HL Deb 19 March 1984 vol 449 cc1039-52

7.22 p.m.

The Earl of Onslow

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Onslow.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD WELLS-PESTELL in the Chair.]

Clause 1 [Buildings to which this Act applies]:

The Earl of Caithness moved Amendment No. 1: Page 1, line 7, after ("others)") insert ("or any building in the course of construction which is to be used for such purpose.").

The noble Earl said: This amendment is a small step to widen the scope of the Bill to homes in the course of construction. It does not extend the coverage of the Bill to any buildings used for non-residential purposes. I hope therefore that my noble friend Lord Onslow will be able to accept it.

The law relating to trespass in the construction industry is ineffective and costs the country a great deal of money each year. The area of most concern is the site awaiting development. Although I should like to expand on this, I will confine my remarks solely to houses and flats under construction. Significant delays and costs are incurred when trespass takes place during this period. Sometimes it takes the form of squatters; but more often the trespassers are temporary and their visit is occasioned by the wish to deface the building or destroy part of its contents, such as wash-hand basins and basins or pipes that have been put therein. The exact cost of this has not been quantified and it is difficult to do so; but it has caused considerable concern for many years. If the development is undertaken by the local authority then it is the ratepayers who have to meet the bill.

The Home Office documents on trespass indicate that it is always the right of an occupier to use reasonable force to evict trespassers. That begs two questions. First, what constitutes reasonable force before becoming a criminal offence. At Second Reading we heard of the case of a possible intrusion by a former boxer, and no doubt each case will be different. The second question arises when homes have been built but not yet sold or let. Who is the occupier under the law? Is it the contractor; is it the developer, the ground lessee or the freeholder? All of them may be different people. All these people have found it difficult in the past to take proper action to counter trespass due to a gap in the law, a gap partially filled by this Bill. There is surely a lot of merit to include the protection for them. I beg to move.

Lord Mishcon

I hope that the Committee will not accept this amendment, and I say that with all deference to the noble Earl who moved it so persuasively. I say that for the following reason. It will be known that on Second Reading I ventured from a personal point of view to say that this Bill, in my judgment, was not a necessary Bill and I tried to give reasons for saying so. Your Lordships did not accept the view that I put forward on that occasion. Your Lordships did so, as I understood it, by saying that occupiers—and the accent was on occupiers—ought to be protected and even though the question of molestation, vexation, annoyance or whatever it was which had been in a previous Bill before your Lordships in a previous Session, was not in this Bill, your Lordships took the view that it was necessary for the protection of people who were in occupation of premises, and lawfully so, as the owner, the tenant or the licensee. To increase the purview, the area, of the Bill to include buildings under construction and then to have possible incursions into such buildings by the police who might be warned by other occupiers nearby who felt that somebody was wrongfully on the premises about to be constructed, is really going much too far. I hope that your Lordships will not accept the amendment, and I know that the noble Earl will forgive me for differing from him.

Lord Campbell of Alloway

I also hope that your Lordships will not accept this amendment. The structure referred to in Clause 1(2) of the Bill can only refer to a structure in which a person has his home or living accommodation under Clause 1(1). A building in the course of construction already falls within the provisions of the Bill if someone is living in it. But the amendment proposes to include buildings in the course of construction in which no one lives—a point made already by the noble Lord, Lord Mishcon.

Let us take the position of a tramp on a dark, wet, foggy night, who to take his ease enters a building which is in the course of construction. How can he know whether the intended user is for domestic purposes? Many buildings which look like dwelling houses are destined for use as offices. The intended user may be changed in the course of construction, subject to planning consent, and may have changed between the time of entry and the service of the summons or the hearing. The Crown has to prove that the state of mind of this tramp at the time of entry was such that he knew, or had reasonable cause to believe, that the intended user was domestic—a burden of proof which would be difficult to discharge because the entry is related to "assumed" user as distinct from "actual" user. The crucial words are "is to be used", which import this concept. This amendment derogates from the structure of the Bill, which rests upon actual user as a home at the time of entry and not on assumed user.

In conclusion, knowledge of an assumption made by others over whom an accused has no control whatever constitutes an entirely novel ingredient in the criminal law of England. In this an accused could not raise a defence under Clause 2(1) and seek to show that, on the balance of probabilities, he had no reasonable excuse; for as a matter of construction this is related to reasons for entry and not to reasonable cause for belief, under Clause 2(2). With the utmost respect to my noble friend, this is misconceived.

