that there is an offence in an individual both to outrage public decency and to corrupt public morals; in other words, if the Amendment is carried and subsection (3) is removed from the Bill, the offences mentioned would, I think, still be offences by reason of Clause 1. For that reason as well, I trust that the Amendment will not be accepted.
But I should like to take the opportunity to ask certain questions, of which I gave notice to the other Minister of State at the Home Office and of which I know the noble Lord. Lord Harris, is cognisant. When the decision in Shaw was reached, it may have been implicit in it that it could have been used in such a way as to outflank the defence given by Section 2(4) of the Obscene Publications Act 1959. Your Lordships will remember that that was the defence available to a person accused of an obscene publication—in other words, something likely to deprave or corrupt those into whose hands it might fall—to show that, notwithstanding that tendency, the work should be published on the ground that it had literary, artistic, scientific or suchlike merit. As I say, the decision in Shaw could have been used to outflank that defence. An assurance was given that Shaw would not be used in such a way, and that was repeated again in 64 by the Solicitor-General in another place. But nothing was said as to its application to a conspiracy to outrage public decency.
In the Knuller case, my noble and learned friend Lord Reid thought that the assurance did not extend to that conspiracy, because it was not explicitly said to do so. I thought that it did, because it seemed to me that the assurances given in another place extended in spirit to that other conspiracy to outrage 571 public decency. But the matter is in sufficient doubt, in my respectful submission, that it ought to be cleared up. I know that the Home Office is not a prosecuting authority, but I hope that the noble Lord will be able to give an assurance, although I shall well understand if he says that it should be left to a law officer in another place. It struck me, too, that it is just possible that the decisions in Shaw and Knuller could be used to outflank the defence in the Obscene Publications Act, if it was ever sought to raise that defence in connection with a crime by an individual to corrupt public morals or to outrage public decency. I do not see at the moment how that could arise, but if it could I should be grateful if the noble Lord could give an assurance as to that matter, too.
§ 6.15 p.m.
§ Lord GARDINER
My Lords, I expressed my view on this question both on the Second Reading of the Bill and again in Committee, and I therefore have no intention of taking up time by expressing it now for a third time. But although I remain of the same opinion, I should like, if I may, to raise a question about the committee. I gathered from what my noble friend Lord Harris of Greenwich said on Second Reading in December last year that we might at any moment hear the names of the chairman and members of the committee. Does he think that there is any prospect of such a committee reporting in the lifetime of this Parliament, and is rumour right in saying that the right honourable gentleman the Home Secretary has found it very difficult indeed to find anybody who is prepared to take on the chairman ship of this committee?
§ Lord HARRIS of GREENWICH
My Lords, certainly, it is true that many harsh words have been spoken about the offences which this Amendment seeks to abolish, not least by the noble Lord, Lord Beaumont of Whitley, who has spoken today and during the Committee stage. Some of these words might indeed be justified, and I would not want the attitude which the Government have taken, and must continue to take, towards this part of the law to be in any way misunderstood. We do not take the view that this is a sphere in which the law is wholly effective 572 and leaves nothing to be desired. But we do regard it as rather more complex than some noble Lords have so far recognised.
If the Law Commission was correct, this Amendment would not abolish the offence of conspiracy to corrupt public morals, as the noble and learned Lord, Lord Simon of Glaisdale, pointed out. The Law Commission's view, based on the judicial authorities, was that there existed an offence at common law of corrupting public morals, and under Clause 1 of the Bill it will continue to be an offence to conspire to commit any criminal offence. But the existence of the substantive offences is a matter of some doubt, and if the law on conspiracy had to rely on Clause 1 alone the doubt would attach itself also to the existence of the conspiracy offences. The merit of the Bill as drafted is that it makes it clear that, as at present, conspiracy to corrupt public morals and conspiracy to outrage public decency are offences, regardless of the doubts about the existence of the substantive offences; to delete subsection (3), which this Amendment seeks to achieve, can only import great uncertainty as to what the law is.
The Law Commission found it necessary, in looking at these particular conspiracy offences, to extend their review to the various substantive offences in the field of public morals and decency. The scope of these offences is often doubtful, and for this reason it is not readily possible to say exactly what gaps would be left in the law if particular offences did not exist. Taking together the offences of conspiracy to corrupt public morals and to outrage public decency, and those of obscene libel, indecent public exhibition, keeping a disorderly house and indecent exposure, the Law Commission proposed to substitute: first, the widening of the Obscene Publications Acts to cover the exhibition of films, whether in public or in private: secondly, a new offence of presenting an obscene live performance; and, thirdly, a new offence of engaging in offensive sexual behaviour in public view. It is really not possible to look at these proposals other than as a complete package and that is the Government's position on this matter. As we have made clear, our conclusion is that before the obscenity laws are widened as the Law Commission proposed, they ought themselves to be examined with considerable care by the 573 proposed new committee. To deal with the specific question which was addressed to me by the noble Lord, Lord Beaumont of Whitley, when he moved the Amendment, certainly the Committee will be able to discuss the matters which are the subject of these Amendments. So far as the Government are concerned, there is no possible doubt about that.
My noble and learned friend raised the question of timing. I am afraid that I am not in a position to give an indication of whether the Committee will be able to report in the lifetime of this Parliament without knowing what the lifetime of this Parliament will be—which I am quite sure that my noble and learned friend and I would very much like to know! Therefore I cannot answer his question. However, my right honourable friend the Home Secretary is pushing ahead quite vigorously with the matter and certainly it is our hope to announce the name of the chairman as soon as possible.
The noble and learned Lord, Lord Simon of Glaisdale, raised a question at the end of his speech to which I should now like to give a fairly considered reply. The assurance as to the use of conspiracy charges which is most frequently cited is that given on 3rd June, 1964 by the then Solicitor General, Sir Peter Rawlinson, in the context of the Obscene Publications Bill when he said:… that a conspiracy to corrupt public morals would not be charged so as to circumvent the statutory defence in Section 4"—[Official Report, Commons, 3/6/64; col. 1212.]The Solicitor General made it clear then that he was repeating assurances already given by the Attorney General, and in due course, during the Report stage of the Bill on 7th July 1964, he repeated it yet again. On that occasion, however, he expressed the assurance in a wider form, saying that:…no proceedings would be brought for a common law offence so as to attempt to evade the statutory defence of public good which is set out in the 1959 Act."—[Official Report, Commons, 7/7/64; col. 316.]It is that second assurance which the noble and learned Lord is seeking.
To remove any doubt my right honourable and learned friend the Attorney General has authorised me to say that he agrees that conspiracies to outrage public decency or the correlative offences committed by individuals are within the spirit 574 of the original undertaking; namely that offences of this kind would not be charged in order to prevent an accused person from raising the defence of public good which would be open to him on the same facts under the Obscene Publications Act.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I do not want to detain the House but, lest there should be any doubt, may I say that we on this side of the house again support the Government. The noble Lord, Lord Beaumont of Whitley, pursues this particular hare with an enthusiasm and a persistence which is in inverse proportion to the complexity of the subject. I can only endorse what the noble Lord, Lord Harris of Greenwich, has just said. It is clean contrary to the report of the Law Commission whose recommendations we are seeking to enact in this part of the Bill.
The noble Lord, Lord Beaumont of Whitley, introduced two points which were new to this stage of the Bill. The first was a kind of Morton's Fork dilemma which he sought to impose upon the Government: either that the proposed Amendment of deletion would make no difference, because there remained an offence to corrupt public morals at common law independent of conspiracy, or that it would do a great deal of good by removing any possibility that anyone could be prosecuted for such an offence. I am bound to say that I do not rind the dilemma altogether convincing. However, what the noble Lord would achieve by the deletion, as the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Harris of Greenwich, have both pointed out, is uncertainty as to whether or not a person could be so prosecuted.
I do not know whether the object of the Liberal Party is to create obscurity in the law, but if so they will pursue this matter to a Division. On the other hand, I prefer certainty and I think that the Government's undertaking that the matter will be considered in relation to the other proposals of the Law Commission is the right way to set about things. The second point which the noble Lord, Lord Beaumont of Whitley, introduced was that there had recently been a case at the Old Bailey. I think he said that a "blue" cinema, or something of the kind, had been found to be an offence, independently 575 of the law of conspiracy. That may be so, but until the matter has been taken to appeal, at least to the stage of the Court of Appeal and possibly on certificate to your Lordships' House, I think that it would be unwise to regard the law as finally settled. Therefore I support the Government.
