HL Deb 21 May 1981 vol 420 cc1021-47

11.53 a.m.

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

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 Belstead.]

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 [Attempting to commit an offence]:

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Renton

I wish to make a brief drafting point. Subsection (4) states: This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than— and it then sets out three examples. One of these examples is conspiracy. Manslaughter is not included. On Second Reading the noble Lord, Lord Wigoder, suggested that it should be included but my noble friend Lord Belstead gave a reason for not including it. He said: The defences of provocation or diminished responsibility which apply to reduce murder to manslaughter do not apply to attempted murder". That point is well taken. My noble friend went on: The other kind of manslaughter, killing by gross negligence, cannot be attempted". That argument is perfectly sound and true, but conspiracy has been included as an exception, and I would have thought that conspiracy—which requires the agreement of two people—should be left out if manslaughter is to be left out. Conversely, if conspiracy is to be included then manslaughter should also be included. My noble friend may wish to think about this point a little more. I think it is a point worth making from the drafting point of view.

Lord Belstead

I should like to think about this for a moment or two. I might be in a position to reply to my noble friend, if he will bear with me, when we come to Clause 5, which deals with the other limb of conspiracy. Would that be agreeable to my noble friend?

Lord Renton

Yes, certainly.

Clause 1 agreed to.

Clause 2 agreed to.

Clause 3 [Offences of attempt under other enactments]:

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Renton

We find that subsections (3), (4) and (5) of Clause 3 merely repeat subsections (1), (2) and (3) of Clause 1. We really should try to avoid repetition, especially on that sort of scale. I believe that my noble friend would do well to ask the draftsman whether it is really necessary to have this completely set out so soon in the Bill, and whether there could not be some compendious way of invoking the first three subsections of Clause 1 and applying them to Clause 3 without complete repetition.

Lord Belstead

I do of course take very seriously any advice which my noble friend gives on the drafting of legislation. As I understand my noble friend's remarks, he is not objecting to the intention of Clause 3, which is that if the Bill were to pass without the clause it is probable that the courts would begin to interpret statutory offences of attempt in the same way as the offence of attempt under Clause 1, but that this clause ensures that this will happen. As I understand it, my noble friend Lord Renton is not objecting to that intention but to the way in which the clause is drafted. If I may take my noble friend's advice I will consider what he has said on this particular point and will look at it again, without making any commitment as to what our own conclusions will be. However, I think it would be right to undertake, if I can possibly do so, to first write to my noble friend Lord Renton.

Lord Renton

I am much obliged to my noble friend.

Clause 3 agreed to.

Clause 4 [Trials and penalties]:

11.58 p.m.

Lord Belstead moved Amendment No. 1: Page 4, line 32, leave out subsection (6).

The noble Lord said: With the permission of the Committee, in moving Amendment No. 1 I should also like to speak to Amendments Nos. 4, 5 and 9. The amendment to Clauses 4 and 7—that is to say, Amendment No. 1 that I am moving now and Amendments Nos. 4 and 5 also—remove some transitional provisions which were included in case the Criminal Attempts Bill became law before the commencement of the Magistrates' Courts Act 1980. Since that Act is now set to come into force on 6th July, it is clear that this Bill has lost the race and so the provisions are unnecessary. Similarly, it is now clear that the final three references to the Criminal Law Act 1977 in the repeal schedule—that is, in Amendment No. 9—should be to the Magistrates' Courts Act 1980 which will, among other matters, consolidate these particular provisions. I hope I have explained why I have asked to speak to four amendments, although I now move Amendment No. 1.

Lord Mishcon

The Minister, with his usual courtesy, wrote to me in a most considerate manner explaining the reason for the various amendments, and therefore calling my attention to their necessity from a drafting point of view. I should like to thank him, because it has saved the Committee a speech from me and various questions which I otherwise might have asked.

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Extension of definition of the offence of conspiracy]:

12 noon

Lord Belstead moved Amendment No. 2: Page 4, line 37, leave out ("the following subsection shall be inserted after") and insert ("(1) For").

The noble Lord said: I beg to move Amendment No. 2, and with the Committee's permission would speak also to Amendment No. 3. The purpose of Clause 5 of the Bill is to ensure that, as Clause 1 does in respect of attempt, it should not be a defence to a charge of conspiracy that the offence in question is one which in the circumstances it was impossible to commit. The amendments—which have the support of the Law Commission—make no change in that policy. The purpose of these two amendments is twofold. Subsection (1) created by Amendment No. 3 proceeds along similar lines to the corresponding clause in the Law Commission's draft Bill, and makes no material change in the present definition of conspiracy.

Its object is simply to avoid a possible contradiction between Section 1(1) of the Criminal Law Act 1977 and the subsection (1A) which the present Clause 5 would add after it. The former—which gives the statutory definition of conspiracy—provides that the carrying out of the agreement must result in the commission of an offence. The latter—which is designed to deal with "impossible" conspiracies—provides that it is immaterial that it will not result in the commission of an offence.

Although there is no dispute—at least there was no dispute except for the noble Lord, Lord Pitt, who I think is not able to be in your Lordships' House today—about the rightness of dealing with "impossible" conspiracies, there is a risk that the courts might not find it easy to resolve the inconsistency which might result from the present wording. The amendment avoids this difficulty by putting the two subsections together in a form which restates Section 1(1) of the 1977 Act and adds to it a conditional element dealing with conspiracies to do the impossible.

Subsection (2) is designed to ensure that Clause 5 does not operate retrospectively. As it stands, a person indicted after the date of coming into force of the Bill for a conspiracy committed before that date would be liable to conviction notwithstanding that the object of the conspiracy might have been impossible to achieve. The amendment will disapply the clause if the agreement was entered into before the date of coming into force of the Bill, though not if the agreement continued to exist after that date. The amendments are therefore substantially of a drafting and technical nature and I hope they will commend themselves to your Lordships. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 3:

Page 4, line 39, leave out from ("conspiracy") to end of line 42 and insert ("there shall be substituted the following subsection:— (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

  1. (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
  2. (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question". (2) This section shall not apply where an agreement was entered into before the commencement of this Act unless the conspiracy continued to exist after that date").

The noble Lord said: I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord Belstead

I undertook to reply to my noble friend Lord Renton on the point he raised concerning manslaughter, which referred to attempted conspiracies. I said that I would attempt to reply to my noble friend on this clause. Manslaughter cannot be attempted so it is, the Government suggest, unnecessary to mention it expressly in Clause 1(4). It was on that stage of the Bill that my noble friend Lord Renton raised the point.

Conspiracy in fact could be attempted but the Criminal Law Act 1977 at present provides that attempting to conspire shall not be an offence. The Bill re-states the relevant provision in the 1977 Act and repeals that provision in that Act. Without express mention of conspiracy in Clause 1(4) attempting to conspire would become an offence again.

Lord Renton

I am most grateful. That is a most lucid explanation. It creates the firm relationship of the mention of conspiracy in Clause 1(4) with the mention of conspiracy in Clause 5. I am grateful to my noble friend. He has enabled me to understand the position much better.

Clause 5, as amended, agreed to.

Clause 6 [Effect of Part I on common law]:

12.6 p.m.

On Question, Whether Clause 6 shall stand part of the Bill?

