§ 3.25 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Lord Harris of Greenwich.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 1 [Deception as to prospect of payment]:
Lord WIGODER moved Amendment No. 1:
Leave out Clause 1, and insert the following new clause:
Obtaining services by deception
("1.—(1) A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, by any deception obtains any services from another shall be guilty of an offence.
(2) For purposes of this section—
§ The noble Lord said: I bring forward this Amendment with a great deal of hesitation and it is the same hesitation as I shall feel when I come later to move Amendment No. 3, because each of these Amendments involves in effect demolishing the existing clauses in the Bill and seeking to replace them by something which it is submitted is very much clearer and more easy to understand and at the same time much more effective. It is not so much that I am thereby criticising a draft produced by the Government that causes the hesitation; it is the fact that at the same time I know that I am criticising a draft produced by the Criminal Law Revision Committee, a body that was presided over by the noble and learned Lord, Lord Edmund-Davies, and which contains within its ranks a number of extremely distinguished judges, academic lawyers and indeed even one practitioner.671
§ This new Clause 1 is not my own brainchild, I hasten to say. It has been worked out by a number of us in the Criminal Bar Association in the hope that we can produce something rather more practical than the existing draft. I wish to say at once that my intention this afternoon is to invite comment and criticism of which I have no doubt there will be plenty, and then to reflect upon that comment and criticism in order to decide what steps, if any, should be taken at a later stage in this Bill.
§ The existing Clause 1 appears to many of us to be open to criticism on three quite separate grounds. First, it would involve a judge in practice in directing a jury, (even in the simplest possible case where a man has obtained the hire of a car by handing over a dud cheque) on at least eight separate ingredients constituting the offence. I do not want to repeat at any length what I said at Second Reading, but it is quite clear from the way the Bill is drafted that the judge will be explaining to the jury, first, that there has to be a deception; secondly, that it has to be a deception about an existing fact even though it is about an intention to pay money in the future; thirdly, that the deception must be relevant to the prospect of payment; fourthly, that a cheque is not in itself a payment; fifthly, that inducing somebody to act includes inducing somebody to refrain from acting; sixthly, that the deception must be one which induces the act or the refraining from action; seventhly, that an agreement to act does not amount to an act, and, eighthly, that inducing someone to refrain from taking steps to enforce a liability is not an offence under the clause.
§ Those are all matters which are integral to Clause 1 in its present form as drafted, and I think it is inevitable that any judge directing a jury will nevertheless feel himself obliged in the simplest possible case to go through each of those ingredients and point out how each of them must be proved by the prosecution before it can be proved that an offence has been committed. That is a complexity which should be avoided if that can reasonably be done. That is the first objection to the clause as it stands.
The second objection is that it involves the judge in directing the jury on concepts
which are, on the face of them, contrary to the jury's own common sense. This is always undesirable in the criminal law. Three particular matters arise. It involves the judge beginning by saying, as in Clause 1, line 2, that there must be a
relevant deception [which] dishonestly induces another to act on any person's promise of payment".
Then he has to go straight on, under subsection (2) of the clause, to say that of course it does not matter if
the act induced is not itself that in respect of which payment is promised
in certain circumstances. That is a somewhat discouraging start for a jury.
§ Secondly, it involves the judge explaining to the jury under Clause 1(3) that by persuading someone to act there is included the concept of persuading somebody not to act, to refrain from action. That in itself is likely to surprise the average juror, and his surprise will be intensified when he is told a few moments later under Clause 1(4) that a person does not act if he only agrees to act. So the jury are going to be told that by "act" there is not included the concept of "agreeing to act" but there is included the concept of "refraining from action". This again, I suspect, may prove somewhat difficult.
§ The third artificial concept that is introduced by this clause is the concept that the giving in payment of a cheque (this is in Clause 1(3)(c)) is not to be treated as a payment but only as the making of the promise of payment. I venture to think that this again is contrary to the ordinary jury's understanding of life. When he goes into a shop and hands over his cheque he reckons that he has paid for the goods and he would be a little surprised, and so would the shopkeeper, if he was simply signifying to the shopkeeper, "What I am giving you now is not payment; it is a promise of payment". There are thus three artificial concepts in this Bill which ought if possible, I suggest, particularly in criminal legislation, to be avoided. That is the second objection. The first is the complexity of the whole clause; the second the artificiality of the concepts into which this approach to the legislation has led the draftsman.
§ There is, thirdly, this difficulty—and I went into this point at Second Reading 673 and I do not want to do so again in any detail. It seems to me that, most unusually for the criminal law, whether an offence is committed under this clause depends not upon what the cheat or the defendant does but upon whether the victim responds or reacts in a certain way. In the ordinary way, if the defendant commits the ingredients of the offence and the victim does not respond there is at least the offence of attempting to commit that offence. It seems to me it would be difficult to envisage an offence of attempt under this clause having regard to the provision in subsection (4) where the person does not for the purposes of this clause act on a promise if he only agrees to act. Therefore if a person with dishonesty in his mind makes a relevant deception and obtains the agreement of another person to act, what, in ordinary circumstances, would be at the very least an attempt to commit the offence is no offence at all.
§ It is undesirable that there should be legislation in which the situation arises that whether or not an offence is committed depends not upon the defendant after he has completed his dishonesty but entirely upon whether or not the victim happens to respond in a particular way. Briefly, those are the criticisms that I make against the existing clause.
Before looking at what I suggest is an alternative and a simpler and more effective approach, may I briefly consider what is the evil which is aimed at by Clause 1. It is set out very simply in the Thirteenth Report of the Criminal Law Revision Committee at page 10. Paragraph 9 reads:
The offence of deception as to prospect of payment"—
and that is the side note to this clause which your Lordships are considering—
is essentially an offence of dishonestly obtaining by deception services on which a monetary value is placed".
Again, a little later in the report some examples are given. Paragraph 12, page 11, of the report reads:
We think that it will be helpful to follow this account of the detail of clause 1 with examples of frauds which could be prosecuted under the clause. The typical offence under the clause involves obtaining services by deception. In R. v. Page the accused gave worthless cheques when asked to pay in advance the hire charge for a car and to provide a deposit against possible
damage. Such conduct would amount to an offence under clause 1. A more serious example of the same type of conduct would be obtaining by deception the use of an aircraft or ship, where the charges for hire or charter might be very large indeed. The clause would also apply to obtaining by deception the use of a chauffeur driven car or a journey in a taxi. Provided there is an underlying promise of payment and a deception going to the prospect of payment being duly made, the clause would cover deceptions in obtaining any of the following services—the use of a computer; the use of a recording studio and the equipment in it, together with the assistance of the staff; admission to a theatre or concert hall; professional services, for example, those of a surveyor; and the repair of a motorcar or television set".
It was because of the wording of paragraphs 9 and 12 of the report that some of us were led to consider whether it might not be simpler and more effective to devise the offence which is contained in Amendment 1 before your Lordships, which is not deception as to prospects of payment, as in the existing clause, but obtaining services by deception. It sets out very simply that:
A person who dishonestly, with a view to gain for himself or loss to another, by any deception obtains any services from another shall be guilty of an offence".
It limits "services" to those
services which are provided in return for payment or the promise of payment and includes the hire of any property";
and it makes a comment about the word "obtains" which is also contained in the existing draft.
Under the new clause as drafted all the examples covered by the Criminal Law Revision Committee's proposals in paragraphs 9 and 12 would be caught foursquare. It is clear that the Criminal Law Revision Committee themselves considered to some extent whether to approach the problem along these lines. In paragraph 7 of their report they say:
The effect of section 16"—
that is of the 1968 Theft Act which they were considering—
is to cover a variety of conduct the common feature of which is that what is obtained can be said to have a monetary value. We have considered a different approach under which the basic offence to replace section 16(2)(a) would be obtaining services by deception. When we examined what the concept of 'services' included we found that it would not serve our purposes without definition. For example, is obtaining the loan of an article obtaining services? If so, it would be an offence for a man to tell lies to his neighbour in order to obtain the loan of a lawn
mower. If not, it would not be an offence to give a worthless cheque to a car hire company in order to obtain the use of a car for a few days".
That, I think, is the only reasoning in the Criminal Law Revision Committee's proposal which led them to prefer the complexity of the draft clause in this Bill to the alternative of the straightforward offence of obtaining services by deception. I would ask that there should be considered whether the draft in this Amendment does not in fact cover the difficulty which the Criminal Law Revision Committee foresaw.
§ They raised the question: Would it be an offence for a man to tell lies to his neighbour in order to obtain the loan of a lawn mower? Under the new amended clause the answer would be clearly, "No", first because of the possible issue of dishonesty; secondly, because there would not be a view to gain for himself or loss to another. Thirdly, it is covered by the fact that in subsection (2)(a) of the proposed new clause the word "services" means services which are provided in return for payment or the promise of payment and includes the hire of any property. In those circumstances, I respectfully ask that the noble Lord, Lord Harris of Greenwich, and those who advise him should consider whether at this stage there is not a great deal to be gained in terms of simplicity and efficiency by proceeding along the other line, indicated first by the Criminal Law Revision Committee, on the basis of creating the simple and straightforward offence of obtaining services by deception, rather than what I suggest is the extremely complicated and difficult version which has been chosen for the Government's Bill. In those circumstances, I beg to move.
§ 3.40 p.m.
§ Lord HARRIS of GREENWICH
Before I come to the points raised by the noble Lord, Lord Wigoder, I think it would be appropriate on an occasion like this to say a few brief words about the noble Lord, Lord Chorley, who died a few days ago and who undoubtedly would have been with us today in other circumstances. The noble Lord, whom I did not have the advantage of knowing for a very substantial period of time, was, I know, a very distinguished Member of this House, sitting on both Government 676 and Opposition Front Benches over a period of many years. He was a most distinguished member of his profession. I think it only right on an occasion such as this to pay tribute to his memory and to express to his family our deep regrets at his passing.
