HL Deb 26 June 1984 vol 453 cc883-901

9.46 p.m.

House again in Committee on Clause 109.

[Amendment No. 17 not moved.]

Lord Monson moved Amendment No. 18: Page 95, line 37, after first ("or) insert ("serious arrestable").

The noble Lord said: I beg to move Amendment No. 18, and with the leave of the Committee at the same time I shall speak to Amendment No. 19, which is consequential. Amendment No. 19: Page 95, line 37, at end insert ("serious arrestable").

These are rather more important amendments than might be apparent at first sight. Their purpose is to correct a glaring anomaly. Whereas Schedule 5 lists a short number of offences that are automatically classified as serious arrestable ones, Clause 109 defines the phrase "serious arrestable offence" in terms of the grave consequences to the state or to individuals that might in practice result from certain actions which in themselves are not invariably serious. For example, these include serious harm to state security, death or serious injury to any person, or serious financial loss to any person. We can all agree on the grave nature of these consequences and that therefore the action which caused them ought rightly to be a serious arrestable offence.

However, that is not the case with the latter part of subsection (6)(b). As that subsection stands, serious interference with the investigation of even a trivial offence becomes itself a serious arrestable offence. For example. if a man steals a bottle of milk from a doorstep because he happens to be hungry or thirsty, he would commit a theft—an offence for which he can be arrested. It would be the duty of a policeman who witnessed the act so to arrest him. But surely nobody would argue that the thief's act should be classified as a serious arrestable offence.

Yet if a friend or neighbour of the thief who witnessed the theft tried to cover up for him by asserting to the police, for example, that the culprit was several hundred miles away on the morning in question or gave some other alibi which was untrue, he or she—that is to say the friend or neighbour—would, as the subsection stands, be guilty of a serious arrestable offence, with all the grave consequences that flow therefrom. This amendment is designed to ensure that it is only serious interference with the investigation of offences which are themselves serious—if that is not complicating matters too much for the Committee—that is classified as serious. I beg to move.

Lord Elton

The noble Lord. Lord Monson, has pointed out that certain offences are serious arrestable offences in any case. They are set out in Schedule 5, and that is dependent on subsection (2) of Clause 109, which is the clause we are looking at. I do not think he intended to infer that there was an inconsistency there. What he seeks to change is the basis on which a person may be considered as committing a serious arrestable offence if he interferes in what we call the administration of justice, and what the noble and learned Lord, Lord Elwyn-Jones, would like us to call the course of justice.

The noble Lord argues that what should be the touchstone in this matter should be the seriousness of the offence to which the course of justice refers. We feel rather strongly that what matters is the seriousness of the interference with justice. If a constable investigates, for instance, a case of illegal entry into this country. or the assisting of an illegal entry into this country, those are two different things. Assisting an illegal entry into this country is a serious offence punishable by seven years' imprisonment, whereas the offence of illegal entry itself is not an arrestable offence in the first place. so it can never be a serious arrestable offence. But the interference with the course of justice, the suborning of policemen, the attempt to divert the justice of the courts, can be very serious or minimal in either case. Therefore, I hope that the noble Lord will leave the Bill as it is.

Lord Monson

I had hoped to get the opinion of one or two noble and learned Lords on this, but no one seems to have leapt to my defence on it. I take Lord Elton's point about the difference between illegal entry and facilitating, or covering up, illegal entry. Naturally, he has chosen an example favourable to his own case. I still maintain that nobody can seriously argue that it is much more heinous to cover up the theft of a bottle of milk than actually to steal that bottle of milk.

The noble Lord's answer partially satisfies me, but only partially. I should like to think about it again and possibly come back to it at the next stage. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 19 not moved.]

Lord Mishcon moved Amendment No. 20: Page 95, line 41, leave out paragraph (e).

The noble Lord said: I wonder whether I may be permitted to remind the Committee shortly in regard to serious arrestable offences that the powers of the police can be exercised only if it is reasonably suspected that such an offence has been committed.

The way in which "serious arrestable offence" governs this Bill can best be summarised in the following way: it affects and governs Clause 4, the setting up of a road check; it governs Clauses 8 and 9, powers to enter and search for evidence of a serious arrestable offence; it governs Clause 40, detention beyond 24 hours for the investigation of a serious arrestable offence; it governs Clause 54, the delay in exercise of the right to have someone informed on arrest; it governs Clause 56, the delay in access to legal advice; and it governs Clause 59, the power to take intimate body samples. When we reach the definition of a "serious arrestable offence" we are obviously dealing with one of the most important, if not the most important, definitions in the Bill.

Amendment No. 20 considers one of those aspects in subsection (6)(e): The consequences mentioned in subsection (3) and (4) above are…(e) substantial financial gain to any person". It is obviously important when a police officer is endeavouring to see whether a serious arrestable offence has been committed that there is a clear objective test by which he can be guided. That applies to any superior officer who may be giving him directions. I cannot think of a more subjective test, instead of what ought to be an objective test, than paragraph (e) which is, substantial financial gain to any person".

Many of us might discuss what a substantial financial gain might be. In a fraud case "substantial financial gain" may only be measured in the City, for example, if it reaches £500,000. A substantial financial gain in one of the streets of Brixton may be—

Lord Donaldson of Kingsbridge

A pony!

