§ 7.47 p.m.
§ The Earl of Onslow
My Lords, I beg to move that this Bill be now read a second time. Last March your Lordships gave a Bill on criminal trespass a Second Reading. There were possibly novel factors in that Bill—and anyway it fell because of the general election. With the great help of my noble friend Lord Elton, and the ever-present help and encouragement of my noble friend Lord Renton, I now move an updated version of that previous Bill.
The object of the Bill now before your Lordships is to protect people in their own homes from intrusion. Note well that I said "homes" and not shops, not farm buildings, not factories, not agricultural land, and not grouse moors. If any of your Lordships feel like introducing amendments to protect those places, I will—however sympathetic I may be—resist them very hard.
The public have shown concern—especially after the Fagan incident at Buckingham Palace—to alter the law in respect of private houses. Their concern would 1341 not extend to anything else. As I have said already, I personally have a great deal of sympathy with those who own farm buildings or shops especially and who suffer trespass. But I am sure tht we should aim for a Bill that will have broad public support and which does not extend into other fields. Adding such an extension would risk entrapping the innocent and it would be extremely difficult to formulate.
There was some idea that there should be a Bill designed to cover criminal trespass in the homes of the great and the grand only. From what is publicly known of Her Majesty the Queen, I am sure she would not want any different protection from that offered to her subjects. After all, Charles I lost his head and James II lost his throne for asking for different things from their subjects. My right honourable friend the Prime Minister is also too close to public feeling to attempt special extra laws for herself and her fellow Ministers. I suggest to your Lordships that there is even, at the moment, some resentment about the special protection given to foreign embassies. It does seem odd that one can be prosecuted for sitting on the Russian Ambassador's bed but not on the bed of the Sovereign. It has therefore been decided that we should all have the same protection.
This Bill is the product of discussions which my noble friend Lord Renton and I had with Home Office Ministers following the conclusion of their review. I greatly welcome the fact that the Government, recognising the strong popular support for creating an offence of trespass in people's homes, have agreed that there is need for legislation. For my part, I recognise the point made by the noble and learned Lord the Lord Advocate, when your Lordships discussed our previous Bill last year, that there are a number of difficult issues to be resolved in deciding on the exactitude of the criminal offence. There is no doubt that the real mischief is intrusion into homes, and my Bill therefore concentrates on that. Whatever we may lose in restricting its scope is, in my view, outweighed by the clarity and simplicity of the more narrow approach.
Turning to the specifics of the Bill, your Lordships will see that Clause 1 defines the buildings to which the Bill applies. The word "home" in subsection (1) is the key. The living accommodation need not be in continuous use. Thus, holiday homes are protected. Nor does the building need to be occupied at the time of the intrusion—and that, if I may say so, is an improvement on the Bill we introduced previously. It is clearly right that an elderly lady, returning from the shops to find an intruder in her home, should have the same recourse in criminal law as does the occupant who was at home at the time of the trespass. Subsection (2) extends the definition of a building to movable structures, so that, for example, the caravan homes of gipsies are included.
Clause 2 creates the offence of entry. The offence arises where a person enters any building or part of a building to which the Bill applies. Thus, entering part of a building, even where the part itself does not constitute the living accommodation of the building, is breaking the law. This is necessary to ensure that an intruder into the kitchens of an old people's home would commit an offence even before he got into the bedrooms or the dining- room, which could possibly 1342 be a communal building.
In ensuring that the law catches trespassers I have been concerned that the Bill contains proper defences so that innocent entry into a person's home by others is not hindered. Much of Clause 2 goes to that concern. The effect of part of subsections (1) and (2) and subsection (3), taken together, is that no offence is committed unless there is both knowledge or recklessness as to trespass and knowledge that the building contains living accommodation; nor if there is lawful authority to enter or if the building is open to the public at the time of entry. This may seem odd but, as the Bill is drafted, if you enter the public part of a building which is open to the public and stay on after the place has closed you are not committing an offence provided you do not move. However, if you move from one part of the building to another you have re-created your trespass. Therefore, the Bill is not as tightly drawn as may appear at first sight.
We are not at risk here of curtailing the movement of ordinary tradesmen, visitors or tourists. Moreover, those who intrude without permission but for the best of motives also have a defence against the charge of criminal trespass. The defence of "reasonable excuse" is the defence that is in the Bill. "Reasonable excuse" means, for example, that your dog is lost down the street or your horse is wandering about the garden, or a case of "The postman has left something for you with us next door and I have brought it in". That seems to be "reasonable excuse" and we all know what a reasonable excuse is. I do not think it could be regarded as a reasonable excuse to go to the Sovereign's bedroom and say, "Ma'am, your corgis are running riot in Pall Mall". That could not be regarded as a reasonable excuse, and that is something we can all understand.
Subsection (4) provides the maximum penalties for a summary offence and subsections (5) and (6) allow the police to enter, search for and arrest a trespasser. Subsection (7) is a technical amplification of when a building, such as a stately home, is considered open to the public.
I look forward to this debate. I believe that the Bill strikes the right balance and that it will be welcomed by the public at large. I believe that the Bill shows we are concerned that everybody, not just the privileged, should be protected. I believe it is a small step forward in making people's lives happier and content. Before I sit down, may I thank the noble Lord, Lord Mishcon, for listening to me as opposed to listening to "La Boheme", which I understand he was going to listen to tonight. I beg to move.