The noble Lord, Lord Wigoder, who has moved this Amendment today, has, as always, put his case in most moderate terms, and I hope to respond in similar terms. As I indicated when I spoke on Second Reading, the Government are anxious on this occasion, as on other measures concerning the reform of criminal law, to move forward with the greatest possible degree of assent from all sides of the House. I undertook on that occasion that we would look with great care at any Amendments which might be tabled by the noble Lord, or indeed by other noble Lords, when we came to the Committee and Report stages of this Bill. However, I should say one thing—and it is a point which the noble Lord himself has raised—namely, that the Government gave the task of reviewing this particular section of the Theft Act 1968 to a law reform agency, the Criminal Law Revision Committee, and that it is, broadly speaking, their proposals which we are discussing today, though they obviously have the support of the Government.
I think that the situation was put very fairly during our Second Reading debate by the noble and learned Lord, Lord Morris of Borth-y-Gest, who would have liked to be present today but who, unhappily, is not particularly fit at the moment: unless there is some really overwhelming advantage to be gained from the changes, the House should consider carefully before making amendments to this Bill, given the fact that it comes from the Criminal Law Revision Committee. The noble Lord's Amendments are in fact a radical departure from the proposals of the Committee. Essentially, the Committee recommended three new offences. The noble Lord, Lord Wigoder, is proposing to rewrite two of them and to make pretty substantial changes to the third.
If I may come to some points of detail, on Clause 1 there is, I believe, only one major issue—namely, whether the word "services" should replace the phraseology 677 of the clause. If "services" will stand the strain, then the clause proposed by the noble Lord, Lord Wigoder, does have the advantage of greater simplicity; I think that is undeniable. It is not, I assume, intended to be very different in scope. But can we rely on the word "services"? That is an issue where I am bound to say that I think there is some doubt. In the Government's view, the word "services" does not have the precision needed for a term which is to define a particular type of criminal conduct. The matter was discussed at some length both in the working paper and the report of the Criminal Law Revision Committee, and the conclusion they reached was that the approach being put forward by the noble Lord was unacceptable.
Furthermore, if we were to adopt this Amendment, there would be another problem; that is, there would be a considerable overlap between Clauses 1 and 2 of the Bill, whether the latter was in the form proposed by the noble Lord or indeed whether it was the Government's clause. While this would not be a fatal objection if Clause 1 could be adjusted to prevent the overlap, this does not appear to be practical. As I shall explain when we come to the noble Lord's Amendment to Clause 2, his clause produces a total overlap with his Clause 1; but the overlap with which I am now concerned is that between his Clause 1 and the Bill's Clause 2(1)(a).
The Committee's aim was to deal in Clause 1 with deceptions intended to avoid payment and to deal in Clause 2(1)(a) with deceptions which obtain exemption from certain charges or obtain services at a reduced price. Unfortunately, obtaining services at a reduced price comes within the noble Lord's Clause 1. Clause 2(1)(a) is not in a form which easily separates into obtaining services at a reduced rate and obtaining exemption from other charges. I may have to expand on this when we come to discuss Clause 2, but the only point I need to make now is that the Committee's careful division of deception into different cagetories with the minimum of overlap would be upset if the noble Lord's Amendments were to be accepted. It can hardly improve the Bill to increase the number of overlapping offences.
In short, while I have every sympathy with the noble Lord's motives, I do not 678 believe he has come up with a solution which has not been considered and rejected by the Criminal Revision Law Committee, or one which is an improvement on Clause 1 of the Bill as it stands. Nor do I think it would be advisable for your Lordships to go against the advice of the Criminal Law Revision Committee and approve the use of the term "obtaining services", which they specifically reject, which could involve purchasing apparent simplicity at the price of uncertainty, which would have to be resolved eventually by decisions of the Court of Appeal.
§ 3.49 p.m.
§ Baroness ELLES
First, from these Benches may I join the noble Lord the Minister in his tribute to Lord Chorley and extend our condolences to his family. Also from these Benches, I should like to explain that my noble friend Lord Mansfield is unable for reasons of health to take part in the debate on this Bill, and he regrets very much that he is not able to be here.
I should like to comment on the Amendment put forward by the noble Lord, Lord Wigoder. It seems to me that there are two criteria by which this must be judged. First, it should be clear and understandable not only to a judge but also, in his direction, to a jury. On the face of it, the draft clause of the noble Lord, Lord Wigoder, looks beautifully easy and clear. However, I think that the very fact that something in a Bill looks clear and easy may perhaps be the first trap, because one usually realises that it is much more difficult to understand than if it were written in a much longer form and looked very much more complicated. One has only to remember the comments of the late Lord Reid in his judgment in DPP v Turner, when he said that he thought that this would need a much greater expansion in order to avoid rarified analyses from judges to juries.
Secondly, I asked myself whether this more or less equated with the clause that it purports to replace in the Bill before the Committee? The Bill is, of course, intended to replace Section 16(2)(a) of the Theft Act 1968, which specifically refers to pecuniary advantage being gained. The question that I should really 679 like to ask and which no doubt the noble Lord, Lord Wigoder, will be able to answer is as follows. Do the words, "by any deception" not open his draft clause very much wider than the clause in the Bill? If we have "any deception", surely that means that anybody can obtain a service, possibly as one obtains a counter service. It is not necessarily obtained by a person's promise of payment. I accept that, in his definition of "services", the services are those which are provided in return for payment or the promise of payment, but that definition does not necessarily apply to "by any deception". It seems to me—and, of course, I stand to be corrected—that the noble Lord's Amendment would very much widen the type of offence that would fall within this clause. Therefore, I should be grateful for some clarification of the Amendment in this respect.
I must confess that, in my view, until the Law Commission review of conspiracy to cheat and defraud and consideration of fraud offences generally is completed, it will be extremely difficult to get a satisfactory clause to deal with the kinds of offence which are arising and which are becoming more and more sophisticated and difficult as opportunities become available to more members of the general public every year. Therefore, in that respect I am not very happy with the Amendment put forward by the noble Lord, Lord Wigoder, but perhaps he will be able to enlighten me on this particular point.
§ 3.54 p.m.
§ Lord HALE
I apologise for joining this debate a little late and missing some important remarks by the noble Lord, Lord Wigoder. However, I speak under some difficulty because I have spent four out of the last five days in bed and I am not sure that I should be here today at all, or that I shall be able to see the end of the debate. However, I hope that the noble Lord, Lord Harris of Greenwich, will not keep emphasising the necessity to have regard to the very able, elaborate, complicated and honest document of the Criminal Law Revision Committee. That Committee has gone out of its way from start to finish to express its own doubts about almost everything connected with 680 this matter. It records from time to time the consultations that it has had with members, advisers and persons with different opinions about vital matters; indeed opinions which go to the whole boundaries of the question of what is criminal law, what is tort, and what is what we call a more humble civil law even than tort. It talks about the question of whether getting into debt should be made a criminal offence and rejects it, and, as regards this particular question, raised the issue of borrowing a lawn mower, which in these days, when even lawn mowers are extremely sophisticated, is not very easy. If one has a large lawn one has to use a little persuasion on an unenthusiastic neighbour to lend you his new elaborate lawn mower.
There is such a mass of papers that I would not like to speak with certainty about anything, but there has been some talk even about the possibility of borrowing books and how far that can be an offence. Of course, as regards anything connected with books one would be able to find evidence of criminal conduct on the part of almost anyone who owns a reasonably large library whether of good books or of bad.
I apologise for not having said one word about the noble Lord, Lord Chorley, who was someone whom we regarded with veneration. I sat at the feet of Gamaliel 30 years ago. The generosity and knowledge of Lord Chorley were always devoted to the service of our progressive law, to its understanding and enunciation and to a great many good causes which arose from his forensic knowledge.
I have no doubt whatever—in fact no one has—that the Amendment of the noble Lord, Lord Wigoder, is in many ways admirable compared with this elaborate clause. In an unpremeditated observation I made on a previous occasion I referred to the fact that there used to be at least a definition of theft in the Larceny Act which has stood the test of time, but which was apparently thought not to stand the test of an electronic age. It is difficult for this House, without all Members being experts in electronics, to provide for all the possibilities. Some of the problems that arise are indeed astounding. The two cases which were decided on the same day by the courts produced a 681 diversity of opinion from the judges which was astounding and they also produced a diversity of honest opinion. The noble Baroness, Lady Elles, quoted the respected and venerated name of the noble Lord, Lord Reid. In fact, in one of those two cases the noble Lord, Lord Reid, delivered a minority opinion which was forceful and so on, and emphatically called attention first of all to the necessity of the interpretation of any clause of criminal law with strictness and without elaboration.
The noble Lord, Lord Wigoder, has divided the clause that he has put forward under two heads, which I noted as "the lawn mower clause" and the "milk on the doorstep clause". I might say a word about the "milk on the doorstep" as regards Clause 2, if that is the correct clause. Mark you, we are talking now about clauses which import a possible offence, a possible conviction and five years' imprisonment.
I have an increasing respect for the Law Society and the work that it is doing, having been somewhat of a maverick in my time. However, it was a little unfortunate that I should receive its observations on these clauses on Saturday morning last, when it was too late to give effect to its recommendations, which have apparently been considered by the Home Office, without much enthusiasm, since last June. Lying in bed trying to concentrate on things celestial, which appeared at that moment more imminent than things terrestrial, I decided to draw back my observations which, of course, were very useful but which involved in some cases Amendments which it was too late to table. But it quotes Professor A. T. H. Smith in the Criminal Law Review, 1977, at page 261. He does not think that there is any need for relevant deception, but he uses an expression which attracted me; he thinks that these things might lead to a "rarefied analysis".
In the cases of Turner and Ray, which were not very terrible cases anyhow, and which occupied the time of a court of first instance, an appellate court and then the time of the Judicial Committee of your Lordships' House—the ruling on one of which overruled the ruling of a strong Divisional Court by three votes to two—we were reaching the point when rarefied analysis was getting to a stage so remote from ordinary analysis and ordinary 682 understanding that the criminal law was becoming very largely a matter of obscurantism—a matter on which I have listened to learned lectures in the past. I recall what happened when Mr. Justice Darling passed sentence on the accused, after a finding of "guilty", with an apt and erudite Latin quotation. The accused turned to the warder and said, "I cannot understand what the old boy said and I am not sure what has happened". The warder rather brutally said, "Well, there is one thing about it. You have the good fortune to have five years to find out". I have had only a day or two to find out, and I confess that I have not completely found out. I do not think that anyone who has listened to my noble friend Lord Harris of Greenwich in his very brief and summary reply could fail to feel that the clause of the noble Lord, Lord Wigoder, at least offers a good deal more clarity and hope.