Lord Mishcon

The noble Lord, Lord Donaldson, always helps me. I am grateful. He was not thinking in terms of a small horse, either! But in Brixton in one of the back-streets a "substantial financial gain" from a subjective point of view, not an objective one, may be the fact that one person has managed to rob another by some deception of the sum of £10. This, therefore, is a most unsatisfactory way of dealing with a "serious arrestable offence".

There is no point in my embellishing the argument any further. I have made the point and in those circumstances we are asking that paragraph (e) be omitted. I should say that both with this amendment and the next amendment, I am speaking to Amendment No. 24 which seeks to leave out subsection (7). Amendment No. 24: Page 96, line 1, leave out subsection (7).

In that subsection the definition is as follows—one cannot imagine anything aiding more a subjective view than: Loss is serious for the purposes of this section if, having regard to all the circumstances, it is serious for the person who suffers it". In exactly the same way a financial gain, presumably, is also to be interpreted in some such way if it amounts to a substantial gain from the point of view of the person receiving it or the person who is suffering it. I would not know which it was or whether it is both. On any view this is an unsatisfactory clause in the Bill, dealing as it does—I repeat this for the last time—with the definition of "serious arrestable offence" which governs all the major parts of this Bill. I beg to move.

Lord Donaldson of Kingsbridge

From these Benches we entirely support what the noble Lord has said. These definitions are trying to give clear instructions to police officers who have to make up their minds in difficult and rather intense circumstances. Paragraph (e)—we shall come to paragraph (f) shortly—seems to be the sort of thing that no police officer in a position of this kind could possibly be expected to take into account because it is entirely unclear. It has no specific meaning of any kind. It might be £1 million or it might be 7s. 6d. But it is beneath contempt as an attempt to give a really accurate simple criterion to the policeman on what he can legitimately take action. We support the motion to reject this.

10 p.m.

Lord Gifford

When we come to consider serious arrestable offences, we are going to the heart of one of the Government's justifications for their Bill; which is that it contains safeguards in the case of the powers—often very extreme ones—which are given to the police. In due course we shall come to debate those powers and I do not want to trespass upon that debate; but we know it is going to be said again and again when we come to the powers which my noble friend has enumerated, "Do not worry that these clauses give the police considerable power. There are safeguards. The powers can only be exercised in the case of serious arrestable offences".

When one looks at this compendious definition of a serious arrestable offence it is ludicrous to talk about an effective safeguard being built into the Bill. My noble friend has spoken eloquently about the concept of substantial financial gain. Remember, that it does not have to be proved that there has been substantial financial gain. The supposed safeguard is that the constable must have reasonable cause to believe—that is subjective—that the commission of the offence is intended to, or is likely to lead—that, again, is subjective—to substantial financial gain. Again, that is subjective. Almost any set of circumstances above the merely trivial for which people are in custody can be classed as a serious arrestable offence under these criteria. The Government really have to do better with their definition of serious arrestable offences if they are to persuade us that there is any effective safeguard against some of the very serious powers granted in later parts of the Bill.

Lord Monson

I, too, have an amendment, Amendment No. 23, the object of which is to try to clarify the definition of "substantial financial gain" contained in subsection (6)(e). Unlike the noble Lord, Lord Mishcon, I would rather the word "substantial" was not deleted altogether but merely defined more precisely. It might be for the convenience of the Committee if I spoke to my amendment now because it ties in with what the noble Lord, Lord Mishcon, said. Amendment No. 23: Page 95. line 42, at end insert— ("( ) A gain is substantial for the purposes of this section if it exceeds an amount equivalent to twenty-eight weekly payments of the state retirement pension for a single person at the rate currently in force."). I agree with the noble Lord, and with all the other speakers so far, that the definition in the Bill as it stands is much too subjective. What is a substantial gain? Is it £50. £100, £ 1.000, £5,000 or £20,000?

My amendment is a probing amendment. Its rather convoluted wording is designed to set the threshold of what is classified as "substantial" at £1,000 in real terms: that is, inflation-adjusted terms. That is on the assumption that the Government have £1,000 in mind as the figure which we should be looking at. Twenty-eight weekly payments of the retirement pension for a single person as from November this year will come to £1.00240 and obviously this sum will be adjusted annually in line with inflation. Of course, if what the Government have in mind is £10,000, or £500, or whatever, the definition could be altered: but clearly it is desirable to keep the sum constant in real terms. As I said, it may be that the Government have in mind something very much larger or smaller; but, one way or another, there ought to be a precise, or almost totally precise, definition of what "substantial" means.

Lord Hutchinson of Lullington

May I add one practical point about this, looking at it as a practitioner? What is to happen in court when one wishes to take the point that in fact the officer behaved unlawfully because permission was given, quite wrongly, to keep a man in custody for an extra 36 or 96 hours although it was not a serious arrestable offence? Why not? Well, because there was no substantial financial gain to any person. The judge will have to decide whether in his view it was a substantial financial gain or a serious financial loss. I would suggest that all experience would indicate that one judge would consider a certain sum of money was serious; another judge would decide that it was not. It would be a quite impossible situation. One could not have a precedent about it: one could not have anything to which to refer about it. It would be as long as the arm of the particular judge who was sitting. I would suggest that that highlights the hopelessness of paragraphs (e) and (f) and the sooner they go the better.