§ Lord BEAUMONT of WHITLEY
My Lords, if my enthusiasm and persistence, which amount to having made only two speeches on the subject, are in inverse proportion to the complexity of the matter, either I have less enthusiasm than I think or the matter is not complex at all. It seems to me that the matter is extremely complex, and I admit as much.
I have made out a reasonable case for showing that there is no real area which would be left uncovered, where the Commonwealth would be harmed if these Amendments were passed. Indeed, the noble Lord, Lord Harris of Greenwich, was reduced from the specific points that he made at the last stage to the area of generalisations.
A very serious point is being raised about the uncertainty in the law relating to substantive offences. It is extremely difficult to deal with law revision in your,
§ Lordships' House when even the most learned of noble Lords are not clear what is the law. However, I go back to what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said was my Morton's Fork. If there are substantive offences, this Amendment will have achieved nothing, but at least it will have achieved no harm. If there are no substantive offences, as indeed I hope that there are not, and it is unclear whether there are any, the Amendment will have done some good.
§ The noble and learned Lord, Lord Hailsham of Saint Marylebone, asks whether it is the policy of the Liberal Party to create uncertainty in the law. No, my Lords, it is not. However, the uncertainty surrounding these substantive offences has been with us for a very long time. I do not see any particular reason why we should necessarily bring that point to an end in this Bill if we can do some good by not doing so. It is for that reason that I feel bound to divide the House.
§ 6.28 p.m.
§ On Question, Whether the said Amendment (No. 9) shall be agreed to?
§ Their Lordships divided: Contents, 16; Not-Contents, 104.577
|Avebury, L.||Hale, L.||St. Davids, V.|
|Beaumont of Whitley, L. [Teller.]||Mackie of Benshie, L.||Seear, B.|
|Brockway, L.||McNair, L.||Thurso, V.|
|Clifford of Chudleigh, L.||Monson, L.||Wade, L.|
|Foot, L. [Teller.]||Norwich, V.||Wigoder, L.|
|Abinger, L.||de Clifford, L.||Houghton of Sowerby, L.|
|Allen of Abbeydale, L.||Denham, L.||Ilchester, E.|
|Amherst of Hackney, L.||Derby, Bp.||Inglewood, L.|
|Amory, V.||Donaldson of Kingsbridge, L.||Jacques, L.|
|Ampthill, L.||Dormer, L.||Janner, L.|
|Atholl, D.||Douglas of Barloch, L.||Kagan, L.|
|Auckland, L.||Douglass of Cleveland, L.||Kilbracken, L.|
|Berkeley, B.||Duncan-Sandys, L.||Killearn, L.|
|Beswick, L.||Elwyn-Jones, L. (L. Chancellor.)||Kintore, E.|
|Blyton, L.||Emmet of Amberley, B.||Lee of Newton, L.|
|Brougham and Vaux, L.||Faithfull, B.||Lloyd of Hampstead, L.|
|Campbell of Croy, L.||Falkland, V.||Long, V.|
|Champion, L.||Fraser of Kilmorack, L.||Lovell-Davis, L.|
|Coleraine, L.||Gainford, L.||Lyell, L.|
|Collison, L.||Gaitskell, B.||Macleod of Borve, B.|
|Colville of Culross, V.||Glenamara, L.||Maelor, L.|
|Crook, L.||Hailsham of Saint Marylebone,||Mansfield, E.|
|Cudlipp, L.||L.||Masham of Ilton, B.|
|Daventry, V.||Halsbury, E.||Massereene and Ferrard, V.|
|Davies of Leek, L.||Harris of Greenwich, L.||Merrivale, L.|
|Davies of Penrhys, L.||Hornsby-Smith, B.||Milner of Leeds, L.|
|Morris, L.||Ritchie-Calder, L.||Sudeley, L.|
|Mowbray and Stourton, L.||Rusholme, L.||Suffield, L.|
|Moyne, L.||Ruthven of Freeland, Ly.||Taylor of Mansfield, L.|
|Northchurch, B.||St. Just, L.||Thorneycroft, L.|
|Northfield, L.||Sandys, L.||Trefgarne, L.|
|O'Brien of Lothbury, L.||Shannon, E.||Vivian, L.|
|Onslow, E.||Shepherd, L.||Wakefield of Kendal, L.|
|Peart, L. (L. Privy Seal)||Simon of Glaisdale, L.||Wallace of Coslany, L.|
|Phillips, B.||Somers, L.||Walston, L.|
|Pitt of Hampstead, L.||Stedman, B. [Teller.]||Ward of North Tyneside, B.|
|Popplewell, L.||Stewart of Alvechurch, B.||Weidenfeld, L.|
|Raglan, L.||Stone, L.||Wells-Pestell, L.|
|Rankeillour, L.||Strabolgi, L. [Teller.]||Winterbottom, L.|
|Rhodes, L.||Strang, L.||Wynne-Jones, L.|
On Question, Amendments agreed to.
§ 6.38 p.m.
§ The LORD CHANCELLOR
My Lords, I crave the indulgence of the House to make a brief statement which I intended to make after we had considered Amendments Nos. 6 and 7. It is in response to a request that I received at the Committee stage to say something about the joinder of conspiracy counts and related substantive counts. It was pointed out at the Committee stage that too much joinder of conspiracy with substantive counts was taking place and complicated proceedings unnecessarily and I was asked by the noble Lord, Lord Wigoder, whether something could be done about it.
I have given urgent consideration to this matter and the conclusion that we have come to is that it would not be possible to deal with the problem as was suggested by the noble and learned Viscount, Lord Dilhorne, by an Amendment to the indictment rules. I expressed doubt about that suggestion at the Committee stage because in my view indictment rules are not appropriate since they are not directed at trial procedure. A statutory provision, which was what the noble Lord, Lord Wigoder, originally had in mind, I think would formalise the matter unduly and it seemed right that in a procedural matter we should aim at the greater flexibility of a practice direction.
Now, a practice direction cannot be prepared and issued between the stages of a Bill in your Lordships' House, but I understand that the Lord Chief Justice is considering the possibility of a practice direction sympathetically. It is not for the Government to make a firm commitment about practice directions, but I can assure the House and the noble Lord, Lord Wigoder, that we are satisfied that, although there is a problem here, it is 578 unnecessary to seek to remedy it in the Bill and I hope indeed that a practice direction will be forthcoming. I am most grateful to your Lordships for allowing this slightly irregular intervention.
§ Lord WIGODER
My Lords, may I, with equal irregularity, thank the noble and learned Lord on the Woolsack for the consideration given to the discussion at Committee stage, and say that I have no doubt that the indication that a practice direction will in due course appear will be very warmly welcomed.
§ Lord SIMON of GLAISDALE moved Amendments Nos. 10 and 11:
Page 5, line 19, leave out ("undermine or otherwise injure");
Page 5, line 20, leave out ("affronts or").
§ The noble and learned Lord said: My Lords, with your Lordships' permission, I will move Amendments Nos. 10 and 11 at the same time. These were Amendments which I put down at the Committee stage. It seemed to me that the words which I seek to leave out in these two Amendments might widen the conspiracy offences at common law as they had been confined by the decision of your Lordships' House in Knuller v. Director of Public Prosecutions. The noble Lord, Lord Harris, very courteously said that he would like to consider the arguments between the Committee stage and the Report stage, and I have since heard from his colleague, the other Minister of State, that the Government are prepared to accept the Amendments. In those circumstances I would not be justified in detaining your Lordships by repeating the arguments I used on the last occasion. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, we accept at once that the Government's intention can be met by the simple 579 wording which is proffered by the noble and learned Lord, and accordingly we recommend to the House that these Amendments should be accepted. In doing this, I should like to express on behalf of the Government our gratitude to the noble and learned Lord for having raised this matter with us and for his energy in pursuing it in correspondence.
§ Lord HARRIS of GREENWICH moved Amendment No. 12:
Page 5, line 23, at end insert—
("(3A) Subsection (1) above shall not affect—
(3B) Sections 1 and 2 above shall apply to things done before as well to things done after the time when this Part of this Act comes into force, but in the application of section 3 above to a case where the agreement in question was entered into before that time—
§ The noble Lord said: My Lords, I beg to move Amendment No. 12. We have already discussed this in relation to Amendment No. 8.
Lord WIGODER moved Amendment No. 12A:
Page 5, line 35, after ("ground") insert ("of itself").
§ The noble Lord said: My Lords, I beg to move Amendment No. 12A and, with your Lordships' leave, to speak at the same time to Amendment No. 12B. I do so in response to the invitation of the noble and learned Lord, Lord Hailsham, 580 that noble Lords on these Benches should seek wherever possible to remove any possible obscurity in the drafting of this Bill. This is substantially a drafting Amendment.