This business has really had an unhappy course and the Criminal Law Revision Committee has been at some pains to say that its original draft got knocked about when it was discussed by noble Lords. The actual origin of some of this was a Bill called The Rent Rebates Bill, which in my view was an act of political deception on behalf of the Labour Party, which some people are still talking about now. They said that if a man filled in a form which did not contain the whole truth and nothing but the truth, he could be prosecuted criminally for obtaining a rent rebate by deception. No one goes into the question of whether he may have asked his Member of Parliament to fill in the form at one of his weekly interviews and the Member of Parliament unwittingly made the deception, not the applicant. That was embodied in an Act in 1967 which was repealed in 1968. The Act which repealed it in 1968 was, of course, the Theft Act with this word, "deception", which I find a little apt to lead to rarefied analysis of itself.
We are told that at some stage we shall come to the question of giving cheques. The noble Earl, Lord Mansfield, in the debate on Second Reading (and I am sorry he is not here) pointed out the real difficulty of modern life in these matters. I suggest that the noble Lord, Lord Wigoder, has explained with clarity a clause that he has drafted with clarity. Time after time the Criminal Law Revision 683 Bill Committee has said that it is in difficulty here and in difficulty there; that possibilities arise and that possibilities cannot be clarified. I suggest that the Committee will be well advised, if given the opportunity, to accept the Amendment moved by the noble Lord, Lord Wigoder.
§ 4.6 p.m.
§ Lord FOOT
I should like to start by saying a few words in support of the tributes paid to the noble Lord, Lord Chorley. I came to this House 10 years ago almost to the day and my maiden speech was devoted to supporting an attempt by Lord Chorley to amend the Street Offences Act. Because of my support his attempt failed, but from that time onwards I was able to work with him upon various matters. He was my predecessor as the president of the Commons and Open Spaces Society. As I knew him for only 10 years I did not know him in his prime, but I think that all of us who have attended your Lordships' House for the last 10 years will have admired the enormous courage with which Lord Chorley, suffering from so many physical disabilities, continued to come here and make his contribution, even right up to the end. In fact, I believe that the last occasion when he addressed your Lordships' House was in support of an Amendment to the Town and Country Planning Regulations, which reflected his deep love of the English countryside. I am most grateful to the noble Lord, Lord Harris of Greenwich, for having given us the opportunity to express these feelings about him.
I listened with as much care as I could to what the noble Lord, Lord Harris of Greenwich, had to say in defence of the wording of the Bill as opposed to the Amendment of my noble friend. I think that it is right to say that the substance of his argument was threefold: first, that this was the recommendation of the Criminal Law Revision Committee; secondly, that it was questionable whether "services" was an adequate alternative word to use. But, as I understood it, the main burden of his case was that if we amend the Bill in the way in which my noble friend suggests we would have a large area of overlap as between Clause 1 and Clause 2. I entirely agree with all that my noble friend has said about the disadvantages of Clause 1 as it now reads from the point of 684 view of simplicity, comprehension and understanding.
This morning I made some attempt to read through the Bill to try to understand what it meant. I would hazard the suggestion that if an ordinary layman, or indeed a lawyer, looked at the Bill without reference to anything else, he would find it absolutely impossible to understand what Clause 1 means, what it covers, or its scope. If that is right—and I think it is undoubtedly right—it is surely a very great disadvantage, especially when we are writing the criminal law, to write it in such a way that it is incomprehensible to the layman or even to the lawyer who does not have an opportunity of referring to his law books. It is a very grave evil if we write the criminal law in such a fashion.
If that is right, it seems to me that the Amendment of my noble friend, in fact, gets over the difficulty, because if one reads it without reference to anything else, it is immediately comprehensible to the ordinary layman. In my submission the only way in which one can understand Clause 1 of the Bill is by reading in detail the report of the Criminal Law Revision Committee. It surely cannot be right to pass legislation which can be comprehended by ordinary people only if they refer to a long, elaborate report prepared by a group of distinguished lawyers.
I suggest that one of the reasons why the Revision Committee have not come up with something better and simpler is because, after they had gone through their long deliberations, and considering all the difficulties that had arisen under the original Clause 16(2)(a), they fully understood the matter and they reduced it to language which they could comprehend. But it does not follow from that that it is something that is comprepensible to ordinary mortals. Therefore, I would urge my noble friend to invite the Government to give this matter further consideration before the next stage so that some simpler form of wording could be worked out.
§ 4.11 p.m.
Lord PAGET of NORTHAMPTON
It seems to me that this is an amazingly wide clause. When some ingenious characters find a way to get round the law, 685 it often happens that the law is extended by the draftsmen, who are asked to deal with that particular difficulty, to cover a much wider front than anybody really expected. For instance—and I hope the noble Lord will put me right on this—does Clause 1 make it a criminal offence for anybody to take a drink on a round if he has reason to suspect that the man standing the round will not be able to pay for it at the end of the evening? According to the wording, that would seem to be a criminal offence. He is abetting by accepting the drink, and he has grounds for thinking it may not be paid for.
Then, look at Clause 2. A builder, or somebody like that, is having difficulty with his cash flow. He has a bill from his merchant falling due and he rings up and says, "Can you give me another week because I am expecting a client to pay this week", and, knowing his client, it is unlikely that the client will pay this week. Is this really a criminal offence? Do we want to make that a criminal offence? On the basis of the words of the Bill we seem to be doing so. In order to catch some clever rogues, we seem to be running the great danger of extending the scope of this Bill far wider than a criminal system should be allowed to go. Before we finally pass this Bill, I hope that it will be considered whether we can make it more intelligible—and I feel that the noble Lord, Lord Wigoder, has done much to make it more intelligible—and also a little narrower.
§ Lord BROCKWAY
I should like to associate myself with the tribute that has been paid to the late Lord Chorley. Over the years I have had great affection for him, for his character, for the principles he held, and for the great courage he showed in these later years in attending and participating in our work despite physical deformity.
I speak with some reluctance because, as a layman, I have not the least idea what this clause means. I have not got the beginning of an understanding. I want to ask our Front Bench and their draftsmen, when they are preparing Bills of this character, to think of the ordinary citizen and not just of the lawyer. By instituting legislation of this character, they are imposing a penalty upon the ordinary citizen. The lawyers in this debate—my noble friend Lord Hale on 686 one side and the noble Lord, Lord Foot, on the other—have argued against their own interest. This complicated and incomprehensible legislation is just a gift to the legal profession. I want to add this: while I have not got a beginning of a notion what the clause we are now discussing means—
§ Lord BROCKWAY
The noble and learned Lord, Lord Hailsham, says, "Hear, hear", with an implication that a layman should not participate in a debate of this character.
§ Lord BROCKWAY
I am delighted to hear that. So often, despite our different points of view, I find myself not only appreciating the humour of the noble and learned Lord but his interventions in this debate. What I want to say very strongly is this: I read the debate of the Second Reading, and my overall impression is that, in an attempt to bring a prosecution against those who the noble Lord, Lord Paget, said were rogues, this legislation opens out the possibility of making criminal the acts of a whole mass of little men who are not criminals at all, and at the same time ignores the much greater unsocial acts of richer men who will not be caught by this Bill. For those reasons, I hope that the Committee will support the Amendment which has been moved by the noble Lord, Lord Wigoder, and I hope he will press it to a Division.
§ 4.18 p.m.
Before the noble Lord, Lord Harris of Greenwich, or my noble friend Lord Wigoder, make their concluding remarks, may I ask one brief question for clarification on one of the eight points which I thought my noble friend made very clearly; that concerns the distinction made between a cheque and cash. One is described as payment, and the other described as a promise of payment. Of course, if I write out a cheque which is a dud cheque because I have nothing in my balance, that is clearly fraudulent. If I give a dud pound note, that is equally fraudulent. But I notice 687 that on the only two notes I have got on me, one a five pound note and the other a one pound note, each has printed on it that Mr. Page, on behalf of the Governor of the Bank of England, promises to pay the sum of £1 or £5. I do not quite understand what that means now. There was an unfortunate time when it meant that they had to pay out gold. Perhaps it means that they will pay out with 10p pieces now; I do not know. It seems to me that to introduce that distinction, in the way that Clause 1 does in the Bill—whereas the terms in the Amendment of my noble friend Lord Wigoder do not raise that issue; cheques and cash are regarded as equally dishonest or equally honest in this—is an unnecessary complication. I do not know whether there is any explanation.
§ Lord WIGODER
I am grateful to noble Lords who have taken part in this discussion and I will indicate briefly what appear to me to be the main objections to the proposed new clause. The first point was raised by the noble Lord, Lord Harris of Greenwich, and the noble Baroness, Lady Elles, as to the scope of the proposed new clause. It is intended to cover substantially the same scope as the existing Clause 1 of the Bill. It is conceivable that there may be very marginal cases of no significance caught by the one and not the other and vice-versa; but all the examples that were given in the Criminal Law Revision Committee's report as to the objects of their draft are, I believe, caught substantially and adequately by the proposed new draft.
Secondly, Lord Harris referred to the difficulty which the word "services" could involve. I accept that, but at the same time one must remember that the word is used in Clause 3 in the Government's own draft Bill, where it refers repeatedly to services done or to a service which has been provided. I should have thought that if it was solvable in relation to that clause it should be equally solvable in relation to the proposed new clause.
The other argument which Lord Harris mentioned was that there might be a degree of overlap between the proposed new Clause 1 and the existing or proposed new Clause 2. I accept that. There are many circumstances in which there are facts which constitute an offence not merely under one section but under more 688 than one section of the criminal law. To give an obvious example, there is an offence of obtaining property by deception. The ordinary case of obtaining property by deception is perhaps to hand over a dud cheque and obtain the goods. That is an offence under that substantive provision; it would equally be an offence under Clause 1 of the Bill brought forward by the Government, so I doubt whether the question of overlap is a significant objection to the proposed new Clause.
