§ 4.55 p.m.
§ Report received.
§ Clause 1 [Persistent soliciting of women from motor vehicles for the purpose of prostitution]:
Lord Denning moved Amendment No. 1:
Page 1, line 7, leave out ("the purpose of prostitution") and insert ("sexual purposes").
The noble and learned Lord said: My Lords, I was unable to be here at Committee stage, but contrary to my hopes an amendment was made at that stage to insert the word "persistently" into Clause 1. In view of that amendment I should like to introduce a group of amendments and take together Amendments Nos. 1, 7 and 12, in which I hope I shall be supported by my noble friend Lord Mishcon.
Amendment No. 7: Clause 2, page 2, line 2, leave out ("the purpose of prostitution.") and insert ("sexual purposes.").
Amendment No. 12: Clause 4, page 2, line 20, leave out subsection (1).
I do not like the words "for the purpose of prostitution" used in relation to a man. Those words are applicable to a woman who is plying her trade for the purposes of prostitution. In the Shorter Oxford Dictionary a prostitute is defined as a woman who offers her body for indiscriminate sexual intercourse for hire. The words which I seek to avoid are defined in the interpretation clause, Clause 4, which reads:
References in this Act to a man soliciting a woman for the purpose of prostitution are references to his soliciting her for the purpose of obtaining her services as a prostitute".
§ The only men caught by this prohibition and by this clause are the men who are seeking prostitutes to hire them for money. Those are the only men caught by this clause on kerb crawling. That is much too limited a scope to put upon this clause.859
I should give a definition of kerb crawling, because this is really a Bill against kerb crawling. Long ago in 1966 a dissenting judge gave the best judgment in the case, Crook v. Edmondson. He defined kerb crawling as:
A man from a slowly driven car importuning ordinary young women to accompany him for sexual purposes".
There is nothing about importuning prostitutes but,
importuning ordinary young women to accompany him for sexual purposes".
On Second Reading my noble friend Lord Mishcon said:
In my view, the habit of kerb crawlers accosting perfectly respectable ladies is a much greater nuisance than kerb crawlers who … are trying to solicit or accost prostitutes".—[Ofiicial Report, 21/6/85; col. 503.]
§ Those are the men to whom this Bill against kerb crawling is directed—not the men who accost prostitutes, but the men who accost ordinary decent ladies and invite them to enter a car, as they will say for a joy ride, but in fact for sexual purposes. Those are the ladies who will be annoyed. That is the nuisance which is to be dealt with.
§ If the words "for the purpose of prostitution" are retained in these clauses the man will always get away with it by saying, "I was not going to ask her to be a prostitute. I was not going to pay her any money. I was just crawling along to see whether I could find an enthusiastic amateur." He would get out of it every time. Therefore I suggest that in each of these cases, instead of having this difficult definition, "for the purpose of prostitution", we should have the simple words "for sexual purposes".
§ It may be said that this is all too dangerous for an innocent man, going along slowly, who invites a girl into a car in that way. But of course it is not limited to that; it has to be done persistently and it has to be proved that the man is accosting one innocent lady after another, in a period of 20 minutes, or it may be on one day after another. One has to prove persistence and not just a single instance; and that is the importance of this amended clause.
§ My primary amendment would be to substitute the words "sexual purposes" for the words "the purposes of prostitution". Even if they are defined they are much too limited and they do not protect the public and the innocent ladies as they ought to do. It really only protects the prostitutes, and they are not the people we want to be protected in this Bill. To make protection against the offence of kerb crawling really effective we must have the word "persistently" in, and "for sexual purposes". That is the sole objective of my amendments here and we shall see whether there is any support for that or not. I see that there is a later amendment put down which contains the words "for the purpose of prostitution" and brings in the concept of annoyance. For the moment, I would urge that the amendment be made. I beg to move.
My Lords, I am sure we are all very grateful to the noble and learned Lord, Lord Denning. He has taken a tremendous interest in this Bill and has spared time to take part in the discussions on two occasions. I should like to thank him most 860 sincerely, even if in fact I do not completely agree with him.
I fully understand his view that the Crook v. Edmondson judgment would simply be reversed by the amendment he suggests, so that in effect something like the present Section 32 of the Sexual Offences Act of 1956 would apply to men persistently soliciting women whether they intended to pay for sexual services or not. I also understand, and have some sympathy with, the view that it may not be as easy to prove that a man was soliciting for the purpose of prostitution as it is to show that he was soliciting for sexual purposes. However, we see some fundamental difficulties to this approach, based mainly on the wish to safeguard the innocent against charges for simple, and possibly welcome, sexual approaches to women, and on the clear evidence to the CLRC that the nuisance is caused by men who are clients of the prostitution trade and not merely on the look-out for a girl friend.
I hope to have an early opportunity of explaining our new approach, which I hope will reassure the noble and learned Lord, Lord Denning. I am hoping very much that it will. The ordinary women will be protected by the law from approaches made by kerb crawlers. Meanwhile, I believe that my noble friend the Minister will wish to offer the Government's views on the difficulties of accepting the amendment which is now before us.
§ Lord Kilbracken
My Lords, the noble and learned Lord spoke to his Amendment No. 7 as well as to his Amendment No. 1, and I should like to do the same. Although I feel inclined to agree with the noble and learned Lord in regard to his first amendment, which considers soliciting from a motor vehicle—which we are all agreed is objectionable—when it comes to Clause 2, I feel it would be far too wide to substitute the words "for sexual purposes". They are extremely all-embracing. I suppose that Freud might say that all actions have a sexual content, and in this case they would apply in every case and not only, as the noble Marquess pointed out, in the case of a young man walking down the King's Road who sees a young lady he fancies (to use the contemporary phrase) and who persistently tries to pick her up. They might apply even, for example, if a man sees his wife in the street in a case where perhaps she has just left him and they have been apart, and who goes after her and says, "Please, darling, come home to our marital bed". In respect of the meaning of the word "soliciting", is he then soliciting if he asks his wife to go home with him?
I myself have always heard the word "soliciting" applied to what the lady does rather than what the man does. I thought that a prostitute solicited me as I walked round Shepherds Market. But if a man does solicit a woman, is it necessary for him to make some cash offer so that it is in fact for the purposes of prostitution? I would maintain that it could simply mean that he is making a suggestion that there will be some benefit accruing: for example, a dinner in a pleasant restaurant or a visit to the cinema. In this case, while I agree with the noble and learned Lord's wish to change these words in Clause 1, I would not agree with changing them in Clause 2.
§ The Marquess of Tweeddale
My Lords, I agree with much of what my noble friend Lord Kilbracken has said. With the greatest respect to my noble and learned friend Lord Denning, I feel that what is considered obnoxious in encounters, on foot at least, in the street has changed very much over the generations and that a great many women nowadays are not necessarily always offended by an approach which might be ultimately for sexual purposes, provided that the approach is made in a polite manner. If it is done otherwise, I imagine it would be possible to bring other kinds of charge in any case. I would therefore oppose the second of the noble and learned Lord's amendments.
§ Lord Glenarthur
My Lords, I listened with great care to the arguments put forward by the noble and learned Lord, Lord Denning, but I am bound to say that while I have great respect for the views he has advocated I am not convinced by his arguments for insisting on the words "sexual purposes" in lieu of "the purpose of prostitution". I should like to expand a little on what my noble friend Lady Vickers has said. To create offences under this Bill, which deals with all soliciting for sexual purposes, whether or not there is an attempt to procure the services of a prostitute, produces some very real difficulties. I have looked carefully at the recommendations of the Criminal Law Revision Committee. They say at paragraph 13:Men often make sexual advances to women in streets and public places, as well as elsewhere, which may or may not be welcomed. It would in our view be most unwise that such conduct should of itself give rise to a criminal offence".I listened carefully to what was said in Committee—
§ Lord Mishcon
My Lords, if I may interrupt the noble Lord, with his permission, he said he was reading from paragraph 13 of a report of the Criminal Law Revision Committee. May I ask him: what report? I have got Cmnd. 9329.
§ Lord Glenarthur
My Lords, even at this moment I am trying to correlate with the page what I have as my speaking note, and I shall come back in a moment to fill in the exact place for the noble Lord. There appears to be some lack of correlation, and I apologise. It will take a minute or two actually to read through the small print—I am quoting from a bit I was given—and I will come back in a minute.
Perhaps I may pick up what I was saying earlier in relation to the point made by the noble Lord, Lord Kilbracken, last week. I listened carefully to what he said then—he was supported by the noble Marquess, Lord Tweeddale—and he has amplified again today how ordinary, polite and proper young men often behave and the dangers of prohibiting "socialising", if that is the right term, in the street between young people, whatever its ultimate aim, by introducing an offence which is drawn too widely.
I took note also of the argument, which led my noble friend Lady Vickers to remove the then Clause 3 of the Bill, that the offence of soliciting for sexual purposes in a manner likely to cause fear was thought too wide in its scope by those who were worried that men who meant no harm might be committing an offence.
862 May I try to reassure the noble and learned Lord, Lord Denning? The first part of his argument seemed to be that men, and only men, who are prostitutes might be caught in the way that he described. If he is concerned that ordinary women approached by kerb crawlers will not be protected by the Bill as it is drafted, I hope he can be reassured, because the nuisance to ordinary women caused by kerb crawlers is that they are mistaken for prostitutes or approached in districts where prostitutes are known to ply their trade in sexual services for payment. The Criminal Law Revision Committee was fully aware of the need to protect ordinary women from approaches by kerb crawlers, but this has to be balanced against protection for acceptable socialising. Where a kerb crawler approaches any woman seeking a prostitute, he can be charged under the Bill as drafted, and I believe that this achieves the right effect. The police and the Criminal Law Revision Committee have considered whether it will work, and I hope that that explanation, relying as it does on the fact that we are talking about people being mistaken, gives the noble and learned Lord the reassurance that he needs.
May I revert to the point raised by the noble Lord, Lord Mishcon? I apologise for saying that it was paragraph 13; I meant page 13. I think the noble Lord will find the point that I quoted in paragraph 44. I apologise for that mistake.