Lord Renton

I should be grateful for an explanation here. We are abolishing the offence of attempt at common law. It would be helpful to know exactly why we are doing so because that offence at common law has a wide-ranging effect. We find that again it is necessary to refer to Clause 1(4): This section"— which is the foundation of the Bill— applies to any offence which, if it were completed, would be triable … as an indictable offence …". But at common law the offence of attempt can be applied, as I understand it, to some offences which are not indictable. I may be wrong about that. I have not done deep research into it, but that is my recollection. If we are going to make a wholesale repeal, abolition, of the offence of attempt at common law, it would be helpful if we could be told why this is to be done.

Lord Belstead

This clause of course abolishes the offence of attempt at common law and provides that references in existing enactments to attempt at common law shall be construed as references to the new statutory offence. It corresponds to Clause 5 of the Law Commission's draft Bill, with a minor addition to subsection (1). May I just refer to the two subsections of Clause 6. Subsection (1) abolishes the offence of attempt at common law except in so far as it applies to acts done before the Act comes into force. The proviso enables charges to be laid and proceeded with under the common law in respect of alleged offences committed before the commencement date. Abolition of the common law offence follows automatically from the creation of a new statutory offence in Clause 1. It also abolishes any specific preparatory offences which might be held to exist at common law following, as I said on Second Reading, the decision in the case of Gurmit Singh.

So far as subsection (2) is concerned, this provides that unless the context otherwise requires, references in previous enactments which fall to be construed as references to the common law offence of attempt shall be construed as references to the new statutory offence. This is to ensure that any special provisions in existing legislation concerning the common law of attempt will apply in the same way to the new offence.

I hope your Lordships will forgive me for having just looked at my briefing to remind myself, if not your Lordships, of the exact effect of this particular clause on which my noble friend has raised a specific point. It is not clear that the common law of attempt applies to summary offences, although there are special statutory offences of attempt, and those are dealt with in Clause 3.

Lord Renton

I am grateful to my noble friend and would only add that I hope the words in line 7, "unless the context otherwise requires", will not give rise to difficulties of interpretation in the courts.

Lord Belstead

Does my noble friend mean instead of referring specifically to Clause 3?

Lord Renton


Lord Belstead

I will take my noble friend's final remark away and look at it, and possibly I can include something about it in the letter which I promised to write to my noble friend.

Clause 6 agreed to.

Clause 7 [Amendments consequential on Part I]:

Lord Belstead moved Amendment No. 4: Page 5, line 29, leave out from ("in") to end of line.

The noble Lord said: I spoke to this with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 5: Page 5, line 30, leave out from ("1980") to ("includes") in line 32.

The noble Lord said: This is consequential on Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Interference with vehicles]:

12.12 p.m.

Lord Mishcon moved Amendment No. 6:

Page 6, line 5, at end insert— ("( ) A person does not commit an offence under this section unless he pursues a course of conduct which involves two or more separate acts of interference").

The noble Lord said: We move from the realms of the technical and questions of drafting to matters of policy, and I suggest that we now come to an important matter of policy. It will be observed incidentally that the amendment has the support of various parts of the Committee, and I hope it will commend itself as well to the Government.

There was unanimity in your Lordships' House when the offence known as "sus" was said to be abolished by the Bill. It met with unanimous welcome and speeches were made, which I do not intend to repeat, as to why it was so welcome. One of those reasons was the fact that people were sometimes faced with charges which they regarded as completely unjust, and there were opportunities for your Lordships to examine examples of where convictions had taken place where indeed it was extremely doubtful if the subjective view that was taken by the court was correct.

Sus is a summary offence. There has been substituted for sus in the Bill a new offence which is meant to deal with something which is extremely troublesome—if that is the right word to use for it—namely, the continuous stream of offences relating to motor vehicles (taking and driving away and the theft of motor vehicles) and it was thought there had to be something to act as a preventive measure in order that the public could be safeguarded and that those who had gone through the motions of what would normally be an attempt could be arrested and charged where the evidence was sufficient.

The reason for this offence, as against the charge of attempting to take and drive away or to commit a theft, is that trouble is experienced by the police authorities in deciding (your Lordships can well realise why) whether somebody who is tampering with a car is attempting to take it away but not to steal it, or indeed to steal it. Therefore, it was argued that there should be an offence, now that sus was to go, which would deal with this nuisance and would say in effect that if there were suspicious circumstances which could lead to the court assuming—as the court would have to assume on the basis of criminal liability—that the person concerned was attempting or had in mind either driving the car away or committing a theft, then this offence would be committed.

I remind the Committee that this substituted offence is, again, a summary offence and not one on which there is a right to go for trial before a judge and jury. Without being in the slightest degree offensive, since that is my last intention, to our stipendiary or lay magistrates, one knows as a practitioner that often magistrates who have a very heavy list and a repetition of a number of offences which may be common in that area, are inclined to take a short view of the evidence before them and take it for granted that because the last charge with which they dealt had similar evidence and there was a conviction, there should similarly be a conviction of the next offence. This is not by any means a general statement that I am making, but it is, I am afraid, a statement which practitioners in the criminal courts would agree with.

The new offence, with which the amendment does not seek to quarrel, has a requirement which is less than the offence of sus which it abolishes. The offence of sus required that there had to be evidence of a suspicious act, followed by a completely separate act, of which there was evidence which might lead to a conviction, and would certainly lead to a police constable (because it would normally be a police constable) thinking there was reasonable evidence of the fact that an offence of taking or driving away or theft was about to be committed.

To make this offence less of a requirement in regard to evidence of acts would surely be to go back on the whole reasoning behind the abolition of sus, and therefore the amendment seeks again to impose, as was required for the sus offence, the act which creates suspicion followed by another separate act. At the moment it would mean that the mere tampering with one car door on one occasion could lead to a charge being preferred and, under the wording of the clause, a conviction being registered. It is extremely necessary for your Lordships to look very carefully at the wording of the clause, and the requirements before there could be a conviction under it, and it is in those circumstances and with some confidence that I move the amendment.

Lord Rawlinson of Ewell

Whenever I hear the noble Lord, Lord Mishcon, moving an amendment I find it difficult to resist agreeing with him, because of the manner in which he presents his case; I also see the very distinguished names which are added to the proposal he is making. However, I find the proposal—namely, that there should be two or more separate acts to constitute the offence—unacceptable.

First, let us look at the offence as now contained in the Bill, and let us consider what must be done before the offence is committed. It is a new offence. It is necessary to prove that a person has interfered with a motor vehicle, or its contents, with intent to steal the vehicle, or something in it, or to take it away. Those are the two constituents. If the court decides that there has been an act of interference with the motor vehicle or something in it and, secondly, an intent to steal the car or something in it, or an intent to take away the car, then the offence is deemed to have been committed. It seems to me right that that should be the offence.

On Second Reading we were told that there were nearly 280,000 thefts from vehicles in this country in 1979. There were over 300,000 thefts of vehicles, or offences of taking away vehicles. It is a very serious situation, not something which we as legislators should brush aside. The amendment proposes that the person must interfere with the vehicle twice before the offence is committed, and that seems to me to be remarkable. Why should it be twice? Why not three times or four times? If we are not very careful about this, the general public will think the legislature mad to try to make things easier in terms of the committing of these offences. If there are 600,000 such offences, consider how many people are affected by them. Probably more than a million people are affected every year, bearing in mind that some families have at least two cars and that some cars might contain goods that do not belong to the car owners, but to other people. So every year over a million of our fellow subjects find themselves on the receiving end of criminals' activities.