I indicated at the outset that, of course, I should not wish to proceed further on this matter today but should want to consider carefully the observations made by your Lordships. Lord Harris might think it possible to have some informal discussion between him and the noble and learned Lord, Lord Edmund-Davies, who presided over the Committee at the time the draft was produced, and myself if I could be of assistance; and perhaps the noble and learned Lord, Lord Hailsham of Saint Marylebone, who has been making encouraging noises from his place on the Opposition Front Bench, might be of assistance, also. I hope that in those circumstances it might be possible to come forward at a later stage of the Bill with a draft that has the general agreement of your Lordships' House, but for the time being I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord HAILSHAM of SAINT MARYLEBONE
I was not present on Second Reading, but I wonder what is happening to legislation in this country. Here we are altering a part of one subsection of an Act which we passed during the Lord Chancellorship of the noble and learned Lord, Lord Gardiner, rather less than 10 years ago, which was designed to take the place of various sections of the Larceny Act, the Debtors Act and so on. To iron out a few obscurities in a part of one subsection, it apparently takes four pages and 25 subsections of new legislation to do the trick. The only thing about which we are all certain is that we do not know what the new provisions mean as they stand at present.
I am therefore wondering what is happening to legislation in this country. 689 The Statute Book is growing and growing. Nobody understands it and one wonders whether the exercise is worth the pain of legislation and the trouble that the judges will have in understanding it. I venture to suggest that the more words one puts in a Statute the more cases will go to the House of Lords, and the more the noble and learned Lords on the Cross Benches, among whom occasionally I have the privilege of sitting, will say that the measure is very badly drafted and should be revised. I wonder how long this process is to go on. Year after year we pass 3,000 or more pages of Acts and I think another 10,000 pages of subordinate legislation. Nobody knows what the law is and nobody can know because it is getting so voluminous.
I wonder how the French get on. They have quite a simple penal code and it deals with this kind of question. I venture to believe that they probably write the thing on a half sheet of notepaper, and the courts find no great difficulty in getting on with it; and they seem to live a prosperous and happy life and enjoy many of the good things of life as well as we do. I am profoundly sceptical about this whole exercise and that is really all I can say about it.
§ Lord HARRIS of GREENWICH
I take note of what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, He raised a number of issues of broad principle about which I would not wish to comment; but as he will recall, this matter was sent to the Criminal Law Revision Committee by the noble Lord, Lord Carr of Hadley, when he was Home Secretary as a result of a number of problems which had arisen in the courts about the interpretation of the 1968 Act.
To make a brief comment on the debate which we have just had, on that occasion certain problems arose, as a result of debates which took place in your Lordships' House, when the argument which was put forward and which has received much support today was that the law should be simplified in some way. As a result of that simplification of the law, a large number of cases had to go to the courts and the law became in a fairly chaotic state, as a result of which the then Home Secretary had to ask the Criminal Law Revision Committee to look into the 690 matter. I make that point without making any comment about the substance of the debate which we have just had. We should consider for a moment some of the so-called simplification processes which lead to a very substantial amount of litigation and the enrichment of members of the Bar.
§ Clause 1 agreed to.
§ Clause 2 [Obtaining relief from liability by deception.]:
§ 4.27 p.m.
Lord WIGODER moved Amendment No. 2:
Page 2, line 16, leave out (" forego") and insert ("forgo").
§ The noble Lord said: It had not occurred to me that I should have declared an interest in seeking to simplify a piece of legislation. I do not think this is an Amendment which would cause the downfall of the Government. As I understand the position, the word "forego" has two meanings; it has the meaning "to go before" or "to precede", in which case it is usually spelt with an "e", and it has the meaning, which it is intended to have in Clause 2, of "abandon", "give up" or "concede", in which case it is normally spelt without an "e". My authority for the proposition is every reputable dictionary on which I have been able to lay my hands; I have not been able to find any disreputable dictionaries. Perhaps I might also rather powerfully pray in support of this Amendment the spelling used on the Front page of the Bill: in the Explanatory Memorandum, the word "forgo" is spelt without an "e" in relation to Clause 2. I beg to move.
§ Lord HARRIS of GREENWICH
I can reassure the noble Lord, Lord Wigoder, that this is not an Amendment over which, if it were to be carried against the Government, the Prime Minister would find it necessary to tender his resignation. There are two alternative ways of spelling this word and it is our view that both are equally correct. The Criminal Bar Association, in its comments 691 on the Criminal Law Revision Committee's draft Bill made the point that it is spelt without an "e" in the Shorter Oxford Dictionary. Fowler also spells it in precisely the same way, but I rejoice to say that there is a very reputable source—on this I hope to carry the noble Lord with me—in that the main Oxford English Dictionary gives approximately equal weight to both spellings, and the trend seems to have been for the "e" to be included by writers of the eighteenth century and after. I am sure the noble Lord will be interested to hear that an example of the spelling "forego" occurs in one of the works of Dryden, who wrote:When to ripen' Manhood he shall grow,The greedy Sailer shall the Seas forego",spelling it on that occasion with an "e". However, as I said, it would be foolish to suggest that this is at the very heart of the Government's case so far as this particular measure is concerned. Therefore, I rejoice to say—and I hope I shall carry the noble and learned Lord, Lord Hailsham, with me in this matter—that on this particular occasion I think that it is necessary to solidify the "Lib-Lab Pact", and would suggest that the Committee should accept this Amendment.
§ On Question, Amendment agreed to.
Lord WIGODER moved Amendment No. 3:
Leave out Clause 2 and insert the following new clause—
Evasion of liability by deception
("2.—(1) A person who by any deception dishonestly obtains the reduction or the evasion or deferment whether in whole or in part of any debt or charge for which he or another is or may become liable shall be guilty of an offence.
(2) For purposes of this section "obtains" includes obtaining for another or enabling another to obtain.")
§ The noble Lord said: I am delighted to find your Lordships' Committee performing its function as a revising Chamber so very adequately. This Amendment is a slightly more complex matter. It is a proposal that Clause 2 of the Bill should be rewritten and it should appear in the very much simpler version set out in Amendment No. 3. There are one or two observations which I think ought to be made on the existing Clause 2 of the draft Bill. First, it of course marks a departure from 692 the existing law. It marks a departure from the existing law in Clause 2(1)(b), where I believe it introduces for the first time the "intent to make permanent default" where there is a dishonest inducement to a creditor or a person claiming payment to wait for payment. I think I am right in saying that, since the case of The Queen v. Turner, it has been clear that there is no need for there to be an intent to make permanent default, and that this is an element which has been introduced as a result of the deliberations of the Criminal Law Revision Committee. I cannot help wondering what is the purpose of so introducing it, because the Committee themselves recognised that in the vast majority of cases it would in fact be quite impossible to establish such an intent, and therefore one would, in effect, be passing a provision into law and at the same time recognising that it would be a dead letter from that moment onwards.
§ Perhaps I ought to add that the suggestion has been made that, unless the necessary intent to make permanent default is regarded as an essential ingredient, there may be a tremendous surplus of quite unnecessary prosecutions for wholly trivial offences. If I may say so, I do not think that that is likely to happen. Certainly, since the case of Turner, which is some years ago now, there has been no sign that prosecuting authorities have been abusing the position and have been, for example, prosecuting the housewife who has put off the tallyman for a week by dishonestly telling some lie, which is the sort of matter which might be caught in that way.
The proposal to include an intent to make permanent default in Clause 2(1)(b) seems to give rise to a quite intolerable position so far as any judge and any jury are concerned, because under Clause 2(1)(a) as it stands it is an offence dishonestly—and I use only the material words—to secure
the remission … of any existing liability to make a payment",
and that is so whether or not there is an intent to make permanent default. Under Clause 2 (1)(b) there has to be an intent to make permanent default in dishonestly inducing a creditor to forgo (with or without an "e") payment. I cannot, however much I think about it, see any material distinction—certainly not one which can
be explained to a jury—between securing the remission of a liability and inducing a creditor to forgo payment; yet, as the Bill is drafted, the one does not require an intent to make permanent default and the other does.
If one gets rid of that concept of "intent to make permanent default" as being, as I say, unnecessary, and as being a dead letter from the moment it is written in, it is then, I believe, possible to make the clause very much simpler and, again, very much more effective, simply by saying, as is said in Amendment No. 3:
A person who by any deception dishonestly obtains the reduction or the evasion or deferment whether in whole or in part of any debt or charge … shall be guilty of an offence".
Really, the arguments for this are the same as I used in relation to the proposed new Clause 1—the grounds are simplicity, clearer understanding and clarification—and I would put this forward as an improvement. I beg to move.
§ Baroness ELLES
I should like very strongly to support what the noble Lord, Lord Wigoder, has said in relation to Clause 2(1)(b). I should like to inform the Minister that, if the noble Lord's Amendment is not accepted, we shall reconsider this matter before the next stage of the Bill, because we do not consider that "intent to make permanent default" can really be justified in legal terms or by way of an explanation by a judge.
As to the drafting of the noble Lord's Amendment, I should like to make one comment which he may consider otiose. Nevertheless, it seems to me that a reduction or deferment must be something which the victim agrees to, whereas an evasion is an action which the offender in fact commits. I should have thought it not possible to have all three actions governed by the same verb. I know this is being slightly difficult, merely over the wording and drafting of the clause, but I think it would have been better if it had read,dishonestly obtains the reduction or deferment and evades whether in whole or in part …",or some such words; but, as it stands, I do not think it makes complete sense.
Secondly, I should like to ask the noble Lord whether he intended his new clause to cover all liability, and to depart from 694 the meaning contained in the original Clause 2 of the Bill, which as I understand it covered only liability where it was legally enforceable. I think that, as the clause is at present drafted in the Amendment, any liability would be included, and that of course extends the purpose of this Bill very widely. I should be grateful to hear the noble Lord's comments on those matters when he answers on this Amendment.