7.31 p.m.

Lord Airedale

It may be that this is not the right Bill in which to achieve what the noble Earl seeks to achieve, but there is the greatest merit in what the noble Earl seeks to achieve. Hooligans can make an absolute nuisance of themselves going into partly built buildings in order to smash all the windows and the wash basins, tear out the electric fittings and everything else. Those buildings under construction are extremely difficult and extremely expensive to protect against hooligans. Anything that can make life hotter for these hooligans is to be encouraged. But it may well be that this is not the right occasion on which to achieve it.

The Earl of Onslow

First, I should like to deal with a point made by the noble Lord, Lord Airedale, which is that of someone going onto a building site and stealing something. That would come under the Theft Act. If someone smashes up the light fittings and generally behaves like a hooligan, that is already a criminal offence. I suggest to your Lordships that to enlarge the scope of this particular trespass Bill to incorporate building sites is very low on the list of areas to which I should like to enlarge it, but I know that I do not have a cat's chance of actually enlarging it in those directions. The scope of this trespass could be extended in many ways, but building sites are fairly low on the list, especially as large parts of them are speculative building—in other words, the builder does not know to whom the building will be sold or who will live in it. I should be very unhappy if your Lordships were to accept this amendment.

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

I think that the Committee has shown that my intervention is superfluous. I merely say that I support my noble friend Lord Onslow in hoping to persuade our mutual noble friend Lord Caithness not to press his amendment, as it carries the Bill into an area for which it is not designed. I think we are all clear that we are seeking to protect people from the very real fear and distress which can be caused by trespassers entering those people's own homes or living accommodation. Building sites are another matter; the idea may be very virtuous, but building sites are not strictly relevant.

The Earl of Caithness

I am grateful to everyone who has commented on this amendment. I think that this is probably the wrong Bill. I think that it is a worthy cause. I am sorry that my noble friend Lord Onslow does not think it is a good thing to build houses—I should like to talk to him about that a little later. It is a point and the noble Lord, Lord Airedale, brought it home to the Committee. May I ask my noble friend on the Front Bench whether in due course he will write to me on the two points that I have raised with regard to existing law. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 1 agreed to.

Clause 2 [Criminal trespass in buildings to which this Act applies]:

7.36 p.m.

Lord Renton moved Amendment No. 3: Page 1, line 12, after ("enters") insert ("or remains in").

The noble Lord said: I beg to move Amendment No. 3. If this amendment is accepted by your Lordships, some consequential amendments to subsections (2) and (3) would have to be made at the Report stage. As the Bill stands, it refers only to: a person who without reasonable excuse enters any building or part of a building to which this Act applies as a trespasser". It does not deal with the person who has a good reason for entering for a particular purpose—perhaps even a statutory purpose, for example, like checking a gas meter—but who remains on the premises when he has achieved his purpose.

May I give an example. The husband may be away at work and the wife alone in the house. The gas man, having checked the meter, may sit himself down in an armchair, start smoking and in an unwelcome kind of way generally make a nuisance of himself. Indeed, the wife may need to attend to her children or she may need to go out shopping, and the fellow refuses to leave. That surely is the kind of criminal trespass with which the Bill should deal. In those circumstances—and others could be mentioned—the man's presence has become a serious invasion of the wife's privacy.

This simple amendment would overcome that, and of course it is qualified by the words "without reasonable excuse" and the words "as a trespasser". I hope that in answering this point, my noble friend Lord Elton will not say that the amendment is unnecessary because of the doctrine of trespass ab initio, which, it was thought, was well established in our law and applied to those who entered a building for a necessary public purpose but who failed to leave the building when that purpose had been achieved. It would be unwise to rely upon that doctrine because in recent years the Court of Appeal has tried to get away from it.

The law is in a state of some uncertainty in this area, and unless we make it plain in this Bill we may well find that some person, perhaps bringing a private prosecution (which he shall be entitled to do under the Bill), might say that the doctrine of trespass ab initio is still part of the law, and the gas man would be deemed to have trespassed ab initio having conceived the original intent of staying on, of holding over, after he had achieved his legitimate public purpose, and therefore the offence has been committed.