Lord Elton

The first amendment of this group, Amendment No. 20, would remove paragraph (e) from subsection (6). Paragraph (e) provides that an arrestable offence is serious if one of its consequences is or is intended to be substantial financial gain to any person". It may be that it lurks at the back of your Lordships' minds that we are in any case addressing ourselves to substantial financial loss and there is a degree of definition there, and maybe every loss has its reciprocal gain. But of course that is not the case because I have only to cite the example of the owner of a chain of brothels, for instance, who would be in receipt of very considerable financial gain with nobody identifiable as suffering substantial financial loss. Whereas it would be perhaps quite easy to discover the people running those establishments, the difficult thing would be to discover the person in the background who is raking in the real money. I think your Lordships would agree that the powers in Part II of the Bill could appropriately be used for that purpose. It is clear that we need some indication of the magnitude of the financial gain involved.

We are dealing with what is termed "substantial gain". Noble Lords are concerned to define what is meant by "substantial". The noble Lord, Lord Monson, has taken an amount in excess of 28 times the weekly state pension for a single person. He has seen the need for the yardstick and he has sought to define something which is precise, and I accept to a certain degree flexible, because it is the Government's business to keep that rate of pension moving in line with inflation. Even that meritorious approach has its difficulty. I have only to say that at present the yardstick he has devised would give a watershed—if that is the right term—of £953.40 and from, I think, 5th November, if Parliament agrees, that yardstick will go up to £1002.40. If the amendment were accepted. one would have the A. P. Herbert difficulty that something that was a serious arrestable offence in November had not been one in October. So there is a difficulty here.

Although there are various other difficulties about the pension. I take the point that the noble Lord is advancing. One problem is that it is difficult to find a yardstick which either moves or does not move which does not get one into difficulties on the margin. I think that this would actually lead to an increase in the difficulty of the work of the police without introducing any great safeguard. Under the Bill as drafted, if the police exercise a reserve power in the case of the offence which does not on a common-sense basis involve a substantial gain, they can be called to account for that in the courts.

The other amendments in this group attack subsections (6)(f) and (7) of the clause. What the Bill as drafted is saying is, in effect, that an assessment of the seriousness of an offence cannot be made in the abstract where the offence concerns financial loss to a victim. The assessment has to take account of the circumstances of the individual case. That will be true, of course, of substantial financial gain as well.

This is not a new idea and it is a requirement in the Bill that it should be taken into account in the case of serious financial loss. It has been for long a principle of sentencing in the courts that a sentence may properly reflect the effect of the offence on the victim, taking into account his financial circumstances and income. And of course the precedent is a good deal older than that, because the incorporating of that element in the judgment of an offence and the value of money to individuals goes back, as is well illustrated in the parable of the widow's mite, for nearly 2,000 years. That lady parted with her money voluntarily, but, had it been taken from her by theft, the loss would have been serious to her but not to many others.

Subsection (7) does not introduce the subjective element into the definition to the extent that your Lordships might perhaps think. It states that loss is serious if—

Lord Mishcon

I hesitate to interrupt the noble Lord the Minister, but I am sure he would want me to. I have merely moved to delete paragraph (e), and I made that abundantly clear, or, if I did not make it clear enough to the noble Lord the Minister, I apologise. I have moved only Amendment No. 20 and I referred to Amendment No. 24. As I understand it, the noble Lord, Lord Monson, trying to make one debate of it, also dealt with the question of substantial gain.

Lord Elton

I have been caught a little unawares because I saw a list of groupings which in fact included Amendments Nos. 20, 21, 22, 23 and 24, and I understood that those had been accepted through the usual channels. But, as the noble Lord ought to have been at the end of the usual channels, obviously something has gone wrong.

Lord Mishcon

Can I help? I will do so with the greatest of pleasure, because this will help to abbreviate the proceedings and we are all anxious to do that. If the noble Lord the Minister, in his kindness, will go on to deal with the question of financial loss as well as gain, I will then answer him. But I hope he will realise that there are two separate points. One may fail on one, one may win on both. but one may also lose on both; and maybe this will be dealt with at another time in the Bill. But, if the noble Lord wants to make one debate of it. I am not going to stop him.

Lord Elton

I am quite content to stop at that point in dealing with this. I do not know what the military analogy is for converting a counter-attack into an attack so that one can counter-attack it oneself—but I shall not be led into that. We come back to this question of the test of what is substantial. I return again to the question: what sort of yardstick can we provide? I think the Committee will agree that we cannot manage without this test. I chose only one example for brevity, but I think it is quite clear that we do need the test for the use of these powers. What is in the Bill is a common-sense approach which can be tested in the courts if it is in doubt and it does not lead to the difficulties that we find in every alternative; but I do not think we can just take it out, and at the moment that seems to be all that is offered to us.

Lord Wigoder

Having listened to this argument with, as always, a completely open mind, I really find myself inclined to sympathise with the views put forward by the noble Lord the Minister. May I take a particular example and invite the noble Lord, Lord Mishcon, to deal with it? Let us suppose that there is an armed robbery in which the arms carried are pickaxe handles and not firearms. That, as I understand the Bill, would not be a serious arrestable offence under Part I of Schedule 5: nor would it he a serious arrestable offence under Part II of Schedule 5, unless in fact firearms were carried. Therefore, in order to make it a serious arrestable offence, which I rather assume that the noble Lord, Lord Mishcon, would agree that it was, one would have to bring it somehow under the provisions of subsection (6). I suppose one might argue that such an armed robbery was likely to have the consequence of causing serious injury to any person, but it is a slightly artificial approach to the problem. The common-sense approach, surely, is that a robbery of that sort is something of which the likely consequence is to cause substantial financial gain.