The conclusion from all these points is that it would be quite wrong to make the substitution which the noble and learned Lord wants to make. Indeed, the phrase "purpose of prostitution" is the key safeguard for those who are not seeking to patronise the prostitution trade in the streets. To my mind that phrase protects the innocent far more effectively than the persistence requirements which have been so widely supported. Naturally, I take the point that at times it will be more difficult to prove that a kerb crawler was soliciting for prostitution and not merely for sexual purposes, and I must say I have some sympathy with that view. But the trade-off must be between safeguards for those who are doing nothing objectionable and the convenience of the prosecutor.
§ 5.15 p.m.
§ Lord Somers
My Lords, I am sorry to interrupt the noble Lord, but if I have rightly understood the noble and learned Lord he was holding that prostitution implied money. Of course, there is a good deal of this which does not involve money at all.
§ Lord Glenarthur
As I understand it, a prostitute is not a prostitute unless money changes hands. I am quoting off the top of my head and stand to be corrected, but I believe that is right. What I am trying to show here is that if we adopt what the noble and learned Lord suggests, a great many people who are not seeking prostitutes stand to be charged in the way I have just described. The Criminal Law Revision Committee and the police are content that the safeguard that we have in the new clause as drafted which my noble friend hopes to move in due course will not hinder the proper enforcement of control, and on that basis I think we should not lean further towards the prosecutor's convenience.
863 The measure we are discussing is about dealing with the nuisance caused by prostitutes and their clients using city streets for their transactions. If that is what we wish to address, then the more closely we tie offences to the purpose of obtaining the services of a prostitute, the better we protect the innocent, the more clearly we deter the client from trailing around the streets and the more effectively we tackle the particular nuisance of which the Criminal Law Revision Committee took so much evidence. To amend the Bill as the noble and learned Lord, Lord Denning, would like it amended I believe would be to take an unjustified risk. As my noble friend, Baroness Vickers, has indicated, she will be moving a new clause to meet many of the points raised in Committee, but she and I remain firmly of the view that the expansion of the Bill to cover all sexual purposes is not one of the points which should be pursued, and I hope that we can persuade the noble and learned Lord not to press it further.
§ Lord Mishcon
My Lords, may I try for the purpose of the House—I say this very humbly—to clarify something in simple language which may or may not be a little obscure at the moment? I say that advisedly because certain Members now present in the House may not have been present last time. I should like to deal a little with the history, after first saying that it is a privilege to have my words quoted by the noble and learned Lord, Lord Denning; I have spent most of my legal career quoting him and this is the first time that he has ever quoted me.
The short history of the matter is as follows. At Committee stage I ventured to move an amendment to insert the word "persistently" into the offences covered by this Bill, the offences being those involved in kerb crawling. The Committee was good enough to accept that amendment and, if I may say so, it accepted that amendment because it could see the danger of a criminal offence being brought into our legislation where perfectly respectable people might, as the result of a mistake or an over-keen policeman, be brought before our criminal courts on a charge which might ruin their reputation and indeed their family life. That was the reason. So the House now has a Bill before it in which, in regard to kerb crawling, persistence is an essential element.
We next come to this point: if persistence in regard to any offence under this Bill is an essential ingredient, what are we trying to deal with in connection with kerb crawling? There is no doubt about the intention of the Government, if one reads the accounts of this Bill in another place. The Minister was saying in perfectly clear terms, and he quoted a questionnaire when dealing with it, that one of the main points that he was trying to deal with was the nuisance that kerb crawlers were to perfectly respectable women, not women who they necessarily thought were prostitutes but women to whom they had made themselves an absolute nuisance by crawling along in a car and trying to invite them into it. That was the part of the vicious element of kerb crawling, rightly or wrongly, that the Government was supporting in regard to this Private Member's Bill, which is a very important Private Member's Bill, if I may say so—and at the moment we 864 will not go into the question of whether it should be a Private Member's Bill or not.
Now, we have this difficulty. As I said, I could quote the words of the Minister. I did at Committee stage and I do not want to repeat them now. We have this difficulty. We have a meaningless clause here. If Clause 1 goes in order to tidy up the Bill, and the Government agree that there ought now to be a new clause, then, if you look at their new clause, your Lordships will find that, whether it is nuisance or annoyance that has to be caused—incidentally, without the word "persistent" in it, but I shall come to that at another stage—the only ingredient of the offence which now remains is that it has to be for the purpose of prostitution. I tried to alter those words by an amendment at Committee stage, but when I got away with my "persistently" I thought it wiser to wait—and I am sure that the noble and learned Lord, Lord Denning, will agree with me about this—to see what the Government came forward with after "persistently" was imported into the Bill. But they have now come forward with a clause—and I repeat that it is meaningless—which states that the only offence committed under this Bill, whether it involves nuisance or annoyance, or whether it involves the persistent element of soliciting, is if it is for the purpose of prostitution.
It is the easiest possible thing for any defendant to say, in one of two cases, that he has no case to answer, or if he has a case to answer, that he ought to be acquitted within about two minutes. The first one is that he happens to have accosted a lady who is a prostitute and the police come forward and say, "She's a known prostitute", and he says, "She looked very attractive to me. I hadn't the slightest idea she was a prostitute. I wanted to invite her to come along to the cinema with me. It is perfectly true. I am a lonely man and I went along very slowly. She looked very attractive to me and she gave me a smile and I thought how lovely to take her to the cinema". That is a complete answer to the charge and the onus is on the prosecution. It was not for the purpose of prostitution.
Now it is the respectable lady who is accosted. What have the police to do? Do they have to say that she looked like a prostitute and that, therefore, it must have been for the purpose of prostitution? They could never do that, and how dreadfully offensive it would be. He says, "I must confess to you"—he is a very honest man—"this lady was terribly attractive. I hadn't the slightest idea. I am one of those virile, handsome men, film star-looking men, who never offer any payment for things of this kind. I rely upon my physical charms. I hadn't the slightest intention of offering this lady any money or of treating her as if she were a prostitute. If she had said to me that she did not want to indulge in any intimate companionship, of course I would have said to her 'Tell me where you would like to be dropped off and I will immediately do so with the greatest of courtesy'." So the nuisance element has gone for the purpose of prostitution.
The noble and learned Lord, Lord Denning, is, as usual, right, and I find it extremely complimentary that he has put down the same amendment as I did at Committee stage and, indeed, which I have repeated now. What we have to do is to move amendments which instead of "for the purpose of prostitution"
865 have the words "for sexual purposes". Is this very novel? Is this something that the Government were never looking at? If your Lordships look at the object of the Bill, you will see that the words underneath the Title read:An Act to make, as respects England and Wales, provision for penalising in certain circumstances the soliciting of women for sexual purposes".Those are the words which the Bill uses. That is the purpose of the Bill—"for sexual purposes".
If one thinks that those words are strange to the Criminal Law Revision Committee, they certainly were not, because in the working paper—and I am sure that the noble Lord the Minister was absolutely fair and right in saying that when I referred to this at Committee stage I should have amplified my quotation by saying that I was quoting from Appendix B to that report, upon which the Criminal Law Revision Committee relied very heavily—under the heading "Street Offences" your Lordships will see mentioned, time after time, the offence "for sexual purposes".
I am talking personally, as one always does on these Bills. Are we to pass a Bill which deals with the real nuisance, which is kerb crawling, where the element of the nuisance is the respectable woman, and also the man making a nuisance of himself by persistently going round and round and doing this with one prostitute after the other, or doing it with the same prostitute more than once, when she says, "No, thank you"? Unless we are really going to pass an effective Bill, all that we are going to do, if we agree with the noble Lord the Minister and the noble Baroness, Lady Vickers, however much, because of her charm, one would always want to agree with her, is pass half a measure so that we shall be made to look ridiculous before every magistrates' court in the land. I hope that this amendment will succeed.
§ The Earl of Mansfield
My Lords, I enter this debate with considerable diffidence, partly because the Bill has ground its way through two Houses at considerable length before I have come to it; and, secondly, because this is my first foray since resuming my seat on the Back-Benches and I am not sure that this is the kind of Bill that I would normally have chosen. Nevertheless, I would say a word, less elegantly than the noble Lord, Lord Mishcon, and I hope at a little less length, in support of what he said.
It seems to me that Parliament as a whole, and this House in general, is in grave danger of not being able to make up its mind what it wants to do: in other words, what is the mischief which it is trying to cure? Kerb crawling, as I understand it, consists of men in motor-cars going around, usually residential squares but occasionally main roads, and inviting women who may or may not be prostitutes—and in parenthesis I am not sure that I agree with my noble friend's definition of a "prostitute", but that is neither here nor there—to accompany them for purposes of sexual gratification.
It seems to me that that invitation can come in many forms to a variety of women. For instance, if a lorry driver outside a transport café in the Archway Road leans out and shouts to the nearest female teenager, "Would you like a ride for a ride?", would 866 that be caught by this Bill or not? I do not know, and I suspect that a magistrates' court would have considerable difficulty in working it out. It really is a curious state of affairs if this Bill is passed, and with Clause 1 in it, if a man is to be placed in front of a bench of magistrates because he tries to make a sexual contract, so to speak, but not if he merely shouts out, "Would you like to come and have a good time, dearie?". That seems to me very stupid.
I do not like Amendment No. 10 very much. Perhaps I should not be talking to it, but the fate of this amendment lies with Amendment No. 5 and the fate of the whole lot lies with Amendment No. 10. But it seems to me that, if the purpose of the Bill is to cure the nuisance of men slowly going round places in their motor-cars and asking women for sexual favours, it matters not a whit whether the woman is what I might call a professional. What one wants to do is to make it an offence if men go round and round in their cars doing it.
§ 5.30 p.m.
§ Lord Houghton of Sowerby
My Lords, we see how difficult it is to legislate for a real and, as we believe it to be, definable mischief. The more time we spend on this Bill, the more difficulties we shall run into, As I understand it—and I have been seeking to get as much information as possible—the real problem here is the prostitute. If there were not prostitutes for gathering in certain places, there would be no kerb crawlers. Kerb crawlers do not just go along the kerb on the off-chance of picking up somebody without knowing whether or not it is a happy hunting ground. If they did that, they would kerb crawl for miles in order to find the weak spot. If you can get rid of the prostitutes, you get rid of kerb crawling, because on the whole they want to find somebody who is willing to do business. They do not want to accost people who are going to spit at them or rebuff them in a less objectionable form; they want to find somebody quickly and be off. After all, they are in that state of mind. They do not want to shilly-shally and hang around. They want to find a woman. I do not know why we are in such difficulties about it—it is prostitution. My advice is that if you can stop soliciting for prostitution, you will get rid of kerb crawling as far as it can be got rid of at all.