If the Bill removes the old vagrancy offence, so be it. But we must be very careful in this area. I note with respect what the noble Lord, Lord Mishcon, said about the work done by stipendiaries and lay benches. He was very courteous about them, but, apart from being courteous let us be fair. They have a very difficult task to do, and without volunteers on the lay benches it would certainly not be possible to administer justice in this country. In my experience people who serve on the lay benches approach their work in a fair and sensible way, and do not merely accept the evidence from whoever gives it. That is my experience; if it differs from that of the noble Lord, Lord Mishcon, so be it. I have always felt that a great debt is owed to these people, who do their job extremely well.

As I have said, we have removed the old vagrancy offence; so be it. On Second Reading a reference was made—certainly not by the noble Lord, Lord Mishcon, and his supporters here—to what was called racial motivation in bringing charges of this kind. That was mentioned by a noble Lord in your Lordships' House, and I found it very offensive. Such accusations are often levied wantonly and irresponsibly, and a lobby grows up. I am not sure whether all the people in such a lobby are very honestly motivated. It is claimed that every prosecution of any person belonging to an ethnic minority is somehow corrupt. I find that claim offensive and I think that it does great harm to the ethnic communities. Many of the alleged spokesmen of the ethnic communities appear to be rejected by the communities themselves, and it seems very difficult to find a genuine representative. I consider that such a lobby is having the serious consequence of arousing resentment among ordinary people who are perfectly well disposed to the ethnic minorities. Such a lobby may be joined by some injudicious people who perhaps do not understand the true purpose of the matter.

We have done what sensible people have thought should be done—namely, removed the "sus" offence, for which we have substituted the offence that we are now considering. It requires evidence, proof, both that a person has interfered with a motor vehicle and that he had intent to steal from it. Surely that is good enough. I think it only right that in fairness to the people of this country, to the million or so who are affected by these offences, that we should maintain the offence as it is at present proposed in the Bill. We should not, as was proposed with great grace by the noble Lord, Lord Mishcon, make it even more difficult to convict people who do a great deal of harm to many citizens of this country.

Lord Donaldson of Kingsbridge

I am very sorry that the distinguished speaker who has just sat down has taken the line that he has taken. I think it quite irrelevant to refer to remarks made on Second Reading by a noble Lord who is not present and who has not put his name to the amendment. I do not think that we should be prejudiced by racial talk which, I agree with the noble and learned Lord, Lord Rawlinson of Ewell, can be very damaging. The important point here is that, as everybody knows, "sus" was deeply resented by ethnic minorities—whether rightly or wrongly, I shall not say. There is a natural desire not to return to that situation when we have agreed to abolish it. In the Bill as it stands the new offence will be even more easy to apply than was the old "sus" offence, in regard to which evidence of more than one instance was required.

I think it worthwhile to look back a little to the Home Office Working Party on Vagrancy and Street Offences in 1976. The working party consisted of three chief constables, an inspector of constabulary, and officials from the Home Office, the DHSS and the department of the Director of Public Prosecutions. They all rejected the suggestion put to them that evidence of one instance should be sufficient. They proposed that the "antecedent conduct" should include at least one suspicious act before, and distinct from, the act which caused the individual to be charged with the offence. The working party stated in a working paper:

The new offence might then refer to 'a course of suspicious conduct', or 'a repetition of suspicious conduct', or by exclusion, provide that it should not suffice to establish suspicion that there has been only one instance of such conduct". The amendment proposes precisely that, and I greatly hope that the Government will look at it very carefully. My noble friend Lord Wigoder is in entire agreement with it—and he is sorry that he cannot be present today. I think it very important that we should try to persuade the Government to include this proposal as a modification to Clause 9, which has worried many people.

12.28 p.m.

Lord Renton

I hope that my noble friend on the Front Bench will not accept the amendment. I warmly support the powerful case put by my noble and learned friend Lord Rawlinson of Ewell. I wish briefly to add three points. First, a policeman would be placed in an absurd position if, having seen a man interfere with one vehicle, having caught him redhanded, so to speak, he then had to stand aside and wait until the man interfered with another vehicle. That would be a quite absurd and impossible situation for the police.

My second point relates to what has been said about the ethnic minorities. Of course we are all anxious to be careful about the way in which we legislate, but the possibility that the susceptibilities of some members of the ethnic minority might be offended cannot be regarded as a good reason for generally weakening the law which applies to everybody, including all the members—

Lord Mishcon

I am sure that the noble Lord, Lord Renton, will forgive me for intervening, but I wish to point out that in moving the amendment I did not at all mention the ethnic minority point. I listened most carefully to the noble Lord, Lord Donaldson of Kingsbridge, and I did not hear him mention that point as being a reason why we should pass the amendment. I do not want the Committee to be misled into thinking that this is part of the case.

Lord Renton

May I say that I am very glad that the noble Lord, Lord Mishcon, has intervened and made that clear so far as his own position is concerned. I clearly misunderstood what the noble Lord, Lord Donaldson of Kingsbridge, was saying if he was not saying what I understood and said; namely, that we had to be careful as to how we legislated on this particular point with regard to the ethnic minorities—and perhaps we can leave it at that.

My last point is this. If it were right to allow the criminals several opportunities to attempt to commit their offence before they could be convicted, and if it were right to do so in relation to these cases affecting motor vehicles, then the whole range of cases to which it might apply would be enormous. In other words, we would be creating a precedent which we would regret for the rest of time. I hope that my noble friends on the Front Bench will strongly resist this amendment.

Lord Hunt

I rise to support very strongly both parts of this amendment, although I propose to speak only in regard to the maximum sentence which can be imposed for the offence of tampering with a motor vehicle and its parts with intent. At a time when the Home Secretary himself has been insisting time and again on the need to reduce the length of prison sentences, and indeed to make fewer offences liable to imprisonment, and at a time when the Lord Chief Justice has been enjoining the magistracy and the courts in the same vein—the noble and learned Lord did so only two days ago at the annual general meeting—

Lord Elwyn-Jones

If the noble Lord will forgive my interrupting him, I think he is speaking to the next amendment at the moment, which deals expressly with the reduction from three months' imprisonment to one month's imprisonment. I hope the noble Lord will not think me impertinent, but that is the purpose of my unexpected intervention upon words which we listen to with admiration.

Baroness Wootton of Abinger

After 44 years' experience of metropolitan benches as a magistrate I must say that I have not found the shortcomings that my noble friend Lord Mishcon referred to—that magistrates formed a habit of conviction in sus cases. I should like to report that the very last case I ever heard in court before my retirement happened to be a sus case in which my colleagues—I was in the chair—were inclined to take the case at face value. After a considerable discussion of the evidence we finally acquitted, because it appeared to us all in the end that there was in fact a doubt.

I think a good deal depends on the nature of the act of interference—and I have heard some very strange acts quoted in court as acts of interference in sus cases; for instance, touching the handle of a car. Indeed, I have heard of touching the handle of the rear door of a car of a make which has only one door on each side, which has no rear door. These things get rather standardised and formalised; and possibly two police officers are watching the same thing, and they may see it the same way. I think that protection is necessary here to establish that there was an act of interference such as would lead to an offence. Without this dual protection, casual touchings and actions of that sort will, I think, be given a value that they do not have. I should therefore like to support very strongly the amendment moved by my noble friend.