§ Moved, That the Bill be now read a second time.—(The Earl of Onslow.)
§ 7.55 p.m.
§ Lord Mishcon
My Lords, the noble Earl is very gracious in mentioning that I was about to be elsewhere until I was persuaded that I must deal with this Bill instead. I only hope that the ending of this debate will not be quite so sad as, as I remember, is the end of "La Boheme".
Whenever one seeks to alter the criminal law by adding a crime to it I think it is generally agreed that there are certain principles that Parliament ought to 1343 have in mind. The first is the need for adding a crime; the second is the practicality of its enforcement; and the third is that, by that addition, one keeps what ought to be a general respect for the criminal law. It is against that background that I approach the Second Reading of a Private Member's Bill. In those circumstances, your Lordships will know that it is a tradition of this House that one does not vote against a Second Reading. Therefore, I am not inviting any of my noble friends to support my views because it is within my knowledge also that it is the tradition that everybody can voice their own personal views on a Private Member's Bill.
This Bill has had a most extraordinary history. I pay tribute to the ingenuity of the noble Earl, as well as to his lucidity, in dealing with the two Bills that he has brought before the House, both of which are said to have the same object. The history starts, of course, with that intrusion, which one can laugh at now and treat quite lightly, in July and August 1982 into the private part of Buckingham Palace. Indeed, at the time there was no laughter; there was absolute shock that this should have happened. Most of us thought, and I still think, that it was not a lack of criminal law that was responsible for what happened on that occasion, but a lack of security—a dreadful lack of security. The solution to that problem possibly does not lie in any alteration to our criminal law but in the improvement, which one knows has taken place, in the security arrangements which safeguard members of our Royal Family.
The second thing that happened after July and August 1982 was that the Lord Chancellor, the Home Secretary, and the Law Officers consulted together and, as a result—and I believe of public pressure—a discussion document was issued. That document, entitled Trespass on Residential Premises, was issued in February 1983 and the public and various organisations were asked to give their views by May 1983. Between February and May 1983 the noble Earl with the support, if I remember correctly, of the noble Lord, Lord Renton, brought before the House a Bill entitled the Criminal Trespass on Residential Premises Bill.
The debate on that Bill took place on 23rd March 1983; that is, before anyone had a chance of making observations, and certainly before the House was aware of what observations had been made on the discussion document. The view was expressed in the Second Reading debate—and I believe that the noble and learned Lord the Lord Advocate took this view, as I did, humbly, when I dealt with the Second Reading—that it was premature to consider that Bill before we had the opportunity to consider the observations on the discussion document.
The relevant factor, and why I say that this matter has a very peculiar history, is that the offence which was to be created by that Bill and which was contained in Clause 2 was:Any person who as a trespasser causes or is likely to cause fear, distress, harassment or serious annoyance to anyone in lawful occupation of residential premises shall be guilty of an offence".The punishment for it was to be:Imprisonment for a term not exceeding six months or a fine not exceeding £1,000, or both".1344 That was a qualification in regard to the crime created under that Bill of trespass.
When introducing that Bill, after saying that he certainly was not advocating the breadth of the Californian law, which made mere trespass a crime, at column 1181 of the Official Report on 23rd March the noble Earl said:I now turn to the Bill. It has the merit of being short, in plain English, containing no cross-references to previous legislation".I always admire anybody who brings forward a Bill that is capable of being truthfully defined in that way; and that was a truthful definition. The noble Earl went on:The method used in it is to take Section 9 of the Criminal Law Act 1977 and apply it to residential premises, adding a requirement that the prosecution must prove that trespass caused, or was likely to cause, 'fear, distress, harassment or serious annoyance,' to anyone in lawful occupation of residential premises".These are the important words:It is the qualification part of that clause which is so important. This is the very filter which meshes out the small boys and the cricket balls, et cetera, to which the consultation document refers. It filters out the innocent. All the prosecution has to prove in the case of a foreign embassy is that the accused knew it was an embassy or building occupied by foreign diplomats covered by diplomatic immunity.In my Bill, the prosecution also has to show that fear, et cetera, has been caused or is likely to be caused before a trespasser is guilty of an offence in a private house".The House listened, as I did, with the usual courtesy and care that we always extend when the noble Earl addresses us; and we said to ourselves, "The noble Earl is saying very clearly that he would never present a Bill to this House which did not have that qualification in it".
Still without the House yet having had the benefit of the observations on that discussion document—the third item in this history—another Bill is now introduced by the noble Earl. This time it is called the Criminal Trespass Bill, which is a shorter title than that of the short Bill to which he referred us on the previous occasion. The offence which is now created by this Bill is also contained in Clause 2, and it reads as follows:Subject to the following provisions of this section"—and the following provisions are not relevant to the point that I am making—a person who without reasonable excuse enters any building or part of a building to which this Act applies as a trespasser is guilty of an offence".There it stops. There is no qualification at all about causing fear, harassment or serious annoyance—the very qualification without which on the last occasion, as I understood him, the noble Earl said he would not dream of presenting a Bill to this House.
I find the history of this matter somewhat extraordinary. The logic for which the noble Earl will always be known seems to be wanting at least on this occasion. I therefore find myself in the gravest of difficulty in supporting this Bill for the following reasons. First of all, I say to myself that without that qualification anyone can bring a private prosecution based on the fact that a landlord and tenant dispute takes place as a result of which somebody is trespassing on premises without causing fear, harassment or serious annoyance. I have no doubt that the noble Earl or others in favour of the Bill would reply, "Ah, yes, but he could show that he had a reasonable excuse".
