HL Deb 13 April 1981 vol 419 cc763-72

3.2 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Belstead)

My Lords, I beg to move that the Bill be now read a second time. I believe that the Bill will be of particular interest to your Lordships' House since it is concerned with the reform and codification of an important part of our common law, and with the repeal of an offence which has been much criticised for its defects and for its effect on community relations.

The Bill is also of particular interest for another reason. It is the first to have been the subject of the new Special Standing Committee procedure in another place. As noble Lords who have followed closely the progress of this Bill will be aware, the evidence given in the committee's open sessions led the Government to propose a number of significant changes to the Bill.

But, as so often in these matters, I should like to acknowledge our debt to the Law Commission. Part I of the Bill, as the House will be aware, derives from the Law Commission's report, Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. The report is characterised, if I may say so, by its scholarship and attention to detail, and I am sure that noble Lords will wish me to say that we are most grateful to the commissioners.

Turning to Part II of the Bill, I acknowledge also the part played in the repeal of the suspected person offence (known as "sus") by the Select Committee on Home Affairs in another place. The Select Committee produced a valuable report, which recommended in no uncertain terms that the offence should be repealed. Subject to the safeguards proposed in this Bill, the Government agree that repeal is now the right course, and Clause 8 of the Bill provides for this.

The Select Committee stated that the suspected person offence was objectionable in principle. They drew attention, in particular, to the danger that quite innocent actions might be interpreted as suspicious acts, and that criminal intent could then be inferred from those acts. The Government believe that there is considerable force in these criticisms. The Government have also had regard to the fact that the offence has given rise to suspicion and hostility among the ethnic minority communities, and not simply among the young. This is obviously an important factor which adds considerable weight to the case for repeal.

On the other hand, noble Lords will be aware that the police representative bodies have argued that the offence should be retained because it enables the police to intervene before crimes are actually committed. My right honourable friend the Home Secretary has paid careful attention to the views of the police. But he has concluded that these arguments are not sufficiently persuasive. "Sus" has been useful. Not even those who have argued most fervently for its repeal can deny that it has enabled the police to nip many crimes in the bud. But one must see the usefulness of the offence in its wider perspective, and also consider whether, in the absence of sus, the police could not generally intervene in other ways which are less open to objection.

There will be instances in which, in the absence of sus, proceedings will not be able to be brought. This is implicit in the repeal of the offence and must be squarely faced. But this does not mean that the police will simply have to stand and watch as crimes are committed. In some instances it may be necessary for the police to continue discreet observation for a little longer; on other occasions it may be appropriate to make clear to the individual that he is being observed. Where the police have reasonable cause to suspect that an offence is about to be committed, they may arrest the individual concerned under Section 2 of the Criminal Law Act 1967. There are also other courses of action which may possibly be followed according to the circumstances.

However, the Government believe that the simple repeal of the suspected person offence would leave the public insufficiently protected in two important respects. The first—and the most important, in our view—is that sus is frequently used in cases of individuals seen tampering with parked cars. As many noble Lords know, perhaps to their cost, offences involving the theft of motor vehicles or their contents are all too common. A difficulty, to which the Select Committee in another place drew attention, is that at the point when the individual is seen tampering with the car door or window it is often unclear precisely what he is intending to do. Is he intending to steal the car? Is he intending to steal something out of the car? Is he intending simply to take the car away and drive it?

If the individual is to be charged with attempting to commit an offence, one must be clear what that offence is. Understandably, therefore, prosecutors have in some cases fallen back on sus in these circumstances. The Select Committee hoped that the difficulties which sometimes arise in charging an attempt in this situation would be remedied by the Law Commission's report. As noble Lords may be aware, the Law Commission did not make any recommendations which could materially ease the difficulties which had been encountered in this respect. In the Government's view, there would be an unacceptable gap in the criminal law if sus were repealed without any action to tackle this specific problem. The Government therefore propose the creation of a specific offence—the elements of which are set out in Clause 9 of the Bill—which would penalise interference with motor vehicles.

