§ 12.45 p.m.
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.—(Baroness Vickers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD CULLEN OF ASHBOURNE in the Chair.]
§ Clause 1 [Soliciting of women from motor vehicles for the purpose of prostitution]:
Lord Mishcon moved Amendment No. 1:
Page 1, line 6, after ("man") insert ("persistently")
The noble Lord said: I want to try to deal tidily with the amendments that are before your Lordships' Committee with regard to Clauses 1 and 2 of the Bill. It is in that mood that I make some preliminary comments. As the Committee will see, Amendment No. 1 seeks to insert in Clause 1 the word "persistently". The Committee will see that there are other amendments of a similar nature tabled by the noble Lord, Lord Monson, except that I notice that he had added the words:
or in a manner likely to cause annoyance".
The noble Lord, Lord Kilbracken, with a love of the English language, tries to get rid of what the noble Lord, Lord Wigoder, pointed out at Second Reading was the ugly phrase,
got out of or off".
§ The noble Lord, Lord Kilbracken, wishes to insert the word "left".
§ The reason I mentioned tidiness is that your Lordships' Committee will see that later I am due to oppose the Question that Clause 1 stand part of the Bill. Therefore, I go through the rather clumsy procedure of trying to amend a clause which I then want to remove from the Bill. So I wonder whether at this time on a Friday I would obtain the agreement of the Committee to making one speech as to what I think ought to happen to the Bill. Your Lordships, in Committee, would then have the chance to decide whether the Bill should be amended in the way I suggest in Amendment No. 1 or, as I shall seek to show, whether Clause 1 should be removed and Clause 2 amended in the way suggested in Amendment Nos. 4, 5 and 6. I note with some pleasure that the name of the noble Lord, Lord Wigoder, appears in regard to Amendment No. 1 as well as Amendment Nos. 4, 5 and 6.
§ As we discussed on Second Reading, what is proposed is an importation into our criminal code. Your Lordships will always want to be very careful before adding another crime to our existing list of crimes and will want to be sure that you are doing it because it is necessary and doing it in a proper and fair 503 manner. I do not seek for one single moment to argue before the Committee that the nuisance of kerb crawling should not be dealt with by our criminal law. I am saying of course that it should be. It has to be a very, very great nuisance indeed. In my view, the habit of kerb crawlers accosting perfectly respectable ladies is a much greater nuisance than kerb crawlers who in fact are trying to solicit or accost prostitutes. But I am not going to argue that both classes of case should not indeed be covered by some sort of legislation. But when we do that we have to be very careful that we are acting justly and properly and protecting innocent people from being brought before the courts with their reputation in tatters in spite of the fact that the charge may end in an acquittal.
§ If I may say so, and I do this with the greatest of respect, when the Criminal Law Revision Committee, with its very learned chairman and with members of great repute, in its 16th report came to consider the matter it found itself in the same difficulties as the Wolfenden Committee, of which I happen to have had the privilege of being a member. I shall not repeat what I said about that at Second Reading. I merely dismiss it with a sentence or two. We realised that the nuisance existed. We said that there was too much danger of innocent people being embroiled in the offence if we recommended that there should be a criminal offence. We therefore left it as a matter to be reviewed from time to time.
§ When I looked at what the Criminal Law Revision Committee had to say about that I found it to be a tortuous paragraph. I hope I shall not be over-demanding of your Lordships' patience if I read paragraph 3.44, which is headed:
§ "Kerb-Crawling: three proposed offences
§ Our impression from the evidence we have received is that the public wants us to suggest some way in which the criminal law might be used to get rid of the nuisance caused by men accosting women for sexual purposes".
May I pause there to remind the Committee that I used that phrase in the amendment that I suggested to Clause 2, "for sexual purposes", and not, "for the purpose of prostitution"? "For sexual purposes", says the committee.
The main source of nuisance is the motorist who behaves in this way—the kerb-crawler—and we make three proposals for dealing with him. First, where by such conduct he puts a woman in fear he should, we think, be guilty of a criminal offence: but it should be recognised that it may be difficult to prove guilt without calling the woman as a witness".
That is Clause 3 of the Bill. The Committee will know that that is to be removed, and the noble Baroness, Lady Vickers, will be moving that it should not stand part of the Bill. That is the provision dealing with the question of putting somebody in fear. So we can forget that one for the moment.
Secondly, a lesser offence of accosting a woman from a motor car for sexual purposes"—
again the committee uses those words—
so as to cause her annoyance might also be desirable but once again proof of guilt without calling the woman as a witness might be difficult. Some of us are of the opinion that the presence of the women in the witness box might be a safeguard for an innocent motorist who had stopped the woman to ask the way. She might say that the appearance of annoyance which a police officer said he saw was due to being stopped, not to having sexual advances made to her. This, however, would not necessarily cover the case of the
kerb-crawler seeking a prostitute and we appreciate the need to reduce the nuisance caused by men driving round red-light districts in motor cars looking for prostitutes and sometimes accosting women who are not prostitutes. Thirdly, therefore, some of us
and I emphasise those words—
are of opinion that an offence should also be created simply of accosting a woman from a car for the purpose of prostitution. There may, of course, be difficulty in proving this offence without calling the woman as a witness".
§ That finishes the quotation from paragraph 3.44 of the report. I think I am entitled to say that that is not terribly clear thinking, nor does it come to very clear conclusions. I do not want the Committee to think—and this is my first submission—that in agreeing to the Bill as it stands you will be following a clear, firm, unanimous recommendation of the Criminal Law Revision Committee. You will not be.
Having said that, I turn to the clause as it now stands. It creates the offence—and I am reading the marginal notes for a moment—of:
Soliciting of women from motor vehicles for the purpose of prostitution".
This clause means that there is no question of two offences having to be committed before a charge is brought. A charge can be brought—and this is what the clause deliberately says—upon the view of a police officer of somebody driving a motor car, loitering by the kerb. (I ought to say in parenthesis that the Royal Automobile Club has told me how worried it is about this and it has written to me on this matter.) He may be a foreign tourist, as I said at Second Reading, asking somebody whether it is Chelsea or Clapham and receiving a reply in the negative, with a wag of the head. Some police officer may think that that is somebody who has slowed down his car to accost a prostitute. Here is the person accused before the court. I said this at Second Reading, and I do not mind repeating it. I say it with respect. It could be any one of the Committee. It could be your Lordships' colleague now addressing you who might be subject to such a charge.
§ To me it is no answer to say that if the evidence had not been corroborated and if one had an able lawyer who cross-examined the policeman, the magistrate may decide to give one the benefit of the doubt. That would be no consolation to me. Having seen in the local, if not the national, press that somebody had been charged with that offence who had been a part of public life and who up till then had had a perfectly good reputation and a very happy marital existence, it would be no consolation at all, as I believe that the Committee will agree.
§ If we are to create this as a criminal offence on any basis at all, we must import the word "persistently" so that there has to be at least one more so-called offence committed before a charge can be brought. I remind Members of the Committee that private prosecutions are possible under this clause. It does not have to be just a police prosecution.
That is the very minimum; but we make a nonsense of this offence, if I may say so, if we limit it to the words:
for the purpose of prostitution".
Presumably any defendant could say, "I find this extremely offensive. I think of myself as a very attractive member of the male sex. When I stopped
that lady—and you are quite right that I did slow down and stop her—I did not have the slightest intention of asking her to become a prostitute. Indeed, I should not have offered her one single penny, and I did not. I thought I was sufficiently attractive to this lady to suggest that she came for a ride with me and that we spent some pleasant hours together". That is a complete defence if it is believed. One would have thought that it would be very difficult to deal with a defence of that kind.
§ Are we really out to make it only for the purpose of prostitution? Surely this kerb crawling for sexual purposes is causing a nuisance, to any lady, which is what the Criminal Law Revision Committee said. There is a lot of mixed—
§ 1 p.m.
§ Lord Glenarthur
I wonder whether it would be helpful for the Committee if I intervened on one point. The noble Lord referred to part of the Criminal Law Revision Committee's report. The part to which he referred, that is to say paragraph 3.44 on page 34 is a working paper appended to the report. If the noble Lord refers to paragraph 40 on page 13, I think he will find that the recommendation is perfectly clear.
§ Lord Mishcon
Yes, indeed I note that "for the purpose of prostitution" is mentioned under the heading of "Kerb-crawling" at page 12 of the report. I also notice that later on in the report they use the words "for sexual purposes". I am saying that "for the purpose of prostitution", whether or not recommended in the wording of the Criminal Law Revision Committee, makes a nonsense of this offence.
If I may, I am going on to say that the Government have had some very muddled thinking about this if they feel that what they are doing is protecting innocent ladies—and I believe that that is what they think they are doing. However, if they have the words "for the purpose of prostitution", the view of most people, including that of the noble and learned Lord, Lord Denning, as I understood him, is this. The noble and learned Lord said: do not worry about proof; what one will be able to do is to have a police officer there; police officers know all the prostitutes in their area and they will say that this was a known prostitute. The noble and learned Lord has communicated with I think a few of us and I believe that it is perfectly proper to give his point of view. He also thinks that it covers somebody who the motorist thinks to be a prostitute even if she is not one. However, I should have thought that we are anxious also to cover ladies who the motorist does not necessarily think are prostitutes. As I said, this is the muddled thinking of the Government on this matter and on this clause, showing that really not enough consideration has been given to it.
I quote from the Second Reading of this Bill in another place (at col. 1290 of Hansard) where the Minister, the Under Secretary of State for the Home Department, Mr. David Mellor, says this:As an hon. Member who represents an inner city area, I know that it is being made extremely difficult for people to live a civilised life in some areas of our cities because of sexual harassment. That is unacceptable. Parliament has a duty to find some form of redress, subject to all the usual safeguards and appropriate rules of our 506 criminal law, which is much more distinguished and better thought out than ever appeared in the travesty of a speech from my hon. and learned Friend the Member for Perth and Kinross"—I hope I never refer to honourable friends of mine in quite such an unfriendly way.He appears to have disappeared at the moment that he led us to believe he was greatly anticipating—my opportunity to comment on his points, in so far as some of them merit it.We know of the problem, for example, in Bedford hill from just one piece of evidence submitted to the Home Office. A questionnaire was sent out to the residents of Bedford hill, 345 of whom responded. Their answers give an idea of what it must be like to live there. Incidentally, Bedford hill is not a rundown or ramshackle area—not that the problem would be acceptable there, if it were—but a pleasant residential area, and the people living there value their amenities.The questionnaire asked:Have you or any member of your family ever been accosted by a kerb crawler?The answers were: once, 30; often 73; occasionally, 119; never. 113. Two thirds of the people asked had been accosted, or said that members of their families had been accosted, by a kerb crawler. The extent of their anger will be seen readily from the response to another question:Do you think it should be against the law—and I am repeating the Minister's words and the noble Lord the Minister will listen to me I am sure with great care, in view of his previous intervention—for a man to accost a woman from a car for sexual purposes? In that case, 315 said yes and 21 said no".Obviously the Minister had in mind that what he was doing in supporting this Bill was protecting perfectly innocent ladies, perfectly respectable ladies, who had been annoyed by the kerb crawler who had accosted them for sexual purposes—not for purposes of prostitution, but for sexual purposes. They were not prostitutes, I am sure they did not look like prostitutes and I am sure the kerb crawler did not think they were prostitutes.