1345 A mother-in-law may be visiting the son-in-law unwanted in order to rebuke him for the way in which the daughter had been expelled from the matrimonial home. No doubt she would have to give her excuse to the local magistrates' court, having been charged by the son-in-law with a trespass upon the premises. The landlord and tenant who have a dispute would no doubt, as a result of a private prosecution, it may be said, be able to give a reasonable excuse to the magistrates' court. But are we to force this into being the sort of thing that our criminal courts are to deal with—because this is what we would be doing—on a private prosecution? What we would do, therefore, is quite obviously to cause these people, in a criminal court, to have reasonably to account to the court for the fact that they were on the premises without being an invitee or licensee upon them.
§ The Earl of Onslow
My Lords, I hesitate ever to correct a lawyer on interpretation of the law, but I am advised both by officials and other lawyer friends and acquaintances that lack of reasonable excuse has to be proved by the Crown. The man does not have to say, "I had a reasonable excuse". That turns the argument slightly the other way round, I think.
§ Lord Mishcon
My Lords, with great respect, the noble Earl is not dealing with the main point I am making. I was not on the question of onus of proof; I was on the point that this is a matter which in the examples I have given would have to be ventilated before a criminal court. The noble Earl took the instance of prosecution by the Crown or by the police, and I shall come to the police in a moment. What I am saying is that this would be a matter that would have to be ventilated—as it is not at the moment and does not have to be—before a magistrates' court, instead of it being very properly a civil matter, as it now is.
I now come to the police. Under this Bill the police will have a power of arrest. That means that the private citizen will be able to call for a policeman, point to Clause 2 of the Bill, if it ever becomes an Act, and say, "I want you to arrest this person"—albeit his mother-in-law or the tenant who has come back after being ejected from the premises (it may be rightly or it may he wrongly) in order to try to re-occupy the premises, except that he is a trespasser when he comes back on this occasion. The police are brought in and they are asked to make an arrest upon a matter of this kind without fear, harassment or annoyance having to be proved. The police officer, on the spot, will have to make up his mind whether an offence has been committed and whether, in the circumstances, the person should be arrested. This would be on the spot. There would be no question of a civil court hearing, which would normally take place with a civil wrong.
If I may return to the principle that I was previously trying to enunciate, and where I believe I would have the House with me, I would say that this proposal is not a necessary addition to our criminal law. Its enforceability is not practical. The third ingredient is definitely lacking; that is, the need for the public to have respect for our criminal law. We have done without such a provision for centuries. When the Criminal Law Act 1977 was passed by Parliament all these questions were considered and it was not deemed 1346 necessary to add an offence of this kind, or even an offence of the kind which was in the original Bill.
I emphasise that I am expressing a personal point of view from this Front Bench. If, as a result of the happenings of July and August 1982—because they are the funs et origo of this whole affair—it is necessary to take action, then there are ways to amend the Vagrancy Act. There is even the method which the noble Earl eschews; that is, to amend the Criminal Law Act 1977 in order to include Royal Palaces or ministerial buildings among the premises which it is a crime to trespass upon. It is perfectly possible to add those premises if there is the need.
If the basis of what is being proposed is concerned with the public interest, then it is my profound belief that, if it is thought necessary to amend our criminal law to include the protection of those who deserve protection, the public would accept it and acknowledge it. If Parliament, in its wisdom, decided that it was necessary in the public interest for such premises to be protected, there would then be an opportunity for Parliament to consider whether the list was a proper one, or whether it should be amended. However, I see that the noble Lord. Lord Renton, wishes to intervene.
§ Lord Renton
My Lords, I thought that the noble Lord was coming to his conclusion. I was going to ask him, before he sits down, whether he will make it clear that he is suggesting that, for example, Buckingham Palace and other important places should be given the same kind of protection as is given to foreign embassies under the Criminal Law Act 1977, but that the homes of ordinary people should not be given that protection? Is that what the noble Lord is saying?
§ Lord Mishcon
My Lords, what I am saying (and I have already said it very clearly) is that, despite what I have said, if because of the happenings of July and August 1982, it is felt that there should be an amendment to the law—I am not saying that I think it is necessary—then the proper way to deal with that would be by amending the Criminal Law Act 1977. I should like to say to the noble Lord that if ambassadors and diplomatic premises are entitled to that protection, and Parliament has said that they are, and the Criminal Law Act says that they are, then I can see a very logical case for our Royal Palaces, and if necessary 10 Downing Street, and possibly a few other addresses, being accorded precisely the same protection.
But I am not saying that it is essential that such an amendment be made. I am saying that if Parliament in its wisdom thought that there was a situation which had to be redressed as a result of the happenings of July and August 1982, that is the way to do it, and not to introduce into our criminal law a provision which in my view would mean that the criminal law would not be respected by the public, and which would give rise to all kinds of difficulty as a result of the trespass (if I may use that word) of criminal law onto civil law, which is looking after these matters perfectly well at the moment.
It is for that reason, and with great regret, that I have to say that I do not think that Parliament ought to enact this Bill. But as I said earlier, in view of the normal tradition, there will be no question of my asking for any vote on a Second Reading.
§ 8.15 p.m.