I ask the question: why are the prostitutes there? I thought that we had already passed legislation which converted prostitutes into "call girls" and took them off the pavements and put them into massage establishments or whatever; and that there was no need to go kerb crawling because you have the telephone number. What has gone wrong with this system of getting ladies by appointment? Why do kerb crawlers have to go along the street to pick them up and run the risk even of personal assault in return for an unwelcome approach? I think that that is one of the difficulties. I rather think the Minister is right, notwithstanding the weight of the opinion of the noble and learned Lord, Lord Denning, and that of my noble friend on this matter.
It seems to me that if we can make it an offence to solicit for prostitution, the major part of the solicitation will go, because it is the solicitation which is mainly the mischief. The mischief we are trying to 867 prevent is a consequential mischief, where respectable people say, "It is not safe to walk down that street because you will be accosted". It is not safe because there is business to be done, and any respectable person expects to be able to go down a street without being molested. Whatever is the best way to get rid of the prostitutes is the way to get rid of kerb crawling. That is my view.
My only other point relates to the use of the term "kerb crawling". We get hold of a word or a couple of words to define something—"kerb crawling"—and before we know where we are it is kerb crawling that becomes the mischief, without understanding clearly enough what is the purpose of kerb crawling. In that way we are likely to be diverted from the real line of thought here—kerb crawling for what and for whom? If we can be satisfied as to who they are kerb crawling for and get rid of the people they are kerb crawling for, probably the people they do not want to accost can walk along the street unmolested. Either way, there are difficulties, but I apply my mind to this as best I can. That is my conclusion.
The Long Title of a Bill is a form of art. In the Long Title the term "sexual offences" is used as a kind of shorthand. Sometimes the words are used more loosely in the Long Title than in the Bill itself. The term "sexual offences" is not in the Bill, but it is in the Long Title.
§ Lord Mishcon
My Lords, I did not speak about the Title of the Bill. I spoke about "sexual purposes" and the actual words of this amendment being in the summarised version of the purpose of the Bill. I did not mention "sexual offences".
§ Lord Monson
My Lords, the trouble with the amendment of the noble Lord, Lord Mishcon, is that the phrase "sexual purposes" is so incredibly wide-ranging. My noble friend Lord Tweeddale has already given us the example of a young man who walks down the King's Road propositioning girls of his own age. I should like to give another example, albeit a less attractive one. Let us suppose that in a city centre one New Year's eve shortly before midnight a drunken reveller steps off a bus, staggers towards the first female reveller he sees, and says, "'Ere luv, give us a kiss". She says, "Shove off", or words to that effect. He then approaches another girl, does exactly the same thing, and gets the same response, and quite rightly so. This is undoubtedly offensive behaviour and not behaviour to be condoned, but is it really right that it should be caught by this Bill, as would be the case if the amendment of the noble Lord, Lord Mishcon, were accepted?
§ Lord Glenarthur
My Lords, with the leave of the House, perhaps I may respond to some of the points which have been raised. We have had an interesting debate and I am bound to say that I very much share the views expressed just now by the noble Lord, Lord Monson. Perhaps I may also refer to the remarks made by my noble friend Lord Mansfield, and I should like 868 to say how pleased I am sure we all are to see him back, speaking in the House after such a long absence.
As I understood it, he, too, was rather following the line of the noble Lord, Lord Monson, in his illustration of a lorry driver driving down the Archway Road. I say that because if the lorry driver was to shout out once in the way that my noble friend described, he would probably be in difficulties, but if he did it twice, there is very little doubt at all that he would be in difficulties. Under the amendment proposed by the noble and learned Lord, Lord Denning, he would be at serious risk of being prosecuted ultimately for taking that action.
The noble Lord, Lord Houghton, indicated that he supported what I had said earlier on, and he mentioned the Long Title of the Bill. The noble Lord, Lord Mishcon, also referred to the Long Title of the Bill. The Long Title deals, as he so rightly says, with,the soliciting of women for sexual purposes by men".Of course the Long Title is more loosely descriptive than the Bill itself. If we are talking about "for the purpose of prostitution", we are talking about something which is a sexual purpose—perhaps more so; the Long Title reflected the old Clause 3, which was removed by my noble friend in Committee. That Clause 3 described the manner in which soliciting for sexual purposes in a manner likely to cause fear was included. I do not think it is fair to say that because it says "sexual purposes" in the Long Title, sexual purposes should apply elsewhere.
The noble Lord, Lord Houghton, led us on to a rather different path about getting rid of prostitution altogether. There are no doubt those who support the noble Lord's point of view. But he is quite right when he says that the menace the Bill is trying to stop is related to kerb crawling, whatever may be his feelings about that form of words—which do not appear in the Bill, I hasten to add. A "prostitute" has been defined as,a woman who offers her body for purposes amounting to common lewdness for payment in return".I am told that that was a form of words which arose in the case of De Munck. But an ordinary woman approached by a man looking for a prostitute would be protected by the Bill.
I really have very little else—
§ Lord Mishcon
My Lords, before the noble Lord leaves that point, he has, if I may say so with respect, used some unusual words for him, because they were so loose. He said that an ordinary woman—and I imagine that he meant an ordinary respectable woman who is not a prostitute—is protected by the Bill. When the words in the Bill are "for the purpose of prostitution", will the Minister kindly explain to the House what he means when he says that a respectable woman will be protected? Is the Minister saying that an ordinary, respectable woman, who is being annoyed by such accosting, is covered by this Bill and that there is an offence?
§ Lord Glenarthur
My Lords, I am saying that the Bill is trying to meet a particular need where there is, in the words which the noble Lord, Lord Houghton, does not like, kerb crawling in the persistent way in 869 which the noble Lord would have it and which was argued over in Committee. That practice is becoming a menace in many parts of the country and the Bill is striking at this purpose because it is concerned with prostitution. That is the main purpose of the Bill.
I cannot see that we are dealing with people who are not prostitutes. The noble Lord supports the noble and learned Lord, Lord Denning, who wishes to change the words "for the purpose of prostitution" to "for sexual purposes". But I am so surprised that he cannot see that what will happen in this case is that a great many other people whom the noble Lord should like to see protected will not be protected but will be put at risk.
That is the point on which this argument has turned. That is why I am suggesting to your Lordships that if we adopt the measure which the noble and learned Lord proposed, a great many more people will be put at risk of prosecution than those at whom the Bill is aimed—and that is those who are prostitutes.
§ The Earl of Mansfield
My Lords, before my noble friend sits down, for my own information, would he not agree that it is not the character of the woman that is really the subject of debate but the quality of the invitation issued by the man?
§ Lord Glenarthur
Yes, my Lords, but it takes two in this particular case. The fact is that people driving round and round trying to pick up a woman—whether or not she be a prostitute—do on many occasions irritate, quite understandably, those who are not prostitutes but who happen to be walking up and down the pavement. That is the menace with which we are trying to deal. I hope that what I have said has convinced my noble friend.
§ Lord Denning
My Lords, this debate has been most interesting on both sides. If I may say so, the very eloquent words of my noble friend Lord Mishcon were quite convincing to me. This Bill is to prevent kerb crawling. What is kerb crawling but the harassment of innocent, decent ladies in the street by men who come alongside them in a car, importuning them? It does not matter whether or not it is done for money; it is the importuning of innocent women who are walking along the street or waiting at the bus stop that is the kerb crawling.
The argument on the other side is that this Bill is just to prevent prostitution. It is not that. It is not to prevent prostitution or to prosecute the clients of prostitutes. This Bill is to prosecute men who time after time crawl along the street in their motor-cars and importune innocent women, regardless of whether or not they are prostitutes, at bus stops or in the street. That is what this Bill is meant to prevent. My amendment would secure that, and I do not think that the opposition should prevail. If need be, I shall ask to test the opinion of the House on this question.
§ 5.44 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 49; Not-Contents, 67.870
|DIVISION NO. 1|
|Airedale, L.||Meston, L.|
|Airey of Abingdon, B.||Mishcon, L.|
|Beaumont of Whitley, L.||Morris, L.|
|Birk, B.||Mountevans, L.|
|Boothby, L.||Murton of Lindisfarne, L.|
|Bottomley, L.||Napier and Ettrick, L.|
|Colwyn, L.||Newall, L.|
|Crawshaw of Aintree, L.||Nicol, B.|
|Dacre of Glanton, L.||Onslow, E.|
|David, B.||Pender, L.|
|Davidson, V.||Ponsonby of Shulbrede, L.|
|Dean of Beswick, L.||Prys-Davies, L.|
|Denning, L. [Teller.]||Renton, L.|
|Elwyn-Jones, L.||Ritchie of Dundee, L.|
|Ewart-Biggs, B.||Shepherd, L.|
|Hooson, L.||Silkin of Dulwich, L.|
|Jacobson, L.||Somers, L. [Teller.]|
|Jenkins of Putney, L.||Stodart of Leaston, L.|
|Kilbracken, L.||Taylor of Mansfield, L.|
|Lauderdale, E.||Terrington, L.|
|Lindsey and Abingdon, E.||Underhill, L.|
|Llewelyn-Davies of Hastoe, B.||Wallace of Coslany, L.|
|Longford, E.||Winterbottom, L.|
|Mansfield, E.||Wootton of Abinger, B.|
|Ardwick, L.||Lane-Fox, B.|
|Banks, L.||Lawrence, L.|
|Belhaven and Stenton, L.||Long, V.|
|Belstead, L.||Lyell, L.|
|Boyd-Carpenter, L.||McNair, L.|
|Brabazon of Tara, L.||Marley, L.|
|Brougham and Vaux, L.||Marsh, L.|
|Butterworth, L.||Massereene and Ferrard, V.|
|Caithness, E.||Maude of Stratford-upon-Avon, L.|
|Cameron of Lochbroom, L.|
|Cox, B.||Mersey, V.|
|Craigavon, V.||Molson, L.|
|Davies of Leek, L.||Monson, L.|
|Denham, L.||Montagu of Beaulieu, L.|
|Dilhorne, V.||Mottistone, L.|
|Drumalbyn, L.||Munster, E.|
|Eccles, V.||Orkney, E.|
|Elliot of Harwood, B. [Teller.]||Reay, L.|
|Elton, L.||Rugby, L.|
|Foot, L.||Russell of Liverpool, L.|
|Gainsborough, E.||Shackleton, L.|
|Gardner of Parkes, B.||Shannon, E.|
|Glenarthur, L.||Skelmersdale, L.|
|Grimond, L.||Stoddart of Swindon, L.|
|Hailsham of Saint Marylebone, L.||Sudeley, L.|
|Hanworth, V.||Trenchard, V.|
|Harmar-Nicholls, L.||Tweeddale, M.|
|Henderson of Brompton, L.||Vickers, B. [Teller.]|
|Houghton of Sowerby, L.||Whitelaw, V.|
|Hylton-Foster, B.||Windlesham, L.|
|Irving of Dartford, L.||Winstanley, L.|
|King of Wartnaby, L.||Wise, L.|
|Kintore, E.||Zouche of Haryngworth, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.53 p.m.