The offence took a somewhat different form on introduction in another place. The action constituting the offence has remained unaltered, but, as originally drafted, the prosecution was required to prove only that the defendant has acted with intent to gain entry to the vehicle. The absence of a requirement to prove criminal intent was widely criticised, however, and the Government responded by introducing what is now subsection (2) of Clause 9. This requires the prosecution to prove that the act of interference was carried out with intent to commit one of the following offences: theft of the vehicle, theft of its contents or load or taking and driving away. But your Lordships will note that it is unnecessary for the prosecution to prove which of the offences the defendant, or an accomplice, intended to commit, provided that it can satisfy the court that it was one or other of those three offences. This is, I am advised, probably a unique provision; but I would argue that it seems wholly suited to the circumstances. For, if the prosecution had to prove which of those three offences was in prospect, one would of course be back at square one, faced with the same difficulties that have been experienced in trying to bring any charges of an attempt. I hope that noble Lords will agree that, if this provision is indeed unique, it is none the less fully justified.

The second potential gap identified by the Select Committee in another place which I mentioned and which brings me to the direct link between the repeal of sus and the provisions on attempt, concerns the circumstances in which a pickpocket tries to steal from a pocket or handbag which turns out to be empty. Here, again, the Select Committee expressed the hope that the difficulties which had been encountered in charging the offence of attempt in such cases would be remedied by the Law Commission's report. They were not to be disappointed. Indeed, the proposal to make "impossible attempts" of this kind subject to the criminal law is probably the most important feature of the Law Commission's proposals to reform and codify the law of attempt, which forms Part I of the Bill.

Having thus arrived in a roundabout—but I hope not wholly confusing—fashion at the beginning of the Bill, I think it may be helpful to examine in greater detail what Part I of the Bill is designed to achieve. Clause 1 sets out the elements of the new statutory offence which will replace the common law of attempt which is abolished by the Bill. The mental element, in the words of the Law Commission's draft Bill, is expressed as an intent to commit an offence to which this section applies". The Law Commission considered that this would be interpreted in the light of the decision of the Court of Appeal in R. v. Mohan and that it would not, accordingly, alter the present position regarding a person's intention to bring about the consequences of his acts. The conduct which constitutes an attempt is defined as an act which is more than merely preparatory to the commission of the offence". This is not intended to make any change of substance in the position under the present common law. Noble Lords may have noticed, however, that this differs slightly from the wording of the Law Commission's draft Bill, which spoke of an act which goes so far towards the commission of an offence as to be more than a merely preparatory act". I hasten to assure your Lordships that this change in drafting involves no point of substance and has the approval of the Law Commission. I have already touched on the question of impossible attempts—the subject of subsections (2) and (3) of Clause 1—in referring to the case of the would-be thief and the empty pocket. I hope your Lordships will not think that, as a non-lawyer, as my right honourable friend the Home Secretary put it in another place, I am attempting the impossible by adding just a few more words on this subject.

I must refer to the decision of this House, sitting in its judicial capacity, in the case of Haughton v. Smith. This concerned the handling of goods which the offender believed to be stolen but which, technically, had ceased to be so, because they had earlier been taken into police custody. The offender was charged with attempting to handle stolen goods. Hitherto it had not been clear whether an individual was guilty of an attempt in such circumstances, but noble and learned Lords on that occasion decided unanimously that he was not liable.

Their Lordships went on to consider whether liability should attach in other cases of impossible attempts, in particular what are commonly called "factually impossible" attempts. Here the impossibility generally lies in the fact that the object of the offence does not exist or is not present. An example to which I have already referred is that of the empty pocket. Before Haughton v. Smith it had been accepted for some 80 years that a charge of attempt did lie in these circumstances: it was no defence to a charge of attempted theft that the pocket or safe was empty. But in dicta, which were followed by the Divisional Court in subsequent cases, noble and learned Lords took the contrary view.

The Law Commission were in no doubt that "factually impossible" attempts, such as the attempt to steal from an empty pocket, should be within the scope of a statutory law of attempt. The Government wholeheartedly agree. There is, however, much greater room for disagreement about cases like Houghton v. Smith. In cases such as these the offender even if he carries his actions through, will not commit the full offence because some essential legal ingredient of that offence is lacking. Thus, in that instance the offence was handling stolen goods, but the goods were not, at the material time, stolen. The Law Commission considered that liability should attach in such cases. They argued that this result was right on merits, but they also considered—with justification, as it transpired—that it would be extremely difficult to draft provisions which would distinguish this species of impossible attempts from others. The Law Commission considered that it would be appropriate instead to rely on discretion in bringing prosecutions to ensure that proceedings did not take place in the more extreme cases.