Lord Elwyn-Jones

I should like briefly to intervene to add to what has been said by the noble Lord, Lord Donaldson, about the authoritative views expressed by the Home Office Working Party on Vagrancy and Street Offences; namely, the views which I understand to have been expressed by Sir David McNee, the Commissioner of the Metropolitan Police, in which I understand he expressed support for the recommendations of the Home Office working party during its inquiry into the sus law. Sir David, I am reliably informed, listed a number of specific proposals by the Home Office working party which he favoured, including the proposal that antecedent conduct should include at least one suspicious act before and distinct from the act which caused the man to be charged with the offence.

I understand, further, looking at it from the police point of view, that in evidence to the House of Commons Special Standing Committee on the Bill Sir Philip Knights, the chief constable of the West Midlands, said he did not envisage that in practice the police would bring any prosecutions unless at least two actions had been observed. Accordingly, while I am not suggesting that noble Lords opposite are accusing us of irresponsibility and of a reckless disregard of the public safety in this matter, it is at least reassuring to think that eminent policemen take the same view as we do.

If I may say so with great respect to the speech of the noble and learned Lord, Lord Rawlinson, of course the offence and crime of taking and stealing a motor car will remain. This is very much on the fringe of the problem; it is an important provision that the criminal law should provide; but it would really be intolerable if, having got rid of one much-criticised mischief—namely, the sus law—we were to put in its place something even more perilous than the sus law itself.

Lord Robbins

It is with the deepest regret that I venture an amateur's query with regard to the amendment which is fostered by the distinguished names on the Marshalled List. But my base mind suggests to me that if this amendment goes through the organisers of the stealing of motor cars, which we are assured goes on on a large scale, will be tempted simply to re-arrange their operations; and if some member of their group has incurred the suspicion of the police on one occasion, they will be careful to leave him out on the second occasion. Is this not improbable?

Lord Donaldson of Kingsbridge

May I say just one thing about that? There are, of course, two entirely separate issues here. One is organised crime, and in that case, no doubt, this sort of thing would be done and probably is done already. I think your Lordships will find that the organised criminals who are paid by central bodies to do this are very careful how they do it, and take very little risk. What we are concerned about in this amendment is the ordinary, feckless young man who is out of work, has nothing to do, sees a row of cars and, rather like a naughty boy, puts his hand on one handle just wondering whether there is anything that is going to happen.

What we are anxious is that people in this condition, who are vulnerable and liable to be turned to a life of crime by something which is in itself fairly trivial, should be protected from immediate prosecution, and that there should be some effort to make sure that there is a real attempt going on. I agree with the noble and learned Lord, Lord Elwyn-Jones, that as the police are the case which was used by the noble Lords opposite to oppose this, it is very curious and impressive that all the evidence we have from the very highest in the land in the police is in the opposite sense and is in favour of the amendment.

Lord Swinfen

The noble Lord, Lord Mishcon, appeared to me to base his arguments for his amendment basically on the offences of taking away or stealing a motor vehicle but not on subsection (2)(b) dealing with anything carried on or in a motor vehicle or trailer. There are a number of families who go on holiday and who fasten, sometimes very badly, their goods and chattels to their roofrack and into their trailers. It is not difficult very often to remove them by cutting one string only and not two strings. Therefore, if two instances of interference are necessary, I feel that an individual who cuts a string on a trailer or a roofrack and then allows his friend to dip his hand in and remove the article will get away scot free.

Lord Mishcon

I intervene in order to answer the noble Lord's sensible point. May I say that if it were outside the vehicle and somebody did what he has suggested, it would be attempted theft and there would be no need to invoke this section at all. Therefore, there is no question of two acts of interference applying. The doubt, when you are dealing with a vehicle and you have to enter the vehicle in order to commit the offence, would be whether it was an attempt to take and drive away the vehicle or to steal it. That was the problem of the past. There has never been a problem over anything attached to a vehicle.

Lord Belstead

I agree with the noble Lord, Lord Mishcon, who in moving this amendment said that we ought all to look carefully at Clause 9. I agree with him because I realise that, when the Government are proposing to Parliament the creation of a new offence, it is the responsibility of Members of both Houses to look carefully at the proposals made. I attach particular importance to today's debate because so many of your Lordships have taken part in it. But, with respect, I do not find that I agree with the noble Lord and many other noble Lords that we should draw an analogy between Clause 9 and the suspected person offence which has been done away with in Clause 8. If I may say so, I think that one fact that so many of your Lordships are drawing an analogy between Clause 9 and the offence of "sus" has led the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Donaldson of Kingsbridge, to remind the Government in this debate of the views of the Home Office working party on vagrancy and street offences. The views of that working party on the need for two acts before a conviction should be secured were in the context of a revised "sus" offence and not an entirely different offence as is the proposal in Clause 9 of the Bill.

I would think it fair for me to say that if your Lordships, none the less, conclude that Clause 9 and "sus" are the same, then all I can say is that in another place the spokesman for the Opposition, Mr. Cunningham—not learned in the law in the same way as the noble and learned Lord, Lord Elwyn-Jones, but none the less speaking for the Opposition—made his view clear in the Third Reading debate when he said: The new offence is not the same as 'sus'."—[Official Report, Commons, 31/3/81; column 250.]. This is the view that I should like to submit to the Committee on this particular amendment.

Lord Donaldson of Kingsbridge

I am sorry to interrupt, but it is an important point. Of course, it is not the same as "sus" but it is one of the offences over which "sus" was constantly exercised.

Lord Belstead

Let me develop the argument for a moment. If I may, I should like to explain why I attach such importance to the fact that the two offences are not the same and the burden of proof in both offences is, as I see it, clearly different. Before doing that, however, may I pick up a point made by the noble Lord, Lord Donaldson of Kingsbridge, in his first remarks when, in essence, he said that proof under the provisions of Clause 9 was going to be easier to obtain than would have been the proof necessary for the former offence of "sus".

The requirement in the case of the suspected person offence that there should be at least two suspicious acts is a gloss imposed over the years by the courts which was designed to try to make some sense of an otherwise vague guilty act, an actus reus. I am sure that your Lordships will agree that it would be harsh if an individual could be convicted of being a suspected person, of frequenting or loitering with intent, on the evidence that on one occasion only he had loitered near a handbag or beside a car. But—and this is the whole nub of the matter—a requirement that there should be two acts has no place in the definition of an offence which is as tightly drawn as the one which is to be found in Clause 9, which is specific both as to the guilty act and also, to be proved, the guilty state of mind.

The prosecution must prove both that the accused carried out an overt act of interference with a motor vehicle—and I emphasise this to the noble Lord, Lord Donaldson—and that the person concerned did so with intent to commit one of the specified offences. If this is established to the court's satisfaction, surely it cannot be right to have to say how many acts of interference took place or, to put it another way, if the court is satisfied on the evidence that the accused committed one act of interference with the prescribed intent, I cannot see why they should be compelled to acquit him merely because he did not go on to commit more.

If I may, I will add my voice to those of my noble and learned friend Lord Rawlinson of Ewell and the noble Baroness, Lady Wootton. I thought that, entirely uncharacteristically, the noble Lord, Lord Mishcon, was rather less than fair in his reference to magistrates and less than fair to his own profession, both to members of the solicitors' profession and also to counsel who may be appearing in such cases, who, I am sure, will argue cases effectively if Clause 9 is passed into law. I was grateful to my noble and learned friend Lord Rawlinson for expressing so clearly what I have been trying to say and to the noble Lord, Lord Robbins, for reminding the Committee—and I think it right that the Committee should be reminded—of the enormous amount of damage, of loss and of distress which is caused by the sort of offences which are committed and which Clause 9 attempts to deal with.