Having said that, and therefore indicating that I sympathise with the way in which the noble Lord the Minister has put his case, may I say that I also agree with much that has been said about the looseness of the wording of this proviso in paragraph (e)? I venture to say to the noble Lord, Lord Mishcon, that if he and those who have spoken alongside him wish to criticise the wording, I would agree with that. But I think there is a point of substance there and that those of us who criticise the wording ought somehow to find some better alternative to deal with the same point.

Lord Simon of Glaisdale

It seems to me that one needs something on the lines of paragraphs (e) and (f), but there is great force in what the noble Lord, Lord Mishcon, and the noble Lord, Lord Gifford, have said by way of criticism of the word "substantial". I wonder whether the key does not rest in subsection (7), which could be rephrased to take in the word "substantial" and loss and gain as well.

Lord Mishcon

I have no doubt at all, if I may say so in all humility, that the words in paragraph (e), and possibly I ought to embrace paragraph (f) as well, cannot stand. Quite obviously, it may very well be that the thing to do—and I am grateful to the noble and learned Lord, Lord Simon of Glaisdale—between Committee stage and Report stage is to see whether the combined wisdom, which, of course, is exceeding great. of the Government Front Bench and those who are interested in this amendment can lead to a practical solution. Paragraph (e) cannot stand for this reason and I am grateful to the noble Lord, Lord Wigoder, for his balanced arguments, in the sense that he could see arguments for and arguments against.

But he gave the example of some people armed with pickaxes and committing some sort of robbery. The extraordinary thing here, unless I am very wrong, is that this relates only to the consequences of the act, so you may have all the seriousness of the pickaxes and all the villainy of the people concerned, but if when they got into the premises they found only £5 in the petty cash box and that is all they took out, you would get a situation where this would not apply, because they had not got, on any view at all, a substantial financial gain, whereas if they managed to find £500,000 there they would have done—

Lord Wigoder

It might be said to have been intended to lead to the consequence of financial gain, even if there was only £5 there.

10.15 p.m.

Lord Mishcon

That, too, is a matter of guesswork and that is why it cannot stand. The noble Lord the Minister dealt with the fact that there is a precedent and that judges have to look at this sort of thing when sentencing and so on. This is an entirely different matter. This is a police officer having to make a judgment. I do not even know, since there is no guidance on financial gain such as there is in subsection (7) on financial loss, whether the substantial gain has to relate to the means of the person who got it, or whether it has to relate to the person who loses what the other person has gained. I just do not know. In other words, are we saying that if you happen to be a millionaire in the City and there is a gain of only £ ¼ million it cannot possibly be deemed to be substantial because of your other wealth? And does it mean, in regard to some poor man who is on a weekly salary of, let us say, £40 or £50 a week that if he gets the equivalent of one week's salary as a result of his evildoing it is not substantial from his point of view? What is the yardstick? What is the guide?

Therefore. the constructive thing to do, following the noble and learned Lord's helpful intervention, is to take the following course of action. There is no point in trying to divide the Committee on paragraph (e). The sensible course for me to take is to withdraw my amendment: for the noble Lord the Minister, with his usual broadmindedness, to admit that there is some cogency in the speeches which he has heard tonight from various parts of your Lordships' Committee: and for us to see whether there is a way, either by means of a new Government approach or by our own approach, to find a constructive solution.

While I am on my feet, and only to save the time of the Committee since the noble Lord the Minister dealt with paragraph (f), may I say again that here there is guidance, in the sense that subsection (7) tells one quite frankly that the loss is serious for the purposes of the section if. having regard to all the circumstances—and the poor police officer has to have in mind all the circumstances—it is serious for the person who suffers it. This may depend upon the miserliness of the person who is asking for the police officer's assistance because a crime has been committed. He may have tears running down his face when he says he has been robbed of £5 which means the world to him, in spite of the fact that the police officer may know he is rather a wealthy man. On the other hand, there may well be a poor man who, not wanting to make a terrible fuss, says, "If I've lost £2, officer. I suppose I've lost it". What is the poor police officer to do in trying to make a judgment in these circumstances?

Again, I shall repeat my favourite phrase today: I do not embellish the argument by repeating it. However, all of us must think seriously about it. I hope that if I withdraw the amendment the noble Lord the Minister will give an assurance that he and his advisers will give Thought to clearing up what at the moment is an unholy mess in paragraphs (e) and (f).

Lord Elton

I would not subscribe to the phrase "an unholy mess". I see that the noble Lord has aptly put his finger on some difficulties. We are concerned not merely with the wisdom which comes from the reflections of judges but also with the decisions which have to be taken by policemen in the field. and I would wish to be satisfied that what is provided is workmanlike. But I have shown to your Lordships some of the difficulties which are set around the path which has been suggested. If we are to relate the substantialness of the financial gain to the criminal, I would not want to think that rich criminals would get away with more than poor criminals.

In other words, there are traps all around us. We are aware of them, and I shall not weary your Lordships by talking further about them. Much thought will be given between now and the next stage to the matter. I cannot guarantee that I shall come forward with anything, though I think I can guarantee that the noble Lord, Lord Mishcon, will if I fail to do so.

Lord Mishcon

I am grateful to the noble Lord the Minister. I shall waste no further time. I beg leave to withdraw in regard to both paragraph (e) and paragraph (f). At the same time. having dealt with Amendment No. 24, may I give notice now that I do not intend to move it.