To cut the story short, the Government tried in the Bill as introduced originally to draft the distinction which I have been attempting to describe and found that it could not be done. Or, to be more accurate, we concluded that there was no hope of drafting the distinction in a way which would be reasonably concise and which would be free of ambiguity. In another place the provisions as originally drafted were strongly criticised by eminent witnesses who gave evidence to the Special Standing Committee. In the light of these criticisms, the Government tabled amendments which had the effect of reverting to the Law Commission's recommendation of introducing liability for all impossible attempts. I cannot conceal from your Lordships that we have departed from our policy with some regrets. But we have accepted throughout that, whatever the arguments of principle, there was little difference in practice between the Law Commission's recommended policy and that which the Government initially sought to follow.

Before leaving the subject of impossible attempts, it remains only for me to say briefly how subsections (2) and (3) of Clause 1 implement the Law Commission's recommendation. Subsection (2) provides that a person may be guilty of an attempt even if the facts are such that he could not have committed the full offence. This subsection should be sufficient in most cases to bring impossible attempts within the scope of the Bill. But it may possibly be argued in a case such as Houghton v. Smith that a person lacks the intent specified in subsection (1) because his intention is to handle particular goods, which do not happen to be stolen. Subsection (3) precludes this argument by providing that, in such a case, the defendant's intent shall be determined by reference to the facts as he believed them to be.

Turning to subsection (4) of Clause 1, I should draw attention to one respect in which the Bill now differs from the Law Commission's recommendations. This concerns attempts to commit summary offences. It is generally thought that it is not an offence under the present common law to attempt to commit such an offence. The Law Commission recommended on balance that it should be, and the Bill as introduced gave effect to their recommendation. This provision met with criticism in Standing Committee in another place on the grounds that it extended the scope of the criminal law without any practical justification. The Government decided on reflection that since there seemed to be no evidence that the position under the common law was unsatisfactory, there was insufficient reason to extend the criminal law in the manner proposed. Accordingly, Clause 1 of the Bill now applies only to offences which are triable only on indictment and those triable either way.

I will not linger over the remaining clauses. Clause 2 is procedural. Clause 3 is consequential. Whereas it was originally intended that existing statutory offences of attempting to commit a summary offence were to be replaced by the offence in the Bill, it is now necessary for them to be preserved if the protection afforded by the law is not to be diminished. Clause 3, although it looks formidable, simply ensures that such offences, and any which may be created in future, will follow the provisions in Clause 1 of the Bill in regard to such matters as the mental element and impossibility.

Clause 4 is principally concerned with the mode of trial and penalties, in respect of which it makes no change in the position at common law, and perhaps we can come back to that later on. Clause 5 makes similar changes in respect of conspiracies to achieve the impossible as Clause 1 makes in respect of impossible attempts. Clause 6 abolishes the common law offence of attempt. It also abolishes any offence at common law of procuring materials for crime, for the existence of which the case of Gurmit Singh is an authority. I have already discussed the substance of Part II of the Bill and need therefore refer only briefly to the provisions concerned. Clause 8 repeals "sus" and Clause 9 creates the vehicle interference offence. The remaining clauses in Part III of the Bill, are concerned with formal and procedural matters.

I think it will be clear that the Bill, though brief, is concerned with weighty and with—what I confess to the layman are—some rather complex parts of our criminal law. The Government have demonstrated their willingness to listen carefully to, and if necessary to act upon, constructive criticism of the Bill's provisions. We shall of course, pay close attention to the views which are expressed now in your Lordships' House. I therefore hope that the House will this afternoon give a welcome in principle to the important reforms which this Bill seeks to make in our criminal law. My Lords, I beg to move.

Moved, That the Bill be now read 2a.—(Lord Belstead.)

3.21 p.m.