I think that that would be right, but it would be wrong to rely upon the doctrine of trespass ab initio in order to establish that, and it would be far better to have the point made plain in the Bill, which this simple amendment would do. I beg to move.

Lord Mishcon

I hope that I shall not have the reputation of being a wrecker of this Bill because, as I have said. I hope that my objections to it on Second Reading were reasoned objections. I had quite a lot of sympathy with the noble Earl's inspiration to bring this Bill before our Lordships. But, again, I utter a word of warning about extending the area of this Bill beyond the area which this House would want it to cover. It is one thing to say that we introduce a new crime into our criminal code when someone who has no right at all to enter our premises does so and refuses to go. It is at least intelligible that one should have a crime of that order and that one should be able, as a private citizen, to call the police and, as the noble Lord, Lord Renton, said to initiate a private prosecution. But it is entirely different if we are now again to walk into the area where somebody comes upon the premises perfectly legitimately and then the occupier takes the view that he is no longer welcome, and the gentleman, or lady, concerned wishes to continue an argument which he, or she, has had with the occupier of the premises. At that stage are we to have a new crime committed? Because that person does not leave when the occupier wants him to are we to add to our criminal code that a private prosecution can be brought and the police can be brought in?

Has none of your Lordships seen that glorious play which exhibited for all our delectation the unwelcome guest who stayed too long? It is bad enough to have that guest without being able to get rid of him, but are we now to introduce into our criminal law one way of getting rid of him, which is presumably to call for a policeman and say, "Dinner is over, and that was the only thing I asked him for. Therefore, now he is remaining against my wish"? There is nothing in this Bill which deals with vexation, annoyance, and so on. The noble Earl has explained that perfectly frankly and we may come back to that on a discussion on clause stand part, but please beware of passing this amendment.

Lord Renton

I think that the noble Lord may have misheard or not taken on board what I was saying; namely, that under the present law the doctrine of trespass ab initio might be invoked under this Bill. My amendment would have the merit of clarifying that position. Admittedly it would be in the sense of making sure that it was an offence. But surely the worst thing that we can do is to create uncertainty in this context, and my amendment would remove the uncertainty.

I hope the noble Lord will not take it amiss if I make one other point. The noble Lord made it clear on Second Reading that he was speaking for himself from the Front Bench and not for his party. I assume that that is still the case.

Lord Mishcon

I give the noble Lord the assurance that that is still so and will remain so until the end of all stages of this Bill, because this is not a political matter in the slightest. The noble Lord, Lord Renton, as one would expect of one of his eminence as a lawyer, has correctly recited the civil law in regard to trespass. We are dealing with criminal law here, not the civil law.

7.44 p.m.

Lord Campbell of Alloway

In the interests only of clarification, may I say that it seems that we are in danger of confusing the civil law of trespass with the proposed criminal entry under Clause 2(1) of this Bill? If there is an unlawful entry prohibited by Clause 2(1) of this Bill, then I do not understand what useful purpose could be served by adding the qualification "remaining". If, on the other hand—and I speak with due deference because I speak in the presence of lawyers more distinguished than I am—the entry was lawful under Clause 2(1), then remaining there could be made a criminal offence by extending expressly the provisions of this Bill. But the question is, ought we to import into the criminal law—which is what is proposed—any such extension?

The argument of the smoking gasman is an argument which really arises and is resolved, as I understand it, according to the civil law of trespass. The problem which arises as I see it—and I repeat that I speak with due deference—arises under subsection (3) where somebody who gets into a place open to the public lawfully, remains there unlawfully—and all right, unlawfully at civil law, but why not also unlawfully at criminal law? Therefore, with the utmost respect, it seems to me that there is a case in accordance with the spirit of this amendment for amending Clause 2(3).

Lord Renton

I said so.

Lord Campbell of Alloway

Yes, I appreciate that my noble friend Lord Renton referred to amending Clause 2(3) and 2(4), I am concerned only with 2(3), and I can see every justification for that, and I hope that my noble friend Lord Elton might be able to pass a provisional view on that. But outside that ambit I cannot quite see—perhaps for want of understanding—why there should be any further amendment.