That is the fundamental objection to the amendment; but I believe that the amendment as drafted would also introduce unwelcome uncertainty and possibly seriously weaken the effect of the provisions—and I am not talking merely about any technical defects. The requirement of two separate acts in the case of the suspected person offence is, as I have said, a gloss by the courts and it has been subject to interpretation and reinterpretation over the years. May I indulge in the luxury of putting some difficult questions to those noble and learned and noble Lords who have put their names to the amendment and ask about cases in which I think this amendment would present some difficulties? Would it suffice if the amendment were made if an individual committed two separate acts of interference with the same car door, for instance, perhaps by trying to open the door and then trying to force it? Or would it require acts of interference with different parts of the vehicle or even with different vehicles? What length of time could or should elapse between the acts of interference? And what of the case where a policeman comes along and finds someone who is clearly pulling at a door and trying to wrench it open, but the policeman only sees it happening on the one occasion? Do we seriously contemplate that a charge of vehicle interference under this Bill should not be available in such a case?

To ask these questions is to show how unnecessary I think this provision would be if it were to be agreed by the Committee and to reveal the uncertainty and confusion which could result and the anomalies which could arise. It is on those grounds, but mainly on the basic grounds that we are creating a different offence which is not analogous to "sus", that I ask the Committee to reject this amendment.

12.51 p.m.

Lord Mishcon

I shall not weary the Committee with a repetition of the arguments, but in justice to the amendment I must deal with some of the points that have been raised. May I first of all impinge upon the courtesy of the Committee by telling a story that has definitely stayed with me throughout my professional life—a true story in which I was engaged. Possibly the noble and learned Lord, Lord Rawlinson, will now appreciate why I said what I did, as would my noble friend Lady Wootton if she were in her place.

It was as a young practitioner that I sat in Bow Street Magistrates' Court as the chief magistrate was sitting. He had had quite a few cases of pick-pocketing which, as one knows, is quite common in Bow Street and that area. An old gentleman was brought before him and the evidence was from the owner of a wallet that he had been walking down the Charing Cross Road (I think it was) and this old gentleman had come right up to him and asked him the time. He recollected afterwards that the old gentleman appeared to come rather close. He told the old gentleman the time, the old gentleman said, "Thank you" and walked off rather quickly. It was then found by the person who was giving this evidence that his wallet was missing. The old gentleman went into the witness box and he said that he had only asked about the time and that was all. Subsequently a policeman had chased him as a result of this complaint and had stopped him. There was no wallet found on the old gentleman and really that is all he had to say except that it was a most unjust charge.

I heard the learned chief magistrate—about whose fairness there could never be the slightest doubt—say: "I have heard this story so many times in my court. I convict. Let this man stand down; I want to know more about him." My case did not come until on late that afternoon. The gentleman who had given evidence in the morning came back in the early afternoon and said that he would like to address the chief magistrate. He was so sorry, he had gone home and he had looked in another suit and his wallet was in another suit. He wished to apologise to the court for the trouble that he had caused.

I am not putting this forward as a typical case; I am only saying that in busy courts, when there are repetitions of cases like "sus", as it was, or cases of interfering with vehicles, it is possible for magistrates, with all their sense of fairness and without there being the presence of a jury which has to assess how this might have happened to them, to make errors—and we are all human.

I remember another lesson I learned very early: better that nine guilty people should be acquitted than that one innocent man should be convicted. If that applies as a principle, it certainly applies to the young people who are frequenting our streets—and I make no difference between the colours of the young people. Their characters are the same and their ways are the same. I merely say that possibly some are subject to more disabilities than others.

Having said that, we are creating a new offence—an offence that usually will have merely one witness, possibly two, but they will be police officers; and again I do not in any way impugn the fairness of police officers who are trying their best to stop this dreadful business of the theft of motor-cars and the driving away of motor-cars without any proper, justifiable cause.

Is there really any difficulty in this question of two acts of interference? Would each Member of the Committee put himself in the place or his son or in the place of somebody finding himself in a magistrates' court? Maybe it is curiosity in regard to a vehicle where somebody is merely peering in to have a look. Does it depend upon the suit that he wears as to whether he ought to be suspected or not? Some of our young people—some of our own sons and grandsons—wear the most extraordinary clothes, as we all find. I should not like the police officer to think that a youngster wearing that type of clothing could be guilty whereas the noble Lord, Lord Belstead, attired as he habitually is, most certainly could not.

There ought to be in these circumstances of interfering with the outside of a vehicle—and I repeat it—at least the protection that was given in the "sus" case, because on motor vehicles this was the charge that was made when you could not prove an attempt and when you could not prove an actual act of theft or driving and taking away. We are taking away this protection.

I answer the noble Minister who very properly put a question arising out of the wording of the clause: "Two acts of interference—what a muddle for the persons who have to interpret this because does it mean two acts of interference with the same vehicle or another vehicle?" My answer is very simple. Two acts of interference with vehicles means what it says. It can be the same vehicle or it can be two vehicles. I would have thought that if it were two vehicles there is very much more reason for the charge to be brought.

I cannot carry the argument any further. My noble and learned friend Lord Elwyn-Jones quoted from police authorities in a way which obviously covers matters of this kind of vehicle interference. The arguments are before the Committee and I merely ask the Committee this. The very names on this amendment show that there is no party point of view. Can we therefore in sheer fairness, in our sense of justice when creating this new offence, thinking of our young people and not wanting to have convictions registered against them, or to have them think that the law is unjust and society is unjust, ensure that we give at least the protection—and I repeat it unashamedly—that was given even to the "sus" offence so that two acts of interference have to be seen by the police officers, not just one, before this charge is brought?

12.58 p.m.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 53; Not-Contents, 63.

Ailesbury, M. Ilchester, E.
Airedale, L. Jeger, B. [Teller.]
Amherst, E. Jenkins of Putney, L.
Amulree, L. Kennet, L.
Briginshaw, L. Kilmarnock, L.
Brockway, L. Kirkhill, L.
Brookes of Tremorfa, L. Lawrence, L.
Byers, L. Leatherland, L.
Collison, L. Llewelyn-Davies of Hastoe, B.
Davies of Leek, L. Longford, E.
Diamond, L. Mishcon, L.
Donaldson of Kingsbridge, L. [Teller.] Molloy, L.
Peart, L.
Elwyn-Jones, L. Pitt of Hampstead, L.
Foot, L. Ponsonby of Shulbrede, L.
Gaitskell, B. Ritchie-Calder, L.
Gladwyn, L. Rugby, L.
Gosford, E. Sainsbury, L.
Hale, L. Seear, B.
Hall, V. Stedman, B.
Hampton, L. Stone, L.
Hanworth, V. Underhill, L.
Henderson, L. Vernon, L.
Heycock, L. Wells-Pestell, L.
Howie of Troon, L. Whaddon, L.
Hughes, L. Willis, L.
Hunt, L. Wootton of Abinger, B.
Abercorn, D. McFadzean, L.
Alexander of Tunis, E. Mackay of Clashfern, L.
Allen of Abbeydale, L. Mancroft, L.
Ampthill, L. Marley, L.
Avon, E. Marshall of Leeds, L.
Barnby, L. Melville, V.
Belstead, L. Mersey, V.
Boyd-Carpenter, L. Nugent of Guildford, L.
Brownlow, L. Orr-Ewing, L.
Campbell of Croy, L. Portland, D.
Cathcart, E. Rankeillour, L.
Cork and Orrery, E. Rawlinson of Ewell, L.
Cullen of Ashbourne, L. Renton, L.
Davidson, V. Robbins, L.
de Clifford, L. Rochdale, V.
De Freyne, L. St. Aldwyn, E.
Elphinstone, L. Sandford, L.
Elton, L. Sandys, L. [Teller.]
Ferrers, E. Savile, L.
Fortescue, E. Selkirk, E.
Fraser of Kilmorack, L. Skelmersdale, L
Garner, L. Spens, L
Gridley, L. Swinfen, L.
Grimston of Westbury, L. Terrington, L.
Hatherton, L. Trumpington, B.
Henley, L. Vaux of Harrowden, L.
Hylton-Foster, B. Vickers, B.
Inglewood, L. Vivian, L.
Killearn, L. Westwood, L.
Kinnaird, L. Widgery, L.
Long, V. [Teller.] Windlesham, L.
Lyell, L.

