§ [No. 1.]
§ Clause 1, leave out Clause 1 and insert the following new clause:
§ Obtaining services by deception
§ ("1.—(1) A person who by any deception dishonestly obtains services from another shall be guilty of an offence.
§ (2) It is an obtaining of services where the other is induced to confer a benefit by doing some act, or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for.").
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 1. As your Lordships will be aware, this clause replaces one which was inserted by this House during the Report stage of the Bill last February, when an Amendment was carried against the advice of the Government in an attempt to simplify the Bill. I think that the noble Lord, Lord Wigoder, who 1638 proposed the Amendment on that occasion, made it clear during the debate that he did not regard his own draft as necessarily wholly free from difficulty, and other noble Lords took the same view. In the circumstances, the Government thought it right to refer the matter again to the Criminal Law Revision Committee, now under the chairmanship of Lord Justice Lawton. I am glad to say that they agreed to look at the problem and produced a revised clause which was entirely acceptable to the Government, and also to another place.
I hope the House will agree with me that this clause, which is a great deal simpler than their original version, is satisfactory and will meet the objectives of clarity and simplicity which certainly we all share. It creates an offence of dishonestly obtaining services by deception, but in subsection (2) "an obtaining of services" is defined as being where a person.is induced to confer a benefit by doing some act or causing or permitting some act to be done, on the understanding that the benefit has been or will be paid for".My Lords, I beg to move.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
Viscount COLVILLE of CULROSS
My Lords, I am afraid that I am extremely concerned about this Amendment. I only wish that I had had an opportunity of explaining and giving the noble Lord, Lord Harris, some warning, but the task fell upon me at rather a late moment, and consequently I have not been able to do anything about it. But I envisage a great number of problems arising under this new clause. It is, after all, the third shot at it—in fact, it is the fourth shot at it, if you take account of the original Section 16(2)(a) of the Theft Act. But I wonder whether the noble Lord, Lord Harris, would consider the following points, which I think are in ascending order of difficulty.
First, where subsection (2) says "by doing some act", does that include by omitting to do some act? The original section, as drafted by the Law Commission, specifically dealt with this in subsection (3)(a), and it has not been reproduced by the noble Lord, Lord Wigoder, or in the 1639 Bill today. Secondly, there is the question of what is a "benefit". There are two points here. First, I suppose that it will have to be settled in due course by litigation—and, after all, I think that this clause will be a fairly common source of prosecution—whether benefit necessarily means something that is good or advantageous. I can envisage situations arising where somebody, by deception, obtains a service, but it is not one which he says is beneficial. In other words, he denies that it is of benefit to him, although he admits that he received it or induced another person to give it to him.
The second limb of that question is this. In whose mind is it to be a benefit? Is it to be a benefit to the person who is induced, so that he thinks that he has conferred a benefit, or does the prosecution have to prove that the person who was deceitful, and managed to get the other person to confer that service, thought of that service as a benefit to him, the inducer? I can envisage that there will be hearty litigation about this until the matter is resolved by the Court of Appeal, or possibly this House. Of course, the difficulty arises from the fact that when the Government criticised the noble Lord, Lord Wigoder, for not defining "services", as they did on his clause, they sought to put this right, or the Criminal Law Revision Committee sought to put it right. But in the process of putting it right they have raised that point, which, so far as I know, has not been discussed in Parliament before. That is the second point.
We then leave the pure confines of the new Clause 1 and look at it in conjunction with Clause 3. Clause 3 has been in the Bill all the way through, and I do not think it has had anything very substantial done to it. It is, therefore, one which the Criminal Law Revision Committee invented in the first place, but they have had to do a quick draft—I hope that that is not taken in any way to be in the least derogatory to them—of the new Clause 1, and I wonder whether they have looked at the interrelationship between that and Clause 3. There are two points here. First, in Clause 1 we have defined "obtaining a service", and that is the matter that we have just been looking at. In Clause 3, however, there is a similar expression; there is a "service done".