Lord Renton

I think I owe it to your Lordships and to my noble friend to explain on the point that my noble friend has made about the difference between civil trespass and criminal trespass that the words "as a trespasser" would have to be interpreted by the courts in the light of the existing law, whether it is criminal law or the law of tort. There is such a thing already as criminal trespass—for example, trespass in pursuit of gain. The courts would be entitled to look to the deciding cases under that branch of the criminal law. But they will also be entitled to look to the definitions of trespass in the law of tort. Therefore, with deep respect to my noble friend I think that it would be taking too narrow a view to say that we should not look to the existing civil law in relation to the definition of a trespasser.

I think my noble friend made a strong point when he referred to the perhaps desirability of inserting in subsection (3) after "entering" in line 2 on page 2 the words "or remaining there". I had contemplated that that would he a consequential amendment to the one that I am moving. But I quite agree with my noble friend Lord Campbell of Alloway that it deserves recognition as an amendment on its own. At this stage there is not one on the Marshalled List. It might come later.

Lord Airedale

The noble Lord, Lord Renton, took as an example the gasman. The man I am concerned about, because he is quite prevalent, is the gentleman who knocks at the door and says he is an antique dealer. The old lady opens the door, he gets his foot in the door and walks into the house and will not leave until he has persuaded the old lady to sell him a clock worth £50 for about £5. He commits no offence so far, as far as I know. But supposing the old lady is able to go to the police and say, "I tried every way I could to get him to go. The only way I could get him to leave was by selling him the clock, which I never intended to sell him at all. I only sold it to him to get him to leave".

If the old lady can go to the police and complain that this man would not leave her house when he was told to, he will perhaps be liable for a criminal offence under this Bill if this amendment is accepted. He will know that, if he behaves like that and the police hear of it, he may he in front of the criminal court. I should have thought that was perhaps a good reason for accepting this amendment.

Lord Elton

We must remember that this is not my Bill, it is not the Government's Bill, it is my noble friend's Bill and he will doubtless come to a conclusion on this. I might be able to make a brief intervention which could help the Committee.

Incidentally, may I welcome the noble Lord, Lord Mishcon, to the ranks of those who know what it is like continually to be saying "no" to those whom they regard with esteem and good intention? Perhaps he will treat me with a little more sympathy and understanding in future, not that I complain of what he already gives me.

We are getting a little army of people because we shall have the mobile and the static lurker to look at in a moment. On the question of the smoking gas man, my noble friend Lord Renton has to answer some points made by my noble friend Lord Campbell of Alloway, but generally such cases and, more particularly, the case brought in by my noble friend Lord Campbell of Alloway of the mobile lurker—that is, the person who stays behind when the stately home closes—are caught as soon as the person moves into another part of the building; because in Clause 2(1) we see that, Subject to the following provision of this section, a person who without reasonable excuse enters any building or part of a building". He can stay behind the curtains in the dining room until the following morning without committing an offence, but as soon as he goes into the saloon he has committed an offence. If he stays in the dining room and takes nothing with him when he leaves, no harm is done except to the amour propre of the owner of the stately home and if he takes something with him he has committed either theft or burglary or both. Therefore we need not worry about him.

What is exercising me about my noble friend's proposal is that there are two aspects to it. One is that, in the review which we carried out prior to the emergence of this Bill, we did not get any clear signal that this is a widespread mischief. I think we have to restrict ourselves in this Bill to the minimum if it is hoped to succeed. The noble Lord, Lord Mishcon, has made quite clear the sort of difficulty into which it might run if it were extended in this way. Therefore, I hope that your Lordships will agree with my noble friend Lord Onslow if he decides that this is not an acceptable amendment. I hope that after this little debate my noble friend Lord Renton will advise me if I have ever outstayed my welcome, because I reflected earnestly on that when I read the Order Paper.

The Earl of Onslow

I hate having to disagree with my noble friend Lord Renton, who has been of so much help in this Bill. When we were discussing it he said "Flattery will get you nowhere at all". I think that possibly it does sometimes, but I am not just flattering him, I am saying with great sincerity that he has been of enormous help on the Bill. I do not like disagreeing with him.

For the sake of argument, let us assume that this antique salesman or buyer is a part-time antique salesman and his regular job is that of a gas man who is having an affair with the lady of the house. Thus we can have a smoking gas man/antique dealer/lover who is asked to leave. This is taking hard cases to a brittle interior. I do not think we should enact that sort of legislation. If we continue and bring in the smoking gas man and the girlfriend or the boyfriend, that produces difficult problems.