Lord Mishcon

My Lords, the House will, as always, be grateful to the noble Lord the Minister for the clear, lucid way in which he has dealt with a very technical Bill. There are, however, implications in this Bill which, I hope in fairly simple language, can be made abundantly clear to all Members of this House. If I myself understand what I am saying, I hope that your Lordships will equally find my words intelligible.

There is no doubt at all that, in general terms, the Opposition welcomes this Bill. There are certain reservations, but without any doubt at all we shall certainly not be opposing the Second Reading. The unequivocal welcome goes to the abolition of the suspected person offence in Section 4 of the Vagrancy Act 1824. That is the offence which is commonly known as "sus". One wishes that it were possible under this Bill to get rid of other antiquated offences under that Act, but, although an endeavour was made in the other place to do it, it was felt, quite understandably, that this Bill was not the appropriate vehicle to achieve that end.

As we are, as it were, interring Section 4, I think it is appropriate to accord some thanks to those who are responsible for, at long last, giving it a decent burial. The first people to thank, as the noble Lord said, are the Select Committee on Home Affairs. In May 1980, this committee recommended the immediate repeal of sus and then, with admirable prodding ability, issued a further report in August 1980 asking the Home Secretary why he had not yet implemented their first recommendations. Secondly, we ought to accord our appreciation to all those who have campaigned for the repeal of sus. If I may say so from this Box, not least to be counted are the very sober efforts of the noble Lord, Lord Avebury, whom we are glad to see in his seat, and who will, indeed, be echoing his sober thoughts later in this debate.

In praising those who have campaigned for the end of sus, I in no way associate my noble friends with any who have sought to cast racial aspersions on the police in general. On the suggestion of deliberate racial bias, the Select Committee said that it did not believe that it existed or that it exists—nor do we. That there are some black sheep, if that is not an inappropriate phrase to use, in any grouping, all your Lordships know. Indeed, except for those who are present in this House, it may even be conceded that there are black sheep in your Lordships' noble House. But, certainly, any question of general aspersion of racial bias in regard to the police is not admitted when, as I have said, we see the decent burial of sus.

For my own part, I could do no better, in recommending the worthiness of the end of that offence, than to quote the very words which the Home Secretary himself used in another place on the Second Reading of this Bill. I quote from Hansard of 19th January 1981, at column 22. He said: I believe that the offence has become so widely mistrusted that it is really now in everybody's interest that it should be repealed". He also referred at column 21 to, the detrimental effect which the offence has undoubtedly had on relations between the police and the ethnic minorities". Having done this, however, as your Lordships heard from the Minister, the Government feel that they must fill a gap left by the repeal of sus, and they have created a new offence in Clause 9 of interference with a motor vehicle. I wonder whether I may ask your Lordships to follow me in the argument which I now wish to advance in regard to Clause 9, by having a look at it, as I am sure your Lordships have done. As the noble Lord said, this is in a reformed state. It came before another place in a very much weaker form than it now is, and that I readily concede. But this is the new offence which is to be created. It reads: A person is guilty of the offence of vehicle interference if he interferes with a motor vehicle or trailer or with anything carried in or on a motor vehicle or trailer with the intention that an offence specified in subsection (2) … shall be committed by himself or some other person". So subsection (2) deals with those offences of which an intention has been shown by the vehicle interference. Those are: (a) theft of the motor vehicle or trailer or part of it; (b) theft of anything carried in or on the motor vehicle or trailer; and (c) an offence under section 12(1) of the Theft Act 1968 (taking and driving away without consent); and, if it is shown that a person accused of an offence under this section intended that one of those offences should be committed, it is immaterial that it cannot be shown which it was".

Then, in subsection (3) there is provision that the accused if convicted is, liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding £500 or to both". Your Lordships will have noted that this is a summary offence, which means that the defendant—as was the case with sus—cannot elect for trial by jury. He will be dealt with in the magistrates' court. In nine cases out of 10, as your Lordships well know, it will be a youngster—white or black, it matters not. The only reason given by the Government, so far as I can ascertain, is, as the Minister said, that there is a gap left by sus in that there is a high proportion of car door handlers where there is not sufficient evidence—and I ask your Lordships to consider this very carefully—to support any other charge, including an attempt, because there is not sufficient evidence of a preparatory act to show which precise offence was going to be committed. It is absurd to introduce this new charge, which is supposed to do some good, if you consider the harm that it undoubtedly will do. Indeed, it is taking away much of the good, if not all of the good, done by the repeal of sus.

