§ [No. 2.]
§ Leave out Clause 2 and insert the following new clause:
§ Evasion of liability by deception
§ ("2.—(1) Subject to subsection (2) below, where a person by any deception—
- (a) dishonestly secures the remission of the whole or part of any existing liability to make a payment, whether his own liability or another's; or
- (b) with intent to make permanent default in whole or in part on any existing liability to make a payment, or with intent to let another do so, dishonestly induces the creditor or any person claiming payment on behalf of the creditor to wait for payment (whether or not the due date for payment is deferred) or to forgo payment; or
- (c) dishonestly obtains any exemption from or abatement of liability to make a payment;
§ (2) For purposes of this section "liability" means legally enforceable liability; and subsection (1) shall not apply in relation to a liability that has not been accepted or established to pay compensation for a wrongful act or omission.
§ (3) For purposes of subsection (1)(b) a person induced to take in payment a cheque or other security for money by way of conditional satisfaction of a pre-existing liability is to be treated not as being paid but as being induced to wait for payment.
§ (4) For purposes of subsection (1)(c) "obtains" includes obtaining for another or enabling another to obtain.").
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 2. Your Lordships will recall that during the passage of this Bill through the House the noble Lord, Lord Wigoder, moved, again in the interests of simplicity, an Amendment to replace with a new version the Criminal Law Revision Committee's original clause, which was of course in the Bill as introduced. This was successfully carried against the advice of the Government.
Certainly, we recognise and share the noble Lord's view that the utmost importance should be attached to clarity and simplicity in drafting new provisions to replace Section 16(2)(a) of the Theft Act. But in the case of this clause we did not consider that the revised version did satisfactorily achieve its object. I do not want to weary your Lordships by going 1650 in detail into all the reasons why this clause which was carried against our advice on the last occasion is unsatisfactory. But I should perhaps reiterate what I said at Committee stage and also at Report stage: that the wording of the clause is far too close to the original Section 16(2)(a) of the Theft Act to be a suitable substitute for part only of that provision. Moreover, it widens the Bill by catching the stalling debtor who intends one day to pay. Accordingly, in Committee in another place it was decided that the right course was to reinstate the original clause in the Bill, and this was accepted by another place.
§ Moved, That this House doth agree with the Commons in the said Amendment.—(Lord Harris of Greenwich.)
Viscount COLVILLE of CULROSS
My Lords, there is not perhaps very much more to say on this clause. The noble Lord's colleague in another place did explain what were the defects in Lord Wigoder's drafting. I am bound to say that I can see that the Bill as it left this House did impinge upon areas which really ought to be left to the civil law—that is the stalling debtor point—in very much the same way as does that part of the existing Theft Act that we are trying to replace. There were other defects as well.
The only comfort that I have about Clause 2 is that I do not think that quite so many stages will be required in the directions to the jury. The three separate paragraphs are independent of each other and each of them contains its own offence. Therefore, we are not involved in the tremendous complexity which attended the original Clause 1.
I do not know what the noble Lord, Lord Wigoder, will wish to say about this, but, having seen the criticisms that were made of our efforts when the Bill left this House, I think that it would probably be right now to revert, as we are doing, to the original text of the Criminal Law Revision Committee with, of course, the notable exception of the letter "e" from the word "forego".
§ Lord WIGODER
My Lords, the new Clause 2 is, in fact, the old Clause 2 which was contained in the Bill when it first came to your Lordships' House. 1651 It does, in fact, modify the existing law to a small extent. The Clause 2 that your Lordships' inserted on Report restated the existing law—I was under the impression, rather more simply than it is stated at present—which, so far as I know, has operated quite satisfactorily since the case of Turner. However, there is perhaps very little point in going over that situation again. The only alternative before us is either to accept the Commons Amendment or to reject it outright. To reject it outright would, I suppose, lead in due course to the invocation of the Parliament Act and I doubt whether that was ever contemplated for a measure of rather technical law reform.
So, in those circumstances I can only say that I have no enthusiasm whatever for the new Clause 2. I fear that it will give rise to some tortuous litigation, for the reasons which I indicated several times in the course of the passage of the Bill through your Lordships' House, but I comfort myself by thinking that my noble friends at the Bar will regard that as a gain! In those circumstances I find it difficult positively to oppose the new Clause 2, but equally I do not, I am afraid, find it possible to welcome it.
§ On Question, Motion agreed to.