Thus, what I am trying to do is this. I say this with due humility. I am trying to do what I think the Government intended to do, and if they did not intend to do it, they should have done. We ought to have an offence which will be within Clause 2 and we do not need Clause 1. We need to catch the kerb crawler. We need to make it clear that we are catching the kerb crawler. We need to protect the residents in areas from the nuisance of kerb crawlers accosting prostitutes and we need to protect respectable people from being accosted by kerb crawlers persistently for sexual purpose.
Thus, in trying to get rid of Clause 1, I am merely doing it in order to bring the offence very clearly out in Clause 2, where of course "persistently" already occurs, and, as the Committee will see from Amendment No. 4, to insert the words:whether from a motor vehicle or while in the immediate vicinity of a motor vehicle that he has just got out of or off, or otherwise".I know that the noble Lord, Lord Wigoder, will quite rightly quarrel with those words, "got out of or off", but he will quarrel with them purely from the point of view of beauty of language and not from the point of view of their practicability in a clause in a legal statute.
Hence, we have there the kerb crawler brought in. We have already the word "persistently" and we delete "for the purpose of prostitution" and we insert 507 "sexual purposes" so as to cover the whole lot: the kerb crawler who goes for the prostitute; the kerb crawler who goes for a perfectly respectable lady, but he has to do it more than once in order that a criminal charge can be brought.
It has not been very easy, but I hope that I have brought out, as clearly as I can, the reasons for these amendments. I hope that I have done it in a way which will not necessitate, my making more than one long speech, as this has been.
In conclusion perhaps I may say that I am first of all saying that if the Committee is not going to throw out Clause 1, there must be the word "persistently" in it in order to safeguard innocent people. If, as I hope it will, the Committee says that in view of what I have said and what I hope others will say, that Clause 1 is not a suitable vehicle for this offence, then we ought to have a composite offence safeguarding everybody who we are trying to safeguard but hitting everybody who we are trying to hit. I think we do that by amending Clause 2 in the manner suggested in Amendments Nos. 4, 5 and 6. At this stage, I beg to move Amendment No. 1.
§ Lord Wigoder
In general terms at this stage I should like to support the argument so eloquently put forward by the noble Lord, Lord Mishcon. If I have any observations to make in support, I should like to reserve them until a slightly later stage, because now I want to ask the noble Lord, Lord Glenarthur, what I hope is a series of fairly simple questions, the answers to which I believe will clarify our minds in deciding how to approach the problems which the noble Lord, Lord Mishcon, has raised.
Can the noble Lord give us the considered view of the Home Office in a particular situation? I accept that it is not a definitive legal view—of course it is not. That will await a decision by the courts in due course. However, at this stage I should like to know what view the Home Office has formed of the following perfectly simple situation. May I say that I do not expect an immediate answer until there has at least been a little time during which the noble Lord can collect his thoughts. Let us take the following perfectly simple situation.
A police officer sees a motorist drive up, park at the kerb, get out, speak to a woman, get back into the car and drive off—no more and no less. I simply put those elementary facts. Under Clause 1 as it stands, does that give the police officer a right of arrest? Let us assume for the purposes of this proposition that the motorist says nothing at any stage; he says neither what he was doing, why he was doing it, nor anything. Does it give the police officer a right of arrest for the offence as at present set out in Clause 1?
Furthermore, on those facts, if it does give the police officer a right of arrest, would it give the station officer at the police station the power to charge the defendant, the motorist, on that evidence? If the motorist were charged on that evidence and that evidence was put before a court, and there was no other evidence at that stage, would that be a prima facie case of an offence under Clause 1?
Those are the questions that I should like to ask. The reasons of course are as follows. If the answer to any of 508 those questions is yes, it means, does it not, that a motorist is in peril the moment he stops his car, speaks to a woman, gets back into his car and drives off? That is why I want to know whether the answer to any of those questions is yes.
If, on the other hand, the answer to those three questions is, as I very much hope, "No, of course not", then I should like to know what sort of additional evidence is envisaged as being possible before the police officer can arrest a motorist, the station officer can charge him, or the magistrate can find that there is a case to answer. The answer being no, as I hope it is, if we could discover what sort of additional evidence is envisaged I believe that we could begin to redraft Clause 1 in order to meet the situations which the Home Office envisages actually will arise.
That is why I support the noble Lord, Lord Mishcon. I suspect that, in responding to my simple proposition, the noble Lord, Lord Glenarthur, will say that that would not constitute an offence and that a motorist would not be in danger of being arrested simply because he stopped his car, spoke to a woman, got back in the car and drove off. If that is so, there must be some additional factor lurking about somewhere before a motorist is in peril. If we can identify that factor, I believe that we can begin to redraft Clause 1 in the appropriate way.
I think that the most likely factor is that the police officer says, "I saw him do it several times", which amounts exactly to the "persistently" proposition that is put forward by the noble Lord, Lord Mishcon, and which I very much support. As an alternative, I suppose that if the woman to whom the motorist spoke happens to be a known prostitute, it might be said that that is an additional factor, which again we could cater for in amending Clause 1.
Alternatively, it is possible that a police officer might say, "It was perfectly clear from the conversation which I saw, though I did not hear it, that there was annoyance and a nuisance because the woman raised her fist", or that she threatened to strike the man or whatever it was, in which case we come precisely to the amendment of the noble Lord, Lord Monson. Therefore, without making a speech at this stage, I hope that I can ask the noble Lord to be kind enough to answer my questions, if that is possible, and then perhaps we can see how we should approach Clause 1 as this debate continues.
§ 1.15 p.m.
§ Lord Houghton of Sowerby
I want to address myself to Amendment No. 1, although I too am very impressed indeed by the arguments used by my noble friend Lord Mishcon. Perhaps noble Lords will allow me to say that the moralists in another place always tend to run away with themselves. I believe that it is the duty of this Committee to put a restraining hand on the moral fervour of Members of another place. Certainly this Bill is to deal with a nuisance. I was very much in favour of the remark made by the noble and learned Lord, Lord Denning, that the Bill is to deal with a nuisance, not to deal with morals. Therefore, we must ensure that the Bill deals with a nuisance.
Clause 1 as it stands makes no suggestion of its being a nuisance—the fact that it may be soliciting is 509 enough. When we talk of soliciting we always think of the protection rackets which were involved in the old laws about soliciting for the purposes of prostitution under the old conditions. We must be very much on our guard against this. The best word that one can find is "persistently". It implies being a nuisance, and unwelcome attentions. I think that that is the right word. Other words can he used, but I think we need the word "persistently" in Clause 1.
Later on I shall be supporting the deletion of Clause 1 from the Bill because I believe that the all-embracing proposal to amend Clause 2 is probably the best solution.
§ Lord Kilbracken
I do not know whether the noble Lord, Lord Monson, wants first to speak to his amendment, Amendment No. 2?
§ Lord Monson
I am grateful to the noble Lord, Lord Kilbracken, for giving way. I must say that I am very attracted by the simplicity of Amendment No. 1; but, sensing that almost certainly it will not be acceptable to the noble Baroness, Lady Vickers, and the other sponsors of this Bill, I tabled Amendment No. 2 by way of compromise—a compromise which, as I hope to show, is actually rather nearer her point of view than the point of view of the noble Lord, Lord Mishcon. I think that it might be for the convenience of the Committee if I were now to explain Amendment No. 2.Amendment No. 2: Page 1, line 6, after ("man") insert ("persistently or in a manner likely to cause annoyance").Amendment No. 2 toughens up Amendment No. 1 considerably in that, as an alternative to the element of persistence which would otherwise be needed to justify a prosecution, one single act on the part of the prospective client in his motorcar, or having just got out of his motorcar, which is likely—and I stress the word "likely"—to annoy would also justify a prosecution.
Note that there will be no need actually to prove annoyance under the terms of my amendment. It would suffice that a reasonable person, not an unduly sensitive person, nor, on the other hand, an unduly thick-skinned person, considered the behaviour of the motorist in question, or passenger, likely to annoy. Nor are the potential "annoyees", if I may coin a horrible word, confined to the women actually approached by the would-be client. Householders living nearby, passers by on the pavement, and even motorists following the car in question whose progress was impeded by the slow driving of the person looking for a prostitute would be included.
In other words, the tooting of horns, the revving up of engines to attract a woman's attention, the flashing of headlights for the same reason, shouting at a woman or even speaking in a raised voice after midnight or 11 p.m., the making of obscene gestures—all these acts are likely to offend people in the neighbourhood generally, and would therefore all constitute illegal behaviour.
As the noble Lord, Lord Houghton, said, it is the nuisance aspect that we are getting at—the nuisance not just for women approached who are not prostitutes but for all the people living round about. In other 510 words, only the most discreet and low-key approach to a woman would slip through the net. Even that kind of approach would be exempt only if the woman concerned was not herself annoyed by the manner of the approach. In order to avoid the risk of prosecution, the client would have to be sure that the woman he approached was almost certainly a prostitute, whether professional or amateur.
The noble Lord, Lord Mischon, at Second Reading spoke about the dangers which would face foreign tourists who had lost their way and were trying to get directions should an amendment such as one of these two not be carried. To this category I would add British tourists, who are just as likely as foreign tourists to lose their way in strange parts.
Then there are political canvassers. Recently I saw an article in a Conservative Party newsletter, I think called Conservative Newsline, which highlighted the danger to canvassers if this Bill went through unamended. There are also encyclopaedia or life assurance salesmen, who tend to call upon households after working hours and who may try to find a particular house the name or number of which is badly lit in an already badly lit street. In the absence of any possibility of trial by jury, and in the absence of any necessity for the testimony of a single individual to be corroborated, all these categories are at risk. I hope that the Committee will support one of these amendments. When creating a new offence it seems better to tread warily and to err on the side of caution. If the law turns out to be inadequate, it can always be strengthened later.