§ Clause 5(5) deals with the situation where, for example, two defendants are charged with conspiring with each other and one is acquitted and the other convicted. The issue has arisen in the past when the courts have felt obliged to quash the conviction of the one who has been convicted, however strong the evidence might have been—indeed he might have made a full and complete confession as to his part in the conspiracy. What is said in Clause 5(5), as your Lordships will see. at line 34 onwards is that the fact that there has been an acquittal of one of two conspirators in these circumstances shall not be a ground for quashing the conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question.
What these Amendments propose is that instead that should simply read:
shall not be a ground of itself for quashing his conviction
—and that the remaining words should be omitted. That would not only simplify the subsection; it would also remove from the subsection the last three lines, which impose a wholly unnecessary test for the Court of Appeal to consider when they are dealing with appeals of this nature. Under the terms of the Criminal Appeal Act they will in fact want to consider whether the verdict is unsafe or unsatisfactory, and there does not appear to be any virtue in imposing upon the Court of Appeal a further statutory duty to consider a particular application in a particular way. I would, therefore, have thought it might be that these simple Amendments do simplify this particular subsection. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, as the noble Lord, Lord Wigoder, has said, this appears to be a straight question of drafting. I will gladly consider the noble Lord's point and look into it before the next stage of the Bill.
§ Amendment, by leave, withdrawn.581
§ Clause 6 [Violence for securing entry]:
The Earl of MANSFIELD moved Amendment No. 13:
Page 6, line 8, at end insert ("against the person or against property").
§ The noble Earl said: My Lords, it may be convenient if with Amendment No. 13 we also discussed Amendments Nos. 14, 15, 17, 18 and 19. I am reinforced so far as this contention is concerned by the fact that I have had a few words with the noble Lord, Lord Harris. Although in many cases it is undesirable to mix up the clauses, perhaps it will be convenient and make for a better debate if we lump all these Amendments together.
§ Your Lordships may recollect that we had a number of good debates on these two clauses when the House was in Committee. Clauses 6 and 7, perhaps I should have said, relate to squatting; I suppose they may be called the squatting provisions.
§ I certainly do not want to go over the ground again; still less do I want to rehearse all the same arguments and points which we went over on the last occasion. Nevertheless, I believe that the Committee was agreed that there were a number of unsatisfactory features of these clauses, although I do not think it became at all plain how they could be remedied; and indeed, being honest, they have not become much plainer to me in the intervening weeks. I think that a number of very difficult matters come up as a result of these new clauses, and the answers perhaps are quite wide, in the sense that I think that Parliament and indeed the community has to decide what its attitude is going to be to persons who break one law or another in one manner or another; and this attitude is decided by what society wants for itself.
§ It seems to me that there are three ways in which all these provisions fall to be discussed: first, by having regard to the character of the premises in question, which are occupied or may be occupied; secondly, by having regard to the character of the squatter—and by that may I say hastily that I mean character more in the sense of his ambition, whether it is merely to provide a roof over his head or to preserve his job so far as he is concerned, or whether it is to make some form of political protest or demonstration. And, 582 thirdly, we have to consider the character or type of person who has an interest in the property and as a result of that type of interest may depend whether or not criminal proceedings will eventually arise.
§ I shall take them one by one. I start with the premises to be protected. Under the Bill there are two types of premises which may be protected: first, in effect, dwelling-houses and, secondly, slightly artificially, premises which have what I might call a diplomatic flavour. That latter range is to be extended—if the noble Lord, Lord Harris, has his way—by one or two Amendments which will be discussed later. First, I shall deal with whether it is desirable that only dwelling-houses as a class in the normal course of events should be protected. There are daily demonstrations—if that is the right word, and I am not sure that it is—of the complexity of these types of occupation. Only a week or so ago a number of students occupied part of the University of London and eventually were removed, or removed themselves, but only after considerable disruption, a considerable amount of time spent by the court, what must have been very expensive proceedings and considerable disruption to the university and to everyone who had business there. I question whether, as a community, we want to leave the regulation of this kind of activity to the slightly haphazard workings of the civil law.
§ In Committee, the noble Lord, Lord Wigoder, who has now left his place, seemed to be against the extension of the criminal law to any premises other than dwelling-houses, although in his first intervention he showed great sympathy for the squatter who is there for the purpose of providing a roof over his head—a sympathy which I know all noble Lords share and which, on a number of occasions during the passage of the Bill through the House, I have emphasised. I am not sure that I agree with the noble Lord. In fact, I go further and say that I am sure that I disagree with him that in the future, after the Bill becomes an Act, there will be no cases where a building has to receive this kind of protection—I use the word loosely—unless it is a dwelling-house.
§ In one of his more lighthearted moments, my noble and learned friend Lord Hailsham of Saint Marylebone referred to Ministry buildings. Indeed, 583 later on in these proceedings we shall discuss an Amendment which both he and I have tabled which will go far to relieve the mind of the noble Lord, Lord Harris. Public buildings are one type of building—which can all too easily be occupied by squatters who wish to make a political point—where it seems to me that we are in danger of leaving a thoroughly unsatisfactory situation. If the only remedy open to either the authorities or whoever it is who owns or controls the building is to seek whatever aid they can get from the High Court—and we have had various estimates of how long that takes—all I can say is that if the persons who make this sort of squat wish to reinforce their point, action takes weeks rather than days and it may well take months. That is borne out by the report of the Law Commission.
§ I turn to the second of my headings—and I wish to be as brief as possible—namely, the aims and ambitions of the squatters themselves. It is a displeasing prospect—and I have said this before—that in Clause 6 violence should be invoked against a person who has no roof over his head. As the noble Lord, Lord Harris, said in Committee, the purpose of these provisions is to prevent breaches of the peace. It is distasteful that in the case of a thoroughly meritorious squatter activities of this sort—violence of whatever nature—are not only to be condoned but, in a manner of speaking, encouraged by the community. Nevertheless, I have very little sympathy for the squatter who is merely making a political point because, presumably, he has not enough faith either in his democratically elected representatives or in any other means of gaining attention to his cause. One has rather less sympathy, but still a certain degree of sympathy, with those who occupy business premises because they fear the effect of redundancy upon their employment or do so for a similar reason.
§ The third point to which I return is this creature, the displaced residential occupier. It was in this area that the House experienced most difficulty during the last stage of the Bill. It is almost capricious and is certainly a matter of luck whether the person, who one may describe loosely as the owner of the house, is a displaced residential occupier so that criminal proceedings may begin, 584 or has not yet become one or has ceased to be one so that they do not. Even the noble Lord, Lord Harris—and I do not use the word "even" in any offensive sense—said that perhaps all was not well with this wording and that it would merit further consideration. Nothing further has come from the Government, and perhaps it is not altogether surprising that that is so. What I threatened to do, and what I have done, is to table a series of Amendments which in their effect are approximately the same as before although they go about it in a slightly different way and remove some of the criticisms which were levelled at them in Committee.
§ In effect, Amendments Nos. 13, 14 and 15 extend the right of violence—which, as I say, I do not like—beyond the displaced residential occupier to persons who have a right to possession or occupation of the premises. Your Lordships will see that I have tried fairly precisely to put confines round this. I have said that there must be a right to possession or occupation of the premises. In paragraph (b), which has not previously been considered and nor has it been discussed in your Lordships' House, I have tried to confine the force to that which is reasonable to secure entry to the premises. In paragraph (c) I have tried to ensure that such force is used only against a squatter and not, for instance, against someone such as a tenant who has come to the end of his lease.
§ Amendments Nos. 18 and 19 in Clause 7 extend the same definition beyond that of a displaced residential occupier and put the person who can "trigger off", if that is the right word, the proceedings into a much wider net. I know it will be said that the effect of this will widen Clause 7, so that many people will be embraced other than the residential occupiers. I am informed—I do not have any reason to believe that my information is wrong—that 99 per cent, of squats take place in local authority owned property which, for one reason or another, is empty at the time when the person wishes to move in.
§ Noble Lords will realise that, so far as Clause 7 is concerned, it is still "adverse occupation of residential premises". Therefore, the purpose of these Amendments is that they should relate only to residential premises, but that they give local authorities in particular the right to 585 require trespassers to leave. If it is said that the scope is widened too much, then my reply is that the occasions on which other owners of property (or whoever they may be other than the displaced residential occupiers) will be concerned will be very small, and I do not think that we need worry about them. I hope that is not too long an explanation of these Amendments, bearing in mind that there are six of them. I beg to move.
§ 7.2 p.m.