1640 The criticism of the noble Lord, Lord Wigoder, when he introduced the concept of "service", which was the underpinning of his substitute Clause 1, was that "service" was not defined. It is defined in Clause 1 as we have had it from another place, but it is not defined in Clause 3. Is not the defence going to say that a difference must be intended when Parliament defines "service" in Clause 1 in a fairly careful way but leaves the word wholly without definition in Clause 3? I understand how it has happened, but it seems to me to point to a distinction, which is certainly not intended, between what is comprised by "service" in the two clauses. May I ask the noble Lord whether he has any answer to that, because it worries me?
My fourth point is one which I find to he wholly insoluble. In the case of a service which is done under Clause 3, there is the defence in subsection (3) that the offence cannot be committed at all wherethe doing of the service is contrary to law, or where the service done … is not legally enforceable".No such defence occurs in the case of subsection (1). Let us take two fairly similar sets of circumstances. Thank goodness that the noble Lord, Lord Wigg, is not here to expose my ignorance! I do not know whether one can obtain credit in a betting shop because I have never been in one. Let us suppose, however, that one can obtain credit there, that one goes into a betting shop and gives a dud cheque in order to gain credit to gamble and that it bounces. One has been dishonest from the beginning and has obtained the services of the betting agency. Since there is no reference to unenforceability in law, clearly an offence has been committed under Clause 1. If, on the other hand, one goes into a betting shop with the intention of paying but one makes off after one has lost all five races without producing any money, prosecution would have to take place under Clause 3. However, since the debts are not legally enforceable as gambling debts, there is a complete defence. What is the logicality of that? It seems to me to he mad. I do not know that I understand why there is the defence of illegality in Clause 3(3); but if there is, one has to ask why it should be differentiated from Clause 1 as it now stands.
1641 Those are my doubts. I do not know whether they are shared by anybody else and I hope that I have not got them hopelessly wrong. Since I have the right to one speech only at this stage of the Bill, I have to consider what to do about it. I have not had time to draft any Amendments. It may well be that I am wholly wrong and that Amendments are unnecessary, anyway. If, however, the noble Lord, Lord Harris of Greenwich, thinks that there is anything whatever in the problems I have raised, may I suggest that the way to deal with the matter would be to adjourn consideration of the Commons Amendments to another day so that it may be looked at; then we could perhaps suggest to another place that yet again their new clause requires additions or alterations.
I know that this is an unattractive procedure to suggest to the noble Lord at this stage of the Bill, and, indeed, at this stage of the Session, particularly when the Criminal Law Revision Committee have been so careful about producing it again. However, when we set about trying to clarify and simplify the law in this Bill and it gives rise to points which strike my mind—although perhaps that is due to my lack of skill—as being unquestionably dubieties in drafting, I think that we should have one more look at it to see whether we can get it right. I am not trying to be in any way destructive, but I believe that here we have the seeds of yet further litigation in the courts and all the tiresome difficulties which we are trying to overcome by this drafting. Therefore, I make these comments in an attempt to he helpful, and I hope that that is how they will be seen to be.
§ Lord WIGODER
My Lords, as your Lordships have heard, this new Clause 1 has had a somewhat chequered history. There was an old Clause 1 in the Bill as first drafted, which has now gone for ever. A new Clause 1 was substituted in your Lordships' House, I think during the Report stage. It is that new Clause 1, in a slightly amended form, which is before your Lordships today.
So far as I can see, the Amendments are not substantial; they are matters of detail. I ought, perhaps, to say that I am grateful both to the Government and to the Criminal Law Revision Committee for 1642 considering the matter expeditiously and for returning with this new draft, which certainly accepts the principle which was established in your Lordships' House when the Division at Report stage took place. For my part, I find the difficulties not quite so substantial as those foreseen by the noble Viscount who has just spoken.