§ Lord HALE
This clause arises from one of the most remarkable criminal cases that has been argued in our courts for some time, the case of Ray. The case of Ray is the case of the university student who goes into a Chinese restaurant and orders a Chinese dish, or inclusive meal, for 47p and does not pay for it; but even then the circumstances are a little unusual. He is one of a party of five university students, four of whom intend to go in and buy a meal and who invite him to accompany them. He says he cannot, he has only 10p—and 10p will not buy anything these days. Of course, I recall the days when it would have bought one a large meal. Indeed, it is rather more than I used to pay for my meals in 1917, when one could get a fish cake for six old pence. But he is induced to go in, rather reluctantly, and they have the one dish and none of the supplementary dishes they could have had. Then, at a certain time, someone suggests that they should run off without paying, and they do run off without paying.
As the matter arises only in the case of the one man, Ray, who had 10p and who pleaded not guilty and who said he went in intending to pay and was left in a position where he could not pay, the accompanying details of all the events are not available. Nor does one need them. One never does on appeal; one gets limited facts. It was said against Ray, although the magistrates found that he went in honestly intending to pay, that he stopped for a few minutes afterwards, after the decision not to pay; and by that stopping afterwards and looking innocent, apparently until the waiter had left the room, he had made a criminal act of deception which induced the waiter not to exercise such precautions, whatever they may be, that he could have used on this gentleman with 10p in his pocket; and by that stopping, by that delay, he had committed 695 an act of deception. That was the first crime he committed and that was the first moment he committed it; on that finding of fact—which was carefully done by the magistrates who set out the facts in perfect detail—he was convicted and fined £1 and, of course, became a convicted thief.
It is well because in all this Act there is very little about mala in se, very little about criminal intent; it is all imputed by an act of deception. The accused, being convicted, asked for a case stated. The magistrates stated the facts, the courts after that, under that procedure, are bound entirely by the magistrates' statement of fact (and so is everybody else) to accept the facts. You cannot argue now about what was in his mind. You cannot wonder what a chap should do when the rest of his colleagues had decided to bolt, and had bolted, and he could not pay, and he took a convenient moment or two. It may not have been very reputable conduct but is it the sort of conduct on which it is the intention that all the majesty of the law, in all its force, should be called upon to examine the matter, and to give him a conviction—which could deprive him of promotion in the future, or a job or entering into the United States—by the imposition of a fine of £1, the consequences of which none of us is able to measure?
So he appealed to a divisional court presided over by the Lord Chief Justice of England—and I apologise for the fact that I am not sure whether it was a Divisional Court of three or of two. The Lord Chief Justice asked one of his colleagues to deliver the judgment of the court—and it was a judgment of the whole court, whether of two or of three—which really dismissed this pretension with, one would have thought, complete conviction: and "the appeal will be allowed". While refusing leave to appeal to the House of Lords, the court certified that there was a point of sufficient public importance to be referred to the House of Lords for their Lordships to consider, and it was heard by a court of five judges.
All of this was over a very long period of time and, in the end, two of their Lordships agreed with the decision of the divisional court and three of them decided otherwise. I have read every word 696 of the arguments and they are very impressive. But it seems to me that it comes straight to what the noble and learned Lord, Lord Hailsham, said a few minutes ago in his admirable observations.
Was this the criminal law and the "Red Judge", as we knew it? Was this the kind of thing he was there to deal with? Or was it a matter for the county courts? Of course, I am using my own words now. Was this really a matter in which the majesty of the law should be engaged in long, elaborate arguments with a decision in which, certainly, three learned judges had found one way while others disagreed.
These things happen—but over a question of this kind, over a figment of the imagination! I apologise if I have delayed the Committee—I am not anxious to do so. The noble Lord, Lord Wigoder, referred to the observation of the Criminal Law Revision Committee and he used the word "tallyman", which is fresh to me. They talk about the possibility that clauses like this could embrace the harassed mother who does not pay for the milk, saying that her husband was out of work last week, when, in fact, the statement is untrue.
The curious thing is that I cannot find anyone saying, that she has to know that it is untrue. We have lost touch with mala in se. If her husband tells her he is out of work and gives her no money, then she gets no money and that is the effect on her. She does not know whether he is out of work. She may have a shrewd suspicion, if he was that kind of a husband, that there was a race meeting that week. But she does not get the money and cannot pay.
I will not elaborate this matter because the obvious reply is that that is all right, that no one would dream of prosecuting in a case like that, no one, even if she is liable to conviction under an Act with enormous penalties and summary trial and trial on indictment and so on; no one would dream of it. But when do they start to dream of it? Supposing that she does it twice running or three weeks running. At what stage does she become a criminal and a convicted victim?
It seems to me at this stage that there are, too, some possibilities that the Committee 697 have not considered. I am not even sure whether they are absolutely familiar with the normal system of vending milk. It is not a commodity to which I have ever been addicted; but it is the necessity in most houses, and in many poorer houses it is the most necessary food of all. I may go down to my own house and open the door very early in the morning and see in the peristyle a single bottle of milk—a very apt subject for a chef d'oeuvre of Andy Warhol—and within a few weeks I shall probably see blue tits by it, for they have devised a method of getting the milk out without removing the burnished gold cover which helps to make the picture. And the so-called tallyman who is travelling by in an attractive pastel coloured vehicle arrives on a Friday or Saturday and asks for the week's money. With a small family it is sometimes extremely difficult to find the money to pay. But the housewife will also probably be presented with an elaborate notice saying that other commodities can be supplied if she ticks them off on the list. This is a useful service because the question of delivery of food is not easy. Therefore she may be tempted to buy a few more commodities. It is not an act of deception of course if her husband is still at the races and not out of work. And so it goes on, and it can accumulate.
The milk dealers do not want this because they will begin to feel that if there are any prosecutions then the sale of milk will diminish and people will be frightened off. Then the green pound would have to be revalued, or something of the sort, in order to balance off the various complex processes.
Five judges of the House of Lords—in each case judgment reserved—at least two judges in the Divisional Court, including the Lord Chief Justice, all delivered well argued, brilliant, elaborate dissertations which should be apt subjects for investigation of a student's moot. But the noble Lord's Amendment is much clearer and much better. I appreciate his generous courtesy in letting me have a copy of this at a much earlier stage than the Law Society. I said I would be prepared to go so far as to say that this was a tremendous improvement upon the original draft for which I would happily vote, although I was not particularly sure that I would vote for the Bill if I had the chance.
§ 5.52 p.m.
§ Baroness PHILLIPS
As a layman, I hesitate to intervene in this Committee. We have had distinguished legal brains brought to bear on the Amendments and the Bill itself. Perhaps some of my colleagues here are in another world. Crime has a curiously changing face. I would say to the noble Lord, Lord Hale, that, sadly, we are not dealing any longer with a little lady who does not pay the milk bill. The retailer will tell you that we are dealing with a very sophisticated criminal who uses the credit system and the cheque system with the deliberate intention of acquiring goods and services without paying for them.
I am not arguing for or against the Amendment. I am intrigued to hear so many speakers say they cannot understand the Bill. But why pick on this particular Bill? In the short time that I have been in the House of Lords I have rarely understood clauses, particularly some that I have had to argue on behalf of the Government from the Dispatch Box. One relies heavily on the Explanatory Memorandum and the fact that the draftsmen tell you that they must encompass everything in order to catch everything, and indeed everybody. The mere use of the word "tallyman" suggests that some members of the Committee are not au fait with the sophisticated nature of some of the people who use the system. This is why we have had to have Amendments to the Theft Act.
I can recall a gentleman who went the whole length of one street and obtained goods on promise to pay with credit and cheque. It was extremely difficult to find any Act or clause under which this man could be charged. Eventually it was possible, because he was foolish enough in one instance to make off with goods without even presenting the forged cheques or obtaining the credit. So he was dealt with as a thief. This Bill is no different from a number of Bills that we have had in this House; but, as a magistrate, one relies upon the learned clerk who has to interpret these Acts, and usually manages to do so. Magistrates have to listen fairly to the evidence presented and exercise common sense and mercy. I plead with members of the Committee to appreciate that this is dealing with a sophisticated kind of criminal, not the poor little woman who does not pay her milk bill.
§ 5.55 p.m.
§ Lord HARRIS of GREENWICH
We are indebted to the noble Lord, Lord Wigoder, for this short debate. I have listened with interest to what he said: I am a trifle surprised that he has produced a new clause which has a remarkable similarity to the subsection of Section 16 of the Theft Act 1968 which has been the cause of all the trouble. For that reason, I am more doubtful than some others who have spoken whether this Amendment would improve the situation radically.
The problem about the old form of words used in the 1968 Act is that too much was compressed into too few words, all in the sacred name, no doubt, of simplicity. That has been one of the central problems with which the courts have had to wrestle in terms of interpreting the intentions of Parliament in the Theft Act 1968. Clause 2 of the Bill creates an offence of obtaining relief from liability by deception in three specific types of cases which, for the most part, involve fraudulent conduct where the deception is practised after a transaction has been entered into. There is one exception; but, broadly speaking, that is the situation.
The relevant cases are: first, where the deception dishonestly secures the remission of a liability to make a payment. That is dealt with in subsection (1)(a). The second induces a creditor to wait for or forgo payment in circumstances where he intends to make permanent default. That is subsection (1)(b). The third is where a person dishonestly obtains any exemption from or abatement of liability to make a payment. That is subsection (1)(c). This latter case may include frauds where the offender has acted dishonestly from the outset of the transaction.
Instead of this, the noble Lord's Amendment creates a wide offence, which both virtually repeats—as I have indicated—the words of the existing subsection (2)(a) of Section 16 of the 1968 Act, and covers all cases within the noble Lord's new Clause 1, which we were discussing a few moments ago.
The conduct with which the Bill deals was covered by Section 16(2)(a) of the Theft Act, except for the new offence of "making off without payment" which is dealt with in Clause 3 with which we will deal in a moment. If Clause 2(1) of the 700 noble Lord's Amendment were accepted, hiring a car and paying by a dud cheque would, for example, be both an offence under Clause 1, as obtaining services by deception, and equally an offence under Clause 2, as evading or deferring a charge for which a person has become liable.