Amendment, by leave, withdrawn.

[Amendment No. 21 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 22: Page 95, line 42, leave out ("serious") and insert ("substantial").

The noble Lord said: This was a long stop in case the arguments relating to Amendments Nos. 20 and 21 failed. Then one at least wanted to insert the word "substantial" instead of the word "serious", although that was not thought to be a solution to the problem. In view of the exchange between the noble Lord the Minister and myself, the amendment is not moved.

[Amendment No. 22 not moved.]

Lord Monson moved Amendment No. 23: [Printed earlier: col 887.]

The noble Lord said: I beg to move Amendment No. 23. I have already spoken to this amendment to some extent, but perhaps I may have another small bite at the same cherry. The noble Lord. Lord Elton, pointed out the definition in my amendment of what is substantial would lead at the present time to a borderline figure of around £950. I had assumed, perhaps pessimistically, that this Bill would not receive its Royal Assent until October. That is why I specified the period of 28 weeks, which would have made for a payment of about £1.000 by mid-November. That is the reason I worded the amendment in the manner I did.

I do not intend to press this amendment but I should like to have some indication from the Minister of the kind of figure the Government have in mind. Is it a two digit sum, or a three digit sum, or a five digit sum, or what?

A remark that was made by the noble Lord, Lord Mishcon, led me to think of something else. The subsection states that any action intended to lead to substantial financial gain to any person is caught. When a pickpocket goes into an Underground train and tries to size up a potential victim, he hopes to make a very substantial gain. If he is lucky and finds someone from the Middle East who is about to embark on a shoplifting spree (because invariably such people seem to have several thousand pounds in their wallets when they are apprehended and taken before the courts) he may make a "substantial financial gain". But he may be unlucky and he ma., find somebody who has only £5 and a couple of credit cards. In any event, the pickpocket's intention is to secure "substantial financial gain". On this basis, it would seem that every pickpocket, and every burglar, too, would find their offences treated as serious arrestable offences unless some definition is made. Can the Minister give some indication, however approximate, of the kind of figure the Government have in mind? Is it £100, £1,000, £10,000, or what?

Lord Elton

I cannot usefully speak very long to the noble Lord's amendment. I will merely say that I believe the amount will vary with the circumstances. I do not think that aspect concerns noble Lords. I think that what does concern noble Lords is that the circumstances may be interpreted differently when seen by different people. Therefore, I would hesitate to put a figure at this stage but I have noted what the noble Lord has said.

Lord Monson

I am pleased to know that the noble Lord, Lord Mishcon, and others intend to return to this point at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 24 not moved.]

10.28 p.m.

Lord Elwyn-Jones moved Amendment No. 25: Page 96, line 4, leave out ("any disease and").

The noble and learned Lord said: One of the consequences of crime for the purposes of the definition of a serious arrestable offence is serious injury to any person. As your Lordships will see from line 4 on page 96 of the Bill, injury is defined as including "any disease". The point on which we should like to be enlightened is this: how does disease creep into this sombre picture? How does it happen? Is it the infliction of a nefarious umbrella, with some horrid object at the end of it, to reduce the victim to a condition of decline and decay? Does it have any sexual implications? What is it about? That is all we want to know.

Lord Elton

It is about poisoning. Need I say more? I will say more.

It is clear that an offence which leads to serious disease, or is likely or intended so to do, could be a serious arrestable offence. One has only to think of a case of intentional poisoning, or the recent case in Mexico in which scrap metal of no great intrinsic value was stolen but which, unknown to the thieves who proceeded to cut it up, contained radioactive pellets. If such a case happened here, it might well be expedient for the police to set up a road check following the theft so that those responsible could be apprehended before they released the radioactivity. That is why the trigger is in the Bill at that point.

Lord Elwyn-Jones

It certainly deserves a trigger, if those are the circumstances. On my circuit we were not unfamiliar with arsenic, if I may say so. It is an old-fashioned custom now, of course. It no longer happens. It is no longer said of a certain town known as Talsarnau that it is better known as "Tals-arsenic", after a famous case in which I had the privilege of appearing for a lady who was honourably acquitted. I shall not press the Minister further in the circumstances.

Lord Wigoder

Not only was it not unknown on the circuit of the noble and learned Lord: it was almost a monopoly on that circuit.

Lord Elwyn-Jones

While rejecting that abuse, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn. Clause 109 agreed to.

Schedule 5 [Serious arrestable offences]:

The Deputy Chairman of Committees (Lord Wells-Pestell)

Amendments Nos. 26 and 27 are printed in the wrong order, so I call Amendment No. 27.

Lord Monson moved Amendment No. 27:

Page 108, line 20, at end insert— ("2A. Causing death by reckless or dangerous driving.")

The noble Lord said: A week ago today, the noble and learned Lord the Lord Chief Justice declared, according to The Times, that: Courts were regarding the offence of causing death by driving recklessly as less serious than in fact it was—less serious than Parliament intended it to be and less serious than the public in general regarded it". I am sure that a mighty chorus of "Hear, hear!" went up from throats all over the land. It certainly went up from mine. The purpose of this amendment is to mark parliamentary and public disapproval of this heinous offence by classifying it as a serious arrestable offence in the same way as murder and manslaughter are already so classified.