As I understand the argument of the noble Viscount, Lord Colville of Culross, he is querying various matters. First, he is querying whether doing some act under the new Clause 1(2) includes omitting to do some act. I find it difficult to envisage a situation in which a person dishonestly induces somebody else to confer a benefit by omitting to do something. It might be possible to devise a very fanciful set of circumstances to cover that situation. Listening at only a moment or two's notice, I cannot, offhand, think of any situation which would arise there.
Then it is pointed out that there is no definition of the word "benefit" in the new Clause 1. Surely it is not necessary to define every word that appears in every section of an Act of Parliament. Just as one might have left the word "services" to the jury in the first place, I should have thought that now one could perfectly well leave the jury to decide whether a benefit has been conferred.
The noble Viscount queried whether it should be a benefit looked at from the point of view of the giver of the benefit or the receiver of the benefit. Although I have no anticipation of what the noble Lord, Lord Harris of Greenwich, will say, again I should have thought that that would be according to the ordinary use of English—the benefit as conferred on the receiver of the benefit. The issue would be whether a benefit had thus been obtained.
It was then pointed out that the word "services" is defined in Clause 1 but is not defined in Clause 3. That is so, and this was pointed out in your Lordships' House at an earlier stage. However, I cannot foresee the difficulty arising which the noble Viscount anticipated. I should have thought that it would follow from the construction of this Bill as a whole that "services" in Clause 3 would be construed in the same way as it is defined in Clause 1.
1643 The noble Lord's final point was that under Clause I it is immaterial whether payment is legally enforceable, whereas under Clause 3 no offence is committed unless the payment is legally enforceable. That is perhaps not so illogical as it sounds. In Clause 3—making off without payment—if payment is not legally enforceable in those circumstances, it would follow that there would be no civil liability for what took place. It would be a little curious to create a criminal offence in those circumstances, where there was no corresponding civil liability.
In Clause 1, the question as to whether or not payment would be enforceable is not the crux of the issue. The issue relates to the dishonest obtaining of services, and I see no inconsistency between the two clauses in those circumstances. The new Clause 1 differs in two respects from the new Clause 1 as passed by your Lordships' House. First, there is now a definition of the word "services", and I have no further comments to make about that. Secondly, the new Clause 1 omits the words in the original Clause 1:… with a view to gain for himself or another, or with intent to cause loss to another".I know that the noble Lord, Lord Harris of Greenwich, has seen an article which appeared last week in the New Law Journal. A distinguished contributor queried whether the absence of those words might lead to some rather unexpected consequences. I do not think that this is so, but in view of the distinguished periodical in which the article appeared it might be that the noble Lord, Lord Harris of Greenwich, would like to take the opportunity to put briefly on the record why it is possible to omit those words without the disastrous consequences arising which the author of the article fears. With those observations I hope that your Lordships' House will accept the Commons Amendment as being at least as good as the Amendment which your Lordships passed at Report stage and as covering the situation in this very difficult field of law, so far as one can see, entirely adequately.
§ Lord AIREDALE
My Lords, I just throw out the suggestion that something is of benefit within the meaning of subsection (2) not if A or if B thinks it is of 1644 benefit but if the court thinks it is of benefit.
§ 5.21 p.m.
§ Lord HALE
My Lords, the history of these very unfortunate clauses has been detailed at length and we now know that the Criminal Law Revision Committee, in consultation with the judges and the Law Commission on an almost short time re-reference of the matter from another place, reconsidered the clauses and submitted these two clauses. It seemed to me that we had reached the circumstance in which the noble Viscount said that there was no other step to be taken but to accept their Lordships' advice and show as little reluctance about it as was consistent with the courtesy due to the judges. They have given an immense amount of devotion to a task which seems to have been created rather unnecessarily in a field in which, as I have said before, there has not been much controversy for years. The controversy which arose about the Act of 1916, which has lasted for 50 years virtually unamended, has led to more confusion than before.