§ Lord Kilbracken
My noble friend Lord Mishcon has told us that he has two strings to his bow on his proposals, one being to amend Clause 1 and the other being to delete Clause 1 and incorporate what he wants into Clause 2. He has spoken to both these possiblities in his opening remarks. I should like to confine myself to Clause 1 and perhaps add something later when we come to Clause 2.
What would really be meant by Clause 1 if, on the one hand, his amendment or, on the other hand, Lord Monson's amendment were agreed? The amendment we are now considering would make it an offence for a man to solicit a woman persistently or, as my noble friend has it,persistently to solicit a woman for the purpose of prostitution".Those word are left in if we accept the present amendment, though in his amendment to Clause 2 there is a change to the words "for sexual purposes".
Therefore, it is an offence only if the punter—as we have learnt to call him, though I have always associated that term more with the race track—approaches a woman and solicits her persistently for the purpose of prostitution. He has to introduce a mercenary tone to his remark. If he simply says, "How about dinner tonight?" or, "Shall we go to the movies?" or makes any suggestion that has no mercenary content, under my noble friend's amendment no offence has been committed.
When I listened to the Second Reading debate—and I did without thinking—I found that the facts as discussed and as drafted were very different from those I have ever experienced or noticed in real life. It seems 511 to me that nobody would ever solicit a woman for the purpose of prostitution persistently. He has, to be guilty, to go up to the woman and immediately say, "I will give you £20 if you will come with me". He has to make it clear that he is soliciting her for the purpose of prostitution.
I cannot imagine any man doing that, but if he does and he is then rebuffed—
§ Lord Wigoder
I think that the noble Lord has misunderstood the effects of the first amendment. The word "persistently" applies to the soliciting. It is suggested that it should be an offence "persistently to solicit" women, not solicit the same woman persistently.
§ Lord Kilbracken
I realise that, but the noble Lord is not perfectly accurate, because Clause 1 would read: "to solicit a woman persistently".
§ Lord Wigoder
It would read:persistently to solicit a woman for the purpose of prostitution".That does not imply it being the same woman, as I understand it.
§ Lord Glenarthur
I hesitate to intervene so early. I shall intervene after my noble friend has spoken, but I may be able to clear up the mind of the noble Lord, Lord Wigoder, and say that the single inclusion of the word "persistently" in this instance—and this is the only amendment I am speaking to at the moment—would be unhelpful. First, an offence would be committed only if a man solicited the same woman persistently. So it does mean the same woman and I think that the noble Lord, Lord Kilbracken, is correct in this case.
§ Lord Kilbracken
That was the point I was going to make. A man may start off by soliciting a woman for the purposes of prostitution, but it would read "persistently to solicit a woman", and he certainly will not do it twice. If he has made a mistake and she is not a prostitute and tells him she is not interested, why should he persist in persuading someone who is not a prostitute to accept money from him? As far as this clause is concerned, I should rather have the amendment of the noble Lord, Lord Monson, which says what should be said: that he must not solicit the woman,in a manner likely to cause annoyance".
§ The Marquess of Tweeddale
If Clause 1 is to stand part of the Bill, I agree with both the amendment of the noble Lords, Lord Mishcon and Wigoder, and that of the noble Lord, Lord Monson. I should like, if I may, and if it is in order, which I believe it is, to ask the noble Lord, Lord Mishcon, a question concerning his proposed amendment to Clause 2.
Let us suppose that a young man goes down the King's Road either getting on and off buses, or on foot, and he introduces himself in a perfectly charming manner to a girl. He is all the time watched by a policeman, let us suppose. The first girl makes it plain that she is not interested in the young man for any purposes whatsoever. He goes a bit further and 512 approaches a second girl and introduces himself. She might turn out to be a policewoman or she might go to the local police station and say, "This man has tried to pick me up". As I understand it, if the amendment proposed by the noble Lords, Lord Mishcon and Lord Wigoder, is carried this young man might find himself in very deep water.
§ 1.30 p.m.
§ Lord Mishcon
I am not sure about the depth of the water, but I have no doubt about what the noble Marquess has said. I have introduced the words, "for sexual purposes". On the assumption that this young man was not asking the lady in question (whom he had not previously seen) to discuss the current Royal Shakespeare production, that the approach was for sexual purposes, that he was overheard and he approached more than one women or persistently approached the same woman, he would be committing an offence.
§ The Marquess of Tweeddale
How do we define "sexual purposes"? Anybody who walks down the King's Road addressing a number of young women is quite likely to have sexual purposes at the back of his mind. I do not think that this is a particularly repulsive thing to do, provided that the young man is polite about it. I might add that under Section 32 of the 1956 Act homosexuals are already in the position that I believe the noble Lord's amendment might put heterosexuals in.
§ Lord Mishcon
I can only reply by saying that there is a nuisance which ought to be dealt with in regard to the kerb crawlers and other people who make a nuisance of themselves for this purpose. One imagines that prosecutions would only be brought where a nuisance occurs. But I am afraid that where the noble Marquess and I differ is that I believe there is a nuisance which ought to be dealt with. In those circumstances I have incorporated all the factors such as kerb crawling into my amendment.
§ Lord Kilbracken
If what my noble friend says is right, have we not all hundreds of times in our young days committed acts which might now be classed as criminal offences?
§ The Marquess of Tweeddale
I could not agree more. Of course I am against the nuisance element, but I do not believe that young men wandering about looking for potential sexual conquests constitute any such nuisance.
§ Lord Wigoder
May I add one observation arising from the recent intervention of the noble Lord, Lord Glenarthur? It is only a matter of draftsmanship, I know; but if I persistently make a speech on a Friday afternoon it is not, I hope, the same speech. If I persistently catch a bus to go to work it is not the same bus.
I should like to thank noble Lords for the points they have put forward much more eloquently than I could, because they are all well trained for it. I have admired the way in which they have approached the problem. I shall consider what 513 they have said and add a few words to put an opposite point of view.
I have had a number of notes from the noble and learned Lord, Lord Denning. I shall not quote them, but he referred to the Criminal Law Revision Committee Report at paragraph 36, which reads:We are in favour of creating a specific offence to prohibit kerb crawling. The nuisance caused by kerb crawling seems to us sufficiently serious to justify legislative intervention".That was contained in the Criminal Law Revision Committee's Report, and perhaps it answers a question about legal standing.
I cannot agree with noble Lords. I am sure my noble friend the Minister will help to deal with some of these amendments. If we are to impart an element of persistence in Clause 1 we may as well do away with Clause 2 altogether, since persistent kerb crawling is dealt with under Clause 2.
I believe the noble Lord, Lord Mishcon, agrees with me. That clause deals with persistent soliciting whether or not it is carried out from a motor vehicle, which perhaps also covers what the noble Lord, Lord Wigoder, said.
I should like the Committee to consider what sort of message we would be sending out if we were to delete Clause 1. This Bill is widely known as the kerb-crawling Bill. Apart from the important penalty increases in Clause 4, kerb crawling is the offence under Clause 1 which is at the heart of the Bill. If we delete this clause, we shall be faced with the real concern expressed by people who live in areas affected by kerb crawling. We have the advice of the Criminal Law Revision Committee, which spent a great deal of time and energy looking into this problem. It concluded that a specific offence was needed to deal with kerb crawling, which of itself is a public nuisance.
Some noble Lords have mentioned tourists. I daresay that, like myself, they have been to places such as Holland where there are particularly notable kerb-crawling areas; and also France, and New York. It is not something that happens just in this country. I do not think tourists are so ignorant about the manner in which to ask the way to anywhere as has been suggested.
The noble Lord made the point that it is no less reprehensible to solicit women for prostitution on the pavement than it is to do so from a car. If we are talking about one-off incidents, I agree with him. I hope I made it clear when I spoke at Second Reading that this Bill does not take a high-minded view of the clients who seek the services of prostitutes. This is not about what may or may not be morally reprehensible but about activities pursued by clients who should be restricted because of the effect on the residents.
In the other House, as noble Lords may remember from reading Hansard, Members have had many letters from troubled constituents. Men cruise around for hours. When the 1959 Bill was being prepared I went out with the police to many areas to see for myself what was happening. I thought that was only fair, having read the Wolfenden Report. This was 514 before the new legislation was brought in. There are community police who do this kind of duty. They get to know the personnel on the streets. They may occasionally make a mistake, but I have discussed this matter with them and I can say that they are very careful about what action they take.
As mentioned by the noble Lord, Lord Munson, there may be the sounding of horns and the slamming of car doors in the early hours when prostitutes and their pimps are attracted to an area. Bargains are struck and arguments start. It is not surprising that people do not want to live in a community like that where they have to watch this trading going on. To deal with a nuisance on this scale, we have to agree with the commission that kerb crawling is a nuisance. I believe that the specific offence of kerb crawling in the Bill would be a real deterrent.
Another effect of the noble Lords' amendments is to say that kerb crawling is all right as long as only one woman is approached. I believe that such an amendment would be in favour of the experienced and successful kerb crawler (and many are successful) who drives round and round looking for probably the same woman but often other women. If that one is careful to choose an accommodating girl on the first round, he is a lucky chap. The effect on the not-so-successful kerb crawler might be to compel him to drive slowly round making a general nuisance of himself for longer or frightening ordinary young girls who perhaps are in the street because they are going home. As I mentioned in my previous speech, many of them in certain areas are not allowed out at night by their parents.
He might, I suppose, pick up the right girl first time. But what about the woman who is trailed by car, frightened, and solicited by a man for the purpose of prostitution? Suppose that she is very upset but is willing to help the law protect her and so to give evidence in court. Surely, this would be a pretty watertight case in which the public would be right to demand some action to be taken. I am sure that the noble Lord would agree that action should be taken in such cases. If this clause were to be amended as proposed, the kerb-crawler would be immune from prosecution if persistence could not be shown. I believe that it is necessary, in order to explain the damage to the Bill that may be caused by the noble Lord's amendment, for my noble friend the Minister to add something at this point which I may have omitted. He will probably be able to answer better than I some of the questions of the noble Lord.
§ Lord Glenarthur
Perhaps this would he a convenient moment for me to give the Government's view on the noble Lord's amendment and to take up some of the points that have been raised. The issue of persistence was debated at some length in another place, and it has given me, my ministerial colleagues and the Home Office time to reflect carefully on the arguments that have been put forward for change to the clause. But I have to start by saying that we remain persuaded that Clause 1 is right as it stands, and I shall not try to explain why. In doing so, I shall elaborate a little on what my noble friend Lady Vickers has said.