It could be argued, and probably will be argued by the noble Lord, Lord Elton, that this offence is already accidentally included, as it were, by the catch-all provisions of Clause 109(6)(c), which defines any offence resulting in, the death of any person". as a serious arrestable offence. That is true. But precisely the same arguments could be used to justify excluding murder and manslaughter from Schedule 5, yet I cannot believe that any member of the Committee would wish to do that. Logically, if you include murder and manslaughter, you must also include causing death by reckless or dangerous driving. As far as the victim is concerned the result is exactly the same. and, incidentally, far more unpleasant. I would imagine, than being the victim of gross indecency—a crime already included in the list. I beg to move.

Lord Elystan-Morgan

We on these Benches have the fullest sympathy with the sentiments put forward by the noble Lord, Lord Monson, in support of this amendment. In our judgment, quite clearly some of the worst cases of causing death by reckless driving are not only indistinguishable from the old motor manslaughter cases but could well have been prosecuted as manslaughter cases, and undoubtedly would have resulted in a conviction for that offence.

As a matter of technical drafting, the wording of the amendment, Causing death by reckless or dangerous driving", probably is not correct, because since 1977 there has been no such offence as causing death by dangerous driving, as opposed to causing death by reckless driving. But that is a very small matter. We certainly think, judged by the general tenor of the list of offences created in this general provision, that this offence has a proper place in the list.

Lord Gisborough

Before my noble friend answers, can he say why this list is so short and in particular why arson is not included in it?

Lord Elton

The list is short for the sake of simplicity. Arson is not included in it because it is already caught. The noble Lord, Lord Monson, has accurately anticipated what I was going to say in this respect. This is a topical matter. If I am right in thinking that the Committee are like minded with the noble Lord, Lord Monson. I have regrettably to say that, as drafted, the amendment will not quite do. This always seems to be the case. However, if the members of the Committee were to nod at me in numbers, then I should think we may as well have the amendment that the noble Lord wants drafted by the Government. That being so, I am happy to ask him to withdraw the proposed amendment on those terms.

Lord Harris of Greenwich

Before the Minister leaves this point, I hope the Government will, before the next stage of the Bill, look into the point made by the noble Lord opposite. That is that it seems to me very strange that the offence of arson is excluded from this provision. On conviction of arson you can be sentenced to life imprisonment. It seems to me rather strange that, that being so, it is not a serious offence.

Lord Elton

My only hesitation, which perhaps I should have expressed, was that I hoped we would not have an ever growing list of offences to add to the schedule. Arson can be very serious but I am reminded it can also be very minor. So it is appropriately covered by the tests in Clause 109, rather than constituting an offence—arson has different results in different places. However, if the Committee are content to leave it with me, I am prepared to come back with an amendment to satisfy the noble Lord, Lord Monson.

Lord Monson

I am extremely grateful to noble Lords in all quarters of the Committee for their support. I am particularly grateful to the noble Lord, Lord Elystan-Morgan. I accept that the amendment is not correctly drafted at the moment. I lifted the definition from the 1972 Road Traffic Act and I had not realised that the description of the offence had been modified in 1977. Most of all, I am grateful to the noble Lord, Lord Elton, speaking for the Government, in agreeing to put forward the correctly drafted amendment at the next stage. With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elystan-Morgan moved Amendment No. 26: Page 108, line 27, leave out paragraph 7.

The noble Lord said: The list in Part I of Schedule 5 is intended to be a list of grave and serious offences. Undoubtedly that is so in relation to the first six of those offences, running from murder to buggery with a boy under the age of 16, or a person who has not consented to that act.

However, the seventh category is the category which reads, indecent assault which constitutes an act of gross indecency". Undoubtedly gross indecency can be a quite serious offence but in most cases it is an act of social nuisance. However revolting one finds it, I think that most people would say that it falls into the category of social nuisance rather than the category of serious crime. I believe I am right in saving that its maximum penalty is still two years' imprisonment. What is not included here is indecent assault with a female. At its higher end, that can be a very, very serious offence, in some cases almost as serious as rape.

May I say, in passing, that it is still strange that the maximum penalty that that offence carries for a woman is two years' imprisonment whereas there is a maximum of five years' imprisonment for the same offence committed with a girl under the age of 16? Be that as it may, in the judgment of those on these Benches, the seventh category has not been thought out properly. I would ask the Government, in considering the sort of offences that they have in mind, to give greater prominence to assaults against women and to think very anxiously whether it is necessary to include the offence of gross indecency between men, which, as I say, is more of the nature of a social nuisance than a grave offence. I beg to move.

Lord Harris of Greenwich:

I do not want to persist with this point to a wearisome degree, but I must say to the noble Lord that I fear that the list has not been carefully thought through. It makes absolutely no sense to include item 7 to which the noble Lord, Lord Elystan-Morgan, has referred and to exclude the offence of arson. Let me put this point directly to the noble Lord. Parliament has thought fit to make the maximum penalty for arson, life imprisonment. That is a fact. It seems astonishing to me—I would find it surprising if any of my former colleagues on the Parole Board take a contrary view in the light of the sort of offences that we regularly reviewed in terms of their degree of seriousness—to exclude arson and to include indecent assault that constitutes an act of gross indecency. It seems to me a very surprising judgment.

Speaking for myself, I give notice that I certainly propose to raise this on Report stage, because, until the noble Lord pointed it out, it had not occurred to me. I hope very much that the list will be thought through far more carefully before the next stage of the Bill so that we have a far more rational list before us when we make a judgment on Report stage.