Lord Kilbracken moved Amendment No. 2:
Page 1, line 8, leave out paragraphs (a) and (b) and insert ("in a street or public place—
The noble Lord said: My Lords, in moving this amendment I wish to speak at the same time to Amendment No. 3, which I tabled as an alternative to
Amendment No. 2 if it finds more favour, and also Amendment No. 4 which is consequential to either of them.
Amendment No. 3: Page 1, line 8, leave out paragraphs (a) and (b) and insert ("in a street or public place—
§ Amendment No. 4: Page 1, line 16, leave out subsection (3).
§ I note that Amendment No. 5 proposes to leave out Clause 1, so if by chance my amendments are agreed they would, if Amendment No. 5 is accepted, have been in the Bill for perhaps a record short length of time. However, I want to move them because, in that event, I would table them on Third Reading for incorporation in the new clause that is proposed by the noble Baroness, Lady Vickers, and the noble Lord, Lord Monson, in Amendment No. 10.
I have three specific purposes in tabling these amendments which arise from my wish that Acts of Parliament should be easily comprehensible to as many people as possible and that they should be written in reasonably good English. The three points I wish to speak about are as follows. The first is that in Clause 1, the words,
in a street or public place
occur twice; once in subsection (1)(a) and again in subsection (1)(b). I propose that those words should be removed from both places and instead that we insert at the end of the second line of subsection (1) the words,
in a street or public place",
§ rather than state it in each paragraph.
§ The second point is one to which I alluded in Committee when I pointed out that at present a motor vehicle is defined in the Bill as having the same meaning as is given to it in the Road Traffic Act 1972. In a light-hearted passage I pointed out that this would mean including such strange forms of conveyance as motorised invalid chairs or motor driven lawn mowers which are all included in the definition. What are we really trying to stop? We are trying to stop kerb crawling. Whenever there has been a reference to what is meant by kerb crawling it is said to be soliciting from a motor-car. Nothing is said about heavy or light locomotives or other such motor vehicles. As I understand it, soliciting from a motor-car is what we are talking about, and if that is so it would be very much simpler if we said so, instead of sending someone to search through the whole of the Road Traffic Act 1972.
It may be that the noble Baroness and her friends are worried about soliciting from motor-cycles. A pedal cycle, of course, would not be caught by the Bill. I have not heard of kerb-crawling from a motor-cycle but, at the same time, that possibility is the reason why the draftsman has had to include the offensive line:
a motor vehicle that he has just got out of or off".
§ One gets out of a car but off of a motor-cycle. I put it to the noble Baroness that if she wants to include only motor-cars, then why not say so and accept my Amendment No. 2? If she does want to include motorcycles, I ask her to consider and accept my Amendment No. 3. Either is infinitely preferable to talking about "motor vehicles".872
The third matter with which I am concerned is that phrase,
got out of or off".
If we specify the motor vehicles concerned, as in either of my two amendments, it makes it perfectly easy to say, if the Bill is confined to motor-cars:
If the preference is to include motor-cycles the bill could read,
§ I beg to move.
§ 6 p.m.
§ Lord Airedale
My Lords, I should like to support the amendment. I think that we really ought to try to reflect the richness and elegance of the English language in our statutes if we can, and I do not find much elegance in this part of the Bill as drafted.
§ Lord Monson
My Lords, I too should like to support the amendment, partly because it prevents a hideously ugly phrase from being incorporated into a statute and partly because it avoids the nonsense of trying to catch people who have just alighted from buses, trams, trolley buses (if any still exist), taxis or hovercraft.
My Lords, once again I must congratulate the noble Lord, Lord Kilbracken, on his efforts to make the Bill more elegant, and once again I am sorry that I cannot commend the amendments to the House because something of substance will be lost. As the noble Lord will know, I hope to persuade your Lordships to leave Clause 1 out of the Bill altogether, as it now serves no useful purpose. But in any event I am happy to discuss the drafting point on its merits and explain why the new clause sticks to the original, if somewhat awkward, phrasing.
I fully appreciate that in general our discussions until now have focused on cars or motorbikes and that the noble Lord's amendments are in sensible, plain English to address that kind of vehicle, but we should, I believe, be a little foolish to depart from the ordinary Road Traffic Act meaning of "motor vehicle". There is little reason why picking up prostitutes from a van should be condoned when kerb crawling in a car is prohibited. Indeed the CLRC working paper originally proposed offences in terms of approaches from motor cars. In paragraph 39 of its 16th report, it said:A number of our commentators pointed out that there is no reason why the offence should be confined to the use of a motor car as distinct from some other motor vehicle, and we agree".We should, I believe, be sorry if in the interests of elegant drafting we encouraged the use of vans and lorries for kerb crawling. Therefore I hope that the noble Lord will not press his amendment.
§ Lord Kilbracken
My Lords, I am disappointed. The noble Baroness is a stonewaller almost to the standard of Geoffrey Boycott. She will not let anything go by her. Although my noble friend Lord Mishcon was successful at the Committee stage through his 873 persistence, taking note of the result of the last Division I fear that I should not be successful on this one.
I do not think that this Bill is intended to prevent kerb crawling from lorries and vans, as the noble Baroness said. A lorry driver may whistle at a pretty girl in the street and so may I, but I do not think that that should be an offence. In this Bill we are trying to outlaw a recognised pattern of behaviour—kerb crawling—and it is not done from lorries, vans or any vehicle other than motor cars.
I do not intend to divide the House, but once again I do not feel inclined to withdraw the amendment.
§ On Question, amendment negatived.
§ [Amendments Nos. 3 and 4 not moved.]
Baroness Vickers moved Amendment No. 5:
Leave out Clause 1.
§ The noble Baroness said: I beg to move, my Lords.
§ Lord Mishcon
My Lords, I wonder whether it would be convenient if when speaking to Amendment No. 5 I spoke also to Amendments Nos. 6, 8, 9 and 10. I think that it would be.
§ Amendment No. 6: Clause 2, page 2, line 1, at end inset ("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.")
§ Amendment No. 9: Leave out Clause 2.
§ Amendment No. 10: After Clause 2, insert the following new clause:
§ ("Soliciting of women for the purpose of prostitution
§ .—(1) A man commits an offence if—
- (a) in a street or public place he (whether from a motor vehicle or not) persistently solicits women (or the same woman) for the purpose of prostitution; or
- (b) he solicits a woman for the purpose of prostitution—
- (i) from a motor vehicle while it is in a street or public place, or
- (ii) in a street or public place while in the immediate vicinity of a motor vehicle that he has just got out of or off, in circumstances in which his doing so is likely to cause annoyance to her or other persons.
§ (2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale (as defined in section 75 of the Criminal Justice Act 1982).
§ If I may say so, I think that this will put the debate into a sensible and logical circumference.
§ As I said before, we agreed that the word "persistently" should go into the Bill. It goes in, I think, most conveniently by having a one-clause instead of a two-clause Bill dealing with this matter. From that point of view, if I may say so, I agree with the idea of a new clause as set out in Amendment No. 10. Where I part company completely with the new clause is here. I shall not argue about the phrase, "for the purpose of prostitution". I and the noble and learned Lord, Lord Denning, have had that argument, and, if I may say so, we lost it. I hope that we are gracious in the way that we accept the result of the Division. What I am now dealing with is a Bill which at the Committee stage had to have persistence as an element, and now as a result of the last Division we have to have the phrase, "for the purpose of prostitution".874
But in Amendment No. 10 your Lordships will observe that there would be imported an entirely new offence to get over, if I may say so, the vote of your Lordships' Committee that persistence must he an element if we are to avoid the most dangerous prosecutions. Your Lordships will see in subsection (1) that:
A man commits an offence if … he solicits a woman for the purpose of prostitution"—
and then we have the motor vehicle and—
in a street or public place"—
not from a motor vehicle—
there is no persistence here—
in which his doing so is likely to cause annoyance to her or other persons".
§ I cannot think of a more dangerous provision to put in a statute in order to bring perfectly innocent people into the net of prosecutions.
The Minister is always so fair and so clear in his arguments, and I do not say that lightly. It is therefore remarkable that he should have quoted paragraph 44 on page 13 of the Criminal Law Revision Committee report (Cmnd. 9329) when trying to persuade your Lordships that its reasoning should be followed. When dealing with a particular argument, the committee says this:
Men often make sexual advances to women in streets and public places as well as elsewhere which may or may not be welcomed. It would in our view be most unwise that such conduct should of itself give rise to the possibility of a criminal offence. In our view the most acceptable compromise is that the man's conduct in soliciting the services of a prostitute on foot should only be treated as a criminal offence if there is a degree of persistence".
§ If I may say so, we cannot now possibly have an offence which allows anybody to be charged with that offence without the element even of persistence, contrary to the clear advice of the committee.
§ I would go further. I hate this business of "likely to cause a nuisance or annoyance". I had the privilege of being a member of the Wolfenden Committee. We considered the whole question of prostitution likely to cause nuisance or annoyance and we decided to recommend that those words be deleted. Indeed, they were deleted from the Act that came into force as a result of the Wolfenden Committee's report, when dealing with the question of prostitution. Those words are terribly dangerous words. If I may say so, they are "sus" words, and this House expressed its opinion very, very forcefully on the "sus" offence. They did not like this business of a police officer who was able to come in and say that in his view the behaviour in question was likely to cause a nuisance or annoyance, or was likely to result in a criminal offence, or whatever. I hope we have for all time excluded that kind of wording from a statute which deals with a criminal offence.