As your Lordships will be aware, this very issue formed the basis of representations made to my honourable friend the Parliamentary Under-Secretary 515 by the Law Society, and my honourable friend responded very fully to them. The noble Lord, Lord Mishcon, is concerned that the evidence of a single observer of a single incident might be sufficient to secure a conviction under Clause 1, and suggests that this should be met by importing an element of persistence into the offence. That is the issue as I see it. Since I have some very basic objections to the amendment, I hope that it will not be thought churlish of me by the noble Lord if I mention that there are two drafting points. One of them has been brought out, and that is the question of having solicited the same woman persistently; and I shall not deal with that. The other one, as has been indicated, is that if one puts "persistence" into Clause 1 (and my noble friend alluded to this just now) then Clause 1 becomes otiose and one could rely on Clause 2. I think that the noble Lord is about to rise to say that that is not what he feels.
§ Lord Mishcon
It is not that. I think that it will help in the debate if, most respectfully, I make clear from my point of view the two matters that I think the Minister has to answer. The first one is that I did not just talk of a conviction. I have already dealt with the fact that in another place the answer given by the Minister was that one ought to have faith in English courts and the evidence would have to be sound enough for a conviction. I dealt with the question of a charge of this kind being brought, as it is capable of being brought under the clause without "persistence", and of the dangers to reputations, to married life and to family life if that were so. That was the first point.
The second point is that I accept absolutely the argument of the Minister in another place—I think it was the Minister's argument—that what you have to do is to make everybody realise that you are dealing with kerb-crawling. That is why I have imported the words of Clause 1 into Clause 2, bringing kerb-crawling very distinctly into Clause 2. Therefore, Clause 2 deals specifically with kerb-crawling and with other offences that are brought within Clause 2. So I have covered the intention of Clause 1 by importing it into Clause 2. All that I have done, therefore, is to have one clause instead of two, accentuating the kerb-crawling element but insisting upon "persistently".
§ 1.45 p.m.
§ Lord Glenarthur
I am grateful to the noble Lord for clarifying that. I will come on to those points in a moment. The broad point is the question of whether kerb-crawling is to be tackled at the root. That is the basis: that an act of solicitation of this nature is to be controlled by law—that is what the whole thing is founded on—and whether the police can be trusted to enforce the law. In a moment I shall come to the three questions which the noble Lord, Lord Wigoder, asked. Our intention is that the woman who has been approached will be encouraged to give evidence wherever possible, obviously. Naturally, many prostitutes will not wish to do so, and some other women who have been mistaken for prostitutes may not wish to do so for a variety of reasons. In such circumstances, the police officer will have to decide whether the evidence he has of a single approach is 516 sufficient to convince the court that the man was soliciting for the purpose of prostitution.
The noble Lord, Lord Wigoder, asked me three questions and the answer to those three questions is, of course, "No". My view of the scenario which the noble Lord painted is that, first of all, there is in any event no power of arrest under the Bill. Prosecution will be by summons under Clause 1. That clarifies the first issue. Secondly, there is no prima facie case unless there is evidence of the clear act of solicitation of a woman for the purpose of prostitution. Those words run together, it seems to me, as the key words in this particular clause; and those were the words that were drawn out at Second Reading by the noble and learned Lord, Lord Denning.
Thirdly, the additional evidence which might be required in an attempt to make a charge like this stick could, for example, be an outraged or frightened woman who might come forward to testify, or advances to a known prostitute which are overhead by the police, or the known prostitute being seen to come to an agreement with the driver and to get into his car. But obviously—I think the noble Lord, Lord Wigoder, made the point himself; but I shall repeat it—the decision on whether or not the elements in Clause 1 are met in a particular case is for the prosecuting authorities and for the courts.
Persistence will not help the innocent man who asks several different girls for directions. The key to protect the innocent man is the need to show beyond reasonable doubt the soliciting of a woman for the purpose of prostitution; so that I have come back to the words which I used just now as being the key. If a police officer overhears the conversation and knows the woman to be a prostitute, there would, I imagine, be a good chance of a conviction under Clause 1. But if the police officer or any other person does not overhear what is said, then even where the woman is a known prostitute they will probably wish to see if the man makes more than one approach before deciding whether a charge should be brought under the Clause 1 offence or under the Clause 2 offence.
Where a man stops and merely asks a woman for directions, there would not, I think, be sufficient grounds for a prosecution, let alone a conviction. While I appreciate the concern which leads to the suggestion that the offence should contain an element of persistence, we firmly believe that such a proposal would make the Bill much less effective. The noble Lord, Lord Mishcon, has himself pointed to the principal nuisance which is to be dealt with in this case, and that is kerb-crawling. He, himself, has said that he does not doubt that it is a nuisance.
To allow car drivers to pick up women as long as they made only one approach each time would not, in the view of the Criminal Law Revision Committee, cure the serious nuisance problem which is experienced in some of our cities. The Criminal Law Revision Committee, on the basis of evidence submitted to it by a wide range of organisations and individuals, recommended that kerb crawling should be an offence per se; and Clause 1 of the Bill gives effect to that recommendation. The hope is that many men who would otherwise go looking for a prostitute in their cars will be deterred by the knowledge that kerb crawling is an offence.
§ Lord Mishcon
Before the noble Lord moves on, he talks about prime facie evidence for a prosecution and did not think that, in certain cases, a prosecution would even be brought. He bears in mind, of course, that a private prosecution is possible here?
§ Lord Glenarthur
My Lords, yes, and I can tell the noble Lord on the question of private prosecutions—I corresponded with him on this point, and he is aware of it, but I can repeat some of the arguments for the benefit of the Committee—that I appreciate that it would be of little comfort to the man proceeded against that he was acquitted by the court, since, by that time, his reputation might have been ruined in the way the the noble Lord suggests by the very fact that he has been charged with the offence.
One of the ways of dealing with this might have been to provide that proceedings would be initiated only by or with the consent of the Director of Public Prosecutions. But, as the noble Lord knows, we believe that that would not be appropriate for a fairly minor summary offence of this nature. In any case, such a procedure might not necessarily inhibit the occasional malicious accusation. As the Committee will be aware, the Royal Commission on Criminal Procedure recommended that the right of private prosecution should be abolished, but we have rejected that recommendation on the basis that the right to bring a private prosecution represents an important safeguard for the individual.
§ Lord Mishcon
I shall not rudely interrupt the noble Lord. My only excuse is that the Minister in another place promised a very full debate on "persistently" in this House and did so in specific terms. Therefore, I am obviously entitled, as it were, to carry on. But the noble Lord, the Minister, is not dealing with my point. My point is that before a summons is issued on a private prosecution an application has to be made to the court. If you have to have evidence prima facie of "persistence" then the summons will not be issued unless that prima facie evidence is there. The court has no alternative but to issue a summons if somebody—on the present wording of this clause—merely comes forward and says, "I saw Mr. So-and-So and I happen to know him, he is on the job again of soliciting for the purposes of prostitution. I only saw him do it once. That is all I have to show." The summons will be issued. If one has the word "persistently" the court will not even issue the summons unless there is prima facie evidence of the persistent behaviour.
§ Lord Glenarthur
In that case, I shall not go further into the question of private prosecution but I shall revert to the point the noble Lord has made in a moment.
I was going to take the noble Lord, Lord Mishcon, up in amplification of his concern about sexual purposes and the wording in the Criminal Law Revision Committee's report. He referred to paragraph 3.44 and I drew his attention to the fact that that was a discussion paper not the recommendations. The recommendation is paragraph 40. I shall quote it:We now recommend that it should be an offence for a man to use a motor vehicle in a street or public place for the purposes of soliciting a woman for prostitution. The object of the offence is to 518 stop the man who goes out in a vehicle to look for a prostitute. We are not of course drafting the offence. This will be the task of the Parliamentary draftsman".He makes that quite clear. The evidence to the Criminal Law Revision Committee suggested that the nature of the sexual harrassment to ordinary women lay in their being approached by men looking for prostitutes. The CLRC thought it unwise to inhibit all sexual advances towards women by men in the street and this is amplified—and I shall not read it out—in the bottom of page 13. I think to some extent that that answers, or perhaps add to, the point which I think was being made by the noble Marquess, Lord Tweeddale, just now.
The noble Lord has left us with a series of options. Although he is only speaking to the first amendment, he is covering with it the whole question of whether Clause 1 shall stand part of the Bill. I should like to set out for the noble Lord some of the disadvantages which will accrue should Clause 1 disappear.
First, what it would do is to refer the CLRC's conclusion—which is a conclusion based on considerable evidence—that a specific offence is needed to deal with kerb crawling because it is by its very nature a nuisance, and the noble Lord has said so himself. Secondly, no offence could be charged even, for example, where a young girl had been trailed for a long time, perhaps by more than one man in a car, and was prepared to testify as to how frightened she had been by the approach—which was the point that my noble friend made. Thirdly, a specific offence directed at the use of a car may have a more explicit deterrent effect.
Fourthly, if "persistence" is an element of the offence the unsuccessful kerb crawler will be penalised whereas the smooth operator will not. This is a point that ought to be considered by the noble Lord. Fifthly, if that is so, kerb crawlers may simply cruise around for longer and more slowly to ensure that the girls they approach are obliging. Those five points are the consequences of the noble Lord's insistence on removing Clause 1, and the two latter ones relate particularly to Amendment No. 1.
§ The Marquess of Tweeddale
If the noble Lord will allow me, he has just told us that "the smooth operator" would be at an advantage. As I understand it, we have been told many times that the purpose of this Bill is to abate nuisance and not to promote morality.
§ Lord Glenarthur
The noble Marquess is absolutely right. We are not judging on the morals of the issue. We are talking about the nuisance. But the fact is that it is still a nuisance if somebody comes and does it once. It is a harassment of the people who are not in the particular trade of which we are talking. I do not think that what I have said is contrary to that. I think that, if the Committee reflects on these disadvantages along with the need for clear evidence of an act of solicitation of a woman for the purposes of prostitution which will be needed to take forward any proceedings against a man for kerb crawling, it may feel that the CLRC tackled the problem in the right way and not only that but that we should support its strategy.