There is another feature of this Amendment, and I hope that on this I will carry my noble friend, Lord Hale. I should be a trifle surprised if he was altogether at one with the noble Lord, Lord Wigoder, so far as the intention of this particular Amendment is concerned. Another feature of this Amendment is that by omitting any reference to "permanent default", I think it would apply—I suspect that the noble Lord will confirm this—to the case of the stalling debtor, and whether or not he intends to pay one day. This is a point of some importance, as I think the noble Lord, Lord Wigoder, will accept. The Bill before your Lordships provides that a debtor who, by deception, dishonestly induces his creditor to wait for payment or to forgo payment shall be guilty of an offence if he intends to make permanent default in whole or in part of his liability to pay. That is the proposal before us. The effect of the final words is to make the provision narrower than the corresponding offence in Section 16(2)(a) of the Theft Act 1968.
On this aspect, the Criminal Law Revision Committee took the view, with which I must say the Government concur, that Section 16(2)(a), as it has been interpreted by the courts, is too wide and has the effect, for example, of making it an offence for a housewife to tell a rent collector that she cannot pay this week because her husband has been off work when that is not true. That is the situation under the existing law and it is that which we are proposing to change. The Committee thought that such behaviour should not be a criminal offence, and therefore limited the provision to the case of a person who intends never to pay a debt. There is, therefore, a clear distinction between the situation under the existing law and what the Committee recommended as regards narrowing the terms of this offence, which is contained in Clause 2.
While certainly recognising that it is perfectly easy to have two views on this, because it is inevitably a matter of some 701 debate, the provision recommended by the Committee is, in our view, a satisfactory compromise between the extreme of making it an offence where the debtor obtains further time by deception, even though he intends to pay one day, and the totally opposite extreme, which is certainly favoured by those who take the view that the enforcement of debts is a matter for the civil law, of having no offence of obtaining by deception the opportunity to delay paying a debt, even when the debtor has no intention of honouring the debt at any time. People who take that view have the clear opinion that this is not a matter where the criminal law should intervene at any stage. That issue is not before the Committee at this stage, because it is not the proposal of the Government or of the noble Lord.
§ Lord HALE
I appreciate the very clear explanation which my noble friend has given, and I know that he has a point here. But, on this question of intent to pay, can that be interpreted in the same way as the case of someone who is perfectly honest and has always meant to pay, but is pretty damned sure by now that he will never have the opportunity? Is it a case of hoping to be able to pay, and believing that the situation may arise in which he will be able to pay? Who decides at any stage? Does it not really mean that the person has to be brought before a court to establish his intent to pay, as an answer to the first charge? Is not the whole of this almost a students' moot involving the life and liberty of a person in question?
§ Lord HARRIS of GREENWICH
No. I think that it is a point of greater substance than that. I have explained fairly carefully—and I am sure that my noble friend, who has taken a great interest in this Bill, will want to examine the terms in which I have put the argument—that there is this clear point that what the Committee have recommended—and the Government agree with them—is a narrowing of the terms of the present criminal offence That is what we are proposing in Clause 2. What I have been pointing out is that there are a number of people who believe—and I think that there were two colleagues of the noble and learned Lord, Lord Edmund-Davies, who took this view—that in no circumstances whatever should this be a criminal offence.
702z That is not the view of the Government. We agree with the majority of the Criminal Law Revision Committee that it is right to maintain the criminal offence, but that we should have this provision in sharper and closer terms than is the case under the relevant section of the 1968 Act. It is, of course, for your Lordships to decide in the case of the stalling debtor, which is certainly a point of considerable importance, which view is the right one. As I indicated earlier, it is perfectly reasonable to take one of two or three separate views. What I am saying today is that the view of the Criminal Law Revision Committee is a compromise between two positions, and it is one which I would certainly commend to your Lordships. For that reason, I think that the form of words set out in Clause 2 of the Bill is preferable to the new clause which the noble Lord, Lord Wigoder, has put before us.
§ 5.7 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
I hope that both the noble Lord, Lord Harris, who has argued his case very well, and the noble Lord, Lord Wigoder, will take this little argument away and decide what to do on Report, because I remain a sceptic about the whole of this matter. The noble Lard, Lord Wigoder, said at the beginning that, if you make it the intention to avoid payment permanently you are, in effect, passing a clause which will be a dead letter, and I think that he is right. I do not believe that a jury would ever convict, except in the rarest possible case, because they would not find the intention proved. The noble Lord, Lord Harris, said that, if you take that out, the so-called "stalling housewife" gets convicted, and I think that he is right. What do you do?
Nobody has yet told us how many fish are in the net. If I may refer to what the noble Baroness, Lady Phillips, said, dud cheques have normally always been criminal in one way or another, because of the old law of false pretences which is continued into the new law. If you know that you have nothing in the bank account and get something by giving a dud cheque, you very often find yourself in gaol. One agrees that Clause 3 ought to be a defence. The old ploy of bilking the cabman is an example of making off without payment. But how many fish 703 are in either of these two nets which we have cast into the sea!
Is this not a case of over-fishing? Can the noble Lord perhaps tell us on Report rather than in Committee whether there are any people, and how many there are, who will be convicted under this new clause? If there are not a great many, perhaps it might be as well to leave it to the civil courts to make them bankrupt and not send them to prison.
§ Lord WIGODER
I wonder whether the noble Lord, Lord Harris of Greenwich, would be kind enough to assist me over deciding what to do between now and Report stage by dealing with one matter which I raised on Second Reading and which I have raised again today. In ordinary language, what is the distinction between securing the remission of a liability to make a payment under Clause 2(1)(a) and inducing a creditor to forego payment under Clause 2(1)(b)?
§ Lord HARRIS of GREENWICH
We shall have to take this matter further. I shall deal with the point in a letter which the noble Lord will receive by the end of this week.
§ Lord WIGODER
Again I am grateful for the noble Lord's observations. I take very much on board the observation of the noble Baroness, Lady Elles, regarding the drafting of line 1 of the Amendment and I should like to look at it again. If I may deal with "legally enforceable liability", I must confess that I had assumed that it would be a legally enforceable liability so far as debts are concerned, but again I should like to look at the point with my colleagues and perhaps to speak to the noble Baroness between now and Report stage. I accept what the noble Baroness, Lady Phillips, said about the importance of this legislation. For the most part they will be offenders who commit comparatively trivial faults who will be caught by this clause, but by no means will this always be so. Therefore it is important that the legislation should be adequate to catch those who commit serious offences. The noble Lord, Lord Harris of Greenwich, was right in saying that the draft which I have ventured to produce slightly extends the law; certainly it was not intended to restrict the existing law in any way. As I have 704 said, I am grateful to the noble Lord and I should like to consider the position again before Report. Meanwhile I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Making off without payment]:
§ 5.12 p.m.
Lord WIGODER moved Amendment No. 4:
Page 2, line 33, after ("that") insert ("immediate").
§ The noble Lord said: I beg to move Amendment No. 4, and with the leave of your Lordships may I speak at the same time to Amendments Nos. 5, 6 and 7. Again this is a small matter. When a person has consumed a meal or filled up his car with petrol and then decides not to pay and goes off, the question arises whether it is more accurate to describe him as a person who knows either that payment is required on the spot or that immediate payment is required. I am not absolutely enthusiastic about either of the two alternatives.
§ The word "immediate" which I put forward in the Amendment connotes a connection in time which may not be entirely appropriate, in the sense that a person having a meal in a restaurant is not expected to pay until a couple of hours after he has consumed the meal. On the other hand, the draft wording in the Government's Bill seems to me to connote a connection in place which may not be entirely appropriate. I can see difficult arguments being raised by querulous members of the Bar to the effect that their client ought not to be convicted of an offence because he had his meal in the basement of the restaurant, whereas he was asked to pay on the way out at the cash till on the ground floor, which was not the spot where he had in fact acquired the meal, or obtained the goods or services. I rather suspect that neither the present wording "on the spot" nor, indeed, the Amendment "immediate" is entirely appropriate. Perhaps the noble Lord, Lord Harris of Greenwich, will think that it might be possible to find an improvement to both forms of wording before the next stage of the Bill. I beg to move.705
§ Lord HARRIS of GREENWICH
Could I say at the outset that, although I could meet the noble Lord, Lord Wigoder, on the "e" in "forgo", I am afraid that I am not in quite such a happy position when it comes to this particular Amendment as to whether the word "immediate" should be inserted rather than the words "on the spot". Certainly I shall look at the matter, and if the noble Lord, or, indeed, any other noble Lord, has any proposals to put to us we shall be very glad to consider them. The words "on the spot" in the Bill were aimed at the case where the goods are supplied, or a service done, on the basis that payment will be made there and then, and the customer thereafter dishonestly makes off without paying the bill. If "immediate" were substituted for "on the spot", it might well change the effect of the clause, since "on the spot" relates, as I think the noble Lord, Lord Wigoder, has suggested, both to time and place, whereas "immediate" relates only to time. Certainly we do not wish to widen the clause by extending it to other cases where immediate payment is required—as, for example, where immediate payment is demanded by post. Nor are we certain whether the amended clause would always catch the person who dishonestly left a restaurant after having a meal but just before the bill had been presented to him. For that reason, we are not attracted to the idea of substituting the word "immediate" for the phrase "on the spot" but, as I have indicated, if some alternative form of words is suggested to us we shall be very glad to consider it.
Lord PAGET of NORTHAMPTON
I wonder whether the noble Lord could assist me on one point which relates to subsection (2) of this clause. Where goods are taken for work to be done upon them, surely the person who does the work has a lien on the goods until payment is made. I do not quite follow what kind of problem the Amendment to subsection (2) is intended to deal with.
§ Lord HARRIS of GREENWICH
I shall gladly look at that point, but I was addressing myself to the narrower terms of the Amendment moved by the noble Lord, Lord Wigoder. Nevertheless, I shall gladly take account of the point made by my noble friend Lord Paget of Northampton.
§ Lord WIGODER
I am grateful for the noble Lord's intimation. I have no desire to put him on the spot, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 5, 6 and 7 not moved.]
§ 5.17 p.m.
Baroness ELLES moved Amendment No. 8:
Page 3, line 1, leave out subsection (4).