§ Lord Airedale
My Lords, I had thought that the noble Earl and his friends had done much very useful work on their Bill since the last one was debated. I had expected that the noble Lord, Lord Mishcon, to whom we listen with the very greatest attention, in particular on legal topics, would have changed from his lukewarm attitude of the last occasion to one of more enthusiasm for the Bill now produced. But I am disappointed. The noble Lord displays absolute hostility to the present Bill, and that disappoints me very much.
However, having said that, let me say that I very much sympathise with a point made by the noble Lord, Lord Mishcon, early in his speech, when I think he said that the criminal law should not be used as a pillow for the heads of those charged with security who go to sleep on the job. But I do not fear as much as does the noble Lord that the Bill would be invoked in the criminal courts in regard to family disputes. I say that because the courts always exercise tremendous common sense. Anyone involved in a family dispute who is proposing to invoke the criminal law, if he takes any legal advice at all, will be told that it is perfectly true that he appears to have a technical case in the criminal court, but that he will not get much sympathy from the court when it sees that he is using a particular criminal statute to achieve an object for which it was not at all intended. In such circumstances a person would be told, "You won't get much change out of the court." I do not believe that people with family
The noble Lord, Lord Mishcon, expressed disappointment that the element of causing distress, annoyance and harassment had been dropped from the Bill. But I am not so sure about that, either. I believe that anyone who knowingly enters someone's home as a trespasser must take his chance as to whether he harasses or annoys someone else. He ought not be allowed to say to the court, "It turned out that the occupier was Mr. Henry Cooper, and I did not annoy him or frighten him in the slightest degree".
Finally, the noble Lord referred to the enforcement provisions. Here I am in sympathy with him, in particular in regard to subsection (6). That states:For the purpose of arresting any person…a constable in uniform may enter (if need be, by force)…any premises where that person is or where the constable",thinks he is. That seems to me extraordinarily wide. I can see the sense in saying that if an intruder has locked the door behind him, a policeman may break into the very house where he believes the intruder to be in order to arrest him. But the subsection refers to "any premises". That means that if the intruder has committed the offence and then gone home to his mother's house, locked the door and gone to bed, a policeman in uniform can break into that house and arrest him for an offence for which the maximum term of imprisonment is three months—not one of the gravest offences in the calendar. I would have thought that subsection (6), seen in that light, was rather draconian. Subject to that, I must say that I wish the noble Earl's new edition well.
§ 8.20 p.m.
§ Lord Renton
My Lords, may I first set at rest the mind of the noble Lord, Lord Airedale, by reminding 1348 him that subsection (6), to which he refers, is merely a repetition of Section 7(11) of the 1977 Act, which was, of course, passed when the previous Labour Government were in power. That was the Act, as my noble friend Lord Onslow mentioned, which gave protection to those living in foreign embassies but no protection to people in England and Wales living in their homes that had been traditionally regarded as their castles.
I should like to congratulate my noble friend Lord Onslow most heartily. From the moment that it was announced to an unbelieving and startled world that Fagan could not be convicted for climbing into Her Majesty's bedroom in the early hours of a July morning the year before last, my noble friend was the first in your Lordships' House to say that the gap in the law should be filled. It is not for want of trying on his part that the gap has not yet been filled, although one hopes that it soon will be, with the Government's help, now that they have given some advice, which I find welcome advice on the Bill that my noble friend is introducing. The Bill seems to me to be in the main a well-drafted measure. We must be thankful to the Government for what I can but call late mercies.
May I let your Lordships into a secret that might be of some interest to the noble Lord, Lord Mishcon? When my noble friend and I, more than a year ago, pondered how he might draft the Bill that he introduced in the last weeks of the last Parliament, I said to him, "You know, we will never get them to accept "them" I meant the establishment at the Home Office, the parliamentary draftsmen and Home Office Ministers—"unless we try to do what the draftsman so often does; namely, to deal with every blessed, hypothetical circumstance that could arise". It was on that assumption that my noble friend presented his Bill in the last Parliament. I said to him, "It is no good drafting in a simple, direct and general way". My noble friend therefore produced a Bill which was an attempt to achieve legal certainty in all foreseeable circumstances.
In particular, my noble friend set out in great detail a definition of "residential premises". He foresaw other factors that seemed to need attention, including some that the noble Lord, Lord Mishcon, mentioned. But, oh dear!, the Home Office did not like our attempt to do what we thought it would wish. My judgment therefore of what it would accept was quite wrong. Then we waited with eager curiosity for the Home Office's suggestions as to how it might be better done. And, lo and behold!, surprise, surprise, and hoorah, we find that the Bill is now in clear simple, general terms as recommended by the Committee on the Preparation of Legisation some years ago.
Speaking for myself, I have only two regrets about the Bill. They relate to ways in which it differs in substance from my noble friend's earlier Bill. My first regret is that the Bill does not deal with a trespasser who, for example, goes into someone's little back garden, a patio or elsewhere, on their home premises, where deliberate intrusion could and should be prevented, and was prevented by the earlier Bill. Secondly, the Bill does not deal with what lawyers sometimes call "holding over"; that is to say, the person who enters lawfully for a particular purpose but stays beyond that purpose, who outstays his welcome. 1349 I should like to give a simple example. The gas man calls to check the meter when the husband is out at work and the wife is left alone in the house. She lets the gas man in, and he checks the meter. Then, instead of leaving, which he should do, he sits down in an armchair, smokes cigarettes and stays for a long time chatting and making a nuisance of himself. Surely, he should not he allowed to get away with it. But he will be allowed to get away with it under the Bill. However, there it is. If the Government are not able to find narrow enough definitions to cover either of those points, or if they insist that by putting them in the whole Bill will be at risk in another place, then we shall have to let it be.