§ Lord HARRIS of GREENWICH
My Lords, this group of Amendments, as the noble Earl pointed out, contains two principal ideas: First, that the right to use reasonable force to enter premises should be extended from a displaced residential occupier to any person with a right to possess or occupy the premises; secondly, that it should be a criminal offence for a trespasser to resist a person with a right to possess or occupy premises who seeks to enter them or to eject him from there. The two ideas are closely connected and it is right that we should take them together, but I should like to discuss each in turn.
In considering how wide should be the exemption from the offence of violent entry under Clause 6, it is natural that we should begin with the present law (which we discussed on the last occasion) on self-help. Although we cannot avoid considering it the uncertainties of the present law make it of only fairly limited help. The present law turns on whether the person on the premises has possession of them in a legal sense. If he has possession, anyone seeking to enter by force may be committing the offence of forcible entry. If he does not have possession, it seems that the rightful occupier would not commit an offence if he used reasonable force to enter his property. I have, no doubt, oversimplified the state of the existing law, but I should prefer for the moment to leave it at that. It can be studied in paragraph 2.16 of the Law Commission's Report and in the cases referred to there.
I should like next to describe how and why we came to have the exemption for a displaced residential occupier in Clause 6(3). In their Consultative Working Paper on offences of entering and remaining on property, the Law Commission suggested 586 that the right of self-help should be done away with altogether. As they said in paragraph 2.55 of their final report:Once self-help of this nature is allowed it is difficult to know where the line is to be drawn; while it may be thought acceptable for a person to eject a trespasser from his dwelling house occupied while he was away for the day, it may be thought far less acceptable to allow the use of a strong-arm gang to obtain occupation of a building planned for redevelopment but which squatters have been occupying for some time. Not only is the use of violence undesirable in itself, but the threat it poses to the squatters may lead them to resist, and so provoke a violent clash.The Law Commission in fact received some support for this approach in Committee on this Bill. The noble Earl, Lord Mansfield, will recall his words on that occasion, and he repeated them in some degree today, when he said on 25th January at columns 404 and 405 of the Official Report:I find it disagreeable that in the last quarter of the 20th century we are proposing to sanction a measure which in effect allows one citizen to offer violence to another, because that is what Clause 6 implies. It means that where a displaced residential occupier wishes to regain possession of his premises, he is at liberty either by himself, or by his employees, agents, friends, anybody he can muster, to offer such violence as may be necessary for the purposes of securing entry into those premises again. It is not a very happy commentary on our state as a community that this is what is being considered.I suspect that one of the reasons for the success that the Law Commission has had in seeing its draft Bills adopted by Parliament—and I suspect that my noble and learned friend Lord Gardiner will agree with this—has been its unvarying habit of widespread consultation. Subsection (2) derives from that consultation. The Law Commission originally advocated that the right of self-help should disappear completely. Consultation convinced them that, as they balanced the right to use reasonable force to deal with trespassers against the need to deter any breach of the peace, they should come down in favour of preserving the right of self-help in the case of what is now described as the displaced residential occupier, but only in that case. It is obvious from what I have said that it is a matter of judgment where to draw the line. The Government have so far backed the judgment of the Law Commission, made after extensive consultation. We still incline to that view, but we will consider further the arguments that have been advanced today for considering the exemption.
587 I hope that I can deal more briefly with the other major idea in these Amendments; that is, that it should be a criminal offence for a trespasser to resist the person with a right to occupy or possess the premises. As will become clear when we reach Lord Dilhorne's Amendment to Clause 10, it is not at present a specific criminal offence to resist, for example, a bailiff executing an order for possession. In its present form Clause 10 makes this a criminal offence only in the case of orders issued under the summary procedure. It seems to us to be going too far to make any form of resistance, for example to the displaced residential occupier, a criminal offence. The normal criminal law of assault and criminal damage applies in these circumstances and that will be sufficient.
In practice it seems possible that a person who has successfully and lawfully ejected trespassers by the use of reasonable force will not want to bring criminal proceedings unless the resistance offered was serious enough to justify charging an existing criminal offence. Another objection to the offence is that it would in practice be a general squatting offence available to anyone who went to the trouble of seeking to enter his premises or arranging for someone else to seek to do so on his behalf. If the Government were persuaded that a general squatting offence was desirable, we should prefer it to turn on a request to leave rather than resistance to an attempted entry.
I should like in conclusion for us to be clear about what the effect would be if we decided to accept these Amendments. The Bill exempts from the offence in Clause 6 a displaced residential occupier; in other words, someone who returns home to find squatters in his house. The Amendments in the name of the noble Earl would go a great deal further. If we were to accept them, it would not be an offence for a landlord to use or threaten violence against property, to enter premises where a tenant was holding over after the expiration of his tenancy. It would not be an offence for a factory owner or any group of his employees to use or threaten violence to enter premises where, for example, the employees threatened with unemployment were staging a work-in.
§ The Earl of MANSFIELD
My Lords, is the noble Lord saying that it would not 588 be an offence, if my Amendments were accepted, for a landlord to enter premises of his tenant where the lease had expired?
§ Lord HARRIS of GREENWICH
My Lords, I am trying to indicate what in our judgment would be the full meaning of the Amendments tabled by the noble Earl. The Government's position is that it is the displaced residential occupier who is the only person in this, if you like, privileged position; the others would not be, and all that I am saying is that the consequence of his Amendments would be to carry it a stage substantially further.
This is clearly, as I have indicated on a number of occasions, a matter of difficult judgment. The noble Earl is right to say that these are difficult and complex matters. All I would say is that I believe his Amendments, for the reasons I have given, would not only go too far but would go substantially too far and I hope he will, having reflected on the course of our discussion tonight, decide not to press them. Certainly we will keep this matter under review as part of the continuing discussions we are having on the squatting sections of the Bill, but at the moment we are not persuaded that Amendments on these lines would be helpful.
§ The Earl of MANSFIELD
My Lords, of course in this matter the Government are the author of their own difficulty. If all the old Statutes were abolished, if the conspiracy of trespass were abolished and Clause 6 did not exist, I would have no complaint; others would but, speaking personally, I would not. It is the Government who have chosen to create this new offence. Now that I see the noble and learned Lord, Lord McCluskey, on the Government Front Bench with the noble Lord, Lord Harris of Greenwich, Lord Harris might care to ask him about hame-sucken, an offence which we might do well to have in English law but which we do not have at present.
The fact of the matter is that the Government have created Clause 6 and this special defence, and we have to consider it. It is I who have talked about reasonable force; the Government have not and never have until tonight. So far as I can see, the word "reasonable" does not appear in Clause 6. The displaced residential occupier is entitled to use such force as he can summon. I 589 suppose he could use a battering ram if he were able to find one and the people with the strength to swing it. There is nothing in Clause 6 which restricts the force which can be exercised and the manner in which it can be used from the point of view of a displaced residential occupier.
I repeat that it is I who have tried to bring an element of reasonableness into it, vet I now have that flung back in my teeth with some eminently quotable chunks from what I said in Committee. Nevertheless, I accept for these purposes that it is not the Government's wish that, so far as Clause 6 is concerned, the matter should be enlarged. What I wish could have happened, and still may happen, is that Clause 7 could be redrafted in an altogether tighter form. It seems to me very much more civilised if somebody can go to a squatter and say, "This is my house and I require you to leave, and if you don't you will be committing an offence". On that point the noble Lord is—I will not say being obdurate—getting close to being obstinate.
So far as resisting entry and assault are concerned, I find it extraordinary that the displaced residential occupier comes to his house, he cannot get in, he uses the protection of Clause 6 and there is a violent scene—which is sanctioned, if not sanctified, by the Government—and then, says the noble Lord, at the end, when the battle is over, if the squatter has used too much violence in resisting the entry, there may lie some sort of summons for assault. This is going to put an extra-ordinary strain on the resources of the magistrates' court dealing with summonses like this, when undoubtedly there will be cross-summonses. My Saturday afternoons many years ago were rendered almost intolerable by cross-summonses in magistrates' courts, and I have no doubt that the same will apply to others in future if this legislation is adopted.
I welcome the fact that the Government say that they will continue to give his matter their attention. I urge that Clause 7 be rethought. The noble Lord is careful to avoid the use of the phrase "local authorities", and I do not altogether blame him because there is no excuse for not giving local authorities some right of self-help, even if they too could go to a squatter and say, "Get out or you will 590 have committed an offence". However, that is as far as I will take the matter tonight and, in the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Lord HARRIS of GREENWICH moved Amendment No. 16:
Page 6, line 29, after ("entry") insert ("which")
§ The noble Lord said: My Lords, this is a drafting Amendment. When I was not being quite so obdurate on the last occasion, I accepted an Amendment moved in Committee by the noble Earl to improve the drafting of subsection (1)(a) of Clause 6. I am indebted to the noble Viscount, Lord Barrington, who pointed out on that occasion that consistency required this Amendment to subsection (4)(b), and that is what this Amendment is designed to achieve.