§ The noble Baroness said: I put down this Amendment following the comments of my noble friend Lord Mansfield during the Second Reading of this Bill. I think that everybody will agree that an arrestable offence has to be a serious one and that normally it carries a sentence of imprisonment of up to five years. So far as this subsection is concerned, the maximum penalty is two years. It seems to me that to give anybody the power to make an arrest for an offence which bears only that penalty shows that an unwarrantable amount of power is being given to the average citizen over his fellow citizen.
§ If one looks at Section 12 of the Theft Act 1968, in subsection (3) the power of arrest given to a citizen applies only where a car is being stolen or removed. The power of arrest specifically does not apply to subsection (5) of Section 12 where a pedal cycle is involved. A clear distinction is made between a valuable article which has been stolen or which could create danger to others and one which is of relative unimportance. Therefore I submit that to give anybody the power to arrest without warrant somebody else who has committed one of the offences which I understand are covered by Clause 3 is over-egging the pudding.
§ Although I may be wrong, I understand that Clause 3 covers trivial offences such as stepping off a bus without having paid one's fare and putting a coin which is not a coin of the realm into amusement arcade machines. We are bringing the criminal law into the area of the ridiculous and almost into disrepute if we give to people the right to arrest anybody whom they even suspect of committing one of these trivial offences. Therefore I ask the Minister seriously to consider deleting this subsection. I would add also that the kind of person who would be induced to 707 arrest anybody else would probably not be aware of the civic responsibilities and dangers of falsely arresting anybody on suspicion. For example, a hotel waiter or someone in a small café may suspect that someone is going off without paying, and this Bill would give power to such people to arrest a person going out of the café door, with the prospect of course of causing disrepute to the person who may be falsely arrested. I urgently request the Minister to reconsider this particular subsection of Clause 3 and have it deleted from this Bill. I beg to move.
Lord PAGET of NORTHAMPTON
With great respect to the noble Baroness, Lady Elles, surely this is just the kind of case where one does need to have this power of arrest, and very much because it is trivial. If a man goes into a café, does not pay the bill and proceeds to walk out, how can one ever find him again if one cannot shut the door?
§ Lord HARRIS of GREENWICH
It is always a pleasure to have my noble friend Lord Paget of Northampton on my side. I start off on that happy note and I hope it will continue at other stages during the passage of this Bill. Certainly I am grateful to the noble Baroness for having put this case and, as she rightly said, it was a point raised by the noble Earl, Lord Mansfield, during the Second Reading debate. I will come to the particular point which he raised, where I attempted to reassure him—unhappily, I think, without a great deal of success—that he would not be arrested if he paid his hotel bill in a particular way. As I have mentioned the noble Earl, I am sure that I speak on behalf of everybody when I express the hope that the noble Earl will soon be restored to health. I regret that he is unable to be with us today.
Clause 3 creates a new offence to deal with what has become a common form of dishonesty that is unhappily difficult to prosecute under the existing law. Under the clause it will be an offence for a person who has eaten a meal at a restaurant to run out without paying his bill—to take the example given by my noble friend Lord Paget—or for the man who has travelled in a taxi to run away without paying his fare. The only persons who are likely to offend in this way are those who 708 do not expect to be traced subsequently. So if there is to be a prosecution the offender has to be caught before he escapes. Thus it is necessary to have an arrestable offence. There is no other power of arrest which would enable the waiter or the taxi driver to detain the offender until the police arrive, and that is why subsection (4) creates a power of arrest. I do not think it is an exaggeration to say that without that power of arrest this clause would be of remarkably little value. However, the fear expressed by the noble Baroness—which, as I have said, was expressed by the noble Earl at Second Reading—is that the power could be used against innocent people. She is absolutely right and that is a matter which we should take extremely seriously.
I will take first the example of a diner who refuses to pay for a meal which he has taken in a restaurant, because he may claim that he has been the recipient of particularly bad service. I assume so far as this example is concerned that the complaint is an honest one, although it is only fair to say that there have been cases where diners have consumed large meals with apparent pleasure and only complained of the quality after receiving the bill. If the diner has an honest grievance he will not object to leaving his card or giving his name and address, and once he has done that it will be clear that he is not acting dishonestly and the waiter cannot have reasonable cause to suspect him of committing an offence under the clause. Accordingly the arrest would be unlawful if the waiter purported to detain the diner under subsection (4).
The second example is that taken by the noble Earl, Lord Mansfield, during the discussion on the Second Reading of the Bill. It is the example of the traveller—indeed the traveller was the noble Earl himself—with an aeroplane to catch, who cannot wait in the queue to pay his bill in the hotel and leaves a part payment, with instructions to send the bill to his home address. The hall porter, seeing a guest depart apparently without having paid his bill certainly has cause for suspicion, but the proper way for him to proceed is obviously to ask the traveller to show him the receipt, and that is obviously what a hotel porter would normally do. In such a situation the traveller will explain what he has done 709 and it will become clear that there is no question of attempting to avoid payment of the bill. As a result the hall porter will certainly not have reasonable grounds to suspect that there has been an attempt to commit an offence under Clause 3 and so if, in such circumstances, he attempts to detain a traveller he will in fact be guilty of false imprisonment.
Undoubtedly it is a difficult matter and I perfectly understand the anxiety felt by the noble Earl, Lord Mansfield, and by the noble Baroness, Lady Elles. I think we should pause before creating new criminal offences in order to make absolutely sure that they are in fact necessary, but, with great respect, it seems to me that the view of the Criminal Law Revision Committee on this matter is a reasonable one, that there is in fact a defect so far as the existing law is concerned and that it is desirable to have this offence incorporated in the Bill.
§ Baroness ELLES
While I totally accept many of the things said by the noble Lord, I would point out on behalf of the noble Earl that he would not have a receipt to show to the hall porter; and secondly, if he had to have an argument about it he would certainly miss his plane. To have your passage impeded by someone who has, apparently, a legal right to arrest you when you are in fact going about your lawful business and in fact hurrying up to do it seems to me to be outrageous.
§ Lord HARRIS of GREENWICH
Clearly it could be outrageous if hotel porters behaved unreasonably. Obviously there would be a particularly angry dispute, but it is only fair to say that, so far as the present situation is concerned—and I am not speaking about the situation that would arise once this Bill is on the Statute Book—there will undoubtedly be a disagreeable scene, to put it mildly, if somebody makes off from an hotel and the hotel staff do not believe that he has paid his bill. In the current state of the law no doubt if the noble Earl was approached by a member of the hotel staff he would explain the situation, and that would be the situation when we had changed the law. What I have said is that the hotel porter could not effect an arrest and be safe so far as any remedy in the hands of the noble Earl 710 was concerned, if in fact he arrested a person, having had a reasonable explanation given to him.
§ Lord HALE
I do not know whether the noble Lord has seen it, but there was a report in The Times since the Second Reading of this Bill of a case in which an arrest for shoplifting had been effected by pinning a man in the yard and an employee of the shop was standing on his chest, with others holding him down in order to prevent him from running away. He was in fact acquitted on evidence so clear that the prosecutor's story was virtually impossible. The prosecutor said he had seen him putting a number of things in his pocket, the things were there as exhibits, and it was found that they would not go into the pocket. The police officer gave evidence that the man was being held down. He was awarded £6,000 in damages and I expect the case is now going to appeal on the amount of the damages.
What the noble Lord was saying was that if at a lifeboatmen's annual dinner everyone dashed out of the café to answer a rescue call and went out to sea without paying the bill, someone could arrest the lot of them. I know that one can always produce such examples, but this would be a rather good reason for leaving without paying the bill if you had no securities due to the blow-out and if you had to organise the team to go. Emergencies happen nowadays. Quite simple people go out on call to try to rescue people from the snow and may forget to pay 3/6d. here or there. I do not think that one makes the law ridiculous by producing these slightly extravagant examples; one makes the law ridiculous by passing a law that can produce them.
Viscount ST. DAVIDS
I wonder if I could help the noble Lord on the subject of the man leaving an hotel in haste in order to catch a plane. Surely if he is an honest man and is catching a plane it is quite obvious that he will have his name and address on him because he will have his passport or similar document. All he has to do is to scribble his name and address on a piece of paper so that it corresponds with what is on his passport and anybody who stops him walking out after that is surely guilty of illegal arrest.
Viscount ST. DAVIDS
If the bill has been presented to him. One knows the delays in these matters. If they have not had time to present it, it can be a little difficult. I know that sometimes these hotels are a little slow.
Lord PAGET of NORTHAMPTON
Again, surely, this offence does not arise until the bill has been presented. Nobody can be accused of leaving an hotel dishonestly until the bill has been presented.
§ Baroness ELLES
In order to conclude the discussion about running out of the hotel, perhaps I may mention the point made by my noble friend Lord Mansfied, who said that sometimes when he was staying in an hotel by the airport there was a long queue at the reception desk before one could pay one's bill and that he sometimes found himself at the end of this very long queue without the queue moving forward but with his plane ready to take off. Therefore, he put his key into an envelope with his name and address, placed it in the post box and said, "Please send the bill to my address". This is the situation that he would find himself in, but the hotel porter might possibly have the right to arrest him as he came out of the hotel for not having paid his bill, though he was clearly not in a position to do so. As regards the passport, so far as I know, you do not yet need a passport to go to Scotland, so the suggestion that my noble friend would have his passport on him is not as simple as all that. In the circumstances and after all this discussion, I had better withdraw the Amendment, but I leave it to the noble Lord the Minister to sort out the difficulties. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 agreed to.
§ Clause 5 [Supplementary]:
Lord HALE moved Amendment No. 9:
Page 3, leave out lines 23 to 27 and insert ("means any dishonest deception by words or
conduct as to facts or as to law including a deception as to the present intentions of the person using the deception; and section 18 of the Theft Act 1968").
§ The noble Lord said: This is an attempt to limit slightly the definition of "deception" as given in Section 15 of the Act of 1968. I have attempted to reproduce it as nearly as possible in the same words but to insert the word "dishonesty", which I think can never do any harm. I deliberately left out "deliberate or reckless" deception to try to keep the matter away from the civil law. The word "reckless" originally got imported in connection with motoring offences which have always been dealt with on separate lines. Finally, I have omitted the last words which relate to any other person or to the action being done on behalf of somebody else. I do not quite see how the introduction of those words does anything more than add a new element of controversy, a new element of splitting and a new element of variation.