I wonder whether I may briefly answer one or two of the serious points made by the noble Lord, Lord Mishcon. I was thankful to learn, as I dare say some of the membes of his party were thankful to learn, that he was expressing only his own personal opinion. The noble Lord referred to three sound principles when changing the criminal law. The Bill should be needed; it should be practicable; and it should keep general respect for the criminal law. I say, with respect to him, that I think this Bill does all three of those things. I have no hesitation in saying so. It is a very modest Bill in its terms. As my noble friend Lord Onslow pointed out when interrupting the noble Lord, it places the burden of proof firmly upon the prosecution.
The noble Lord said—I could hardly believe my ears—that there was not a gap to be filled in the criminal law and that this was a matter of security. Those are not two alternative propositions. We need both—the right sort of criminal law and the necessary security, or whatever it may be, to enforce it. We need both.
§ Lord Mishcon
My Lords, I am sure that the noble Lord wants to be fair to me. What I said was that the dreadful incidents of July and August 1982 were not due so much to a defect in our criminal law as to a grave defect in our security.
§ Lord Renton
My Lords, that is quite different from what I heard the noble Lord say. I am glad that he has clarified the position. He is, of course, right in saying that there was a lack of security and that that was the main cause. But Fagan did drew attention forcibly and clearly to a serious gap in the criminal law that has worried many people in their homes ever since. My noble friend is now trying to fill that gap, and I am sure he is right to do so.
The noble Lord, Lord Mishcon, said that this should be a civil matter. Of course, it could be a civil matter. Trespass is a tort. It will remain a civil matter. Anyone can still sue if they think they can get damages. But there will be the necessary delay that, inevitably, with the best will in the world, takes place in civil actions, even in the county court. Quite frankly, I do not think that that would be much of a deterrent. It would certainly not fill the gap in the law revealed by Fagan.
If I may say so, I think that the noble Lord, Lord Airedale, effectively replied to the noble Lord, Lord Mishcon, on this question of replacing what was in the earlier Bill—the reference is to fear, distress and harassment and so on. It is a matter of placing an onus on the prosecution to prove that it was without reasonable cause. The noble Lord hit the nail on the 1350 head when he said that the trespasser must take his chance, and if his behaviour is proved by the prosecution and found by the court to have been without reasonable excuse, then that is that. It is an entry without reasonable excuse, and the court will no doubt relate the behaviour to the entry.
May I say in conclusion that my noble friend, by his persistence and his great ability, has done well in this matter. He has performed a considerable public service by trying to protect people in their homes: everyone from dukes to dustmen, from princes to pedlars. I hope the Government will persuade both Houses to get this Bill onto the statute book as quickly as possible.
§ Lord Mishcon
My Lords, before the noble Lord sits down I wonder if he would mind—so that it is clearly on record in this debate—dealing with the point which I tried to make about the difference between the first Bill and the second Bill. The noble Earl made it quite clear—and he will deal with this himself, I have no doubt—that without the question of provoking fear and other items he mentioned there, he would not have put this crime forward. It cannot be an answer—would the noble Lord deal with this—to say the question of reasonable excuse has taken over that need in this second Bill, because of course it was the defence that was clearly set out in Clause 3 of the first Bill. So this question of reasonable excuse and justification is not an additional item.
§ Lord Renton
One must concede, my Lords, that there was an onus on the prosecution in the first Bill to prove fear, distress and so on, and that onus is not repeated in the present Bill. But the Government, having taken advice, have come to the conclusion—and have no doubt borne in mind the provisions of the Criminal Law Act 1977—that it is not necessary to place that particular burden on the prosecution. They are, instead of making it a defence, placing on the prosecution a burden—which is a negative one—not always easy to prove, that the trespass was done without reasonable excuse. Speaking for myself, I think there is a justification for that attitude, although I must concede that this Bill does not specifically call upon the prosecution to prove the things that were in the previous Bill.
§ 8.33 p.m.
§ Baroness Phillips
My Lords, I find myself in something of a dilemma. First of all, I should like to congratulate the noble Earl on bringing the Bill forward again, and I do hope that this time it will go through both Houses and become law. He indicated in his opening remarks—looking at me—that he was very sympathetic towards the point I would be making that could not be embodied in this Bill. This I appreciate and I will not make any difficulties in the passage of the Bill. But I could not miss the opportunity to bring forward a slightly different point which would have meant widening the Bill. Having listened to my noble friend, Lord Mishcon, I begin to think that had it been widened to the point I am going to suggest it might have met his case more than this Bill does.
I would suggest that if any noble Lord thinks there are not gaps in the law he is mistaken. We are today debating a Bill following that dreadful statement yesterday where a man was harassed in his own home during a hearing of quasi-judicial proceedings, and 1351 there is apparently no law that can deal with people behaving in this way. While this point is not covered by this Bill, it does seem to me all the time that there are various areas not covered by any laws, and occasionally we have to amend the criminal law in order to deal with them.