Resolved in the negative, and amendment disagreed to accordingly.

1.5 p.m.

Lord Elwyn-Jones moved Amendment No. 7: Page 6, line 17, leave out ("three months") and insert ("one month").

The noble and learned Lord said: I beg to move this amendment. We are now facing a crisis in the penal system and I begin my observations on this amendment with that thought in mind. It is not the paramount thought but it does enable us to consider what steps are appropriate for Parliament to take to achieve a reduction in the prison population.

We are in this Bill creating a new criminal offence. It is a summary offence and of course a serious one, but it is not as serious as the criminal offence of "attempt". Our view on this side of the Committee, and indeed on wider sides than that, is that a term of one month or £500 ought to be adequate to meet the needs of punishment in respect of this offence. I remember when I was appointed a recorder—I am not engaging in too much anecdotage today as I did on another occasion—talking to, I believe, Mr. Paterson, who will be known to many of your Lordships here, on the approach to imprisonment; the view then of the Home Office was: "It is useless to treat prison as a sort of transit hotel. We can't do anything with them unless we have them for six months or thereabouts. Don't pass short prison sentences". That was broadly the ideology.

It has changed completely. It has changed, first, because experience appears to have shown that deterrence is effective in the first beginnings of imprisonment, within the first month. It is then that the shock of the lack of liberty and the shock of interference with job and home becomes most apparent. It appears that thereafter the process of becoming accustomed to the situation diminishes the quality of the deterrent effect. The prisoner tends to become institutionalised. I am not talking about the punishment of violent or serious offences, where the need to protect the community, if only by deprivation of liberty for a time for the criminal is an important factor, or the need for the anger of the community to be reflected in an appropriate term of imprisonment. But we are not dealing here with a crime in that category.

The other feeling that has developed is that, quite apart from the critical factor of deterrence being an early consequence rather than one which is made much more effective by prolongation in many cases, whereas it used to be thought that being in prison was a good educative and rehabilitative process, no one pretends that any more. The criminal is sent to prison as a punishment and, while prison officers do their utmost in the process of rehabilitation and in assisting the prisoners as much as possible, the general view now is that the recidivist element in the criminal population is not diminished by an accumulation of prison convictions. So these factors, coupled with the basic question, which has now been so courageously faced by the Home Secretary in appeals to magistrates and judges to bear in mind the critical situation in which we stand, and, in addition, the active attempt by the noble and learned Lord the Lord Chief Justice in this field, also puts upon us as legislators the responsibility of doing what we can in this process.

Accordingly, I hope that the noble Lord, who I know is fully sensitive to this problem, which we have discussed more than once across the Floor of the House, will think that this is a good opportunity for Parliament, in turn, to play its part in endeavouring to deal with a situation which is becoming more and more intolerable, as I think most people in the country think—a large number of people certainly do—and as the opinion both of the Home Secretary and of the Lord Chief Justice seems to indicate. We think that a month or £500 is about right for this offence and, accordingly, I beg to move.

1.12 p.m.

Lord Hunt

Your Lordships' Committee is already aware that I support this amendment. I should like, before saying anything more, to apologise for my premature intervention in the Committee and to thank the noble and learned Lord, Lord Elwyn-Jones, for so properly proposing, That the noble Lord should no longer be heard, as I believe the expression is. Having listened to the noble and learned Lord, there is very little more for me to say.

I was on the point of saying very much what he said much more eloquently, to make the point that it seems to be a contradiction of the explicit policy of the Home Secretary, and of the desire of the Lord Chief Justice who has been equally explicit on this matter, at this time to put on the statute book a maximum sentence for the type of offence for which this clause makes provision. It causes me to wonder what goes on within and between departments of state, when a sentence of this magnitude is imposed for this type of offence. It seems to ignore the Home Secretary's declared intention to legislate to reduce sentences, if the courts do not reduce sentences of their own accord. I am not a betting man, but I would almost be prepared to wager that, if the Home Secretary is constrained to introduce legislation to reduce sentences, this sentence, if it goes on the statute book, will be one of those which are reduced.

The only other point I would make is to endorse, with humility, the observation of the noble and learned Lord, Lord Elwyn-Jones, that the evidence on the effect of prison sentences in the very first few weeks or 10 days, and wearing off progressively, is produced by all those who really know about this subject—prison governors, prison staff, probation officers and social workers—on the hard evidence of criminological research. For that reason, I am very strongly in support of this amendment.

Lord Renton

May I say that I agree with noble Lords opposite who have said that we should join with the Home Secretary in trying to keep people out of prison, if there are other suitable ways of dealing with them. May I add to what has already been said, that I rejoiced when I read a few weeks ago that the noble and learned Lord the Lord Chancellor came out with a very strong speech in support of the Home Secretary to this effect. On that there can be no dispute, I think, between the two sides of your Lordships' Committee.

But I suggest that this question of what should be the maximum sentence for any particular offence is a different issue, because the maximum sentence is not the usual sentence, if there be such a thing, and not the most frequent sentence. The maximum sentence has to be fixed according to our judgment or, if you like, our guesswork, in order to cover the worst type of case of the commission of that offence which may come before the courts from time to time. Therefore, although noble Lords who have spoken so far are most certainly right in saying that one month would normally be enough, if prison were the sentence at all—and it frequently would not—I could imagine, and one must be prepared to imagine, that there would be the occasional case in which a sentence of one month would not he enough, more especially if it were for a second or subsequent offence.

That is a factor which we have to bear in mind, also, when deciding what should be the maximum, because it is when the offender becomes repetitive that he, so to speak, runs up the scale and may eventually have to be awarded the maximum. In those circumstances, and as a matter of judgment—and that is all it can be on our part—I should have thought it would be right to keep three months in the Bill, and that it would perhaps be taking too much of a chance to reduce it to one month for the maximum.

Lord Hunt

I wonder whether the Committee would allow me to come in again very briefly, in response to the point made by the noble Lord, Lord Renton. He has pointed out that this is the maximum imposable sentence and, of course, that is true. He has also made the case that, perhaps, because of the degree of the offence, it would be wise to keep that as a maximum sentence. But I hope he will agree that not only may the offence vary, but the courts vary, too. The Lord Chief Justice, only two days ago, speaking to the Central Council of Probation and After-Care Committees, described courts as separate little empires. There will be some courts which, because of their character, will impose the maximum sentence for what is, perhaps, quite a light degree of offence.