§ The noble Lord, Lord Harris of Greenwich, will very properly say, "Yes, but you are altering the words in this statute and leaving Section 15 of the 1968 Act unaltered. You have imported your own alteration into this statute and left Section 15 as it is". As the noble Lord, Lord Harris, will say, and as has often been said, it is very undesirable to have two different definitions of the same word in a series of statutes dealing with the same matter. It is only due to my modesty that I felt that if I suggested a sensible Amendment to this I could venture to say that it would be just as well to put another Amendment down on Report. I was not quite sure whether it was practicable to bring the main statute into line with what I submit is a definition of "deception" which is clearer, more succinct and less open to criticism. Anyhow, a dreadful word. That is why I beg to move this Amendment.
§ Lord HARRIS of GREENWICH
I am grateful to my noble friend Lord Hale for having explained this Amendment. I fear that I cannot recommend the House to accept it. I think the situation is that those of your Lordships who were concerned with the Theft Act 1968 will remember the care and thought which the Criminal Law Revision Committee at that time gave to their definition of "deception" 713 which is applied by Clause 5(1) of this Bill, of which they gave a very full explanation in their Eighth Report on theft and related offences (paragraph 101).
May I say at once that my noble friend Lord Hale has anticipated my arguments precisely? In our view it is not wise and could only cause confusion to have in this Bill a definition of "deception" which departed in material particulars from the existing definition in the 1968 Theft Act, which is common to both Sections 15 and 16 of that Act. On matters of detail, the words "whether deliberate or reckless" which the noble Lord suggests omitting were discussed by the Criminal Law Revision Committee in their Eighth Report, which I think was published in May 1966, when they explained that, under the law as it was then, doubt had arisen about the relation between "deception" and "recklessness" for the purpose of offences of dishonesty. I do not think it right this evening to go into the arguments in detail. They are set out at some length on page 49 of that report.
As the Committee said, it was right that "deception", for the purposes of the deception offences they had in view, should cover recklessness in the sense of not caring whether the statement is true or false. That is the kind of recklessness which counts as deception for the purposes of the civil law; but not mere carelessness. Another difference is that the Amendment includes the word, "dishonest", and I do not see any reason to include this word in Clause 5(1), since it already appears in Clauses 1 and 2 of the Bill and it does not seem justified to change the existing definition in this way.
There is, I fear, a further difficulty about this Amendment; that is, the omission from the definition of the words, "or any other person". In our view, these words are necessary, since it is right that deception as to another's intention should be brought within the scope of the offences in this Bill. Let me give an example. A man works for a large company and is about to leave their employment and to emigrate. He obtains accommodation in a luxury hotel by persuading the management that the company will pay his bill. I am sure your Lordships would agree that this kind of case should be covered, and we do have some substantial doubts 714 as to whether it would be if these particular words were omitted. To summarise the argument, quite apart from the consideration which I have just put forward, it does not seem to us right to change the existing definition so far as this piece of legislation is concerned and leave unaltered, as would be the case, Sections 15 and 16 of the 1968 Act.
Lord PAGET of NORTHAMPTON
I see my noble friend's last point. Indeed, my noble friend Lord Hale made the point that it is difficult having different definitions in two Statutes. But, if the whole be considered, surely Lord Hale's definition is very much the best one. One has to be very careful indeed in introducing the concept of carelessness into criminal law. A motor car is such a dangerous instrument that carelessness in driving it may be criminal. It may be that in the issuing of a company prospectus you need very special rules and recklessness there can be treated as criminal. But take the example which the noble Lord, Lord Harris, gave of a man whose service with a company was coming to an end who went to a hotel and told them that his company would be paying the bill. He either believes what he is saying or he does not. If he believes the company is paying his bill, he ought not to be convicted, even if his belief is perhaps insufficiently founded. If he does not believe it, he ought to be convicted, and it is for the jury to say whether he believed it or did not. To introduce a concept of recklessness in order to make a man criminal for being a bit careless would, I should have thought, be quite wrong.
§ Lord HALE
In view of the silence, I will reluctantly follow the course that has been taken by all previous speakers. I thank the noble Lord for his constant courtesy during the debate, which was of great assistance to me because I spoke with difficulty. I hope he will make it quite clear that the Report stage is not going to take place without reasonable time for considering the many things that have been said, and reading the Bill through again and seeing if I can understand it. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.715
§ Clause 6 [Short title, commencement and extent.]:
§ 5.44 p.m.
Lord GARDINER moved Amendment No. 10:
Page 4, line 6, leave out from ("on") to end of line 7 and insert ("the expiration of one month beginning with the date on which it shall have received the Royal Assent").
§ The noble and learned Lord said: Although I have been present during the whole of the Committee stage of the Bill, I have not addressed your Lordships before. May I just say how much I should like to associate myself with what has been said about the late Lord Chorley, who was a friend of mine. He was, I think it is right to say, principal Parliamentary assistant to the noble and learned Lord, Lord Jowitt, in the Attlee Government. He was a distinguished academic lawyer, particularly, of course, in the field of commercial law. He was for many years chairman of Quarter Sessions. He did a great deal for the Institute for the Study and Treatment of Delinquency. He was a constant attender in this House, as has been said, even after he was extremely disabled. I am sure that his death is a loss to the House.
I do not propose to repeat on this Amendment what I said at Second Reading of the Bill. The point, briefly, is that it really is for Parliament and not the Executive to decide when a Bill is to take effect. When both Houses have duly considered this Bill they will, presumably, either be of the opinion that the Bill constitutes an improvement in the law or they will not. If they are not of that opinion, presumably they will not pass the Bill. If they do pass the Bill, presumably it will be because they consider that it will be an improvement. I was unable to think of any reason why in that case it should not come into effect within a reasonable time. My Amendment says a month after Royal Assent. It is convenient for lawyers, who have to get copies of Acts of Parliament and consider them and advise their clients, and it is convenient for all the criminal courts of the country, which have to be supplied within a reasonable time. When I raised this matter on the Second Reading of the Bill my noble friend Lord Harris said:
… we want it to come into effect as soon as possible. I will gladly look into this point before
the Committee stage".—[Official Report, 17/1/78, col. 49.]
I anticipate that he may have done so, and I await with eager trepidation what he has to say. I beg to move.
Lord HARRIS or GREENWICH
I am grateful to my noble and learned friend for having returned to this matter by moving this Amendment. I can repeat that the Government, in including a commencement order provision in this Bill in place of the one proposed by the Criminal Law Revision Committee, had no intention whatever of unduly delaying the date on which it would come into force. Our only concern was to secure the most convenient date for all concerned in what I think is commonly recognised to be a fairly complex area of the law. I appreciate that my noble and learned friend has criticised the Government on this measure, and I believe on others, with the best of motives, out of concern to ensure that there is not unavoidable delay in bringing into force useful measures. But I think it is only right to say that commencement orders are a useful part of our system, and I would remind my noble and learned friend of the number of Acts, with which he was concerned during his distinguished period on the Woolsack, which were put through with commencement order provisions.
I have as a result of my diligence—the noble and learned Lord will be glad to hear—obtained a list of measures which were put through. In some respects the noble and learned Lord's record is better than that of the Home Office in relation to some of its Bills, but I regret to say that in one case it is substantially worse. I have looked at a series of Bills, six different measures, ranging from the Administration of Justice Act 1965 to the Matrimonial Causes Act 1965 to the Solicitors Act 1965. The noble and learned Lord will be surprised to know that with regard to one section of that Act—I entirely accept that no doubt there were wholly justifiable reasons—the commencement order provision took 6½ years before it was put through. That is in no way to diminish the argument which the noble and learned Lord, Lord Gardiner, has put to the Committee today. Certainly I wish—I am sure that we have common ground on this matter—to ensure that there is not unreasonable delay on this or on other measures.
717 As I pointed out on the last occasion, there are, I think, excellent reasons for cases—the Solicitors Act was one of them—where different parts of an Act must be brought into force on different dates. However, it is quite impossible to predict all those dates in advance. Nevertheless, what we are discussing today is in terms of this particular measure, and my noble and learned friend gave us advanced notice that he was going to put down this Amendment. I said that I would consider the matter and, indeed, I have done so. I certainly would not wish to argue that we cannot do without a commencement order. Certainly I would be willing to move an Amendment at the Report stage of the Bill bringing the Act into force at the expiration of a period of three months beginning on the date on which it is passed. I think that would be adequate to ensure that all those concerned have enough information about the date upon which it will be brought into force. Therefore, if my noble and learned friend would be good enough to withdraw his Amendment, I would be glad to put down an Amendment at the Report stage to that effect.
§ Lord GARDINER
I am grateful to my noble friend for what he has said. It is always wise for the Government to allow one Amendment of some kind during the Committee stage of a Bill. However, would my noble friend elucidate further—because I do not know what course the noble Lord, Lord Wigoder, would wish me to take—why it should take as long as three months during which the country will be deprived of the superior reasons of drafting contained in the Bill rather than the existing law?
§ Lord HARRIS of GREENWICH
I think that it is necessary to make sure that all practitioners and every one concerned have reasonable notice. With great respect to my noble and learned friend, we have I think met his point on the substance of this matter, which is to put on the face of the Bill a date upon which the Act will come into force. If we simply push these things through and have a date earlier than the one which I am proposing there is some danger that some people will not be adequately informed. There are a very substantial number of people who must be informed 718 of changes in our Statutes. I do not think that a period of three months is unreasonable and, with great respect, I have given my noble and learned friend his case on this point.
§ Lord WIGODER
The reason that I added my name to the Amendment of the noble and learned Lord, Lord Gardiner, was that I, too, was anxious that commencement order provisions should not be used unless they were necessary. I recognise, of course, that with many Statutes it is necessary that rules should be laid or further research should be done on certain measures—the Criminal Law Act is one which comes very much to mind—and commencement orders are necessary. However, now that the noble Lord, Lord Harris of Greenwich, has at least given way on the principle raised by the noble and learned Lord, Lord Gardiner, I should be very happy to go along with whatever course the noble and learned Lord thinks appropriate in the circumstances.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ House resumed: Bill reported with an Amendment.