In another place the Home Secretary pointed out as one of the reasons for doing away with sus that in England and Wales during 1979 fewer than 3,000 cases were brought under sus. Only a proportion of those offences could be car offences. Therefore, however high that proportion is, it must be negligible. The Home Secretary, as I have said, used the argument about the small number of cases brought under sus as a very good reason why Section 4 should be repealed and sus abolished. But may I advance to your Lordships, because this is so important—your Lordships may feel, on this of all days, it is very important—that even with the improvement brought about in the original clause by the special Standing Committee we are doing something highly injurious.

I wonder whether your Lordships would allow me just a few quotations first from the report of the Select Committee: We do not consider that the public interest is best served by an offence which leaves a significant proportion of those convicted with a sense that their conviction was unjust". That was said about sus. It would be equally true of this new offence. Secondly, may I repeat what the noble Lord the Minister said: This is not an offence which owes its origin to any recommendation of the Law Commission or the Select Committee". May I now quote from paragraph 223 of the report of the Law Commission: For reasons we have given above we have, as a matter of policy, decided against the possibility of penalising criminal intent accompanied by merely preparatory acts". This is precisely, by definition, Clause 9. Let me also quote from the evidence given before the Special Standing Committee on this Bill in February 1981, only a couple of months ago.

First, may I quote from the evidence given by the Inner London lay magistrates. I must be careful to distinguish them from the Magistrates' Association and say, in frankness to your Lordships, that the Magistrates' Association gave evidence which diverged from this. Mrs. Harvey, an important lay magistrate in Inner London, said: First, I welcome Clause 8. Personally, I do not see the necessity for Clause 9 which is presumably intended to fill a gap. I question it first on the ground of need: that is, is there, in fact, a gap? In my experience as a magistrate at Camberwell Green and Tower Bridge, the courts are not unduly bothered by cases involving motor cars. We have no figures about what proportion of our cases applies to motor cars. I have made inquiries amongst the clerks and the guess is that the figures involving motor cars could be one in 10, or it could be a third". Lower down, Mrs. Harvey said: I suggest that the clause is superfluous. The magistrates courts have an armoury of measures at their disposal. Apart from that, the police have preventive measures". Lower down still she said: Although I did not mention it in my previous evidence there is the power of arrest under the Criminal Law Act. In respect of the courts, a number of offences could apply to cases concerning vehicles". Mrs. Harvey goes on to set them out and to detail them. Then Lady Mitchell, another important lay magistrate in Inner London, said in evidence: I simply believe that in court we shall be faced with the same situation we faced in 'sus'. That is, if you go into court, look at the list and see that there is a 'sus' case, one of interfering with a motor vehicle, you have a feeling of total misgiving and dread, knowing that the nature of the offence is one that is difficult to comprehend because it is a sort of pre-attempt, and the nature of the evidence will presumably also be as unsatisfactory as it is in 'sus'. I just do not see that there is any need to replace that part. I do not deal with attempt, of course, because that covers the whole of the criminal law, but to replace that part of 'sus' that dealt with auto crime is quite unnecessary and will simply lead to trouble in our courts". I could give many more quotations but I do not wish to over-extend the usual patience of the House. I will merely say that the same sort of evidence was given by the National Association of Probation Officers and the National Council of Civil Liberties. However, your Lordships will possibly forgive me if I quote briefly from the Law Society's evidence. I am looking at col. 194 of the Official Report of the Special Standing Committee on this Bill. At col. 194 Mr. Girling of the Law Society said: I shall not go into the statistics which have been before the committee but the number of occasions when such provisions were used in relation to motor vehicles were in specific areas and not in great numbers. Whether it is therefore desirable to have a specific offence which could be used for that is not something which the Law Society would firmly hold as its view. I do not think that the Law Society would object to a provision which did not make a specific offence of interference. If it were tightened up in these ways I think that is how we would look at it. I do not think that we consider that it is necessary or essential". As I have already intimated to your Lordships, I am looking at this in the light of events of which we heard with such dismay over the last weekend. I do not wish to anticipate any discussion that there may be on the Statement which is to be made later this afternoon. But is it not absolutely disastrous, in these days of growing unemployment among the youth of our country, black or white, and when there is evidence that, justifiably or not, there is tension between youth, black and white, and the police in certain areas that there should now be introduced a new offence, with all the wrong points about "sus" that made the Government decide to bury it by repeal in this Bill?