Years ago we had a chap whom my parents desperately badly wanted to leave the house. He was much older than them so they did it by being frightfully good-mannered and saying, "Blank, will you have another drink?" He said, "No, I won't keep you young people up", but held out his hand for another glass of gin and tonic. He would never leave until 4 o'clock in the morning. We always wanted him to go, but staying on almost reduces the late (who shall be nameless) into a criminal. We must be very careful.

I say we "we", meaning "I", but the Government have given acceptance and backing to a Bill which creates a very narrowly-defined, very boxlike offence of trespass. I resist this amendment strongly because it wobbles the box at the edges. I want to get a little bit of what I think is right and the Bill as drafted produces a de minimis offence, which is what we want, I would rather have that and that alone than extend it, especially if it produces difficulties at the edges.

Lord Renton

I am grateful to the noble Lord. Lord Airedale, for his support on the amendment. I am grateful to all those noble Lords who have commented upon it and spoken about it. I assure my noble friend Lord Onslow that when I come to withdraw the amendment his attempted flattery will not have influenced me one bit.

It is with great sorrow and regret that I shall withdraw the amendment. I only hope that my attempts to remove doubts and to anticipate a point which will arise in practice, will not turn out to have been misguided in the years to come. In fact I think it may well be otherwise, but, in view of what has been said by my noble friends, I must obviously in the circumstances beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.56 p.m.

Lord Airedale moved Amendment No. 4: Page 2, line 14, after ("is") insert ("committing an offence under subsection (1) of this section").

The noble Lord said: Perhaps we could also discuss this amendment together with Amendment No. 5, because it is together that they achieve a single purpose. Amendment No. 5: Page 2, line 15, at end insert ("committing such an offence."). These are amendments to subsection (6), which says: For the purpose of arresting any person … a constable in uniform may enter (if need be, by force) and search any premises where that person is or where the constable, with reasonable cause, suspects him to be". It says "any premises". That does not just mean the premises where he is suspected of trespassing. It means, for instance, his parents' home. If he has gone home, locked the door and gone to bed, under subsection (6) the police have power to enter by force his parents' home to arrest him.

On Second Reading the noble Lord, Lord Renton, drew an interesting comparison with Section 7 of the 1977 Act. It is a very kindred offence; adverse occupation of residential premises. That offence in the 1977 Act is punishable twice as heavily by imprisonment as this offence. It is six months' imprisonment as against three months' maximum under this Bill. The section of the 1977 Act adopts the same words as this Bill about a constable in uniform being allowed to arrest without warrant, but the 1977 Act makes no mention of this power of the police to enter, if need be by force, any premises in order to arrest an offender. I concede that, as the Minister pointed out on Second Reading, it might be somewhat Gilbertian if a trespasser had gone into somebody's house and locked the door and the police—

The Earl of Onslow

I think the noble Lord has forgotten Section 11 of the 1977 Act, which applies exactly the same rule as this does to Section 7. So, with the best intentions in the world, he is misleading the Committee.

Lord Airedale

I must look at that. I think that the noble Earl is talking about subsection (11) of Section 7 of the 1977 Act, but perhaps we can resolve that later. I have lost track of what I was saying. The Minister pointed out a Gilbertian situation where the trespasser had entered somebody's house and had locked the door behind him, and where the police had no power to enter by force in order to arrest him. I concede that; and these two amendments leave that position so that, if it is a case of entering the very house which has been entered by the suspect, the police have power to enter those premises by force. But what I submit to the Committee is that where you have a crime which is not one of the grave crimes, as crimes go, because it is only punishable with a maximum of three month's imprisonment, it really is not necessary to give the police power to chase him all over the city and to enter by force any other premises, wherever he may be and however much other people may be disturbed by the actions of the police, in order to arrest him for this really not terribly serious criminal offence. I beg to move.

Lord Renton

After the support which the noble Lord, Lord Airedale, gave me on Amendment No. 3, I feel a bit churlish in having to oppose him on this amendment. But I wonder whether he would not, on consideration, realise that he is introducing a rather extraordinary proposition into the criminal law. What this amendment says, in effect, is that unless a criminal is arrested in the exact spot or on the premises where he committed the crime, he should not be arrested and convicted, however serious the crime might be in the circumstances.