§ Thus, to put it in a nutshell, what I am saying is that any offence related to this Bill which has not the element of persistence in it and merely deals with one possible offence is bad. I am saying that it is especially bad if one is dealing with something "likely to cause a nuisance or annoyance". Thirdly, I say that there should not be an offence committed purely based on somebody's view that it is likely to cause a nuisance or annoyance. Thus, I hope that Amendment No. 10 will 875 not be passed by your Lordships. If I may say so, I think it would be dreadful if your Lordships passed the new clause as it stands at present with subsection (1)(b) in it.
§ I ask that my own Amendments Nos. 6 and 8, together with the amendment which proposes the deletion of Clause 1, should be passed. However, of course I accept immediately that because of the Division result, the new clause should include the words, "for the purpose of prostitution". I do not like them; nevertheless, one must accept that result. However, there should be no question of this offence newly imported into the Bill under subsection (1)(b).
§ Lord Glenarthur
My Lords, I hesitate to intervene but, in moving her amendment, I think my noble friend indicated that she meant to speak to the whole package in the way that the noble Lord, Lord Mishcon, has. I wonder whether the House will agree that my noble friend be allowed to make her speech now, so that I can perhaps pick up some of the points later, before the noble and learned Lord, Lord Denning, speaks.
My Lords, I thank the noble Lord for that. I should have been quicker on my feet. I am very pleased to have tabled this new clause in place of Clauses I and 2 because I believe it represents the best of the many helpful suggestions and comments made by your Lordships today and in Committee. The objective has been to safeguard the innocent most carefully, while addressing the real mischief caused by kerb crawling in an effective way and tackling the nuisance at its root. Under this clause, as before, any persistent soliciting for the purpose of prostitution is prohibited.
I think we have all accepted that persistence is in a way a natural mother to nuisance; almost any activity which is persistent may become annoying or a nuisance, but it does not of course mean that any persistent activity should be a criminal offence. However, where the activity is the public solicitation of prostitutes, or of other women for their services as prostitutes, I believe we have general agreement in this House that the punters, like the girls, should be subject to some control.
Secondly, the clause addresses the kerb crawler, whose actions are likely to cause annoyance. This may be because he is offensive to one woman, who wishes so to testify, or because he transacts his bargains with a prostitute in a way which residents cannot tolerate, or for other reasons. But a motorist in a lonely place who happens to give a lift to a girl who turns out to be a prostitute would not, I believe, be at risk under this clause. I hope this meets the concern expressed here and in another place about the scope of the offence.
Finally, I should like to thank most particularly the noble Lords, Lord Mishcon, Lord Wigoder, Lord Harris and Lord Monson, for their particularly helpful contributions in Committee, which have brought us to this new formulation. By producing a single clause with alternative tests for persistence or annoyance, and 876 by retaining specific references to motor vehicles in each, I believe we have taken their most persuasive points in good part and given effect to the spirit of them all.
I know that not all of your Lordships will agree with all these elements of the new clause. However, I hope your Lordships can see that we have taken what has persuaded us from all that has been said. Therefore, I hope very much that this new clause will find favour with the House and enable the Bill to complete its stages smoothly. My Lords, I beg to move.
§ 6.15 p.m.
§ Lord Denning
My Lords, we have got into a difficult position. When the Bill started, it did not have "persistence" in it. Now it has "persistence" in and we have to deal with it. As "persistence" is now in, and we failed on the point about the phrase, "the purpose of prostitution", it seems to me that this new clause in Amendment No. 10 is the best compromise that we can reach. It seems to me that in the new clause, subsection 1(b) there is not "persistence" but there has to be, "for the purposes of prostitution". Then one also has this provision, which is important:in circumstances in which his doing so is likely to cause annoyance to her or other persons".Thus, one covers proof of the circumstances likely to cause annoyance. A policeman can observe the circumstances: he can see the man crawling along. It may be only one occasion, and he cannot prove persistence, but he can prove the conduct, even on the one occasion. The man is crawling along and the circumstances are such that it is likely to cause annoyance. I have regretted some of the changes already made in the Bill, but in view of the whole situation I should support the proposed new clause.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down, I wonder whether he will assist the House with his wisdom and experience. Will he agree that anybody whom a police officer thinks is likely to have caused nuisance or annoyance by one single act could find himself in front of a criminal court on this charge?
§ Lord Denning
My Lords, the answer is, yes. In view of the modifications already in the Bill, I think the answer is, yes, because in this case I should rely on the police officer. It is also the one way to cure this evil. Thus, I think we ought to have it in.
§ Lord Silkin of Dulwich
My Lords, I rise on this matter to support my noble friend, Lord Mishcon, and I regretfully find myself in disagreement with the noble and learned Lord, Lord Denning. If I may say so, I supported him on the last amendment, which we lost.
Indeed, many of the reasons why I do not go along with him in relation to Amendment No. 10 are the very matters to which he has referred; that is to say that the way in which one would normally expect annoyance to be established would be by the evidence of a policeman who says that somebody appeared to be annoyed. That is the way we customarily have heard the evidence given in the courts. It is extremely rare—indeed, if it ever happens at all—for the person who is accosted, particularly if accosted for the 877 purposes of prostitution, to be the person who comes to the court and complains. Indeed, many such persons if they are in fact prostitutes are plying their trade in the ordinary way and are the last people one would expect to complain. Thus, in cases of that kind, it is not the person who is accosted to whom there would be an annoyance; it could be other people who happen to be around at the time.
What one would then find is that a policemen would come along and say that the defendant was travelling along in a motor-car, or had recently got out of a motor-car, not a number of times but once only, and had done something which caused annoyance to people standing by or to people walking in the street. That seems to me to be utterly absurd, and certainly not the intention of this Bill. It is certainly not what I understand by the expression "kerb crawling", but it would be brought within the mischief of the Bill by the amendment and the new clause that the noble Baroness proposes to move in due course.
I should like to make one other comment with regard to the new clause. The explanation can perhaps be given in due course, but I confess that at the moment I simply do not understand it. The difference between paragraph (a) and paragraph (b) of subsection (1) of the new clause is not merely the difference between "persistently" in (a), which the House has now agreed to, and "annoyance" in (b), which it has certainly not yet agreed to (and I hope will not), but applies also, to the other words. One has only to look at the Marshalled List to see the difference in the way the amendment is framed as between (a) and (b). As I read the words, I cannot see any difference whatever in sense. I ask myself, therefore: what is the purpose of having entirely different words to say exactly the same thing? It is something that I always object to in an Act of Parliament, not least because it tempts clever lawyers to show that there is a distinction when there really is not one. Why has it been done in this way? Why have the same words not been used in (a) and (b) other than what seems the only intended distinction; that is to say, the distinction between persistence and annoyance?
That is perhaps a subsidiary point, important as it is to the general principle of the interpretation of statutes. In relation to this matter, the major question is that of seeking to establish annoyance in the case of a single act—not a persistent one but a single act—and that seems to me to be completely out of the spirit of this proposed legislation.
§ Lord Houghton of Sowerby
My Lords, I think that this new clause contained in Amendment No. 10 is an absolute shocker. I really wonder how it got here. What is the noble Lord, Lord Monson, doing with his name attached to the latter part of paragraph (b)? And what is the noble Baroness, Lady Vickers, doing in this lobby, may I ask? As a radical libertarian of the past, I am astonished that the noble Lord and the noble Baroness should be associated with this new clause.
It is a diabolical clause for two reasons. One is that it introducescircumstances in which his doing so is likely to cause annoyance to her or other persons".I need not gild the lily of my noble friend Lord Mishcon, who has already dealt with this fully and 878 adequately. But the subtlety of the new clause is that subsection (1)(b) tries to get rid of persistence. This is the point that my noble and learned friend Lord Silkin has just referred to. The new clause is objectionable for what it does in a forthright way and for what it hopes to do in a subtle way. It must be resisted on both grounds.
As for the noble and learned Lord, Lord Denning, I do not think, frankly, that it is his afternoon so far. Is it Wimbledon. What is it? Is it the sunshine that has descended on us that seems to have put noble Lords in such a quirky position? I think there is a straight line to be drawn on this new clause, and that is to boot it out. It does not matter how the Bill finishes up; it cannot be worse than this. We should really go back to the amendments that my noble friend Lord Mishcon has put down. He is at least trying to deal with the structure of the Bill as it was and now is, without this new clause. I have been sufficiently offensive all round, my Lords, that I had better sit down.
§ Lord Monson
My Lords, as the noble Lord. Lord Houghton, has challenged me, this is the moment, I think, for me to explain why I have added my name to the amendment. I did so because it incorporates, with one exception, the essence of the amendment, then Amendment No. 2, that I was unable to move at Committee stage last Friday for procedural reasons but which received a great deal of support in all quarters of the Committee. The amendment now under discussion differs from mine in one way. I admit to being slightly unhappy about the phrase,in circumstances in which his doing so".My phraseology was somewhat different. It wasin a manner likely to cause annoyance".That is better, I think, from the point of view of protecting the innocent man.
But to answer the noble and learned Lord, Lord Silkin, who asked how this alters anything, I would guess that if a punter were to cruise round a dockside district where there were no residential properties, with no houses or flats in the immediate vicinity, and which was known as a congregating place for prostitutes, he would then be quite safe. There would be no passers-by or householders to be annoyed. It therefore liberalises the Bill as originally envisaged.
I would add that I would be happier if, at Third Reading, should the amendment be agreed to, following upon the suggestion made by the noble Lord, Lord Kilbracken, the definition of "vehicle" was narrowed somewhat. It is right to exclude taxis, buses and so on, but I do take the Government's view that vans have to be included. Otherwise, I stand by the amendment—
§ Lord Silkin of Dulwich
My Lords, before the noble Lord sits down, I wonder whether he will explain the point that he is making in reply to my comment. I am afraid that I have not followed it. That, I am sure, is my fault. In paragraph (a) there are the words,in a street or public place".Then, in brackets, there are the words,(whether from a motor vehicle or not)".879 In paragraph (b) there are the words,Can the noble Lord explain to me why those two things are different? Why does he say that this avoids the possibility of some offence taking place somewhere that is not a public place?
