§ 3.35 p.m.
§ Lord HARRIS of GREENWICHMy Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Harris of Greenwich).
§ Lord HALEMy Lords, as there are no Amendments down for the Third Reading. I am advised that the few observations I desire to make could more appropriately be made on the Question that the Bill be read a third time than on the Question that the Bill do now pass. I propose to follow that advice. I wish to clear up one or two matters, or to add to the information about them, which arose partly in Committee and partly on 616 Report. Perhaps I can put the case to which I refer as an example. It is rather complicated, but I will endeavour to do it as briefly as I can.
A well-known London solicitor some months ago had been acting for a client who had acquired an old property which she wished to convert into residential holiday accommodation. She employed a local builder for the purpose, and at his insistence she provided him with a very substantial sum for the purchase of materials. There were very considerable delays, some, I admit, on both sides. The builder, having purchased a large stock of materials, removed them from the site, and indeed later used them, or most of them, on somebody else's property. The lady consulted the solicitor. Of course he was confronted with a situation of some complexity, some evidence of crime, obvious evidence of tort, and a possibility of a counter-claim for breach of contract, because the lady had rescinded the contract and so on—the sort of case that is a nightmare, and with only £500 involved does not look likely to benefit anyone very much either by a possibly abortive prosecution.
The noble and learned Lord, Lord Hailsham, in the course of some very pungent remarks about the law at Committee stage, said this:
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".—[Official Report, 31/1/78; col. 689.]As it happened, the property was in France and the place of jurisdiction must be in France, and the solicitor had to take his case to the French courts instead of to the British courts.I propose briefly to say what happened. He wrote to the Procureur de la Republique in Perigueux and sent to him a sworn affidavit of evidence, the bills and papers and so on. After an interchange of correspondence, the procureur said he had decided to refer the matter to the juge d' instruction. The House will recollect that the similarity between the juge d'instruction and the procurator fiscal North of the Tweed has been a matter of 617 comment, and usually of favourable comment, for some considerable time. The juge wrote and said it was a matter of some complexity. The solicitor said that he happened to be going near Perigueux, and could he make an appointment to see him. He got a firm appointment to see the juge d'instruction. He arrived dead on time. He found that the defendant, or accused, was sitting there, also summoned. They were rushed into an office where the procurator fiscal, assisted by a shorthand typist, typed out the evidence as it was being taken. The defendant said he would pay back the money. In the course of the proceedings the juge said this—because of course it is not his job to prosecute; he refers it, in any event, to the Chambre des mises en accusation who really consider the question of prosecutions—he thought there was fair evidence of a theft, but he doubted whether it would result in a conviction or any useful purpose, and suggested that they should come to terms.
They came to terms. The good lady typed out a contract, the seal of the court was affixed, the gentleman was warned that if he did not keep up his promised instalments of £50 a month the juge d'instruction still had power to cause a further supplement of information and to decide again on the question of prosecution. Then the instalments were paid regularly, and this very distinguished solicitor's comment is, "The result was perfect". I venture to suggest in the circumstances that that was the result that the noble and learned Lord, Lord Hailsham, might well have anticipated. My noble friend Lord Harris of Greenwich said that we may have to examine other methods and so on; and, of course, the matter is still being considered by a very distinguished committee.
I am most grateful to my noble friend Lord Harris of Greenwich for the very great courtesy he has shown throughout these slightly contested proceedings and for the very great ability that he has shown in defending every word of this measure. I think that all of the proceedings are greatly to his credit.
§ Lord HARRIS of GREENWICHMy Lords, I am very grateful to my noble friend Lord Hale for what he has said, and I shall gladly look at the point that 618 he has raised, which inevitably goes rather outside the confines of this somewhat narrow Bill. However, my noble friend has raised an interesting question about the system in France. I should like to reflect upon it and shall gladly write to him about it.
§ 3.42 p.m.
§ Baroness ELLESMy Lords, I should like to add one or two words to the discussions and debates that we have had on this Bill because obviously, as it now stands, the substance of the Bill has been materially changed from the original Government Bill.
We on these Benches appreciate only too well the difficulties which have arisen, and have continued to arise, as regards Section 16(2)(a) of the Theft Act 1968. We believe that there was a very valuable attempt by the Criminal Law Revision Committee to look at this clause in the Theft Act and to make new proposals. Certainly I and my noble friends on these Benches have joined the noble Lord, Lord Wigoder, in his Amendments because we thought that that was a more practical approach.
If one looks at the report of the debate that was held on this clause during the discussions on the Theft Bill in 1968, in the Official Report of 12th March 1968, at column 165, one will find, as one so often does in legal matters, the words of the noble and learned Lord, Lord Wilberforce, who there drew attention to the fact that there had not been nearly sufficient attention paid to the fact that it was the obtaining of services that was a crucial part of the Bill. As he said at that time, services can be very expensive; and they can, of course, if there is no payment for them—through fraud or deception—cause immense hardship and loss to the person providing the services who has been a victim of fraud. If the noble and learned Lord said that in 1968 it is surely even more true in 1978.
Therefore, I think that the new approach in the Bill as it now stands is very much more realistic and in line with the thinking put forward at that time. Certainly my own belief—and I said this during the Committee stage—is that we shall not get a satisfactory drafting of this Bill until the Law Commission has finished its discussions, deliberations and review of 619 fraud and conspiracy to defraud, especially when, in our consumer society, we see the spreading of the use of credit cards and cheques, with more and more opportunities for defrauding and more and more sophistication in methods of payment and in the different kinds of services that are now being provided to the general public.
Therefore, although I accept that the Criminal Law Revision Committee has produced a very valuable work in its report, I personally prefer the form of the Bill as it now stands and I hope that it will go forward.
§ 3.40 p.m.
§ Lord HARRIS of GREENWICHMy Lords, with the leave of the House, I should like to speak again. I should not wish in any way to spoil what will undoubtedly be a most harmonious occasion by returning to any of the disputes that have arisen on this Bill. However, I should like to say a few words to the noble Baroness, Lady Elles, and I say them in no partisan sense because, as I said yesterday, I do not think it appropriate to deal with these matters in that way.
However, one point which has, I am bound to say, mystified us, is the fact that when what is now the Criminal Law Act was in another place we received representations from the right honourable and learned gentleman who leads the Opposition on these matters in another place, who tabled what was, in fact, the Bill as drafted. He asked for that Bill as drafted to be added to the Criminal Law Act. I am bound to say that the noble Baroness, Lady Elles, led her colleagues into the Lobby against what Sir Michael Havers asked us to do, and therefore she will understand our slight mystification as regards these proceedings.
On Question, Bill read 3a, and passed, and sent to the Commons.