My noble friend has set out much of the issue, but 519 I think that it would be a very great shame if your Lordships were to deal with the Bill in the way proposed. Such action would effectively be quite a snub—perhaps "snub" is not the right word—but it certainly would not be welcomed by the citizens of areas such as Bedford Hill, which is referred to, Southampton and Leicester, because they are genuinely afflicted. They are afflicted night after night by the activities of kerb crawlers. They have lobbied long to have protection under the law. Without Clause 1, many of those who support it feel that we might as well abandon the Bill. Certainly the Criminal Law Revision Committee saw Clause 2 only as a back up—I stressed this at the Second Reading—to the prime tactic for dealing with the problem.
With that, I do not think I can add anything more. I hope that your Lordships will consider very carefully those five major disadvantages that would accrue if this action was to go ahead. I trust that they will not press their amendments.
§ 2 p.m.
§ Lord Wigoder
May I say that I am grateful to the noble Lord the Minister for his answers to my questions? I am relieved to think that apparently a motorist who does stop and speak to a woman, goes back to his car and drives off, is not simply from those facts to be in peril. That is helpful. In parenthesis, I would add that if that is right it is putting rather a temptation in the way of a police officer who happens to see that particular scene to gild the lily a little in the course of his evidence. But no doubt that is a risk we shall have to take.
I went on to ask the noble Lord to be kind enough to indicate what sort of evidence in addition to that would be needed to warrant a prosecution and he gave, I believe, four examples. They are of considerable interest in the light of these amendments. The first was that there might be evidence that the woman was outraged or frightened. That is caught exactly by the amendment of the noble Lord, Lord Monson:in a manner likely to cause annoyance".The second was that the police officer might say, "I have seen this man do this repeatedly". Leaving aside the drafting, that is caught by the amendments of both the noble Lord, Lord Monson, and the noble Lord, Lord Mishcon, by the use of the word "persistently". Therefore the two categories which the noble Lord indicated might be of additional evidence which would warrant a prosecution are very neatly covered by the amendments which are before the Committee at the moment.
I am bound to confess that the other examples the noble Lord gave leave me feeling a little unhappy. I find it difficult to accept that if a man stops his car and gets out and speaks to a woman, who then gets into the car and they drive off together, that in itself is evidence which would warrant a prosecution or possible conviction. I cannot see why on earth it should: I cannot see why on earth there should be a presumption that the woman in that case was in the car for the purpose of prostitution, rather than being an old friend who was being given a lift home, or the motorist's wife or whoever it may be. It seems to me a remarkable proposition to say that simply because a 520 woman gets into a motorist's car there is prima facie evidence of an offence under this clause.
The fourth example also leaves me a little unhappy: that is, if the approach happens to be to a person of whom the police officer says, "She won't give evidence: we all know that" and who is, according to the police officer, a known prostitute. Is the position really to be this? If, say, an American visitor happens to stop his car in order to ask the way to somewhere, if the woman is not a prostitute, then he is not committing an offence. However, if by chance she is a prostitute—unknown to him, the woman is a known prostitute—that is prima facie evidence on which the man can be convicted. That seems to me to fly in the face of common sense.
Before the next stage, we ought to read carefully what has been said. I venture to suggest to the noble Lord the Minister that when he looks back on the examples he has given, he will realise that the safeguards against the innocent motorist being wrongly accused and possibly wrongly convicted incorporate some additional tests in Clause 1. The examples he has given appear to me to lead to the irresistible conclusion that the additional tests proposed in the amendment to be moved by the noble Lord, Lord Monson, may be the safe ones.
§ Lord Glenarthur
I accept that we shall probably all have to read with great care what each of us has said. We are dealing with several amendments at once and it is by no means simple, as I am learning to my cost.
I should like to pick up one point referred to by the noble Lord: we are putting a lot of reliance on the policeman, and the policeman might not interpret the act in quite the way as the noble Lord hopes he might. I can only stress the principle, which is of course contained in the Home Office guidance to the police—and the noble Lord will be aware of it—that no member of a police force shouldcounsel, incite or procure the commission of a criminal offence",I understand that the Metropolitan Police Commissioner recently issued an order giving greater prominence to that principle and that it has been brought to the attention of other chief officers.
I have no doubt whatever that the principle will apply to the offences which will be created by this Bill in the same way as it does to other offences. I have a copy of the guidance to hand.
§ Lord Wigoder
I can only say that if that guidance had always been followed in the past I would have had an even smaller criminal practice than I had.
§ Viscount Hanworth
I have listened to most, but not quite all, of this debate and it seems to me perfectly clear that we are right to take every precaution that we can to prevent innocent people being convicted; but I think it is equally clear that unless we take a fairly bold line then this Bill will be a completely dead letter. I believe that far too much has been made on Amendment No. 1 about the dangers of innocent people being committed. After all, I think that, sensibly, any motorist (except possibly a stranger to a district) must realise that in red light districts, and districts where prostitutes are, if one keeps stopping a 521 car at night for no good reason, then one takes a risk. We all take risks on everything and I really feel that too much has been made about this danger of innocent people being convicted. I hope that the Government will take a strong line over some of these amendments which I consider to be quite uncalled for.
§ Lord Houghton of Sowerby
May I just make one further observation? I noticed the words used by the noble Lord the Minister, although I am not sure whether I have the words correctly, that kerb crawling per se was a nuisance that had to be suppressed. He will have the words there, but I had the impression that just to kerb-crawl ought to be made an offence. Surely the nuisance is not just going slowly along the kerb, getting out and meeting somebody, but accosting or soliciting somebody.
I think we have to be careful that we do not make the cure worse than the disease. The nuisance of it has to be identified, and it is that nuisance which has to be outlawed. But there are occasions when in certain places, either because the environment is pleasant, the pavement is wide or there may be something going on, people move slowly along the kerb with no particular intent except to observe the passing scene. There must be something to it besides just going slowly and getting out.
Also, some places are suitable places for meeting people. People may say: "I'll see you there: watch out for me." I often see cars crawling along waiting for someone to come out of an office, perhaps because that person is going to be taken home. It seems to me that we have to be very careful indeed that, in order to deal with this nuisance we do not invent offences which are entirely unjustified. That is why I think it is so important that we must somehow clearly identify the nuisance. I doubt whether, at the present moment, Clause 1 does that, and that is my worry. The words of explanation of the Minister make the situation less clear.
§ Lord Glenarthur
I am sorry if I have made it less clear, but the fact is that Clause 1(1) clearly says that,It is an offence for a man to solicit a woman for the purpose of prostitution".Then it goes into a number of conditions. I simply cannot understand the proposition of the noble Lord that somebody who is driving around slowly, and not actually soliciting a woman for the purpose of prostitution or stopping to have a meeting, is affected in any way. The wording of Clause 1 is perfectly plain. As I said, it relates to soliciting for the purpose of prostitution. That is a very far cry from the kind of thing that the noble Lord, Lord Houghton, suggested.
§ Lord Houghton of Sowerby
I shall give your Lordships' Committee the words of the noble Lord and we will see whether I have reason for anxiety. He may have been using shorthand terms, but he mentioned kerb crawling. Kerb crawling by itself is not an offence. Kerb crawling is done for a purpose. I do not think one should ever use the words "kerb crawling" as though that action of itself were an offence.
§ Lord Glenarthur
The fact is that kerb crawling has become familiar jargon for this particular issue. What we are trying to do is to put this whole matter into the context of what is now actually written on the face of the Bill.
§ Lord Mishcon
We have been relied upon in this Committee to deal with the question of persistency. As I have said to the noble Lord, the Minister when he was speaking in another place made it clear that there should be in this Chamber a debate and a full discussion on persistency. Perhaps I may turn to the noble Viscount, Lord Hanworth, for a moment, and I shall be very brief. If only the Bill before us contained the words that he may like to see in it—namely, that it is an offence only if it occurs at certain times of the night, or if it happens in a red light area—then of course some of my comments may not have been necessary. But the Bill says no such thing; and to say that people who travel at certain times of the night and in certain areas really ought to understand the consequences is, with great respect, no answer to the wording of this Bill which makes no reference to either contingency.
I must say that, while I was listening to my noble friend and his definition of "kerb crawling", I remembered so well from previous transport debates the Government's anxiety that people should give lifts to other people, should share cars, and indeed that there should be some sharing of taxis. I can only say that if this Bill goes through unamended, I would view that campaign with the greatest trepidation.
My final remark is that whatever the advantages of clearing up certain areas and certain practices—and I recognise them—they do not weigh with me quite as much as does the danger of innocent people being brought before the courts and having their reputations and their family life ruined. It is because of that that, even at this hour. I am going to test the opinion of the Committee.
§ 2.12 p.m.
§ On Question, Whether the said Amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 33; Not-Contents, 27.523
|DIVISION NO. 1|
|Airedale, L.||McNair, L.|
|Belhaven and Stenton, L.||Margadale, L.|
|Brougham and Vaux, L.||Melchett, L.|
|Cathcart, E.||Mishcon, L.|
|Elwyn-Jones, L.||Monson, L.|
|Ennals, L.||Nicol, B.|
|Falkender, B.||Pitt of Hampstead, L.|
|Graham of Edmonton, L.||Reay, L.|
|Harris of Greenwich, L.||Ritchie of Dundee, L.|
|Houghton of Sowerby, L.||Stoddart of Swindon, L.|
|Inglewood, L.||Strabolgi, L. [Teller.]|
|Jeger, B.||Tryon, L.|
|Jenkins of Putney, L.||Tweeddale, M.|
|John-Mackie, L.||Westbury, L.|
|Kilmarnock, L.||Wigoder, L. Teller.]|
|Kinnaird, L.||Wilson of Rievaulx, L.|
|Airey of Abingdon, B.||Lane-Fox, B.|
|Ampthill, L.||Lauderdale, E.|
|Belstead, L.||Long, V.|
|Bessborough, E.||Marley, L.|
|Brabazon of Tara, L.||Molson, L.|
|Cox, B.||Nugent of Guildford, L.|
|Craigavon, V.||Portland, D.|
|Crathorne, L.||St. Davids, V.|
|Cullen of Ashbourne, L.||Shannon, E.|
|Fraser of Kilmorack, L.||Shaughnessy, L.|
|Glenarthur, L.||Skelmersdale, L.|
|Halsbury, E.||Stamp, L.|
|Hanworth, V. [Teller.]||Vickers, B. [Teller.]|
|Harvey of Prestbury, L.|
§ Resolved in the affirmative, and amendment agreed to accordingly.
§ 2.20 p.m.
Lord Monson had given notice of his intention to move Amendment No. 2:
Page 1, line 6, after ("man") insert ("persistently or in a manner likely to cause annoyance").