§ Clause 9 [Trespassing on premises of foreign missions, etc.]:
§ 7.19 p.m.
Lord HARRIS of GREENWICH moved Amendment No. 20:
Page 8, line 1, at beginning insert ("Subject to subsection (3) below")
§ The noble Lord said: My Lords, with the permission of the House, I will speak at the same time to Amendments Nos. 22 and 25. These Amendments extend the definition of premises in Clause 9 and provide a defence for an accused person along the lines of subsection (2) of Clause 7. It has emerged since the Bill was published that some international organisations, such as the Commonwealth Secretariat and certain bodies connected with the EEC with premises in this country entitled to diplomatic inviolability, are not covered by Clause 9 in its present form. The Amendment includes a general form of words to cover other premises which are accorded diplomatic inviolability by or under any enactment.
§ It has also been represented to the Government, and we agree, that the Bill ought to cover private residences of diplomatic agents in so far as they are accorded diplomatic inviolability. This does not extend to everyone who works in an embassy. To some extent, these 591 premises are covered by the offence in Clause 7 and the exemption for a displaced residential occupier in Clause 6. But there could be a problem where a diplomatic agent has been appointed to a post in this country and is intending to live in a particular house but has not yet arrived. The Amendment will allow the police to take the necessary action to discharge our international obligations. The extension to private residences makes it essential, in the Government's view, to include a defence for a person who did not believe and had no reasonable cause to believe that the premises on which he was trespassing were premises to which this clause applies. I beg to move.
§ The Earl of MANSFIELD
My Lords, I do not suppose that any of your Lordships would wish to quarrel with these Amendments, although they exemplify what happens when one starts to take legislative action and then finds that there are difficulties in the way. One wonders what will be the attitude of, for instance, a magistrates' court when the accused produces a subsection (3) defence. If one wished to be flippant, one might say that the possibilities were unlimited. But no doubt that is something that will occupy the courts in the future. Is it possible for the noble Lord, Lord Harris, to say in general terms just how far down the scale of foreign potentates resident within our shores this provision is meant to protect?
§ Lord HARRIS of GREENWICH
Indeed, this is a difficulty, my Lords. But, as the noble Earl will recognise, this clause is necessary to fulfil what, in our view, are our international obligations. It therefore seems to us to be right to have put this particular provision into the Bill. So far as the term "diplomatic agent" is concerned, the situation is, I understand, that every country that maintains an embassy notifies the Foreign and Commonwealth Office of the names of those members of its staff which it regards as having diplomatic rank. The names are normally accepted without question and entered on a list kept by the Foreign and Commonwealth Office for that purpose. In effect, only those whose names are on the list are regarded as having diplomatic rank. That is the position as I understand it.
Lord HARRIS of GREENWICH moved Amendment No. 21:
Page 8, line 12, leave out ("Article 1(j)") and insert ("paragraph 1(j) of Article 1").
§ The noble Lord said: My Lords, this is a drafting Amendment. I beg to move.
§ The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Baroness Tweedsmuir of Belhelvie)
My Lords, I should say that if Amendment No. 22 is agreed I cannot call Amendment No. 23.
§ 7.24 p.m.
§ Lord HARRIS of GREENWICH moved Amendment No. 22:
Page 8, line 15, leave out from ("1968") to end of line 26 and insert—
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, if it is the case that Amendment No. 23 cannot be called if Amendment No. 22 is agreed, I should like to make two points. The first is on Amendment No. 22 itself. I cannot myself see the justification for the insertion into the subsection of the words:and had no reasonable cause to believe".Nor can I see why in this case the burden of proof should be on the defendant to say that he did not believe. It seems to me that these are extensions of the general principles of criminal law and I do not know at all why the Government have thought it necessary to extend them in this particular field. The whole philosophy of the Government in this field, right or wrong—and I must say that I have some doubts about it—has been to reduce the field in which trespass should be a crime if committed by more than one person. 593 Here, we find a modest extension in the opposite direction. I wonder why. I do not myself see any justification for it.
As it appears that I am to be driven out of the field if the Amendment is accepted, and as I do not want to divide against Amendment No. 22 simply in order to get Amendment No. 23 discussed, I should like to explain why I put down Amendment No. 23. We had a short discussion in Committee. It seems to me that, to take the example that I gave in Committee, a group of people entering the private office of the Secretary of State for Foreign Affairs and excluding him from his private office in order to give rise to a political point or to make a protest against Government policy, are just as much committing an offence against public order as if they break into the Sierre Leone Second Secretary's private premises to do the same. It seems to me that the Government have gone too far in the reverse direction and that they ought to protect public buildings against this kind of nuisance. I wonder whether, when the noble Lord, Lord Harris, replies, he could consider the very brief account that I have given of Amendment No. 23 as well as answering the substantive point that I made on his own Amendment, No. 22.
§ Lord HARRIS of GREENWICH
My Lords, as the noble and learned Lord has pointed out, we had a short discussion on this matter in Committee when he raised the question of occupation of the Foreign Secretary's office. The question was whether it would be an offence of violent entry under Clause 6 to enter the room by force or to eject the trespassers. The answer is that, in practice, it would not be a criminal offence. In practice, there is always someone on the premises of a major Government building, and this is particularly the case with the Foreign Office. This is so day and night and, provided that that person, be he a security guard or a resident clerk, was in the group seeking to eject the trespassers, it would presumably be held that reasonable force was being used to eject trespassers from the premises by those who were already there, rather than that an offence of entering premises was being committed. That is our view of the matter.
On the wider question which the noble and learned Lord deals with in Amendment No. 23, where he is seeking to 594 insert the words in the Amendment, in our view this goes substantially too far. This is for a reason of which I shall attempt to persuade him. On the last occasion, I indicated that we should look into this matter and we have done so. Certainly our conclusion is that this formula would not be the right one to employ in the Bill. May I say briefly in passing that the Amendment, as drafted—I do not want to get into the tedious game of using debating points about the precise drafting of Amendments—could mean that it would be a criminal offence for a trespasser to walk across the playing field of a local authority school. I am quite sure that that is not the intention of the noble and learned Lord. Any Amend-ment along these lines is bound to run into the difficulty that the boundary between the public and private sectors is not as clear as it might have been 50 years ago.
To take an example of which the family of the noble and learned Lord has great knowledge, the premises of some colleges belong to local authorities. Others belong to private bodies. Would it be right to divide educational institutions in this way? I should have thought not. In other contexts, nationalised industries have been held to be public authorities. It may not seem to be fair to some private firms, large and small, that the law should discriminate against them and in favour of the public industries such as, to take another example, water boards. Why should a water board be on one side of the divide and, let us say, a building society on the other? I do not think it is an answer to say that one is publicly owned and the other is not.
If I may say so, in a mood of affection, it is a strangely neo-Marxist argument to say that the public sector should get a particular type of treatment of this kind so far as the criminal law is concerned. I remember being present at a juvenile court hearing some years ago in Moscow. The Soviet authorities had kindly allowed me to go into the hearing because of my interest in this area. I heard a case being deployed against a group of young men who had broken into a school and stolen public property. The argument was that it was far more objectionable for them to have stolen public property than if the property had been private. I do not accept that view: nor, I am sure, does the noble and learned Lord.
595 I perfectly understand the reasons that have motivated the noble and learned Lord to put down the Amendment, but I do not believe that so far as the application of the criminal law is concerned, it is wise to discriminate between public and private bodies in this way. Certainly I understand the anxieties that the noble and learned Lord has on the matter, but, for the reasons I have given, the Government are not persuaded that an Amendment on these lines is right. So far as Amendment No. 22 is concerned—and we have discussed it with Amendment No. 20—I should like to look into the points which the noble and learned Lord raised, and I will do that before the next stage of the Bill.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, with the permission of the House, I should like to point out to the noble Lord that it would not be a convenient way to pursue this matter at any length in the context of these two Amendments. I am grateful to him for looking into the point on Amendment No. 22, but I should like to make two observations about what the noble Lord has just said about the wider point I raised. First, by parity of reasoning, if a little boy or a young person penetrated the grounds of the Sierra Leone High Commission, or the residence of the American Ambassador, to retrieve a tennis ball, he would be committing an offence under the noble Lord's Clause 6. So it is hardly an effective argument to say that he would be doing the same if he did it on the property of a water authority.