Lord Elystan-Morgan

I am grateful to the noble Lord. Would he agree, forceful though his arguments undoubtedly are in relation to simple arson, that they are even more forceful in relation to arson with intent to endanger life?

Lord Harris of Greenwich

I agree entirely.

Lord Wigoder

Can the noble Lord the Minister help with a simple statistic in relation to the last figure for the year ending December 1982? Can he say how many offences within paragraph 7 were committed in that year? What proportion of offenders were sent to prison? That would enable us to judge whether or not they are serious offences.

Lord Gisborough

I hope that I do not stir things up further by asking whether, following arson, one can also mention treason. Treason is not only a matter of an offence against royalty or whatever, but it also concerns people who may carry away state secrets and whose arrest may be required in a short time before they flee the country?

Lord Hutchinson of Lullington

May I suggest that the Government do not enter into a long auction on these serious offences? There is no end to one's views about them. You could have arson. You could have drugs offences, which are appalling in their results. You could have huge frauds which have appalling results on people's financial situation. You could have, as the noble Lord has just mentioned, Official Secrets Act offences that do not appear in the list. I think I am right. am I not, in saying that the list originally contained only the first four headings, and that at Report stage in another place, 5, 6 and 7 were added. I would strongly suggest that we go back to the four original offences and do not indulge in a long auction of what are serious and what are not serious offences.

The effect of adding to the list may be far more far-reaching than one appreciates at the moment. If offences get into the list, it will affect sentencing policy. It is quite extraordinary. It must have been a very emotional debate in the other place for gross indecency to be included. Whether it came at the time of "The Romans in Britain" or something like that, I do not know. There must have been some emotional background.

Most gross indecency offences are now matched with a substantial or small fine. It is very rare now that people are sent to prison for gross indecency. It has absolutely no place here. Speaking for myself, I am surprised also that the Bill specifies buggery with a boy under the age of 16. Why is that worse than the same offence with a girl? There is no end to the possible additions to and subtractions from this list.

Lord Simon of Glaisdale

I should like to associate myself entirely with what has been said by the noble Lord, Lord Hutchinson. From the schedule to the Extradition Act one has seen how comparatively insubstantial offences get added in a moment of excitement. I must say that Part I of Schedule 5 reads extremely oddly, not least paragraph 7.

With regard to the point about treason made by the noble Lord, Lord Gisborough, one would expect to find it in a schedule containing a list of offences which were automatically serious, though, of course, it would be caught by subsection (6) (a) of Clause 109. I should be sorry, too, to see arson added, because arson can vary very greatly in seriousness, from setting a tyre on fire to burning down a haystack or a house. Personally, I have grave doubts about the efficacy of the whole of Part I. There seems to me to be much to be said for limiting it to the first four items, and possibly adding treason.

Lord Renton

As my noble friend is being asked to reconsider this schedule, may I make the suggestion that there does not seem to be any underlying principle which separates the items in the schedule from some of the items in the clause. I should have thought that, for the sake of public understanding of what will become quite an important piece of the law, it would be better to have the whole thing either in the schedule, with a reference from the clause, or else all set out in the clause. As it is, I think that it is very muddled and unsatisfactory.

Lord Elton

The purpose of the schedule is to try to set out those offences of which really there cannot be relatively harmless examples. I will come in a moment to No. 7, the indecent assault one; but one cannot have a minor case of murder, an insignificant case of manslaughter, or a trivial case of rape. Incest with a girl under the age of 13 is always serious.

Lord Gisborough

Will the noble Lord give way?

Lord Elton

No. It is late. I should like to develop my theme, and the noble Lord can puncture it when it is complete. The purpose of the clause is to catch those offences which are not in that stark condition.

The amendment we are discussing seeks to delete from Schedule 5 the entry relating to indecent assault which constitutes an act of gross indecency. It may help your Lordships if I explain that this will not include the offence of gross indecency between men, under Section 13 of the Sexual Offences Act 1956. Such offences are not indecent assaults, and so will not be covered by paragraph 7 of the schedule.

The offences of indecent assault are dealt with in Sections 14 and 15 of the 1956 Act, and, as might be expected, an essential element of the offence is that there must be an assault. Thus, for example, the touching of a person at his invitation, in an indecent or a grossly indecent manner, is not an indecent assault if the person is above the age of consent, which is 16 for indecent assault.

I think that it is clear that some indecent assaults are always serious offences. Bad indecent assaults can be at least as bad as a rape. Equally some indecent assaults are not so serious as to merit inclusion in this schedule— for example, the friendly heterosexual pat.

To overcome the difficulty of ensuring that only serious offences were covered in the schedule, we have added a qualifying phrase. Only indecent assaults which constitute acts of gross indecency will always count as serious arrestable offences. The concept of gross indecency, which was endorsed in the recent report of the Criminal Law Revision Committee, is a well-established one in the law on sexual offences, and will exclude the less serious cases of this offence.

Indecent assault in circumstances of gross indecency is the way in which one can, in legal terms, describe indecent assaults that will at the very least involve genital contact and they can be very bad indeed. They are not in the least trivial and the Criminal Law Revision Committee were satisfied that this description would attract the most serious indecent assaults, but not others—and that was after long years of debate.

As I have explained, the concept of gross indecency is descriptive of the character of the act constituting the assault. The concept is not limited to homosexual conduct. It has been applied for over 20 years in the case of conduct involving children of either sex under the Indecency with Children Act 1960. And, as I have said, there must be an assault—which means either that there was no consent or that the victim was too young to give a consent valid in law. These can be serious cases where the powers in the Bill may be called for. I hope that it is clear from what I have said that paragraph 7 of Schedule 5, Part I, does not cover anything but the most serious cases where the powers that they will attract ought to be attracted.