I am hoping very much that after due consideration the Government will decide that Clause 9 of the Bill should go. If they and this House decide otherwise, I can only hope that there will be an opportunity at a later stage to introduce the right of trial by jury, if we do not do away with it completely, or to take advantage of a suggestion which was made in another place by my honourable friend Mr. Cunningham, the Member for Islington North and Finsbury: that if this offence has to be put on to the statute book the Minister can introduce it by order at some future date; that he will decide (if he decides it at all) after seeing whether we are overrun with motor vehicle cases with which we cannot possibly otherwise deal.

Your Lordships will be delighted to know that I have only a couple of minutes to spare on the rest of the Bill. As the noble Lord the Minister said in his eloquent and lucid introduction, it is a very necessary follow-up of the Law Commission's recommendations in regard to clearing up the law of attempt and conspiracy. This Bill clarifies it. It codifies with amendments the common law of attempt and it amends the statutory offence of conspiracy. It is based, as your Lordships heard from the noble Lord the Minister, on the Law Commission's Report. It follows upon the decision in Houghton v. Smith in your Lordships' House and, in so far as the recommendations of the Law Commission were concerned, those recommendations were eventually followed in the Standing Committee by amendments that were made and I believe I am right in saying that, where there was a difference, there was a reversal in all cases back to the Law Commission's recommendations, with the exception of the matter of attempt and summary trial.

There is only one point that I wish to raise in this Second Reading debate, and it is this: The Minister was so right in expressing appreciation to the Law Commission and I am sure we all share in that expression of appreciation. But of course what was not mentioned was that this extraordinary situation arose when this Bill was being considered. This was brought out very clearly when the Law Commission gave their evidence. What was brought out was the fact that there had been no consultation whatsoever with the Law Commission on the drafting of this Bill and certainly not in regard to the matters where the Bill differed from the Law Commission.

One knows that the Government were endeavouring to move with some expedition, and nobody surely is going to suggest to your Lordships that there was not enough time for a copy of the draft Bill to be sent to the Law Commission and for consultation to take place with them on it. The result was that there was a great waste of time because, as the noble Lord the Minister frankly said, it was subsequently found that indeed the drafting was impossible and did not, and could not, carry out the intention of the Government because it was not possible to do it if one wanted to legislate with any clarity at all—and if one does not legislate with clarity on criminal law one does not know the meaning of clarity.

I shall quote quickly from col. 9 of the Official Report of the Special Standing Committee so that your Lordships may appreciate this point, and may I express the hope to the Government that this lack of courtesy does not happen again. I am quoting the Minister here, but obviously I must quote what was said to the Minister before he replied at col. 9: Mr. Cunningham: Let me see whether I have understood that correctly. There was some discussion between the Home Office and the Law Commission at a time when it was clear that the Home Office had severe doubts about the wisdom of the Law Commission's recommendations on the impossibility; but am I to gather that the words used in the Bill were not the subject of discussion with the Law Commission before the Bill was presented? Mr. Mayhew, Minister of State at the Home Office: That is right". There is only one happy, classic quotation that I am going to make to your Lordships before I sit down, upon precisely the same point and, if I may say so, I shall dine out on this very lovely reply that was given by Mr. Justice Skinner, who gave evidence before the committee on the wording of this Bill. This is what Mr. Mayhew, the Minister of State at the Home Office, said to the judge: I wish to take up the point you made a short time ago. I have accepted that there was confusion in the Bill; I ought to make clear that what I intended to convey was that if, on reflection, we consider that there is confusion here we shall remove it if we can. Naturally we take seriously the views that have been expressed, not least by you". To which the learned Mr. Justice Skinner replied: The confusion is clear". My Lords, it is upon that classic note that I have tried to make the confusion clear that exists in the minds of the Opposition in regard to Clause 9 and the various other points connected with it and I have taken the liberty of bringing the matter before your Lordships.