I know that this is not as serious a crime as the one which the noble Lord mentioned in connection with, for example, entering a foreign embassy—although some people would say that it is just as serious. But it is a proposition that one could not possibly accept, is it not? Take the intruder who goes up a drainpipe, gets into a lady's bedroom in the early hours of the morning and then decides, instead of staying on in that bedroom after smoking a cigarette and covering her sheets with blood, to shin down the drainpipe. To say he has really purged his contempt, so to speak, and that he should no longer be convicted surely does not make sense.

Lord Airedale

I have never heard such extraordinary propositions. The noble Lord, Lord Renton, seems to be putting forward the proposition that, however trivial a criminal offence that somebody commits, the police shall have power to break into any premises, wherever he may be, in order to arrest him for that trivial offence. That cannot be what we desire.

Lord Elton

I think the noble Lord, Lord Airedale, would agree that the Bill must provide for the worst cases as well as the least bad and most trivial case. We cannot have a separate clause for each. The police may be pursuing to some other place the sort of person that my noble friend has suggested. They may have twice already had an old people's home or a children's home or some other place terrorised by somebody who came in and disappeared. On the third occasion, he may have been identified and it may be known where he can be found. Are the police then to have to sit outside the home like terriers outside a rat-hole waiting for the offender to come out before they may arrest him; or are they to go away and hope that they run into him by chance before he commits the offence again?

It seems to me that we have to provide for cases where there is a serious need to prevent a recurrence of what is a quite serious offence. Let us suppose that it was a hospice for the dying which had been desecrated by the presence of somebody behaving in an unseemly manner. The noble Lord would be the first to wish the police to take steps to see that it did not happen again. I think that he would, in those circumstances, be glad that they should be able to go and arrest him elsewhere, and, if he has locked the door and will not unlock it, it may even be the case that they ought to be able to open it by force. I think that that is all my noble friend is asking. I hope that he will persuade the noble Lord that he is right.

Lord Campbell of Alloway

Surely, the amendment seeks to afford statutory recognition of the medieval practice of sanctuary by grasping the cathedral door knocker.

The Earl of Onslow

I think it might be for the benefit of the Committee that I read out Section 11 of the Criminal Law Act 1977, which says: For the purpose of arresting a person under any power conferred by any provision of this Part of this Act other than section 9(7) above a constable in uniform may enter (if need be, by force) and search any premises where that person is or where the constable, with reasonable cause, suspects him to be". The powers put in this Bill are powers which we already have in the 1977 Act. Furthermore, coming to your Lordships' House later is the Police and Criminal Evidence Bill, where powers of search and entry, et cetera, are going to be codified and sorted out. I would suggest that it is right, that we should put into this Bill what is in the 1977 Act, and, if it has to be changed in the next Bill, that we do that consistently; in other words, that we try to maintain consistency. If we have different powers of search and entry for different offences it is confusing to the public and confusing to the police, and it may enable technical aquittals to be brought about. That would be a bad thing.

Lord Airedale

I owe the noble Earl an apology. The enforcement provisions in this Bill are together in Subsections (5) and (6) of Clause 2. If they had been together in the 1977 Act I should not have made the mistake that evidently I have made of overlooking Section 11. I apologise, and had better beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

8.9 p.m.

On Question, whether Clause 2 shall stand part of the Bill?

Lord Mishcon

I rise to make two points. At Second Reading I expressed a view that I had tried to summarise before, and the noble Lord, Lord Renton, correctly reminded the Committee that I then expressed, and made it very clear that I expressed, a personal view on this Bill. The gravamen of my charge against the Bill, if I can put it that way, is that it did not even include the words that were originally in the Bill when it came before your Lordships' House on a previous occasion, making it the essence that the intruder (if I may so call him) had caused annoyance, trepidation and whatever it was.

The answer I was given by the noble Earl, who always expresses himself with complete and positive integrity whenever he addresses the house—and by the noble Lord, Lord Renton, to whom I would apply exactly the same phraseology—was that in this Bill the question of reasonable excuse was an onus that was firmly placed upon the prosecution to prove. I believe that was very persuasive upon your Lordships on that occasion. In other words, the prosecution had to prove that the defendant had no reasonable excuse for being on the premises. I ventured to differ from that view even though it was obvious that the noble Earl was expressing the advice that had been officially given to him.