- "(i) from a motor vehicle while it is in a street or public place, or
- (ii) in a street or public place while in the immediate vicinity of a motor vehicle".
§ Lord Mishcon
My Lords, before the noble Lord completely sits down, I wonder whether he will explain one matter to the House. I am sure that we are all anxious to hear him. Did he really think that it was proper to import in this Bill a nuisance and annoyance offence without it being persistent? The noble Lord was one of the most ardent advocates for "persistence" to be included in this Bill.
§ Lord Monson
My Lords, with the leave of the House, I would explain to the noble and learned Lord, Lord Silkin, that I did not draft the amendment. I cannot see anything wrong with the wording, but I simply added my name to an amendment that was already in existence. I am afraid, therefore, that I cannot help him there. So far as the noble Lord, Lord Mishcon, is concerned, this is precisely, in essence, the same as the amendment to which I spoke last Friday. I did not move it, because his Amendment No. 1 was carried. However, I spoke to it at length and received a great deal of support from various quarters of the Committee.
§ Lord Kilbracken
My Lords, the reason is, I think, that the word "persistently" appears in paragraph (a) but not in paragraph (b). So, if you are not in a motor vehicle, you have to be persistent if you want to commit an offence. But if you are in a motor vehicle, you commit an offence whether you are persistent or not. My noble friend on the Front Bench seems to be doubtful.
§ Lord Mishcon
My Lords, will the noble Lord be kind enough to remind me of the point which he has just made? I was indulging in a conversation of great importance with the Opposition Chief Whip and I did not hear what he said.
§ 6.30 p.m.
§ Lord Kilbracken
My noble and learned friend Lord Silkin was asking about the difference of substance between paragraph (a) and paragraph (b) in Amendment No. 10. He thought that the two paragraphs were almost identical. The difference is that if a person is in a street or a public place and solicits women, it is an offence whether or not he is persistent. However, if he is not in a motor vehicle, it is an offence, under the amendment, to solicit a woman—my Lords, I am getting confused myself. The point is that the person does not have to be persistent. I got it right the first time when my noble friend was talking to his noble friend, but I did not get it quite right the second time.
I have certain difficulty in speaking to this amendment because we are discussing whether Clause 880 1 should be omitted and, therefore, we do not know what will be the fate of Amendment No. 6, Amendment No. 10, or, indeed, any subsequent amendments. Personally, I should like to vote for the present amendment without voting for Amendment No. 6 because in my opinion Amendment No. 6 is completely unnecessary.
We must remember the situation as regards Clauses 1 and 2 as originally drafted. It seems to me quite extraordinary that at this late stage in a Bill, which has already been through all its stages in another place, we should have already deleted Clause 3 and we are now completely rewriting Clauses 1 and 2. Those are the only three effective and meaningful clauses in the Bill which is therefore being completely rewritten in your Lordships' House.
I was trying to say just now to my noble friend that under the provisions of the Bill when it first came to us, if you were a kerb crawler and therefore in a motor vehicle, it was considered to be so objectionable that it was an offence whether or not you were persistent. However, if you were not a kerb crawler, to solicit a woman was illegal whether or not you were persistent. At Committee stage my noble friend Lord Mishcon moved an amendment to have the word "persistently" added to Clause 1. However, the result is that Clauses 1 and 2 both say exactly the same thing. There is no need to specify in Clause 1 that it is an offence if the person is operating from a motor vehicle, because it is an offence anyway under Clause 2. In both cases he has to be persistent.
Therefore, so far as my noble friend's amendments are concerned, I should agree with deleting Clause 1 as being otiose, but I would not agree with Amendment No. 6 because in my view it is unnecessary. However, perhaps I may consider the new clause which is introduced under Amendment No. 10.
I agree wholeheartedly with the terms in which my noble friend Lord Houghton of Sowerby has condemned the amendment. Not only does it have the rather underhand effect of deleting my noble friend's "persistence" from Clause 1, not only does it offend anyone's sense of the use of the English language with all its parentheses and subsections and (a)s and (b)s, but also it does not make good sense. As I was indicating just now, the passage in parentheses which says:whether from a motor vehicle or notis completely unnecessary. One might as well say, "whether intoxicated or not", or, "whether wearing a top hat or not". Of course if it covers it in any case, it covers it when you are in a motor-car.
§ Lord Silkin of Dulwich
My Lords, I wonder whether my noble friend would agree that the reason those words are necessary is that the Bill is about kerb crawling and nothing else?
§ Lord Kilbracken
My Lords, the Bill is supposed to be about kerb crawling; it has always been called the "Kerb Crawling Bill". However, the fact of the matter is that it has been enlarged to take into account persistent soliciting, whether you are kerb crawling or just walking along. Furthermore, in paragraph (a) of the new clause it says that the person:persistently solicits women (or the same woman)".But then in paragraph (b) it says:he solicits a woman".To my mind it is not clear whether the two lines:in circumstances in which his doing so is likely to cause annoyance to her or other persons",are related to paragraph (a) or to paragraph (b), or to both (a) and (b). It is not clear. Therefore, although I suppose that, with the supporters of the noble Baroness waiting in the wings, we shall see a new clause in the Bill, I point out that it is very badly worded and is not what we want, and that if it is accepted, it should be thoroughly rewritten on Third Reading.
§ Lord Airedale
My Lords, I think that it is clear that the last two lines of paragraph (b) are intended to apply to paragraph (b) only, because otherwise they would not be indented in the print in the way in which they are indented. I suppose that one type of annoyance that is liable to be caused by a kerb crawler under paragraph (b) would be annoyance to the people in the following traffic who would be slowed down. I do not suppose that that type of annoyance is intended in the clause, but the clause does not make it clear.
§ Lady Saltoun of Abernethy
My Lords, I just want to say a word on the subject of kerb crawling. It is very important that someone soliciting from a car does not have to be persistent. I know about this because when I was young I was once accosted by a kerb crawler. It happened only once, but my goodness it was frightening. It is something which it is very important to stop. It happened only once.
§ Lord Hylton
My Lords, I should like to put a question to the noble Lord, Lord Glenarthur, and I apologise to him for not having given him notice of it and I also apologise to the House if perchance this point has been raised at an earlier stage of our discussions on the Bill. Do the Government think that the nuisance and the grievances which this Bill seeks to remedy are sufficiently widespread to justify legislation that will be nationwide? May it not be very much better to legislate in such a way that a local authority could invoke the Bill for either the whole of its area or a particular part of its area if it considers that there is a localised nuisance?
§ Lady Saltoun of Abernethy
My Lords, if I may say so, the problem there is that people coming from other areas cannot possibly be expected to know the local regulations.
§ Lord Glenarthur
My Lords, a great many different points have been brought out in this debate. My noble 882 friend Lady Vickers has explained her views on the suggestions which were made in Committee to improve the Bill and the reasons which underly her suggested new clause, and all that that entails in leaving out other clauses. I should like to express the Government's full support for the clause, and I echo her thanks to those whose fertile minds were part of the inspiration for the amendment now before us.
The particular concern of the noble Lord, Lord Mishcon, is that of annoyance; one element of an amendment tabled but not moved at Committee by the noble Lord, Lord Monson. We have sought to avoid the pitfalls described by Wolfenden years ago when it was concluded that a requirement in a provision to show annoyance or nuisance in respect of soliciting was the enactment of a dead letter because those solicited, or others who were offended, would not generally wish to go to court.
The noble Lord, Lord Mishcon, earlier described his being a member of that committee. As I understand it, the committee recommended that the requirement to establish annoyance should be dropped from the law, and this was done by the Street Offences Act 1959. In introducing an element of annoyance into the proposed kerb-crawling offence the new clause tabled by my noble friend avoids, so far as I can possibly tell, the Wolfenden Committee's criticisms of the old law.
It acknowledges the fact that in general persons annoyed will not wish to go to court to give evidence of their annoyance, although it leaves the door open to them to do so if they wish. This means that the offence can, if necessary, operate on the evidence of a police witness. The new clause does not re-employ the discredited words of the old law—"to the annoyance" of persons. Those words must have tempted police witnesses into the practice, which was then accepted by the courts, of testifying that passersby appeared to be annoyed. I do not believe that today's courts would accept such evidence, and to my mind quite rightly so. The key words in the new clause are:in circumstances … likely to cause annoyance".This is the point brought out by the noble and learned Lord, Lord Denning, who unfortunately is not here at the moment.
§ Lord Silkin of Dulwich
My Lords, surely the words that are used are much worse than the words that were avoided. At least one had to show some evidence of annoyance. Now all that one has to do is show something which is likely to cause it. That is a totally subjective view.
§ Lord Glenarthur
My Lords, what this form of words will do is oblige the witness to testify quite fairly and openly to what the circumstances were and whether, in those circumstances, there was a likelihood of annoyance. This was the formula which the noble Lord, Lord Monson, described. I cannot see that the concern which the noble and learned Lord, Lord Silkin, expresses is a particularly real one.
The noble Lord, Lord Mishcon, quoted part of the CLRC report. The passage that he quoted referred to the need for an element of persistence where the client is not a kerb crawler; that is, not involved in the use of a motor-car. What the Criminal Law Revision 883 Committee were clearly thinking about here was that they were in favour of catching the one-off approach of a kerb crawler, and that is precisely what the new clause does in subsection (1)(b).
So far as the one-off offence is concerned—a point raised by the noble and learned Lord, Lord Silkin—I am not sure that he has it quite right. This is not about doing something once which might annoy somebody. It is about soliciting for prostitution. That is the point that I think he has missed. It is soliciting for prostitution involving the use of a car.
The noble Lord, Lord Mishcon, went on to say that he thought that what was suggested here was almost as bad as the "sus" law. In drawing this parallel with the proposed offence and the repealed Section 4 of the Vagrancy Act 1824 which was the "sus" law, I am afraid I cannot agree that it is nearly so bad, or that it meets the concern he expresses. Section 4 of that Act prohibited any suspected person from loitering with intent to commit an arrestable offence.