Lord Renton

Yes, of course, the noble Lord, Lord Hunt, is quite right in what he has said. But, if I may say so, he has overlooked the fact that it is partly because of the disparity of sentencing on the part of the courts of first instance that we give to higher courts when an appeal takes place the opportunity of reducing the sentence. I think that that is really the answer to the noble Lord.

Lord Swinfen

While I agree with noble Lords opposite that there is a great deal to be said for reducing the number of people in prison I wonder whether my noble friend Lord Belstead and his department could think of the possibility of adding another punishment for this crime, that of community service, bearing in mind that a number of potential offenders could be extremely young?

Lord Leatherland

I cannot speak with experience. So far, I have never been to prison; but I feel that it would be quite unnecessary to have three months in prison for this kind of offence. One month is sufficient. The short sharp shock that people get when they first go to prison is something that we can hardly conceive. Whether it is one month, seven days or three months, the fact that you go into prison and hear those gates clang behind you is all the shock that is necessary. I think that one month is quite sufficient.

Lord Belstead

I acknowledge the reason which the noble and learned Lord, Lord Elwyn-Jones, gave for drawing attention to the need for shorter sentences of imprisonment as one of the main reasons for moving this amendment. The noble and learned Lord spoke not only persuasively but also in generous terms so far as my right honourable friend the Home Secretary is concerned about the wish, which I think is felt quite genuinely on all sides of your Lordships' Committee, to head in that particular direction.

In picking up this point, I think I can reasonably say that the Government have already tried to put their money where their mouth is. Some months ago—the noble Lord, Lord Donaldson of Kingsbridge, I remember, was generous enough to say that he welcomed it—we brought in the small but none the less important provision to make sentences of up to one month liable to remission, to which such sentences had not before been liable. We thought it was important that we should do this.

As your Lordships know, a discussion study has now been put forward on the parole system which includes proposals about early release. I shall not go down that road but will come back to the amendment. I think my noble friend Lord Renton was, as is so often the case, absolutely right when he said that this is a question of balance and of judgment. In trying to get the balance and the judgment right, may I turn immediately to the nature of the offence about which we are talking and for which we are discussing the question of penalty. It is true that the offence in Clause 9 is an offence of a preparatory nature, although I must point out that the behaviour may not in some cases differ outwardly from that which would support a charge of attempt in circumstances where the precise intent is clear. But it is also true that the offence as amended in another place requires the prosecution to prove an overt act and specific criminal intent.

May I remind your Lordships that in the Bill as introduced in the other place the prosecution had to prove only an intent to gain entry into a vehicle. The prosecution now has to prove that the defendant had an intent to commit one of the offences mentioned in subsection (2). The seriousness with which those offences are regarded can be judged from the maximum penalties which are available under the law. For conviction on indictment, these are 10 years for theft and three years for taking and driving away a vehicle. On summary conviction, it is six months' imprisonment, maximum, in both cases.

In the light of those available sentences, which apply equally to an attempt to commit those offences, I do not think it seems draconian to make available a maximum sentence of three months' imprisonment, subject to remission, in circumstances where a person is convicted of an overt act of interference which has been carried out with intent to commit one of those offences. I was grateful to my noble friend Lord Renton for putting the matter in a rather wider perspective when he referred to the need to think also about the repetition of offences.

For a brief moment only before I finish, may I return to the question of the size of the prison population. Before I do that, the answer to the question asked by my noble friend Lord Swinfen is that community service orders may be made in respect only of imprisonable offences. It would be a major step, a matter which would need to be thought about very deeply indeed and which would be one of controversy, if we started to go wider than that so far as community service is concerned.

Lord Donaldson of Kingsbridge

Surely it is an imprisonable offence that we are talking about, is it not?

Lord Belstead

I am so sorry to have answered my noble friend Lord Swinfen in that way. The noble Lord, Lord Donaldson of Kingsbridge, is absolutely right to pick me up. Of course my noble friend Lord Swinfen—what a pity that I did not get it right the first time—is on to a good point. I think that I might have been a little less dim in taking on board my noble friend's suggestion and welcoming it instead of trying to rebut it.

May I return to the basic point which was made by the noble and learned Lord, Lord Elwyn-Jones. I suggested in reply to this amendment that a balance has to be struck with the greatest seriousness between the need to do everything we can to reduce the numbers of those in custody and the need to make the kind of provision which is appropriate to the seriousness of an offence, in order to provide the courts with sufficient powers to deal with the wide range of cases which may come before them.

Some room has to be left for the exercise by the court of sensible discretion. Where a sentence of imprisonment is necessary it is best kept as short as possible, but an adequate maximum has to be provided for the worst cases. In this case, I do not think it can seriously be argued that a maximum of three months is excessive, given that an offender will have been intending to commit one or more of a number of offences which are punishable very much more seriously in the way which I have just explained. In the Governments view, therefore, the proposals contained in the Bill strike the right balance.

In summary, the Government consider that a maximum sentence of one month's imprisonment would not recognise adequately the relative seriousness of the offence reflected in the burden imposed on the prosecution as to criminal intent, and would not provide the courts with a proper range of options. It is on those grounds that I would advise your Lordships not to accept this amendment.

Lord Robbins

Before the noble Lord sits down, may I ask what, doubtless, lawyers will regard as an ignorant question? Is it not possible in an Act of Parliament to discriminate between first offences and others?

Lord Belstead

I am not a lawyer, and I think the point will be picked up by the noble and learned Lord, Lord Elywn-Jones, when he addresses us on the course which he has decided to take on the amendment. Surely the answer to the question asked by the noble Lord, Lord Robbins, was encapsulated in some of the words which my noble friend Lord Renton spoke to your Lordships' Committee. The courts have room to manoeuvre within the maximum which is set. It is necessary, so my noble friend was advising the Committee, to see that the maximum is set to provide for various different contingencies.

Lord Renton

If I may presume to add to the reply which my noble friend has just given to the noble Lord, Lord Robbins, there have been a number of statutes in which the maximum penalty for the first offence has been fixed. They then go on to fix a maximum penalty for second and subsequent offences. However, when that is done it introduces sometimes an element of inflexibility. My own personal view, based on some experience, is that it is better that there should be just one maximum offence. Then the court can act according to the circumstances of the case. That is what has been done by the Government in this Bill.

Lord Mishcon

May I intervene briefly merely to say that everybody has agreed—the noble Lord, Lord Renton, as one would expect of him, has agreed—that a lead must be given to the courts in regard to shorter sentences. The Home Secretary has made some very eloquent speeches on the matter. I remember reading one speech of his in February last in which he made this abundantly clear. The May Committee when dealing with the matter of prisons also made it abundantly clear that they agreed with this. It was a Home Office advisory committee which sat in 1977 that made this recommendation. Speeches are very effective with those who happen to hear them—though possibly not always of a permanent nature in regard to their effect—and with those who happen to read them, but Parliament can play its part in trying to enforce policy by looking at maximum sentences when they are being laid down in a new statute or a new offence is being created.

This is the opportunity of Parliament at this time and, when we consider that we are dealing with a preparatory offence, it is perfectly true that there may be convictions against the person who is accused; there may be convictions of the major offence of the theft of cars or of driving away motor vehicles in the past, but this is a preparatory offence. Since courts look at comparative sentences and say "Well, even after the Home Secretary spoke, this preparatory offence has a maximum sentence of three months attached to it"—again you get the idea in the courts that this sort of offence ought to be answered by this sort of penalty, or that this period of imprisonment is the right proportion for a sentence.