Since March 1983, when I think I am right in saying we had the original second Bill, I had been, as had other people, considering very carefully the consultation paper which was issued in this connection. I take as a starting point for comments I have to make on the criteria for new criminal offences the case for making a single trespass a criminal offence. This is the passage I would refer to:Criminal law should be used to prohibit or to contain behaviour which is seen as meriting society's explicit disapproval to the extent of criminal sanctions to deter people from it, and to punish those who are not deterred".That seemed to me a perfectly straightforward starting point. Then there is the criterion which we all recognise:A new offence should be enforceable".I wrote, as did many other people, in response to the consultative document; and I wrote a further letter to the Home Secretary suggesting that it should be widened to include private premises because there are other areas where the act of trespass could very rightly be made an offence.
The Home Secretary replied very sympathetically, but said:My recent review of the law on trespass concentrated principally on residential premises and I regard this as most deserving of priority".That gave me some hope. I thought, "Priority for one; maybe we can move on to the others later". This is why I am intervening. He went on to say that he felt it was clear that there was a broad consensus that criminal sanctions should be available against uninvited intruders into people's homes but any offence which was not so narrowly drawn—in other words, if the offence was widened as I wanted it—would not command the same support. I do appreciate this. I know only too well that often in law you have to proceed very carefully and cautiously; you win one point and then you move on to another.
I should particularly like to refer to the people who are trespassers in every sense of the word in our shopping centres, not to mention shops and restaurants; we will leave those for a moment. I have received a tremendous number of letters indicating that some change in the law is necessary. My first example comes from a London borough in which the centre manager says:Following our efforts to make the centre more conducive to family shopping, just recently two youths aged 19 and 17 were running about the upper part of the centre kicking cans, shouting, knocking into people and using abusive language, and when they finally knocked into two elderly ladies they were taken up. There were so many complaints received by the members of the public that they were charged. At the magistrates' court they were found not guilty of threatening behaviour"—which was the only charge that could be made against them.The magistrates said that, although it was wrong to shout, to swear, to knock people about, it did not constitute threatening behaviour".It obviously did not constitute any offence for which they could be dealt with, despite the fact that they 1352 admitted doing something which was wrong.
In case your Lordships think this example is unique, I should mention another cry for help. This concerns an area outside London:Groups of youths congregate in the mall area. Their sheer presence is intimidating for the average member of the public going about her shopping".I use shopping centres and this is absolutely true. These youths feel that they have a right to congregate in the malls for as long as they choose and in whatever situation they choose. They occupy any seats which are available, thus depriving the genuine shopper, the old, the handicapped, and families with young children of a chance to sit down even for a short while.
Another instance tells us that the centre has been the scene of many cases of disorderly behaviour which have led to the prosecution of offences under Section 5 of the Public Order Act. But—and I think my noble friend Lord Mishcon will appreciate this—it has been extremely difficult to get these prosecutions off the ground because of the nature of the shopping centre: namely, it is private property. So there is a Catch-22 situation. It was concluded that it would greatly assist both the police and the management if they could maintain law and order within the shopping centre—namely, private property—as could be done if there were an amendment to the law.
Yet another correspondent tells us that from time to time unauthorised persons are discovered in parts of the building—in other words, they have come into the shop—which are banned to unauthorised persons. When they are asked why they are there or what they are doing there, they always give reasons which are not acceptable. It can happen that these trespassers are often known as local thieves, but you have to give evidence of their intent if you are going to prove that they do not have a reason to be there. They suggest, again, that a simple offence of trespass might meet the case.
The whole question of trespass in this particular situation has, over the years, posed a great many problems in trading establishments. With a very few exceptions, there is no real legal power to take action against a trespasser, despite the provocative character of the circumstances in which he is found. The only recourse that the staff in these instances have is to ask the people to move on.
On one occasion there were 100 people congregating in a centre and there were three members of staff trying to move them on. The police were not able to come in, or they did not wish to come in, because they were private premises. Faced by that type of unruly behaviour, the ordinary individual cannot go about his business. It is always my stance as regards anything in which I intervene, and it is always my belief as regards any law that we may have, that ordinary citizens should be enabled to go about their business or pleasure without hindrance. That does not seem to be possible at present.
Just today I had a note passed to me from the National Farmers' Union, who have drawn attention to yet another kind of trespass from which the farmers are suffering and which, again, they cannot deal with. I am referring to the protesters who do not like particular kinds of animal husbandry and who break onto the land to let the animals out. They come in large 1353 numbers and occasionally they also attack the farmhouse. There are quite a number of cases. When the police are called it is very difficult to establish that these people have committed any particular offence.
I hope I have shown the noble Earl that I do not intend in any way to obstruct his Bill. I wish it fair passage, but I am hoping that perhaps the passage of this Bill will enable the Government to look at the case that I have endeavoured to present tonight.
§ 8.43 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords, it gives me great and genuine pleasure to speak in the closing stages of this debate and to welcome into your Lordships' House the Bill of which my noble friend Lord Onslow has today moved the Second Reading. It addresses a problem in which your Lordships, and others, have taken a lively interest for some time, and particularly since the intrusion into Buckingham Palace which my noble friend and others have all, almost without exception, mentioned. It is one of those problems that appears simple on the surface but proves complicated when it is seriously addressed.