It may be that I am more of a Marxist than is the noble Lord, Lord Harris of Greenwich, but it would surprise me if this was so. But I must say that the idea of people being allowed, for instance, to occupy a water board's reservoir, thereby polluting the water, as not being more within the criminal law than the occupation of, say, a small sweet and tobacco shop, surprises me. I should have thought that there is a point at which we are all Marxists now.
§ 7.33 p.m.
§ The noble Lord said: My Lords, this is a drafting Amendment. I beg to move.
Lord HARRIS of GREENWICH moved Amendment No. 25:
Page 8, line 30, leave out ("(c)") and insert ("(d)")
§ The noble Lord said: My Lords, I beg to move this Amendment. It has already been discussed.
Lord HARRIS of GREENWICH moved Amendments Nos. 26, 27 and 28:
Page 8, line 31, after ("above") insert ("at the time of the alleged offence")
Page 8, line 31, leave out ("are or form") and insert ("were or formed")
Page 8, line 32, at end insert ("at that time")
§ The noble Lord said: My Lords, I beg to move Amendments Nos. 26, 27 and 28 en bloc. They are all drafting Amendments.
§ Clause 10 [Obstruction of court officers executing process for possession against unauthorised occupiers]:
§ 7.36 p.m.
Viscount DILHORNE moved Amendment No. 29:
Page 9, line 9, leave out subsection (2).
§ The noble and learned Viscount said: My Lords, Clause 10 makes it an offence to obstruct court officers executing process for possession against unauthorised occupiers, and I would think that that is a very desirable provision. As I understand it, at the present time the only proceedings that can be taken in respect of obstruction of court officers enforcing the orders of the court are proceedings for contempt. But what I do not understand—we discussed this on the last occasion and I still do not understand it—is why in subsection (2) subsection (1) is limited in its scope to protect only court officers executing certain kinds of orders for possession. I suggest that a court officer pursuing his duty, doing what the court has ordered him to do, should be entitled to the same protection no matter against whom the order for possession is directed.597
§ It seems to me quite indefensible to say that a criminal offence will be created by obstructing a court officer who is seeking to enforce, on the orders of the court, an order for possession against squatters, and that it is no offence to obstruct a court officer seeking to enforce an order for possession against anyone else. f can see no justification at all for that, but it is, as I understand it, what subsection (2) provides. Indeed, when we raised this matter at the Committee stage the noble Lord, Lord Harris of Greenwich, did not dispute that that was the effect of subsections (1) and (2) taken together. With the greatest of respect to the noble Lord, I do not think, despite his eloquence, that he made any defence at all for this most extraordinary limitation.
§ Let us examine the position. The court officer will be given an order for possession and told to go and execute it. He takes it along and he is obstructed. We were told last time that this limitation was wanted by the police. Consider the position of the policeman on the spot. He will see the court officer obstructed. If he knows his law and remembers it he will have to say to himself: "I cannot do anything about this. I cannot arrest this man until I find out against whom the order for possession was directed. Was it a squatter or was it someone else?" The policeman will ask the court officer, and I should have thought that the chances of the court officer knowing were remarkably slender.
§ So, as the clause now stands, it seems to me that the police officer may be in a considerable quandary about knowing whether an offence has or has not been committed under his eyes, as well as in a quandary about knowing whether or not he has legitimate, lawful power of arrest. This provision was defended because of the position of police officers. I find that difficult to accept. But that is not the reason why I am moving the Amendment. The reason is that, in my view, the same protection should be given to all court officers enforcing the orders of the court for possession, no matter against whom they may be directed. It is for that reason that I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, the noble and learned Viscount put down this Amendment, as he has reminded us, on the last occasion and 598 we then had a debate on it. I sought to persuade him, I think in correspondence, that he was mistaken on this matter and he has now come back to it. As I made clear in correspondence with the noble and learned Viscount, the Government have considered this matter most carefully, but have come to the conclusion that it would be wrong to make the Amendment i on the lines that are proposed to us this evening. Certainly I would begin with one admission right at the outset: that what the noble and learned Viscount is proposing would make the situation rather more logical than it is at the moment. I think he is right in saying that; it would. But I am afraid that that does not dispose of the argument. What we have to discuss is what are the practicalities of the situation which would face us, and which in particular would face the police, if this Amendment were to be carried.
Before developing my argument, I should perhaps begin by explaining that court officers seeking to execute an order now are not without protection under the law. It is a criminal contempt of court, for which a punitive sanction may be imposed, to assault or otherwise seek to frustrate a court officer carrying out a writ of possession. In addition, the general criminal law applies, so that a criminal offence is committed in any case if resistance reaches the point of assault or breach of the peace. There is therefore under the present law an ultimate saction of imprisonment against a person who refuses to comply with a court order for possession by means of proceedings for contempt, whether the order is obtained in the High Court or in a county court.
In its report, the Law Commission recognised that there was an increasing problem of enforcement of court orders for the restoration of property, but they considered that this had arisen on a wide-spread scale mostly in relation to cases of squatting, and they limited the offence of resistance to court officials to orders issued under Order 113 of the Rules of the Supreme Court or under Order 26 of County Court Rules. This special form of action for possession was introduced in 1970 to facilitate the recovery of possession from squatters. The procedure is confined to cases where the property is occupied without the licence or consent of the rightful owner, and it 599 cannot be used against tenants holding over after the termination of their tenancy. The Law Commission recognised that their proposed offence of resistance to the officer of a court would put the enforcement of orders of this nature in a special position, but they thought that this was where the main problem arose. The Government recognise that there is a wider question, but we do not believe that it is possible or appropriate to attempt to solve it in this Bill; or, indeed, that the noble and learned Viscount's Amendment would solve it.
My Lords, I referred at the beginning to the practicalities of the situation, and I should like to come back to these now because it is only right, speaking not only for the Government but as a Home Office Minister, to discuss what would be the consequences for the police and in fact to put the position, not only of the Government but of a very substantial number of senior police officers who take the same view as we do on this matter. The enforcement of the civil law is not usually regarded as a matter for the police. That, I think, is a proposition which most of us would accept. They have many other pressing tasks, and their resources, particularly in the metropolitan areas, are fully stretched. Chief officers of police are understandably most reluctant to accept an increased involvement in the enforcement of the civil law. Although a court official as well as a constable may exercise the power of arrest under this clause, the police consider it likely that they will become increasingly involved in the enforcement of orders for possession as a result of Clause 10, and of course even more widely if the ambit of Clause 10 were expanded in the way which the noble and learned Viscount has proposed.
The potential burden could well be sizeable, and it would fall most heavily in the metropolitan areas, where police resources are at the moment most fully stretched. I cannot pretend to have the fully up-to-date figures, but the Civil Judicial Statistics show that in 1974 some 25,500 warrants for possession were issued in the county courts, of which 11,500 were executed. This compares with a figure of some 1,300 orders for possession made under the summary procedure in the county courts. I do not claim that the police would be 600 involved in every case—I certainly would not say that—but it can be seen that orders made under the summary procedure are merely the tip of a very substantial iceberg. Both the total figures and those for orders made under the summary procedure, I must again make it clear, have increased quite substantially since 1974. Those are the figures, as I repeat, that I have just given the House.
The problem is to a very large degree a metropolitan one. It is a problem in London, it is a problem in Birmingham, in Manchester, in Liverpool—in the main centres of population—and these are precisely the areas where at the moment the police are under the most substantial pressure; where the level of crime is at its greatest and where, in many cases, there is still a substantial shortage of manpower. All I would say to the House is this: it has been represented to us most vigorously by the police that a further extension of the kind which is put forward in this Amendment would lead to even greater pressure on their already overstretched resources. I accept that this will not wholly persuade the noble and learned Viscount, but, nevertheless, it is right that noble Lords should recognise the strength of police feeling on this matter and come to a conclusion whether they are, notwithstanding this, prepared to insist on the police taking on this additional obligation. I must repeat: it is the forces in the major urban areas of this country which would feel the burden of this, and it is exactly those forces which at the moment have both significant manpower shortages and are experiencing some of the most difficult crime problems in this country.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I am not at all sure that I am wholly persuaded by the case to which we have listened. I can understand, and I think up to a point I agree with, the reluctance of the police to be drawn into the enforcement of civil rights as such, and that is why I certainly have not put down any Amendments which would encourage what is really a widespread demand, despite the fact that I have not put it down, that the police should in general help to eject persons who have no right to be on particular sets of premises. But on either view this is a protection for court officials, and not for 601 private owners—and court officials acting on the orders of the Judiciary after a court hearing. I wonder whether it really is practicable to say that in some cases court officials shall be protected by the criminal law and in other cases they shall not.