The noble Lord, Lord Harris of Greenwich, is fully capable of plumbing my own shallow and diminishing mind with perhaps clearer comprehension than I have, and he at once detected in the previous debate the division that was arising between the noble Lord, Lord Wigoder, and myself, in the sense that he saw that I wanted—and wanted quite passionately—to say that the boundary between the civil law and the criminal law should, if possible, remain inviolate.
This is not the time for reminiscences, but perhaps I may be permitted one which is historically relevant. It is exactly 150 years since the Member for Winchelsea came into another place bearing a hat full of Bellamy's oranges, which indicated a disposition to do justice to the subject on which he spoke, which was law reform. He made a speech which has been extolled as one of the most remarkable and one of the most productive ever made by man in this particular field, and indeed by J. B. Apley, as I understand it, as one of the greatest speeches ever made. We are told that he covered 29 subjects which could have occupied the time of the House for a Session. He spoke about 148 printed pages in the record, and sat down with 1645 an audience undiminished after six hours and three minutes, after a peroration that was certainly part of what I came passionately to believe. He said that Augustus claimed that he found Rome of brick and made it of marble. How much greater the sovereign who can say, "I found the law unclear and left it clear. I found it the patrimony of the rich and left it the inheritance and the protection of the poor"!
Legal commentators have pointed out that most of that speech was put into force in the course of the next 20 or 30 years. In 1947 I had the privilege of voting for the Bill which put into force his last recommendation and some reforms of judicial doctrine. That of course was the Bill which established that the postman could not bleed—the Sovereign's protective right against an action for carelessly riding a cycle and causing damage. And of course we repealed the judicially made doctrine of common employment, which we are now told very few of the judges liked, and according to the Vice-Chancellor two or three nourished and nurtured and perfected. Is it now an open book?
A question was raised—and I desire to make this one point although perhaps testing the patience of the House a little, I have no intention of going on for six hours and three minutes although I should very much like to. The question was raised, during a very brief Third Reading debate in another place—where not much time was given to the matter from start to finish—for whom are we drafting the law? Are the judges drafting it for the judges to be able to say "We can interpret this with clarity"? Are they drafting it so that it can be understood (after explanation) by a jury? Rule might have asked and Rule indeed said—or is it to be understood fairly clearly, at least in matters of this kind, by the lady who buys the milk and runs up a debt for the milk and has not the protection of tax havens, resource from the law, the limited companies and so on?
In this House I have seen and regarded with intense admiration the devoted labours of Her Majesty's gifted judges. I had the privilege of being a very undistinguished member of the Law Sub-Committee on the EEC which raised a debate on a Paper as to which I agreed whole 1646 heartedly with every word and was fully committed. It concerned what might happen to our law in the European Economic Community. We are living in a time of doubt, we are living in a time of difficulty; we are living in a time of increasing grave crime when it seems rather silly to multiply minor wrongs.
I therefore finish by saying two things. I have seen this brilliant work of Her Majesty's judges and I have seen their sincerity. I have seen them reconsidering again and again and refining and, in their view, completely improving. It is a spectacle which has been remarkable but it is true. It is strange. It is one of those mysteries that law, apparently, does not permit any two experts to agree. We are told that the greatest court in the world frequently decides by five to four; that our court of last resort so frequently overrules the unanimous decisions of the lower appellate court, both in criminal and in civil matters.
I hope I will hear, by the courtesy of the noble Lord, Lord Harris who is always very courteous, that the Government are setting up or have set up another Commission to consider the general working of the criminal law and that some consideration may be given to the remaining doubts and difficulties of all those who really wonder whether there is a spirit of obscurantism abroad and whether clarity could not be found on the older method and not by the effort to deal with each point in detail. I hope the Commons Amendments will be passed.