My noble friend and his and my noble friend Lord Renton, whose assistance in all this I gladly acknowledge, tabled their first Bill last year. It very soon emerged that it seemed to lead us into more difficulties than it solved, and they were good enough to take it away and consult with my right honourable friend and myself as to how the problem might he overcome. If those consultations took a mite too long for my noble friend Lord Renton, then I am sorry; but we are now, I think he will agree, in a state of grace. He may also agree that, if the Government were more readily persuaded to legislate, then even if Ministers could carry the burden of legislation the statute book would be too full for his taste.
What we now have before us is the result of much reflection by my noble friends and within the department. It is a simple Bill—one of the few, I think, which a layman can read and almost immediately understand—addressed to a simple offence. What it does is to make the tort of trespass into an offence when it is knowingly committed in a place which is in whole or in part a place of residence. When I say "a place of residence", I mean a building or, indeed, a caravan, or some structure in between the two, but specifically not land, and I know that that is a matter of disappointment to some of us.
My noble friend, in introducing the Bill, explained to your Lordships how it will work, and I do not doubt that your Lordships will test the detail of this at the Committee stage as and where you feel necessary. At this stage I would merely reply to a handful of points which your Lordships have raised in the course of this debate. The first of those must be that which was first introduced by the noble Lord, Lord Mishcon, and, as I have said, it has been referred to by almost everybody else. I am referring to the intrusion into Buckingham Palace, which I more than most—and I echo the words of the noble Lord, Lord Mishcon, in this—have reason to know has never been regarded on these Benches as a matter for laughter or even the faintest of amusement. We believe that Her Majesty's undisturbed safety is a matter of close concern of Her 1354 Majesty's Government. To that we have responded in ways that have been declared to Parliament, and what we have before us now is a response to a more general concern which touches the domestic homes of all Her Majesty's subjects as well as Her Majesty herself, and rests on the evident public opinion, revealed by our consultation, that protection of embassies and palaces with, for instance, Section 9 protection, without the protection of dwellings of humbler folk, would be contrary to the wishes of the public. In matters such as this it is important to go by consensus and convergence, rather than disagreement and eventual hostility from those treated unequally by the law.
The noble Lord, Lord Mishcon, addressed himself to the question of whether there should be a test of fear, annoyance and harassment, which I think was the word he used. He suggested that it should be necessary, for an offence of trespass to be committed, that fear and annoyance be caused, as there may be circumstances, as in a landlord-tenant dispute, when the entry should not be prosecuted for a criminal offence.
There is no doubt that one of the main objectives of this Bill is to protect people in their homes from fear and annoyance, but it did not seem just, on reflection, to make this effect of a trespass a requirement for an offence to be committed. Fear and annoyance are wholly subjective. A snooper in one home might be caught because he did cause fear, while another might not in the home of a less timorous person. But the mischief—that of entering another's home without good reason—must be treated equally in each case. Moreover, the Bill protects an individual's home from unauthorised entry, even if he is not there at the time of entry. If it is to do this, it cannot apply this test when there is no one there to whom to apply it. Furthermore, because of the necessity to call a witness to testify as to the fear or annoyance caused, some cases—and we can recall many—would create obvious difficulties, because there would be nobody present to act as a witness other than the person suffering the fear or the harassment.
I turn now briefly to the power of arrest. I do not doubt that noble Lords will be testing everything at the Committee stage, and I am not seeking to produce or, indeed, to usurp the function of my noble friend whose Bill this is, by producing a complete answer to everything. On the powers of arrest, such powers are not given lightly—and I say this specifically to the noble Lord, Lord Airedale—but there will be cases—for example, where a neighbour calls the police to the house next door because there is a prowler—in which it is only sensible that the police can enter the house. If he has locked himself in they will have to use force and arrest the offender. There is, after all, something curious about the scenario of a trespass in which, by definition, a person is in a place where he has no right to be but he cannot he removed by the police. There would be an element of absurdity if we created the offence without a power of arrest.
§ Lord Airedale
My Lords, I was not saying that. I was saying that subsection (6) is so wide that when the trespasser had gone home and locked his door, the police can break in there to arrest him. It is an offence which carries only three months' imprisonment as a maximum. It is not so terrible.
§ Lord Elton
My Lords, I gave a preamble to that section of my speech to say that it was not intended to be a complete answer to everything with the knowledge of what I was about to say, but the noble Lord is right, there is a power which can be used against what I would call a fugitive trespasser. Whether it would be used is another matter, and this is something to which I do not doubt he will wish to return.
If we move from the fugitive trespasser to the static lurker, if I may so define him, my noble friend Lord Renton suggested that the Bill should deal with a person who enters a home quite lawfully, perhaps to read the gas meter or even upon invitation, or to sell something, and then remains in the building after he is no longer welcome. I hope I have never outstayed my welcome in my noble friend's house. I am sure he will be careful how narrowly he draws this definition. I fully understand the concern of my noble friend to protect those in their homes from any kind of inconvenience, but in our view the great merit and thrust of this Bill lies in its direct control of unauthorised entry. To do more would be unwise, unnecessary, and also a great deal more difficult in terms of conducting the legislation.
The response to our consultation document did not suggest that the problem of the overstayer was of significant proportions. Moreover, the position of squatters, or those who displace the residential occupier in some way, perhaps while on holiday, is already covered by the Criminal Law Act 1977. It would be necessary, to achieve the effect desired by my noble friend, to create a new criminal offence of remaining on the premises and to add it to this Bill. On present evidence, and given the need to test new criminal offences against the touchstone of the public interest, the real need for the offence, the clarity with which it can be framed, and the way in which it can be enforced, I would not commend to your Lordships that such an amendment should be made to this Bill.