§ The noble Lord said: I think I am right in saying that this amendment is now superfluous and probably technically cannot be moved by virtue of the previous amendment being incorporated into the Bill.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Will the noble Lord speak up because I cannot hear him?
§ Lord Monson
I believe that the amendment is not only superfluous but technically cannot now be moved by virtue of the previous amendment having been carried.
§ [Amendment No. 2 not moved.]
Lord Kilbracken moved Amendment No. 3:
Page 1, line 11, leave out ("got out of or off") and insert ("left").
The noble Lord said: Attention has already been drawn to this passage which was described on Second Reading by the noble Lord, Lord Wigoder, as,
the ugliest sentence I have ever seen … proposed in your Lordships' House".—[Official Report, 7/6/85; col. 978.]
The sentence ends with the offensive phrase,
a motor vehicle that he has just got out of or off".
The draftsman was presumably led into this monstrosity by his desire to include not only motorcars but also, I assume, motor-buses and motor-cycles. Whereas you can get out of a car, you would get off a motor-cycle. The words "motor vehicle", we are told, have the same meaning as in the Road Traffic Act 1972. I looked up the Road Traffic Act 1972, which is very long. I ploughed through it and finally came to the definition of "motor vehicle" which is, a mechanically propelled vehicle or a vehicle designed or adapted for towing by a mechanically propelled vehicle.
§ We therefore have to imagine the lascivious punter arriving in the red light area in a motor-car or on a motor-cycle or bus, or on an agricultural tractor or trailer, a heavy or light locomotive, a motorised invalid chair or a motor mower. I do not think that any but the first three of those are extremely likely, even when the punter in his old age has to resort to a motorised invalid chair.524
§ I am proposing that instead of, "got out of or off" we should use merely the word "left"—I left my car, I left my motor-cycle, I left my bus or I left my motor mower. I therefore ask your Lordships to agree to remove this blot from the Bill by accepting Amendment No. 3, which I now beg leave to move.
§ Lord Monson
In general I strongly support the amendment of the noble Lord, Lord Kilbracken. I wonder whether he is aware that under Section 192 of the Road Traffic Act 1972 a hovercraft is classified as a motor vehicle. Should not therefore the words "left or disembarked from" be added to the Bill?
I appreciate and understand the efforts of the noble Lord, Lord Kilbracken, in respect of this amendment and the others he has tabled, to improve the drafting of this Bill. We must all seek to make the law as plain and clear as possible, and I know that his amendments are proposed in that spirit. I also know that the phrase, "got out of or off", has been criticised by some as being awkward and cumbersome. I am afraid, however, that the neat suggestion in the noble Lord's amendment would sacrifice clarity and the proper working of the Bill for the need of a simpler phrase. That cannot be right.
Briefly, the ambiguity with which the police and the courts would have to struggle in enforcing Clause 1 would be that if a man loiters on the pavement near a parked car, not his own, and then moves away to solicit a woman for the purpose of prostitution, will he not be in breach of the law, since he has just left the car in one sense? In another sense, of course, the motorist who was in fact using his car to trail and pick up girls might argue that he had in no sense left his car and that he fully intended to drive away again shortly, even if he was leaning out of it with the door open for the prostitute at the time. This ambiguity is considered to be dangerous.
Noble Lords opposite are worried that such may be a difficult defence for a kerb crawler. They are, I understand, concerned at the possibility that those who are not kerb crawlers but who are in the area of various motor vehicles may technically be in breach of Clause 1 by a single act of solicitation. I should also like to offer, therefore, not only the reasons for being unable to accept the proposed change but also the reason for the positive view of the words now in the Bill. The existing phrase is not, of course, the most elegant that one may hope to meet in the history of legislation, but it is clear and ordinary plain English, which we are always being asked to adopt in our legislation. It fits the terms in which ordinary men will talk. The simple question will be, "Have you just got out of that car?" or, "Have you just got off your motor-cycle?" The spirit of the phrase we now have in Clause I will be very well understood. I believe that Clause I as drafted will have the right effect and that the ambiguity that would arise from the noble Lord's amendment should be avoided. On this basis I hope that the noble Lord will consider withdrawing his amendment.
§ Lord Wigoder
I see the problems with the word "left" which is proposed in the amendment, although, as has been appreciated, it is the word that is used in the Explanatory Memorandum, by whoever drafted it, 525 and was thought to be adequate there. Without attempting to redraft this Bill across the Floor of the Committee, which is never a very happy course to take, I suggest as a possible alternative for reflection before the next stage the words, "from which he has just dismounted".
§ Lord Glenarthur
I do not want to spend very long on this amendment. Personally I share much of the noble Lord's concern about the inelegancy of the existing form of words, but I have to tell the Committee that the draftsman took exceptional care to try to find a way of not using the words which now appear in the clause. The choice was not entered upon lightly, as your Lordships will realise.
The noble Lord, Lord Wigoder, suggested the word, "dismounted". That word has been considered, but I understand that the draftsman is of the view—and to some extent I share his view, even though I am quite clear myself that one does not want to use tortuous phrases—that "dismounted" is not a word that is popularly used in connection with a car. One may dismount from a horse, and I dare say one could stretch a point and dismount from a motor-cycle, but one does not dismount from a car. "Alighted" is another word that has been suggested.
I share the noble Lord's concern. This matter has been looked into; but, apparently, the problem cannot be overcome. I dare say that if some of the other words suggested are put into the Bill they would probably have to be qualified under the interpretation clause, and that would not be particularly easy. I hope that the noble Lord will not press his amendment because I can assure him that the matter has been looked at most carefully.
§ 2.30 p.m.
§ Lord Airedale
Does the Minister not agree that the late Sir Winston Churchill would probably have insisted on the words, "of or off which he has just got"?
§ Lord Kilbracken
I am grateful to noble Lords who have spoken to this amendment. I do not like the word "dismounted" because I agree with the Minister that one dismounts from a horse but not from a motor car. I chose the word "left" because, as the noble Lord pointed out, that is used in the Explanatory Memorandum, which states:either from a motor vehicle or having just left one".It does not seem to me to make any difference whether one has just "left" a motor car or has just "got out of' a motor car. I would prefer the former. Pehaps this can be thought about to see whether a better phrase can be found to replace the objectionable phrase before Report stage. In the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1, as amended, agreed to.
§ [Amendments Nos. 4, 5 and 6 not moved.]
§ Clause 2 agreed to.
§ Clause 3 [Soliciting a woman in a manner likely to cause her fear]:
§ On Question, Whether Clause 3 shall stand part of the Bill?526
I shall not detain the Committee for very long on this matter; but I think it right that we acknowledge our agreement on all sides of the House that Clause 3 should not stand part of the Bill. The clause is aimed at frightening sexual behaviour towards women. As such, few of us deny that it may well gain a place in criminal law in due course. However, the offence created in Clause 3 is not one aimed primarily at controlling the nuisance in the street caused by the plying of the prostitution trade. It involves wider issues, and indeed in some senses very important issues. It is an area in which moral judgments on what is appropriate behaviour between men and women, whether in public or in private, have been made.
I commend the Criminal Law Revision Committee's courage and sensitivity in being aware of these questions and seeking to tackle them, but I feel that this modest Bill may not be the right instrument for such subtle matters. Clearly, similar concern was felt in another place and I noticed that on our own Second Reading the noble and learned Lord, Lord Denning, in pledging his support for the Bill nevertheless expressed initial reservations about Clause 3. Accordingly, without penetrating any further into the mysteries of whether or how such an offence might be framed in the future I invite your Lordships to agree that this clause should not stand part of the Bill.
§ Clause 3 disagreed to.
§ Clause 4 [Penalties for certain sexual offences]:
Lord Monson moved Amendment No. 7:
Page 2, line 20, leave out ("Life") and insert ("Ten years").
The noble Lord said: This amendment provides that the maximum penalty for attempted rape should he 10 years as opposed to the present seven years and as opposed to the maximum sentence of life imprisonment proposed in the Bill as it stands. I propose the amendment for two reasons. First, in my Second Reading speech I queried whether a Private Member's Bill was a suitable vehicle for imposing such a dramatic increase in the maximum sentence from seven years to life. I am still uneasy about that aspect. I am glad to note that the noble Lord, Lord Mishcon, is apparently thinking along the same lines. On 7th June, at col. 976 of the Official Report, he expressed regret at:
this continuous programme of Private Member's Bills dealing with criminal matters, and important criminal matters".
§ The second reason is perhaps more important, and would apply even if this Bill were a Government Bill. As a complete layman, but one who takes a continuing interest in legal matters, and in particular the criminal law, I wonder whether a maximum penalty of life imprisonment for this offence is either desirable or necessary. A bad case of attempted rape will, by definition, almost certainly involve in the course of the attempt indecent assault, for which the maximum penalty is quite rightly being raised in this Bill to 10 years, which eliminates a long-standing anomaly.
§ Should this amendment be carried, a judge would be able to impose a total sentence of 20 years; that is to say, 10 years for the attempted rape plus 10 years consecutively for the indecent assault. In addition, if the slightest physical injury were inflicted, whether accidentally or deliberately, on the unfortunate victim 527 in the course of the attempted rape—if she received so much as a single bruise on the arm or the smallest cut on the lip—a judge would be able to impose a further five-year sentence consecutively for assault causing actual bodily harm, making a total of 25 years in all. If the injury were more serious, a charge of grievous bodily harm could be brought enabling an even longer sentence than 25 years to be imposed. At the other end of the scale, if the attempted rape were a mild one (to the extent that attempted rape can ever be mild) involving no physical injury whatsoever and no indecent assault, it is surely unlikely in the extreme that any judge would wish to impose a sentence in excess of 10 years.
§ At this point I can visualise Members of your Lordships' Committee saying to themselves, "What is the point of slightly complicating things by this proposed system of consecutive sentences for the component parts of a single offence? Why not attain the same result by keeping a possible sentence of life imprisonment in reserve for the worst cases?". The answer lies in the growing, and to my mind extremely worrying, trivialisation of the crime of murder. Murder used to be considered a unique and terrible crime which was met by a unique and terrible penalty.