Lord Wigoder

Before the noble Lord sits down, has he by any chance the figures for which I asked him?

Lord Elton

No; the answer is that the figures are not broken down in a way which makes it possible to relate them to the items in Part I of Schedule 5, and I regret that.

Lord Wigoder

Is the noble Lord really saying that he has no idea how many offences of this type are committed every year?

Lord Elton

Not without notice. I see the force of the noble Lord's interest and I will write to him.

Lord Gifford

Do I understand that the Minister is closing his mind to any reconsideration of the inclusion of paragraph 7? It is a matter which has caused the greatest concern among homosexual men and the organisations which represent them. They fear—and it would seem with substance—that their lot (which is already an unenviable one because there are many police forces which pay a disproportionate amount of attention to crimes involving homosexuals) will be to be classified in the category of suspected serious offenders. Let us remember that it is not a question of proving the offence, but a question of whether someone is suspected of a serious offence, and then all these provisions bite. We will have persons suspected of having committed or attempting to commit assaults involving gross indecency—which will normally be, as I understand it, homosexual men—with all the consequences that follow. It does seem to me to be out of context with the other provisions of the schedule, and I ask the Minister to look at it again.

Lord Elton

I do not see how, where there is both assault—which means that there is either resistance or else the victim is too young to give consent—and genital contact, it can be thought of as trivial. And I do not see how people can be thought of as being at risk in the normal pursuit of life if this particular activity should attract the attentions of the police and they should have the powers available to them—which are not draconian—of the serious arrestable offence.

Lord Donaldson of Kingsbridge

Before we leave this subject—which we shall soon—I have been worrying from the beginning about paragraph 5. Anybody who has studied the problem of incest knows that it is a most peculiar crime, not suitable in any way to the police. but suitable in almost every case to a doctor or someone of that kind. The idea that the police should have special powers in relation to all the different things that arise regarding incest seems to me very odd and rather an ignorant approach. I shall not say more at this stage, but I hope that the noble Lord will look at this.

Lord Harris of Greenwich

The noble Lord will be relieved to know that this is the last time that I shall intervene on this particular point. I suspect the noble Lord realises that the Committee would be grateful for some assurance that the department will look at the whole of this schedule again between now and the Report stage. I rather agree with my noble friend Lord Hutchinson: I understand paragraphs 1 to 4 inclusive. After that, quite frankly, it does not make much sense. I do not propose to rehearse the argument on arson; I still find it odd. if we go beyond paragraph 4, that we do not include arson. I find it strange that we include incest and leave out armed robbery.

Quite bluntly, I do not believe that this is a sensible schedule and I very much hope that the noble Lord will agree at least to look at this matter rather carefully between now and the Report stage to see whether he is prepared to introduce some amendments at that stage.

Lord Simon of Glaisdale

In view of what the noble Lord has said, as I understand "assault" it merely involves a contact without consent. It is not necessarily anything violent. The mere placing of a hand, for example, on the outside of the trousers would be an assault, unless it were by consent, which in this context it would not be. Perhaps the noble Lord would investigate that with the legal department. That is what I have always understood to be the law relating to assault.

Lord Elton

That was what I intended to convey by a "friendly heterosexual pat". The assault need not be serious and that is why it is coupled with the phrase "gross indecency", which then may combine to give the effect which a moment ago I described and which the Criminal Law Revision Committee was satisfied only attracted the most serious indecent assaults and not others.

I am no lawyer; I rest on the wisdom, after years of consideration, of the Criminal Law Revision Committee. It is late and I think that that contributes a little to my willingness to say that we shall look at this. I think that, because that contributes so much to my willingness, I should tell your Lordships more forcefully than I usually do not to expect too much from it, because frankly I find myself more convinced after reading my speech than I was at the beginning of it, and that is a good test.

Lord Elystan-Morgan

If this amendment has achieved nothing else, it has certainly brought the spotlight to the concentration of this Committee upon Part I of the Fifth Schedule. I am very grateful to the Minister for saying that he is prepared to look at the Schedule again. I urge upon him this consideration. The first four items undoubtedly belong to any list of serious offences. although there can be instances of, for example, manslaughter, where, although the consequences are anything but trivial—certainly nobody could ever say that of the loss of a human life—nevertheless there are cases which call for a non-imprisonment disposal: for example, a common assault—it leads, by the fact of a person having an egg-shell skull, to death. Very few judges would say that it is necessary to deprive a person of his liberty on that account.

Again, if one looks at the totality of the list, one can think of many grave offences—for example, the possession of heroin with intent to supply or arson with intent to endanger life. With the greatest respect to the Criminal Law Revision Committee, we doubt—and I say this with great sincerity—whether the Government have got it right. It may well be that perhaps the best way of reconsidering it would be to think in terms of a threshold of penalty, and to say that all offences carrying a penalty above x years' imprisonment should be included. I know not. It is a thought at a late hour. We are grateful to the Minister for the undertaking of reconsideration, and shall be happy to withdraw the amendment with the consent of the Committee.

Amendment, by leave, withdrawn.

Schedule 5 agreed to.

Lord Denham

We have now reached the part of the Bill where I think it is generally agreed that we should break for the night. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at one minute past eleven o'clock.