That is why I ask that serious consideration be given by the Government to see whether they cannot carry out their own policy, which is so warmly endorsed, as my noble and learned friend Lord Elwyn-Jones said, from this side of the Committee—and choose this opportunity to show that the policy is one in which Parliament is now participating. I think it is a great opportunity to do this by supporting this amendment.

Lord Swinfen

Before the noble Lord sits down, are courts not given advice by the Lord Chancellor's Department on the sort of sentences that should be passed, to ensure uniformity throughout the country?

Lord Elwyn-Jones

Perhaps I may have leave to answer that question very briefly. From my recollection of what they do, Lord Chancellors do occasionally give guidance, principally through magistrates' associations and other meetings, on their views of the principles that should apply. They are always very careful not to tell judges what sentences they ought to pass, but training courses are now compulsory for newly appointed magistrates and there is more involvement of High Court judges in discussions on penalties so that we can achieve as much uniformity of approach as possible. But on the specific point of appeals for shorter sentences we have the powerful combination of the Lord Chancellor, the Lord Chief Justice, the Home Secretary and I hope now your Lordships' House on this matter.

I wonder whether the noble Lord, Lord Belstead, who is so fully sensitive to these things, would be willing to look again at this. We are dealing here with a preparatory offence. It is a new offence and I venture to think that the combination of one month and/or £500 is quite adequate in the serious case as well as what is likely to be the run of cases.

Perhaps I may make one other observation in regard to the point that the noble Lord, Lord Swinfen, raised. Of course it will be open to the courts, if the penalty is one month, to pass instead an order for community service. That is increasingly being carried out to great effect, especially in respect of young offenders. So the noble Lord may be reassured by the knowledge that if this amendment is carried the courts will still have the opportunity of dealing with it by the way of a community service order, which may indeed be the effective order in a large number of cases. I do not want to take up more of the time of the Committee on this, but I wonder whether I am asking too much in asking whether the noble Lord will look again at this, without commitment of course—because I appreciate its importance.

Lord Belstead

It would be churlish of me not to respond to the noble and learned Lord and to the noble Lord, Lord Mishcon. I think, first, it is right to say again that this is a question of balance and of judgment, and we are talking about an area where nobody can be absolutely certain. But, secondly, in the context of wishing to see shorter sentences in appropriate cases, it is fair to say that the Government have, among other things—as I said in my original answer—looked at the penalties which are available for the substantive offences to which the preparatory offences could lead. These are substantial penalties for offences which earlier today my noble and learned friend Lord Rawlinson reminded the Committee are being committed in very substantial numbers every day of the year. That is why we felt that, on balance, it was right that, with remission, of course, the maximum penalty should be three months' imprisonment and the alternative of the £500 fine with, as the noble and learned Lord has reminded my noble friend Lord Swinfen, the right of the courts—and we all know that increasingly they are making use of this—to look to alternatives, such as community service, in appropriate cases.

Of course I am prepared to take it to the Home Office and ask one final time whether we are as certain as we can be in a matter of this sort that we have it right. It would be right for me to write to the noble and learned Lord, to the noble Lord, Lord Mishcon, and to those who are signatories to the amendment as quickly as possible. But I must underline that I think it highly unlikely, for the reasons I have given, that we would feel able to change on this matter.

Lord Donaldson of Kingsbridge

I do not want to prolong this discussion. But, of course, from my point of view and the point of view of my colleagues the comparison with a three-year sentence for taking and driving away, as opposed to stealing, a car, which is much more serious, is far too high in itself. I should have thought that one of the first things that the Home Secretary or the Lord Chancellor will do when they begin to talk about scaling down sentences, will be to deal with that. I think the analogy was falsely drawn; but, having said that, I am sure that the noble and learned Lord on the Front Bench will be happy to hear that the noble Lord is willing to take the amendment away and look at it.

Lord Elwyn-Jones

I am grateful to the noble Lord for having gone as far as he has gone. I appreciate that he has put limits on what he has said, but in the circumstances I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 9 shall stand part of the Bill?

Lord Renton

I have one final drafting point I should like to mention and I hope your Lordships will not think it trivial. If your Lordships will look at subsection (4), you will see that it reads: A constable may arrest without warrant anyone who is or whom he with reasonable cause suspects to be guilty of an offence under this section". I must confess that there is a precedent for that, but there is also a very much better precedent in the same statute, and I think that really the better precedent is the one which should be used. If we refer to Section 2(5) of the Criminal Law Act 1967, we find that this subsection should be amended in this way: the words "be guilty of" would be struck out and the words "have committed" would be inserted. I am sure that is a more felicitous way of explaining the state of mind of the constable who has to arrest without warrant. Perhaps my noble friend will look at it, and it may be that the draftsman will wish to follow the better precedent in Section 2(5) of the 1967 Act.

Lord Belstead

As I understand it, again my noble friend is not questioning the effect of subsection (4), but is questioning the drafting of it; and of course I am only too ready to take that away and have it looked at.

Lord Pitt of Hampstead

Before your Lordships pass this clause, may I again repeat my worry about this particular clause. May I ask the Government whether they would look at it again and see whether it can be tightened. I am still worried about the possible consequences that will flow from our passing this clause. I am not asking for anything more than that I would like the Government to look at it again to see in what way it can be tightened.

Lord Belstead

As your Lordships know, this clause was tightened in another place. I see the noble Lord, Lord Pitt, nodding. I am sure he felt that that was the right way to go if there was to be a Clause 9 in the Bill. We will certainly look at it, but I must be straightforward about this; I think it is highly unlikely that we would be able to tighten the clause further. I will not conceal from the noble Lord that there has been a great deal of discussion in the Home Office as to how the clause ought to be drafted. Indeed, a point which the noble Lord, Lord Mishcon, put to me at Second Reading—and we will not go over it now—was looked at very carefully before the Bill came to your Lordships' House and has been discussed again since the noble Lord put the point to me. I would not want the noble Lord, Lord Pitt, to feel that the Government have simply got the clause drafted and then turned their back on it and gone on to other things. Continuing thought as to whether this was the right way has been given to the drafting of the clause while the Bill has been going through both Houses. We will look at it once more, but I can give the noble Lord no commitment to change it further.

Clause 9 agreed to.

Clause 10 agreed to.

Clause 11 [Commencement and extent.]:

Lord Belstead moved Amendment No. 8: Page 6, line 33, at beginning insert ("Section 7(1) in its application to each of the enactments which it amends extends to any place to which that enactment extends; but save as aforesaid,").

The noble Lord said: This is a purely technical amendment designed to take account of the fact that, while the Bill generally extends to England and Wales only, Clause 7(1) contains an amendment to legislation which extends outside the territory. If that amendment is to be effective it must extend wherever that legislation extends; the amendment now before your Lordships will achieve this result. I beg to move.

On Question, amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 agreed to.

In the Schedule:

Lord Belstead moved Amendment No. 9:

Page 7, leave out lines 30 to 32 and insert—

("1980 c. 43. Magistrates' Courts Act 1980. Section 32(1)(c). In Schedule 1, paragraph 34 and in paragraph 35, the words "or 34".").

The noble Lord said: This amendment is consequential on Amendment No. 1, to which I have already spoken. I beg to move.

On Question, amendment agreed to.

Schedule, as amended, agreed to.

Title agreed to.

House resumed: Bill reported with amendments.

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