§ Following its abolition—and I do not want to go into that in any way—the terrible penalty of death disappeared, and therefore to some extent the public's perception of the crime itself being terrible started to diminish. However, the substitute penalty of life imprisonment remained at that point still fairly unique, if not quite so terrible. Even though the public were well aware that life hardly ever meant life—I think that the common perception is that most murderers serve, on average, nine years—there was still something of a symbolic weightiness about the pronouncement of a sentence of life imprisonment which helped to single out murder from other, lesser crimes. But latterly, I fear, more and more crimes—serious crimes, but far less heinous than the crime of murder—are attracting a possible life sentence upon conviction, and therefore, I submit, help to trivialise the crime of murder, which is increasingly being regarded as just a form of violent crime like any other, a little bit worse but not much more than that.
§ I think that I have said all I need to say on this. I beg to move.
§ Lord Houghton of Sowerby
More than once I have drawn attention to the fact that Private Members' Bills are legislation by lottery. They depend wholly, or almost wholly, on successfully emerging from a ballot in another place. This Bill is a case in point. It was taken up by a Member of the House of Commons on his name coming out of the ballot.
§ Lord Glenarthur
Perhaps I may intervene for a minute. The noble Lord is making a general remark about the Bill. I wonder whether he is going to address the particular point of this amendment in the interests of—
§ Lord Houghton of Sowerby
Yes: if the noble Lord will be patient for only 30 seconds more, he will see the point that I am getting at. I feel that noble Lords 528 should be given a chance to develop the point that they hope to put before the Chamber. I stress what I have just said because of the contents of this particular clause in this Bill.
This Bill came to grief in another place, but by a fortuitous turn of events was revived. It comes to your Lordships' House as a kind of revived corpse of a Private Member's Bill. This is the hazard upon which this clause rests. This has nothing to do with kerb crawling. The point made when the Bill was originally being considered and publicised was that it was to deal with the nuisance of kerb crawling. However, now it has been used as a vehicle to increase dramatically the penalties for other offences. What is that proposal doing in this Bill? If to increase the penalties set out in Clause 4 was so important to good order, and adequate penalties for entirely different crimes were so important, why was it left to the hazards of a Private Member's Bill for it to go up or down or to remain in or go out?
I object to including this in a Bill, the main purpose of which is to deal with a comparatively minor crime. I do not underrate its importance but kerb crawling is not at the top of the bill so far as criminal offences are concerned. However, here we are dealing with a proposal to impose a life sentence for something which has not previously attracted this penalty or anything like it. I think that a clause such as Clause 4, which deals with attempted rape and which proposes to replace a penalty of seven years with life imprisonment, deserves a more important place in legislation than being incidental to kerb crawling. That is really what it is: it is incidental to kerb crawling. The Bill was about kerb crawling, it was discussed on the basis of kerb crawling. I do not think that life imprisonment should ever be imposed in a Private Member's Bill, especially when it is separated completely from the whole of the remainder of the Bill itself. If life imprisonment is to be imposed for attempted rape, let us discuss the matter in the context of rape, let us look at rape as a problem, because it is a problem and convictions for rape are a problem.
In the other context we are talking about the need to reduce the prison population. We are looking at penalties. We are looking at imprisonment in a broader context. Yet here, spatchcocked into this Bill, are proposals to increase quite seriously penalties for other offences. Hence, I object to the clause being in the Bill at all. If these are offences which require steeper penalties, they ought to be introduced by the Government specifically so that they can be discussed on their own and not be mixed up with other matters. This belongs to an entirely different code of sexual offences from that of kerb crawling. In fact, I am not in the least sure that kerb crawling is a sexual offence at all. Yet the Bill is entitled "Sexual Offences". It seems to me that no sexual offence has been committed by kerb crawling. However, a sexual offence is committed certainly by rape or attempted rape, or indecent assault, which are far graver crimes and specific crimes.
I register my protest. I think the whole system of legislating on this basis is wrong. The sooner the Private Members' Bill procedure is thoroughly gone into, the better. In a recent crisis in another place over Mr. Enoch Powell's Bill, the whole procedure 529 connected with Private Members' Bills was raised, indicating the need for a great deal of attention to be given to it.
Turning to the amendment moved by the noble Lord, Lord Monson, I support the noble Lord because he seeks to get a little more rationale into Clause 4. The idea of a life sentence in a Bill of this kind is monstrous.
§ 2.45 p.m.
§ Lord Kilbracken
Can the noble Baroness or the Minister tell us why Clause 4 has been included in the Bill, because it seems to bear no relation at all to the rest of the Bill?
§ Lord Glenarthur
The noble Lord will see that the Long Title in line 3 on page 1 of the Bill, states:and to increase the penalties under the Sexual Offences Act 1956 for certain offences against women".I do not want to anticipate too much of what my noble friend will say in her substantive answer to the noble Lord's amendment, but it is by no means unprecedented that a recommendation, such as the recommendation that has been made in the Fifteenth Report of the Criminal Law Revision Committee, should be put into a convenient piece of legislation which is not wholly unrelated. It may be unrelated in certain respects, but the fact is that the recommendation is there that the penalty should be increased in the way that has been described. This Bill is the vehicle for doing it. I do not think that there is anything immoral in that, in the sense that the noble Lord, Lord Houghton, has suggested.
§ Lord Glenarthur
I take back "immoral" and instead insert "monstrous". I cannot really believe that it is as monstrous as the noble Lord makes out for a vehicle such as this Bill to be used for these purposes. It seems perfectly reasonable.
§ Lord Mishcon
Without the same persuasiveness as my noble friend Lord Houghton always has when he rises to address the Chamber, perhaps I may make just two observations. I tried to make the same point on Second Reading: I thought that this was the incorrect vehicle for the matters with which we had to deal; that a Private Member's Bill was not the proper machinery. I had in mind very definitely this provision.
My second observation is as follows. We are dealing with a very serious matter, whether or not it should have been dealt with by way of a Private Member's Bill. I find it completely wrong not only that it should be dealt with by way of a Private Member's Bill, but that we should be considering this matter on a Friday afternoon, with a very badly attended Committee. Therefore, perhaps I may be bold enough to suggest to the noble Lord, Lord Monson, that, for that reason alone, we ought to break off the debate on this matter now and deal with it at the Report stage, when I hope there will be a better attendance. It would be quite wrong to divide the Committee now and I think it would also be quite wrong to continue the debate.
§ Lord Glenarthur
I do not know whether the noble Lord, Lord Monson, wishes to respond to the suggestion of the noble Lord, Lord Mishcon, before my noble friend rises to speak?
§ Lord Harris of Greenwich
Obviously we are interested to hear the response of the noble Baroness, Lady Vickers, but, to put it bluntly, this is a Home Office matter and not a matter for a private Member of this House. Before we decide what to do, we should like to hear the noble Lord the Under-Secretary of State give his recommendations on this matter. Many of us are gravely apprehensive about making this offence susceptible to a sentence of life imprisonment. We want a very full explanation as to why we should favour that. Frankly, it is a matter for the Under-Secretary of State and not a matter for the noble Baroness.
§ Lord Glenarthur
In that case, I shall accept the noble Lord's invitation. However, as he is aware, the Bill is in the name of my noble friend, and that is why I suggest that she may like to comment. However, I am very happy to deal with the matter.
First, I must draw noble Lords' attention to the fifteenth report. I do not know whether copies are available. In paragraph 2.54 on page 17 of the Fifteenth Report of the Criminal Law Revision Committee it is stated:We therefore recommend that the maximum penalty for rape"—the arguments have been gone into beforehand—should remain at imprisonment for life and that this should become the maximum penalty for attempted rape. Attempts to commit the other offences recommended in this Report should follow the general rule and we say no more about them".This amendment has provided us with an opportunity to discuss an important matter. I do not detract from that one bit. The noble Lord, Lord Mishcon, said so, in addition to the noble Lord, Lord Monson. But I should say at the outset that I do not agree with the noble Lord's amendment, though it is a modest amendment which ought to be discussed, unlike the other amendment to Clause 4 which was moved as a wrecking amendment in another place.
A general principle of the law on attempt is that the maximum penalty should be the same as that for the full offence. That is a general principle. Parliament enacted this principle as recently as 1981 in the Criminal Attempts Act. However, sexual offences were left out of that Act for the very reason that the Criminal Law Revision Committee was reviewing the law on sexual offences.
As your Lordships will know, the Criminal Law Revision Committee has now completed that review, and its recommendations are contained in its fifteenth report. That report was prior to the one we were discussing in relation to kerb crawling, which was the sixteenth. The committee has recommended in its report that sexual offences should follow the general principle, and that accordingly the maximum penalty for attempts to commit the offences dealt with in that report should be the same as those for the substantive offence.
The Criminal Law Revision Committee recommended that the offence of rape should remain 531 substantially as it is, and it is therefore appropriate that the maximum penalty for attempted rape should be increased in this Bill, and it fits well into the context of a measure which tries to afford some additional protection to women.
I am sorry to have had to go into the background in some detail, but for the reasons that the noble Lord, Lord Harris of Greenwich, gave it is important to put this clause into context. I can see no reason in respect of rape to detract from the general principle. Attempted rape may be just as vicious and damaging as the completed act. Where, for example, it is clear that rape was intended but simply prevented by, for example, the arrival of other people or something else outside the man's control, the attempt may nevertheless form part of a pattern of dangerousness of which the courts must have power to take account.
I would stress, too, to the noble Lord, Lord Monson, that we are only increasing the maximum penalty. Indeed, we do not expect that it will be much used, as the proper role of the maximum penalty is that it is applied only in the very worst cases, and I do not think your Lordships would disagree with that. But I believe it is right that, as the Criminal Law Revision Committee recommends, life imprisonment should be available for the worst cases of attempted rape, in keeping with the general view of the relationship of attempted crime with crime itself.
I do not think I can add anything else to what I have said. Rape in all its forms is horrific for she who suffers it, attempted or otherwise. It is clear that people can be distracted. Somebody may turn up and prevent the actual rape taking place. In view of what I have said about the principle of attempts being treated in the same way as the full crime, I really think that it is important that this is included in the Bill in the way that has been suggested.
§ Lord Airedale
Surely our difficulty is that this serious matter has been tucked away into a Private Member's Bill. Too few Members of the Committee have been alerted to the need to read and consider the reasoning behind the recommendations of the report.
§ Lord Glenarthur
I note the noble Lord's point, but the fact is that this has been discussed in another place. The whole Bill drew considerable interest in another place, as was discussed and made clear earlier. As the noble Lord, Lord Houghton, or the noble Lord, Lord Mishcon, said, it was revived from an untimely death and is now here. There is no principal reason or matter of principle that indicates that a Private Member's Bill cannot be used to tack on some important recommendation or the enactment of some recommendation which has been made by a body as respected as the Criminal Law Revision Committee. I cannot see that the noble Lord's argument has much force.