It was not necessary to prove that the person suspected was guilty of any particular act or acts, and he could be convicted if, from the circumstances of the case and his known character, it appeared that his intention was to commit an arrestable offence. Under this Bill it will have to be proved that the accused solicited a woman for the purpose of prostitution. I do not think there is any danger of men being charged because they appear to be about to commit the offence.
§ Lord Mishcon
My Lords, the noble Lord has been fair in regard to this argument, but we are getting into a dreadful muddle. We are dealing with a criminal offence and we have to be clear. At Committee stage, when dealing with kerb crawling, we said, by an amendment that was passed, that it was dangerous even in regard to kerb crawling to have any offence where it was limited to one occasion. The decision of the Committee clearly was that persistence would have to be an element.
In the light of that decision of the Committee how does the noble Lord justify paragraph (b) that he is now talking about, where "persistence" has gone out of the window, and where one matter, kerb crawling or otherwise, can be an offence purely because on one occasion in the opinion, if you like, of the court it was likely to cause a nuisance or annoyance? How does that square up with the clear decision of the Committee?
§ Lord Glenarthur
My Lords, the formulation in subsection (1)(b) refers to circumstances, first of all, "likely to cause annoyance". There are two elements. First, it deals with circumstances "likely to cause annoyance", so that in some cases the evidence of the police will be sufficient to support a charge, and in others the evidence of a girl willing to testify to a single occasion on which she was solicited and annoyed will also suffice. What the Committee asked for—and I am sure that this is right—was added safeguards; persistence is one, and annoyance is another.
§ Lord Glenarthur
My Lords, the noble Lord says, "Oh", but in point of fact taking account of all that was said—and all that was said in Committee has been carefully read—if we were faced with the situation as it was then, this was quite clearly a sensible way to take matters forward. I wanted to bring out those points clearly.
§ Lord Mishcon
My Lords, I must ask the Minister for his courtesy and the House for further forbearance. We are in a dreadful muddle. There was one Division on the last occasion. It was not a Division on "annoyance". It was a Division on the question of persistence being a necessary element in the most serious part of the Bill, which was Clause 1. Clause 2 already had "persistence" in it. In regard to the most serious offence, which had not got "persistence" in it, the Committee decided that "persistence" must be an element all the way through. I ask the Minister again how does he justify, in view of that decision, the omission of "persistence" from the subsection? If he does not answer that clearly, I am afraid the House will be in even more of a muddle than it is at the moment.
§ Lord Glenarthur
My Lords, I can answer it no more clearly than I attempted to answer it just now by saying that there were two strands to it; that we have pulled together the arguments that were brought out in Committee, that annoyance is one method of dealing with it and that the persistence element is another.
The noble Lord is saying in essence that what I am doing here is removing an undertaking which was given in Committee. I do not believe that that is what I am doing. I apologise; it was not an undertaking, but a knocking on the head of an amendment which was passed in Committee. In doing so, I assure the noble Lord that this is not my intention at all. In saying what I have, I was trying to draw together the strands of the various arguments that were put forward. We are talking about matters of substance.
§ Lord Houghton of Sowerby
My Lords, I apologise, but we are on the most serious point. I ask the Minister whether he did not realise that in taking the decision we did in Committee we decided that on a single occasion the soliciting of a woman did not and could not of itself constitute a criminal offence. We said that only if it is persistently done that the citizen was entitled to ask for the protection of the criminal law. The Minister is now introducing a single incident of annoyance as the basis for a charge and conviction under this Bill, is he not? He is altering the whole sense of the Bill as we left it in Committee.
§ Lord Monson
My Lords, I may be able to assist the Minister before he sits down finally. The reason the concept of annoyance was not incorporated into the Bill is simple. The amendment of the noble Lord, Lord Mishcon, was carried to include the word "persistently" and it was technically impossible for me to move my Amendment No. 2, which included the words "persistently or"—I underline the word "or" verbally ten times—"in a manner likely to cause 885 annoyance". If I had done so, the clause would have been nonsensical for it would have read,persistently persistently or in a manner likely to cause annoyance",which obviously could not have been allowed. Had technically the position been otherwise and I had been permitted to move my Amendment No. 2, I have the impression from having spoken to a large number of noble Lords, particularly from the alliance Benches, that the Committee would have supported me.
§ Lord Glenarthur
My Lords, I am drawing to the end of all that I can say. I have expressed clearly my belief that we are dealing with matters of substance—
§ Lord Glenarthur
My Lords, I hope the noble and learned Lord will allow me to continue, because we are at Report stage and he cannot interrupt too often without putting me out of order. I hope he will allow me to develop my point and perhaps he can speak in a moment.
We are talking about safeguards. There are two kinds of safeguard. One is annoyance, and I have explained to the noble Lord, Lord Mishcon, with the support of the noble and learned Lord, Lord Denning, why annoyance in the way the noble Lord, Lord Mishcon, described it in connection with Wolfenden, does not apply and that what we have here is much more realistic. What is in subsection (1)(b) as drafted is fair, it is necessary and it is desirable. Anything else will demonstrate only our inability to deal realistically with the growing scale of a problem which everybody has acknowledged at all stages of the Bill.
I can only say that in the drafting of this amendment my noble friend and those whom she has consulted were trying to draw together the various strands of argument which have been expressed today and clearly would have been expressed today as a result of what was said in Committee the other day. I believe that it achieves what we were all hoping to achieve. That is why I must stick with it.
§ Lord Mishcon
My Lords, this is the last time I shall interrupt the Minister before he sits down. I promise him and the House that this is the last time that I shall rise because this is becoming too much of a bobbing up and down. We are dealing with something very serious. As the noble Lord has quoted the Criminal Law Revision Committee Report and answered my point on paragraph 42, would he take the report that we are supposed to be following and the advice we are supposed to be incorporating in the Bill and read page 14, paragraph 48? It states:Some of our commentators suggested that it should be sufficient for an offence that the woman solicited was caused annoyance. Most of us take the view that that would spread the net too wide.That finishes the paragraph.
§ Lord Silkin of Dulwich
My Lords, while the Minister is thinking about that, as he was good enough to say that he would respond to a later intervention by myself, can he answer this point? I am seriously trying to follow what this is intended to achieve. This is not a criticism but an attempt to understand. Subsection 886 (1)(b), leaving out the words under paragraphs (i) and (ii) to try to simplify matters, reads:he solicits a woman for the purpose of prostitution … in circumstances in which his doing so is likely to cause annoyance to her"—then there are the words "or other persons". Let us forget about the other persons for the moment and concentrate on "her".
I am asking the Minister to explain, if he is able to do so, what are the circumstances in which a person may solicit a woman for the purpose of prostitution in circumstances in which his doing so is likely to cause annoyance to her? If she is a prostitute, then, presumably, she is not likely to be annoyed. If she is not a prostitute, she may be annoyed. If this is a single act of soliciting a prostitute, will the effect of this be that if the person concerned, thinking that she is a prostitute, accosts her, solicits her for the purpose of prostitution and he wrongly thinks that she is a prostitute, he commits an offence? Is that really the effect of this provision? If it is not, what are the circumstances that the Minister has in mind where the clause might bite?
§ Lord Glenarthur
My Lords, with the leave of the House—and I hope I follow the noble and learned Lord's arguments—the whole essence of this Bill is annoyance. There was popular demand for it because many people were annoyed, irritated and upset and this has been made even worse because of the extent to which kerb crawling has grown in certain parts of the country. The words to which the noble Lord refers at the end of subsection (1)(b) relate to the circumstances (that is the point that I described to the noble Lord, Lord Mishcon) in which the soliciting in any circumstances is likely to cause annoyance either to the person being solicited, who is not a prostitute, or to other persons—because other persons can be affected by it. It seems to me to be clear that other people can be annoyed, and that is why there are two strands. I hope that answers the point raised by the noble Lord. I shall study what he has said and if my reply has not answered it, I shall write to him to explain how I should have answered it earlier.
§ 7 p.m.
§ Lord Harris of Greenwich
My Lords, I propose to speak very briefly. I would say at the outset that what causes us most concern is the point that was raised by the noble Lords, Lord Mishcon and Lord Houghton; namely, that the Committee took a decision on this matter last Friday. I am therefore slightly surprised to find an Amendment down which appears to ignore what the Committee then decided. We were concerned about one very isolated but very important matter: that a single act should not be an offence. We now find in paragraph (b) that a single act will be creating an offence. I think that is most objectionable, and if this provision reaches the statute book there will he a whole series of cases which will give rise to much public disquiet about why the law has been changed in this fashion. Whatever the Parliamentary Secretary may say, the CLRC excerpt which was quoted to us a few moments ago by the noble Lord, Lord Mishcon, has not been answered by the Minister in any satisfactory manner.
887 Certainly, speaking for myself, I would be firmly opposed to this amendment in its present form because it completely ignores all the anxieties which were expressed as late as Friday of last week. I very much hope that the noble Baroness, the Minister, and their advisers, will reflect on this matter between now and Third Reading. In my view, it would be far more satisfactory for this amendment to be withdrawn today and brought back to us on Third Reading.
In the meantime, I am sure there can be some discussions on whether some broad area of agreement can be reached. It is a great pity, when we are amending the criminal law, to have this form of controversy. It could not only be very damaging to some private citizen who finds himself facing an extremely damaging charge, with all the implications that has for his reputation, but also cause considerable embarrassment to the police who would have the responsibility of enforcing it.
§ Lord Harris of Greenwich
My Lords, with great respect to the Minister, this is a Private Member's Bill. The noble Baroness asks the leave of the House to withdraw her amendment, and of course we would be very happy to agree with that and in the meanwhile to discuss the matter to see whether we can reach accommodation which unites us all. That is indeed our objective.
§ Lord Mishcon
My Lords, I wonder whether I may help the noble Baroness, who, as I understood it, was asking the leave of the House to withdraw the Amendment, by saying that I am not going to, to put it crudely, "pull a fast one" and move my amendments. In the circumstances, if the suggestion made by the noble Lord, Lord Harris, was accepted and if we all agreed not to move amendments and conferred between now and Third Reading, we might come up with something constructive. If we do not do that, in my view we shall be in the most terrible mess. I am perfectly prepared, as I said, not to move my amendments if in the circumstances leave is granted to the noble Baroness to withdraw this amendment. As I have said, we can then confer and see whether we can reach some agreement and put something sensible into this Bill.