As the noble Lord has frankly admitted—and he has been very candid about this—they are in fact protected by the criminal law. When the bailiffs go in to effect an order for possession, anyone who resists them or obstructs them is guilty of contempt, and if they lift as much as a finger they are guilty of an assault. The moment one accepts that, one has to recognise that the police are immediately involved because of the danger of a breach of the peace. I wonder whether, really, either those police officers who have been advising the Home Office or the Home Office itself are really sensible in saying that you can draw the line at the point at which they have drawn it. Once you concede that the criminal law must necessarily be involved in resistance to a court order, it seems to me to be splitting an impossible hair to say that some court orders are supported by a further and special provision of the criminal law and others are not. I should have thought that the practical problems of the police officer carrying a volume of the Statutes in his coat pocket when he is sent for would be almost greater than those which the noble Lord envisaged by way of obstruction.
§ Viscount DILHORNE
My Lords, the noble Lord, Lord Harris, has replied fully to what I have said and I am grateful to him for doing so. I am not in the least satisfied by his answer. He told us about the number of warrants for possession being issued. That is really beside the point unless you know the number of occasions on which officers executing the orders of the court have been obstructed in the execution of those warrants. Those figures we were not given. We are not here concerned with the ejectment but with the obstruction of officials of the court seeking to execute the orders of the court. I think it is recognised by the provisions of Clause 10(1) that the law of contempt which applies now in every case is not wholly satisfactory. If it were, there would be no need for subsection (1); and 602 it is because it wants strengthening that we find subsection (1) of Clause 10.
I do not feel in the least convinced by the arguments, because, from what the noble Lord, Lord Harris, has said, I venture to doubt whether the problem has been fully appreciated by the police authorities. It is not every warrant which involves interference with the police; it is not getting them involved always in civil procedure. The noble Lord, Lord Harris, pointed out that this is a problem which arises chiefly in the urban areas—not entirely so, I dare say, but almost entirely. It is in those areas in particular that one wants to sustain the rule of law; and the rule of law is not just enforcement of the criminal law. I cannot think of anything perhaps more damaging to the rule of law in its wider aspect than for people to think that they can flout the orders of the court with impunity. If one starts with the thesis which is accepted in this measure, that the law of contempt is not wholly satisfactory and that, therefore, you have to make it a criminal offence to obstruct an officer of the court, I do not think you can stop there.
My Lords, I am in a quandary about what course to pursue. I should like to take this matter to a Division, but I do not know—and the noble and learned Lord, Lord Hailsham, has not indicated; and neither has anyone else—to what extent that course would be supported. In the absence of any indication of any support I should not, myself, like to take up the time of the House by dividing; but I am not at all happy about this. I think it is entirely unsatisfactory. I shall be interested to know whether there are any others who share my views on this matter before I ask leave to withdraw the Amendment.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, if I might intervene, I did not give any indication for I thought the House rather thin, and I do not know whether we could have a very convincing Division; but on the merits I would have voted with the noble and learned Viscount.
§ Viscount DILHORNE
My Lords, in those circumstances—although it has come on at a late hour, we did raise it on Committee, and I withdrew it then—we may not have a satisfactory Division; but at 603 least a Division would indicate the degree of dissatisfaction I feel about this. I do not ask leave to withdraw the Amendment.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 8.2 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
My Lords, I wonder whether I may ask the noble Lord, Lord Harris of Greenwich, how we stand at the moment. We are getting fairly thin on the ground and we have been dealing with this stage for very nearly the statutory four hours which was expected. I do not think we shall be discussing, say, Amendment No. 36 for some lime. I have made inquiries of certain noble friends and others about that Amendment, and the chances of a Division are quite high. I am wondering whether the sensible course would be to go away and have some dinner.
§ Lord HARRIS of GREENWICH
My Lords, I am always anxious to fall in with any proposal of the noble and learned Lord; but, unhappily, on this occasion I find myself in some slight disagreement with him. I entirely agree that we are not going to reach Amendment No. 36 tonight, nor would it be desirable for us to attempt to do so; of course, it raises wider questions. I am glad to see that the noble Lord, Lord Wigoder, agrees with me—at least on this point. I should like to make a little more progress and, if it will be for the convenience of the House, I propose we adjourn at 8.30 p.m.
§ On Question, Whether the said Amendment (No. 29) shall be agreed to?
§ Their Lordships divided: Contents 31; Not-Contents, 25.603
|Abinger, L.||Hailsham of Saint Marylebone, L.||Mowbray and Stourton, L.|
|Arran, E.||Hornsby-Smith, B.||Moyne, L.|
|Barrington, V.||Inglewood, L.||O'Neill of the Maine, L.|
|Campbell of Croy, L.||Long, V.||Seear, B.|
|Clifford of Chudleigh, L.||Lyell, L.||Simon, V.|
|Colville of Culross, V.||Macleod of Borve, B.||Somers, L.|
|Cork and Orrery, E.||McNair, L.||Strathclyde, L.|
|de Clifford, L.||Mansfield, E. [Teller.]||Vivian, L.|
|Dilhorne, V. [Teller.]||Monson, L.||Ward of North Tyneside, B.|
|Falkland, V.||Morris, L.||Wigoder, L.|
|Blyton, L.||Janner, L.||Raglan, L.|
|Champion, L.||Kilbracken, L.||Ritchie-Calder, L.|
|Collison, L.||Kirkhill, L.||Rusholme, L.|
|Davies of Leek, L.||Lee of Newton, L.||Stewart of Alvechurch, B.|
|Davies of Penrhys, L.||McCluskey, L.||Strabolgi, L. [Teller.]|
|Donaldson of Kingsbridge, L.||Maelor, L.||Wallace of Coslany, L.|
|Gardiner, L.||Northfield, L.||Wells-Pestell, L. [Teller.]|
|Gifford, L.||Peart, L. (L. Privy Seal)||Wynne-Jones, L.|
|Harris of Greenwich, L.|
§ Clause 12 [Supplementary provisions]:
§ The Earl of MANSFIELD moved Amendment No. 31:
Page 10, line 3, at end insert—
("( ) A magistrate, upon being satisfied by information on oath that a person is a displaced residential occupier as described in this section, shall issue a warrant so certifying.")
§ The noble Earl said: My Lords, this is a proposal which the noble Lord and the Government may find helpful, especially to those who are going to concern themselves with Clauses 6 and 7. The Amendment would give the opportunity for a displaced residential occupier to go to a court and obtain what I describe as a certificate (although the Amendment describes it as a warrant) that he is a displaced residential occupier. The effect would be that, before sounding the charge that he was going to act under the terms of Clause 6—in other words, to try to regain his property by force—or, alternatively, if he was going to suggest to the squatter under the terms of Clause 7 of this Bill that he should vacate the premises or else he (the squatter) would be committing an offence, the displaced residential occupier would be fortified by taking this course.
§ One can conceive that there are going to be considerable difficulties caused both 605 to the police and to the courts by virtue of both these clauses, particularly, as I think most noble Lords will agree, in the case of Clause 6. In Clause 7 there is the special defence open to the squatter in effect that he had no reasonable cause to believe that the displaced residential occupier was indeed that; and I would maintain that this might be a useful provision to show the squatter that the person who came before the house was indeed the person whom he claimed to be. I beg to move.
§ Lord HARRIS of GREENWICH
My Lords, the suggestion that magistrates might be used to reduce the difficulties that the police are bound to face—and I accept that point at once—in any offence involving a dispute over property is under consideration by the Government. The subtler the distinctions that we wish to draw in the criminal law in order to avoid abuse of the offence, the greater the pressure to find some way to relieve the ordinary police constable from having to reach an immediate decision when confronted with a dispute. Although we are thinking about possible provisions involving the courts, there seem to us to be some serious difficulties about the scheme proposed in this Amendment. The definition of displaced residential occupier includes two elements; first, the fact that a person is the residential occupier of the premises in question; and, secondly, the fact that the person on the premises is a trespasser. If the position has to be resolved on the spot by a police-man, at least he can make some straight-forward inquiries, hopefully on both sides of the divide.
On the other hand, a magistrate would be in no position to check facts which are alleged to be true in a statement by one party to a dispute over property. Without the opportunity to check the story of the person in physical occupation of the premises, the magistrate would be in danger of being used as a rubber stamp. There may be cases where the owner of a property with proof of his ownership wrongly but, perhaps innocently, alleges that the person in physical occupation is a trespasser when he is a tenant staying over after the end of a lease. There can be a misunderstanding of that kind. But, nevertheless, the consequences could be quite significant if he were to use the 606 procedure which is envisaged in this Amendment.