§ Lord Houghton of Sowerby
Accepting what the noble Lord has said, the Government, notwithstanding, allowed this important clause which was to implement the recommendations of the Criminal Law Revision Committee to be at the hazard of a Private Member's Bill. When the Private Member's Bill now before us came temporarily to grief in another place, the Government were not prepared to give extra time 532 to the Bill to carry it forward. They left it to the hazard of Private Members' legislation and to a procedural occurrence which rescued the Bill quite fortuitously when even the mover was not in the House, but away on constituency business. So unexpected was the turn of events that they left this important clause dealing with increased severity of penalties for certain sexual crimes to suffer the hazards of a Private Member's Bill.
This procedure must be exposed time and time again. In my view the Government should not regard themselves as free to catch any Private Member's Bill that happens to be passing for the implementation of important legislation dealing with important matters of public policy. If they do, they run the risk of not being able to implement such recommendations at all except by finding a special place for Government legislation to do so. My point is that I am attacking the consequences of the Private Member's Bill procedure and the way in which your Lordships' Committee is asked to deal with an important clause which we are now having impressed upon us is vital to the further protection of women. They have flung it into a Private Member's Bill and allowed it to take its chance, and it nearly lost the day.
§ Lord Mishcon
I do not suppose that any of us at this hour wishes to extend the debate beyond the confines of the amendment and the proper protest that has been made by my noble friend Lord Houghton of Sowerby and by the noble Lord, Lord Monson, when moving the amendment. I too tried to make out such a protest as humbly as I could but nevertheless as loudly as I could at Second Reading.
The real objection that I want to emphasise is that the noble Lord the Minister made it clear that the Government wanted to wait until this report was out before they took it for granted that attempts at sexual offences should have precisely the same principle applied in regard to an equivalent maximum sentence as should the main crime. If the Government waited to consider this report before adding it to Government legislation they must have thought that a considerable principle was involved. It is not good enough in our view that this matter forms not only the subject matter of a Private Member's Bill, but is tacked on to a Bill that the Minister wanted to call the kerb crawling Bill.
Again, this debate need not be extended beyond the expression of that view. The noble Lord the Minister, with his usual capability and clarity, has expressed his point of view. What I am concerned about is that this matter should not be dealt with in this way with a poor attendance of your Lordships' Committee on a Friday afternoon. It is too important. I respectfully invite the noble Lord, Lord Monson, if he agrees with that view, to ask leave of the Committee to withdraw the amendment at this stage. But I want the noble Lord to know that many of us will be listening with interest when he renews the amendment, as I assume he will, at Report stage.
§ 3 p.m.
§ Lord Harris of Greenwich
I shall say only a few words on this issue. I realise that we have got ourselves into a difficult position; namely, that if the noble Lord, Lord Monson, presses this amendment to a Division it may well be that there will not be a quorum in the 533 Committee. As a result of that, we shall lose this Bill today. None of us wants that. We are keen and firm supporters of legislating in this area. What I want to emphasise as much as I can is how strongly we take the view expressed, first by the noble Lord, Lord Houghton, and, more recently, by the noble Lord, Lord Mishcon.
It is perfectly reasonable, as the Minister has said, for private Members of your Lordships' House or of another place to put down Private Members' Bills which have implications for the criminal justice system. I, myself, would not say that this was an area from which private Members in both Houses should be excluded. Indeed, my noble friend Lord Wigoder and I tried to do precisely this when we attempted to deal with the problem of criminals serving on juries. But I must say this to the noble Lord. I believe that there is a strong indication at the moment that, because of the difficulty of finding places in the parliamentary timetable for Home Office Bills, we are now getting a whole succession of Bills in this area which in reality should be Home Office mainstream legislation.
I give as an illustration—and I do not want to widen and prolong the debate unreasonably—and draw the attention of the Committee to the Bill (which, again, I support) dealing with sentences of life imprisonment in respect of people who have been convicted of serious offences under the dangerous drugs Acts. I repeat that I am in favour of that legislation. But I believe that we should not have this pretence—and it is a pretence—that these are Private Members' Bills. In my view, they should be put forward by Ministers and defended by Ministers. What worries me, and what I object to very strongly, as do my noble friends, when dealing with a Bill of this sort—and, I repeat, the noble Baroness's Bill, which many of us support and which deals with a mischief which should be dealt with—is finding a clause of this kind on the face of the Bill which to my mind and in our view should form part of a Government Bill. It has nothing to do with kerb crawling, as the noble Lord, Lord Mishcon, has said, and it should be dealt with entirely separately.
I do not want to prolong the discussion. I have made the point. A few moments ago I would gladly have gone into the Lobby with the noble Lord, Lord Monson, but, given the fact that there is a danger, if we divide, that we may find ourselves without a quorum and that this Bill could be seriously damaged in terms of its passage through Parliament, I think it better not to divide on this amendment.
I very much hope, however, that the noble Lord, Lord Glenarthur, will listen to the expressions of anxiety which have been expressed and will discuss this matter with his honourable friend so that we are not placed in the position of having to make speeches of this kind on other Bills which, similar to this one, have admirable ojectives but are used as vehicles for putting on the statute book provisions which are in reality wholly outside the major thrust of the Bill.
§ Lord Glenarthur
I can respond only very briefly by saying that, of course, I accept the force of the noble Lord's arguments. I shall certainly read what he has said with great care, and draw it to the attention of others concerned.
§ Lord Monson
If the noble Baroness, Lady Vickers, does not wish to say anything, perhaps this is the moment for me to reply. I am, of course, well aware that the Criminal Law Revision Committee recommended the inclusion of subsection (2) of Clause 4 into the Bill. But with all respect to the learned individuals concerned, I wonder is they were right in doing so. From the point of view of a layman I have always believed that justice must be seen to be done, and it is often difficult for laymen to follow the reasoning of their learned brethren.
It seems to most people, I believe, not just to me, that attempted murder is not nearly as bad as murder; and attempted rape is not, except in a very few cases, as bad as rape. In those serious cases the matter can be dealt with in the way I suggested. I think that a little lateral thinking is needed on these matters. But in view of what the noble Lord, Lord Harris of Greenwich, has said about the possibility of the absence of a quorum I think the best thing for me to do is to beg leave to withdraw this amendment now, reserving the right to return to it at a later stage.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord Wigoder
Perhaps I may very briefly raise one matter on Clause 4 (3), which increases the maximum penalty for indecent assault on a woman from two years, or in some cases five years, to a maximum of 10 years. May I say that I entirely agree with that. There can be very serious cases of indecent assault on a woman and it is quite appropriate that the maximum sentences as at present in existence should be regarded as wholly inadequate and should he increased to 10 years.
But as was mentioned on Second Reading, the way that this change is made in subsection (3) has had, I think, a very curious and rather inadvertent result. As many of your Lordships will know, the position in law is that if two 15-year-old reasonably sexually mature youngsters decide to go in for a session of heavy "petting" that is in fact, so far as the boy is concerned, an offence of indecent assault on the girl, because the girl being under the age of 16 is presumed in law to be incapable of giving her consent. What we are therefore providing by this subsection as it stands is that not only in the real cases of indecent assault on a woman but in the ordinary "petting" cases of teenagers there should be a maximum sentence of 10 years' imprisonment. I do not disagree with that in regard to the genuine case of indecent assault, but using even the very worst case test—which I think is a good test of a maximum sentence—I cannot believe that there are any cases of consensual "petting" by teenagers which would warrant a sentence of 10 years' imprisonment.
§ Lord Glenarthur
I note the noble Lord's concern about that matter, I am sure there is a reason behind it. I am afraid I cannot at this moment put m), finger on the reason. But I shall consider what the noble Lord has said. I think that might be the best way of approaching it.
§ Clause 4 agreed to.535
§ Clause 5 [Interpretation]:
Lord Kilbracken moved Amendment No. 8:
Page 2, line 30, leave out ("word "boy" ") and insert ("words "or boy" ").
The noble Lord said: The last three amendments—Nos. 8, 9 and 10—are all purely drafting amendments which, as before, I put down in the hope of improving the Bill to some extent. I hope it will be for the convenience of the Committee if I speak to all three of them together.
Amendment No. 9: Page 2, line 32, leave out ("both words") and insert ("all three words").
Amendment No. 10: Page 2, line 33, after ("and") insert (" "or").
The purpose of Clause 5(2) is to ensure that the Bill applies not only to men but also to boys. It does so by saying that the use of the word,
'man' without the addition of the word 'boy' shall not prevent the provisions applying".
But if one simply adds the word "boy" wherever the word "man" occurs one gets a phrase such as in Clause 2(1):
A man boy commits an offence".
I am therefore proposing that for the word "boy" there should be substituted the words "or boy". It is as simple as that. I beg to move.
I am very grateful to the noble Lord for the detailed drafting proposals. I think we agree and there is nothing between us on the sense or substance of Clause 5. It is simply a matter of grammatical preference. I am content to leave the drafting of Bills to lawyers and for them to decide that Clause 5 is right as it stands and follows the precedent of Section 46 of the Sexual Offences Act of 1956. I do not see anything wrong about what the noble Lord has suggested. However, as we know, what we have in Clause 5 now has worked without difficulty for a long time in earlier legislation on such sexual offences. I hope the noble Lord will agree that we may hold to that, but that nothing is lost if he would agree to withdraw his amendment and we can consider his views at a future time.
§ Lord Glenarthur
Before the noble Lord replies, may I simply amplify what my noble friend has said because the noble Lord, Lord Kilbracken, may not necessarily have in front of him the Sexual Offences Act? What Section 46 of the 1956 Act says is:The use in any provision of this Act of the word 'man' without the addition of the word 'boy', or vice versa, shall not prevent the provision applying to any person to whom it would have applied if both words had been used, and similarly with the words 'woman' and `girl'.".I hope that helps the noble Lord.
§ Lord Kilbracken
I have not looked at the Act which has just been quoted, and I can only say that in my opinion if that wording appears in that Act it is equally wrong there as it is in this Bill because it simply does not make sense to have a clause beginning: A man boy commits an offence. It has to be a man or boy who commits an offence. It is not a very advanced grammatical point; it is absolutely self-evident. I do not think this is a point of such profound legislative significance that I shall trouble your Lordships to walk 536 through the Division Lobbies for or against it. However, I personally am going to say "Content" quite softly when the Question is put.
§ On Question, amendment negatived.
§ [Amendments Nos. 9 and 10 not moved.]
§ Clause 5 agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported with an amendment.