There is no need for me to quote the speeches made on that occasion. They were very definite about that. The noble Earl, with his customary courtesy and frankness, as I have said, wrote me a letter today in which he said that upon further advice being taken it appeared that what I had said on Second Reading was right and what he and others had said on that occasion was wrong, and that certainly it looked as though in the magistrates' court when this matter came before the magistrates, then the onus would be, on the basis of balance of probabilities, on the defendant and not on the prosecution. I thought I owed it to myself to make that abundantly clear. The noble Earl will doubtless have a few words he would like to add on that point.

I can be very brief about my second point. The originator of it is not myself but the noble and learned Lord, Lord Edmund-Davies, who would have wished to have been here this evening in order to make the point himself. Unfortunately he is not feeling very well and therefore cannot be with your Lordships. He has asked me to mention this point to the Committee, and I gladly do. I do so in case those who are in charge of the Bill would wish to recognise the point and themselves see that it is rectified, otherwise it may well be that an amendment will be put down on Report.

The noble and learned Lord, Lord Edmund-Davies, referred to the words which appear at the end of subsection (2) of Clause 2. Those words read: knows or has reasonable cause to believe that the building is a building to which this Act applies. The noble and learned Lord says—and I think, with deep respect, says quite correctly—that on the face of those words it would mean that the trespasser must be proved by the prosecution to have known or to have had reasonable cause to believe that the Criminal Trespass Act—if, indeed, it does become an Act—applies to the building. That, surely, cannot be sense. The words ought to read "knows or has reasonable cause", et cetera, "that the building is a building in which a person has his home or other living accommodation". Now, if that is put clearly in the Bill so that the question is purely and simply for the prosecution to have to show that he was in such a building, then quite obviously the Bill will be very much more clear than it is now. I make it quite clear to your Lordships that this is the view of the noble and learned Lord, Lord Edmund-Davies, which I am sure will be greeted with the respect that any view of his would always command in the Committee.

Lord Renton

May I say that the noble Lord, Lord Mishcon, has done the Committee a service by raising this point again. When, in answer to a question in effect by him on Second Reading, I gave by the light of nature and to the best of my recollection of the law the answer to which he referred, I may or may not have been right; but the Government since then have had the opportunity of taking advice and will no doubt give us the true answer.

The Earl of Onslow

First of all, I should like to apologise for giving the wrong information to your Lordships on the subject quite rightly raised by the noble Lord, Lord Mishcon. It was not only the advice I received; I had advice from lots of people—all distinguished lawyers, all who told me this, and then I got up and said all this with enormous confidence and finished up with large dollops of egg all over my face, for which all I can do is to apologise to your Lordships. It appears that this is the standard magistrates' courts practice. Again one is aiming for consistency. It is the same point as I tried to make with the noble Lord, Lord Airedale, on the last amendment; if you have inconsistency with powers of arrest that is wrong, and it is equally wrong I suggest to have inconsistency in powers of reasonable doubt and proof which apply to magistrates' courts and it is only sensible to have consistency.

On looking at the other point raised by the noble Lord, Lord Mishcon, quoting the noble and learned Lord, Lord Edmund-Davies, having been told by lawyers that one thing is correct, I am now going to do this without being told by lawyers that it is correct so perhaps again I am wrong, but it seems to me that a building to which this Bill applies refers straight back to Clause 1, which says: This Act applies to any building in which a person has his home or other living accommodation". I honestly would have thought that to a layman anyway there was no doubt as to the clarity of it; but, of course, one will look at it and take further advice and hope there is no more egg! So on that point, I hope that we can pass the clause and let it stand part of the Bill.

Lord Elton

Just to say a word, having been involved at secondhand, as it were, in the advice which my noble friend—as it proved, slightly misguidedly—took, may I thank the noble Lord, Lord Mishcon, for the courteousness with which he pointed out the error, and my two noble friends for the grace with which they admit it. But I ought also to contribute to this exchange. I am glad we got it sorted out.

Clause 2 agreed to.

Remaining clause agreed to.

House resumed: Bill reported without amendment; Report received.