There are problems about this Amendment. A warrant certifying that someone was a displaced residential occupier obviously could not last for ever. From the policeman's point of view, the important time is the time when he is about to make an arrest. If we were to move in this general direction, it would be necessary to overcome this particular problem. As I said at the beginning, the Government are not unsympathetic to the spirit behind this Amendment. There are formidable difficulties in the way of a move in this direction, as has become obvious from what I have been saying, and not least the understandable reluctance of magistrates either to be used as a rubber stamp or to be drawn into more civil or quasi-civil work when the trend is in the opposite direction. Nevertheless, I can undertake that we will be studying this Amendment and the debate on it further in our continuing work on the general problem at which Part II of the Bill is directed.
§ The Earl of MANSFIELD
My Lords, I hope this seed has not fallen upon entirely stony ground. I think anybody who has ever been into a magistrates' court at the beginning of its business will know whether or not magistrates are used as rubber stamps, or regard themselves as so used, when a mass of search warrants, and so on, are applied for and a good many ladies come forward seeking summonses because they say that on the last pay night their husbands assaulted them. Really, I do not think that is a very good argument.
Similarly, during the last stage of the Bill the noble Lord painted a rather pathetic picture of a police officer standing in a street—I think "in a drizzle" were the words used by the noble Lord—trying to make a value judgment. I have tried to provide him with a piece of paper which will take him out of the street in a drizzle into a warm magistrates' court; and the noble Lord then quarrels with that. However, I am not disposed to push the matter any further tonight and, in the hope that something may come of this, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.607
§ 8.11 p.m.
§ The Earl of MANSFIELD moved Amendment No. 32:
Page 10, line 24, at end insert—
("( ) In this Part of this Act "premises" means any building which
§ The noble Earl said: My Lords, this is an attempt to come back to what we discussed in Committee. On that occasion, the noble Lord, Lord Harris, was good enough to—
§ Lord HARRIS of GREENWICH
My Lords, perhaps I might intervene to suggest that we could take Nos. 32 and 33 together, if that is convenient to the noble Earl.
§ The Earl of MANSFIELD
Yes, my Lords, except that, as I understand it, Amendment No. 33 deals with houseboats and my Amendment deals with rather more permanent structures. However, I am perfectly content that we should discuss them on that basis. At the last stage of the debate I did, I hope, point out that there were a number of anomalies or, at any rate, uncertainties in the Bill, and the Amendment which I then sought to move, which is rather similar to this one, might cover a situation, for instance, where there is a block of flats or a part of a large building, of which the residential part may be a caretaker's flat. The noble Lord, Lord Harris, said that he would be good enough to consider the matter, and now we shall see whether he has. So far as houseboats are concerned, that Amendment seems to be perfectly innocent. It may even be laudable, and no doubt the noble Lord will commend it to the House.
§ Lord HARRIS of GREENWICH
My Lords, I am glad to set the noble Earl's mind at rest right at the beginning. I think the Amendment in my name goes rather wider than houseboats but it does include a number of difficulties associated with houseboats. On the second day of the Committee stage, the noble Earl moved a probing Amendment to discover whether the Government were satisfied with the definition of "premises" in this part of 608 the Bill. The Government's Amendment to subsection (6) of Clause 12 is the result of our further consideration of the point since the Committee stage. It appeared that there was some doubt as to whether or not Clauses 6 and 8 extended to land which was not associated with a building. It seemed unsatisfactory that that major point should be left to be decided by the courts, and the Government's Amendment clears up the point by providing that Clauses 6 and 8 do not cover land unless it is adjacent to, and used in connection with, a building, and so on.
Another part of the noble Earl's Amendment in Committee addressed the problem of the multiple occupation of premises. We have given some thought to this since the Committee stage, though it will be apparent that the Government's Amendment does not cover that point. This is not such a straightforward matter as to whether or not land associated with buildings should be covered: one can deal with that matter. In the case of multiple occupation, there could be so many totally different circumstances and we think in this case it is advisable to leave the courts to apply Parliament's intention in the light of the facts of a particular case, or, to use the words of the noble and learned Lord, Lord Hailsham,…"leaving it to the common sense of the judges".I think the more we have gone into this matter the more convinced we have become that it is better in this situation to leave it to the judges rather than attempt to deal with it in the Statutes.
It is usually easy, as indeed it was on an earlier Amendment today, but nevertheless I accept at once that it can be unprofitable for a Minister to spend too much time exposing technical defects in an Amendment which has been prepared without the professional help which is available to the Government. However, I must refer to some technical aspects of the Amendment moved by the noble Earl, because it forms an essential part of my argument. The first difficulty, which could no doubt be put right, is that its form—"premises" means any building—makes it appear as a complete definition of premises. It limits the offence in Part II to buildings, and cuts out gardens and other land around the buildings. More seriously, it presents no real guide to the courts in a particular case.
609 Suppose that a person trespasses in a room in a house but makes no attempt to keep the rightful occupier out of the rest of the house. Suppose the case reaches a court which has to decide whether in this particular case "premises" means a room in the house or the house itself. The Amendment allows it to mean either and gives no guidance to the court. Suppose, instead of a room in an owner-occupied house, it is a room in a house with separate bed-sitting rooms, with the use of a common kitchen and bathroom: is that bed-sitting room a unit of occupation?
I have not used those particular examples in order to make debating points, In the Government's view, any attempt at a comprehensive definition of "premises" for Part II of this Bill is doomed to failure. If we were to attempt it we should no doubt produce an exceptionally lengthy and cumbersome Amendment which I fear might be criticised by the noble and learned Lord, Lord Hailsham, because of its length, and possibly even because of its ambiguity and the number of additional pages it will add to the Statute Book. Even then, it could turn out to be wrong. Amending legislation would then be needed and the constraints of the Parliamentary timetable are such that that is always an extremely difficult business. As I said earlier, we believe that "premises" can be properly understood and interpreted only in the light of a particular case. For example, in a case involving violent entry to a common entrance to a block of flats, I am sure the courts would reach a sensible decision in the light of the facts of the case and in the light of the Act.
I hope that I have said enough to convince the House that it is better to have a partial rather than an exhaustive definition of "premises". We are certainly grateful to the noble Earl for moving his Amendment in Committee and also for the spirit in which he moved it. Certainly I regret that I cannot advise the House on this occasion to accept his Amendment, but I hope the House will accept the Government's Amendment. It largely springs from the noble Earl's work on the last occasion.
§ The Earl of MANSFIELD
My Lords, the sweet reasonableness of the last sentence betrays a certain lack of logic 610 in the first few paragraphs of the noble Lord's brief; and anybody who, for instance, considers our breathaliser law might wonder just how safe it is for Parliament to leave definitions in such circumstances to the courts. I know that I certainly made a lot of money out of it in my day! However, I hope that this is not the end of the matter. More seriously, I think that some sort of definition should be put into this part of the Bill, and I certainly believe that it can be put in without overloading it.
I think it is wrong, at the end of the day, to expect courts to have to decide in a case of squatting what are "premises". I quite agree with the noble Lord that when it comes down to matters of fine detail it is perfectly proper, and indeed only sensible, that courts should make that distinction. But I do not agree that there is anything other than prudence involved in trying to ensure, for instance, that in the future if we are to have these provisions in Part II of the Bill, they apply to a block of flats, or to units within such a block of flats; and, secondly, that where there is, as I have illustrated before, a large building, with, perhaps, a resident caretaker in one corner of it, the provisions of the Bill apply to that whole building. But, certainly so far as this evening is concerned, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
Lord HARRIS of GREENWICH moved Amendment No. 33:
Page 10, line 31, at end insert ("but in sections 6 and 8 above "premises" does not include land unless it is adjacent to and used (or intended for use) in connection with the occupation of any building, of any movable structure, vehicle or vessel so designed or adapted, or of any structure other than a movable one.")
§ The noble Lord said: My Lords, we discussed this on the last Amendment. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 23 [Certain offences triable either way to be tried summarily if value involved is small]:
§ Lord HARRIS of GREENWICH moved Amendments Nos. 34 and 35:
§ Page 16, line 3, leave out from ("£200") to end of line 4.611
§ Page 17, line 16, leave out from ("measured") to ("as") in line 17.
§ The noble Lord said: My Lords, these are minor drafting Amendments, consequential on the acceptance at Committee stage of the Amendment to remove the small thefts provisions from the Bill. I beg to move.
§ On Question, Amendments agreed to.
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that further consideration on Report be now adjourned.
§ Moved accordingly and, on Question, Motion agreed to.