Moving from the static to the mobil lurker—and I find that this is a Bill which generates a splendid jargon of its own almost irresistibly—under the Bill a person who enters a part of a building open to the public, or who otherwise has the occupier's consent to enter, commits an offence if he goes on to enter any other part of the building as a trespasser; and for this purpose any other part can include an adjoining room.
May I finally refer to the noble Baroness, Lady Phillips. It was clear from the response to the consultation paper that we issued as part of the review of the law in this area, that there was a broad consensus that criminal sanctions should be available against uninvited intrusions into people's homes, but that any offence which was not so narrowly drawn would not command the same support, and therefore not respond to the necessary touchstone.
Moreover, to extend the proposed legislation to cover private premises such as warehouses—in her interest, shops and shopping centres—would present formidable practical difficulties; for example, in definitions and enforcement. There are existing remedies at civil law to deal with trespass on private premises, and there is no evidence that these are so inadequate, or the mischief so great, as to justify the use of criminal law. There is also the fundamental 1356 question of whether, in order to deal with situations of a special and distinct kind, we would be justified in creating offences of such general and wide-ranging nature. Finally, if protection were extended to all privately-owned property but not publicly-owned property, we should then have the peculiar and obviously unjust situation of some offices, shops, and factories being protected while others were not, even though none contained any person's home or living accommodation.
§ Baroness Phillips
My Lords, I shall be happy to provide the noble Lord with the evidence that at the moment there is a big gap in the law, but that has nothing to do with the Bill.
§ Lord Elton
My Lords, the noble Baroness's last nine words, I would remind her, were "but it has nothing to do with the Bill", and perhaps I should pass on, but I thought I owed her the courtesy to refer to something about which she has courteously corresponded with my right honourable friend.
We are happy to welcome this Bill into your Lordships' House. Your Lordships will be aware of the extent to which the Government have been able to contribute to its formulation. We wish it well, but I cannot guarantee to a Private Member's Bill a safe passage through another place. It will have to take its chance, and that chance will depend in large part on the extent to which it leaves our House in the most acceptable and perfect form. I hope, therefore, that your Lordships will only make any amendments to it which all of us agree are most likely to achieve this. That said, it only remains for me to congratulate my noble friends on the pertinacity with which they press forward with their concern, which so many of us share.
§ 8.55 p.m.
§ The Earl of Onslow
My Lords, perhaps it would have been better if the noble Lord, Lord Mishcon, had sat in his seat in the opera and not sung a slightly discordant tune to the general debate in your Lordships' House. I have been brought up to believe that one of the strengths of a human being's character is to not always be stubborn in the view that every single thing he says is written in tablets of stone and could never be changed. I have been persuaded that the filter of which I spoke the first time we introduced a Criminal Trespass Bill has been adequately provided by "reasonable excuse". I am also persuaded that the subjectivity of fear and harassment is probably too difficult to put on the statute book. The noble Lord, Lord Airedale, put it rightly: to terrify Henry Cooper is difficult; to terrify one's elderly female relations is sometimes much easier to do. That is why the difficulty of fear, harassment, et cetera, proved to be such that I am prepared to change my mind.
The point about trespass and Fagan is that, before that case, large numbers of the criminal classes thought that trespass was an offence. Now it has been widely proved that it is not a criminal offence, and all those notices which said "Trespassers will be prosecuted" were bluff. There is one other point which I did not raise when I opened your Lordships' proceedings tonight. It is a police point which was forcefully put to me by the Deputy Chief Constable of Surrey last year. If a policeman looks into a house where there is a swinging open door and he sees a man of known criminal background in there, and he goes in 1357 and says, "What are you doing?" The man says, "All I am doing is just a bit of trespassing. You can't touch me for that". What is the temptation before the policeman? It is probably to bend the evidence because he knows that somebody is in there doing something that he should not be doing. I am not saying that even a majority of policemen would do that, but it is a temptation to do it and we should certainly remove that temptation. The other temptation is that he prosecutes him for something else.
The noble Lord, Lord Mishcon, also went on about the police and domestic situations. The police have enormous experience of domestic problems, and they normally deal with them to the satisfaction of the majority of people. The other thing I found staggering was that somebody who sits on the left of the political spectrum can actually be advocating more privilege. I happen to believe that the law is for me, for the Queen, for the postman, or whoever it may be, and that it should be the same for all. That is why I am offended by the fact that the Russian Ambassador is given special protection other than the ordinary law of England. It is for us to have the law for everybody in this country and not for special, privileged people.
§ Lord Airedale
My Lords, it works both ways. We are grateful for our diplomatic protection in Moscow.
§ The Earl of Onslow
My Lords, the diplomatic law arose from an agreement among foreign Ministeries to make the protection of embassies the same for everybody—and for embassies there is obviously a difficulty—but it still caused a certain amount of dislike. Then, to suggest that we should have amended the Criminal Law Act 1977, as opposed to passing a new Act, is a splitting of hairs. Both achieve the same purpose. Then, instead of,An Act to make it an offence in England and Wales",we would have,An Act to amend the Criminal Law Act 1977".As that has exactly the same effect, surely that is splitting hairs.
I thank your Lordships for the support given to me, and I beg to move that this Bill be now read a second time.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at nine o'clock.