§ Lord HARRIS of GREENWICH
My Lords, I am grateful to all those who have participated in our relatively short debate this afternoon; to the noble Viscount, Lord Colville of Culross, whom we welcome to our discussions on the Theft Bill—the veterans on the Bill are glad to be joined on an occasion like this by someone taking part in our deliberations for the first time; to the noble Lord, Lord Wigoder, who has given up an enormous amount of time, for which we are all grateful even when we have disagreed with him. The amount of effort he has put into this important Bill has been of very considerable benefit to the House. I am also grateful to the noble Lord, Lord Airedale, and, of course my noble friend Lord Hale, who has participated in many of our debates.
1647 I will, if I may, begin by dealing wjth a particular point raised by the noble Lord, Lord Wigoder, and then deal with some of the more detailed questions put to me by the noble Viscount. The noble Lord, Lord Wigoder, did draw my attention to this particular article which appeared in the New Law Journal. As he said, I have written to him about it, but I will gladly put our view on this matter on the record. As I explained to him in our correspondence, this revised form of Clause 1 is closely parallel with Section 15 of the Theft Act 1968, and the Criminal Law Revision Committee could see no justification for distinguishing between the two provisions once it is accepted that "services" is to be equated with "property". The Criminal Law Revision Committee did, however, consider whether the formula—and I quote—with a view to gain for himself or another or with intent to cause loss to another",should be included, but found that it produced inconsistent results when applied to services. Depending on the nature of the transaction, if the services do not involve the handing of any property to the rogue, such as with a haircut, the only loss or gain which is relevant is in fact the price. Where, however, the service has a property element, such as the hire of a car, the provision of the service itself involves gain to the rogue and loss to the victim.
Even if the Criminal Law Revision Committee had seen objections to leaving Clause 1 as wide in this regard as Section 15 of the Theft Act, it is difficult to see how a limitation to such frauds could be imposed without going back to something rather like the original formulation that we had when we began our labours on this particular measure so many months ago. We do not, therefore, accept that the new form of this clause could with advantage be amended in the way which was suggested in this particular article.
The noble Viscount, Lord Colville, raised a number of questions, and I shall do my best to satisfy him. He raised a question as to whether doing some act includes omitting to do some act. Our view is no, but this particular case is covered by "permitting some act to be 1648 done". Then he went on to ask, "What is a benefit?" There is no need, in our view, to decide this, because the benefit is the doing of the act or permitting some act to be done. Then the question is raised, "Benefit to whom?" Certainly, the clause does not specify, but, in our view, the point does not arise since "benefit" is equivalent to the doing of the act or permitting of the act to be done.
The noble Viscount went on to refer to Clause 3. The Criminal Law Revision Committee did in fact consider the use of "services" in Clause 3. But in Clause 3 we are concerned only with services for which payment on the spot is to be expected. Then there was the question of unlawful services. I join with the noble Viscount in expressing some slight relief on my part that my noble friend Lord Wigg with his formidable knowledge of the betting industry, to which I could not possibly at short notice hope to provide an adequate reply, is not here. But I am advised that betting frauds are covered expressly by Section 16(2)(c). Clause 1 does in fact cover unlawful or unenforceable contracts, but so, of course, did the original Clause 1 which we had before us some little time ago.
The noble Viscount said that he was a little uncertain whether, in the light of the doubts he had expressed, it would be right to proceed this afternoon. I think in fact it would, because we have devoted an enormous amount of time to this Bill, and rightly so because it has raised such formidable problems in the courts. It has received most detailed attention in this House, thanks to the labours of the noble Lord, Lord Wigoder, and, indeed, many others. It has been considered again by the Criminal Law Revision Committee. It has been considered by another place. I do not believe that further adjournment of our proceedings such as the noble Viscount, Lord Colville, suggested would carry us any further. The noble Lord, Lord Wigoder, said that he was uncertain whether an adjournment would be desirable. I do not think it would be. I believe we have done a good job on this particular piece of difficult legislation, and I very much hope that the House will accept the new clause from the Commons.
§ On Question, Motion agreed to.1649
§ 5.38 p.m.