My Lords, I am grateful to the noble Lord, Lord Mishcon, and would like to accept his offer.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 6, 7, 8, 9 and 10 not moved.]888
§ Clause 3 [Penalties for certain sexual offences]:
Lord Monson moved Amendment No. 11:
Page 2, line 14, leave out ("Life") and insert ("14 years").
§ The noble Lord said: My Lords, for the third time in six days and for the second time today, I find myself moving an amendment to change a proposed indeterminate maximum sentence into a substantial determinate one. I am not sure how many of the faces that I see in your Lordships' Chamber today are the same as were to be seen here last Friday, so I will quickly summarise the arguments once more.
§ First, it was felt by a number of noble Lords, not just by me, that a Private Member's Bill was not really the right vehicle for introducing such a massive increase in a maximum sentence—an increase which effectively multiplies the maximum by 10, from 7 years to 70 years. Your Lordships might consider that somebody who is sentenced to life imprisonment at the age of 20 could be in prison until he was 90. Secondly, I think it is safe to say that it was felt by a smaller, though still significant, number of us that to bracket yet one more serious crime together with murder, from the point of view of a maximum sentence, for a crime which is by no means remotely as heinous as murder, helps to trivialise the crime of murder and to diminish the already weakening public perception of murder as a unique and terrible crime.
§ I went on to point out that if my amendment (which at that time proposed a 10-year maximum but which we have now altered to 14 years) were accepted, a judge would still be able to impose a longer maximum for the more serious forms of attempted rape—those which involve in the course of the attempt indecent assault, possibly together with assault occasioning grievous bodily harm or actual bodily harm, by means of consecutive as opposed to concurrent sentences.
§ The noble Lord, Lord Glenarthur, speaking for the Government, in attempting to counter my argument, instanced the type of attempted rape which is foiled only by somebody coming on to the scene unexpectedly so that the victim has not been physically even touched but is understandably very frightened. Naturally I see what the noble Lord was getting at, but I would ask your Lordships to consider the following scenario.
§ One night in a quiet suburban street a man climbs up a drainpipe of a house and enters a first-floor bedroom through an open window. He sees a woman lying in bed on her own. He silently removes his shoes and trousers and pulls back the covers preparatory to attempting a rape; and in the meantime the woman remains asleep. The other occupants of the house, however, are light sleepers and they burst into the bedroom before anything happens and apprehend the man. Two doors away in the same street another man climbs up another drainpipe into another first-floor bedroom through an open window and a woman is asleep in the room. He, again, removes his shoes and trousers, gets into bed and, perhaps because he has abnormal tastes, commits not a rape but an indecent assault upon the woman. The other occupants of the house are heavy sleepers and do not hear the cries of 889 the unfortunate victim until after the offence has been committed.
§ It cannot be denied that the suffering and traumatic experience of the second woman is vastly greater than that of the first unfortunate victim, yet if this Bill is left unaltered the second, much more serious, offence would be punishable by a sentence of only 10 years' imprisonment while the first, and much less serious offence would be punishable by life imprisonment.
§ In an attempt to find a compromise solution acceptable to noble Lords in all quarters of the House, we have now increased our suggested maximum to one of 14 years, thus doubling the present level. I submit that this is more than adequate, given that in the more serious cases, as I have said, involving in the course of the attempt common assault or indecent assault, the overall length of sentence can be extended well beyond 14 years by means of consecutive sentences for the other crimes committed in the attempt. I beg to move.
§ Lord Houghton of Sowerby
My Lords, I wish to support this amendment. I do not know whether it is a unique occasion, but I would remind your Lordships that this afternoon we are being asked to impose the maxim um punishment of life imprisonment for crimes which previously have not carried such severity. We are asked to do this twice in one afternoon, to create, in one afternoon, two new crimes incurring life imprisonment. I doubt whether Parliament has ever done that before in all its history. I should have thought that one was enough to be going on with, and we have already done that earlier this afternoon. Now we are asked to do so a second time.
I think this is a most serious matter. The House is being asked to do this without any adequate consideration of the present pattern of crimes for which life imprisonment may be imposed. How long is the list? What are the relative merits of imposing life imprisonment for certain crimes compared with others? I know that in this particular case we are told that it is the practice, if not a principle, in our criminal law that the punishment for an attempt to commit a crime shall be as severe as the punishment for the committing of the crime itself. I think one wants to know what the crime is, when we have to look at the punishment for an attempt to commit it, and consider how far we are likely to get firm convictions and reliable judgments on attempts at a crime, which in many circumstances are very difficult to prove.
I think that another general question is raised here. Life imprisonment is either inhumane or the idea of the sentence itself is misleading. I believe the public are being deceived about the length of sentences that convicted persons are receiving for the crimes for which they are being punished. When you speak to people and say that a man has received a sentence of life imprisonment, they reply, "Oh, but it does not mean life. It cannot mean life". In many cases we know that it does not mean life. It would be interesting if the Minister could tell us the average length of a life sentence and how many people are in prison at the present time who are there for life and how many are likely to stay for life. This is really what we ought to be 890 considering and not just knocking up on the scoreboard crimes for which the life sentence may be imposed.
The European Commission of Human Rights questions whether some punishments are inhumane and degrading. I think we have this idea of punishment askew in our minds. Why do we recoil from some forms of punishment because we think they are either violent or unacceptable, yet we can put some people away and slowly destroy all that counts for the human personality over a long period of years? What is it for? What do we hope to gain from it? It will not be reformed characters, nor human beings who can return to civil life and lead a normal existence. What then? Should we keep them out of harm's way? Are they never to see the light of freedom again? What is it that we are trying to do? I could continue at length on the whole question of life imprisonment.
When we are asked to add to the crimes that may incur this form of imprisonment, we are entitled to question the whole concept of life imprisonment as applied to a growing area of crime. When we abolished capital punishment the question arose of what we should have as an alternative. Very little consideration was given in the debates on the abolition of capital punishment to the question of what was to happen to the offender, what a life sentence meant, and so on. Just recently we have had a particular case which has excited a great deal of public interest about whether the life sentence given to a woman now in prison shall be for life and what will happen to her if it is not. These questions raise considerable issues of public policy.
I hoped that we would not have incorporated the provisions of Clause 4—no, Clause 3. I do apologise to the House. It is a weary afternoon we have had; an abortive and long and complicated debate on something we are not deciding, and one's mind is a little distracted by it all.
I think it is a pity that Clause 3 is in the Bill, because it does not belong. We know it is here because the Government have been seeking some passing vehicle, a kind of kerb-crawling piece of legislation, upon which they might jump as it went by and so get this clause in the Bill. I remember an earlier occasion when we were questioning the incorporation of a clause in a Bill and asking why it was there, and the Minister said, "Well, the Government are entitled to snatch at anything that is passing by which will carry what we want to put on the statute book". This is another example of that. It has nothing to do with kerb crawling or with any of the sexual offences provided for in the Bill. The noble Lord opposite may well begin to puff and pant and show some disapproval of what I am saying, but I have not heard it suggested that a man jumps out of a car and rapes a woman on the pavement.
§ Lord Glenarthur
My Lords, I hesitate to interrupt the noble Lord, but I cannot think of anything which is more of a sexual offence than rape.
§ Lord Houghton of Sowerby
My Lords, in the context of what we were discussing, I accept what the 891 noble Lord says. It is intrinsically that if you look at it separately, but it really is no part of this Bill. This Bill should not be entitled "Sexual Offences", either. I do not want to go on unnecessarily, but someone has to make a stand on these questions. Public opinion goes in a certain direction, and the Government follow what they think is the public mood on some matters where I think serious harm can be done to the whole body politic, the freedom of the citizen and a rational approach to the question of punishment for crime.
This is one of the biggest issues of the day. We are all perplexed and baffled by it, and we do not know what to do. Some people think offenders should be sent to prison for long terms, and this idea of longer and longer sentences is growing. But then the prisons get over-crowded and it is said, "We must get people out of prison and shorten the sentences". The noble Viscount, Lord Whitelaw, says that we must introduce the short sharp shock. I can think of all kinds of short sharp shocks for some of the crimes in this Bill, but I do not think we want to introduce them.
I register my protest at this increase in the sentences. I think we should consider them separately and not have them dragged into this Bill, which opens up a new and entirely different field of discussion.
§ Lord Mishcon
My Lords, I want to be constructive and my constructive point is that I do not think anybody sitting in this House at this moment wants to emasculate the Bill. I believe that most of us are in favour of the purpose of the Bill, provided that there is proper protection for the citizen who might fall foul of the provisions of the Bill relating to kerb crawling. We have the essential element of persistence in it, and some of us—I shall not say all of us; I have no right to speak for the whole House—want to preserve this Bill, but many of us feel that the present Clause 3 should never have been put into a Private Member's Bill.
The constructive suggestion, if I may make it from this Dispatch Box, is this. There ought to be a meeting between now and Third Reading, at which I hope we shall get over the difficulties of the new clause, Amendment No. 10, and straighten out the wording there, in order to bring it within the principles which I believe were enunciated in the debate. At the same time, I respectfully suggest that at such a meeting, where all those who are interested, who have been speaking in this debate and who have taken a prominent part, will, I hope, have a voice, we should talk about the advisability of the insertion into this Bill of this attempted rape increased sentence. I have an idea that we may then come out with a one-clause Bill which will be very much worth while. But it may also be that other things will evolve from that discussion. If the worst came to the worst and there was no agreement, then we could have this out at Third Reading, but I am sure that at this time of the afternoon this is a sensible suggestion that might be considered.
§ Lord Harris of Greenwich
My Lords, if I may begin by saying how much I agree with what the noble Lord, Lord Mishcon, has just said, he has put forward a 892 sensible proposal that there should be some informal discussions between today and Third Reading. We want to get agreement on this Bill. I am sure the Government would welcome that and I am sure that the noble Baroness, Lady Vickers, would welcome it, but I think that it requires some initiative from the Home Office and I hope we shall get that from the noble Lord, the Parliamentary Under-Secretary.
I now turn to this amendment. Obviously, before saying anything else, I agree with what the noble Lord, Lord Mishcon, has said about the terms of this amendment and the suggestion that we might discuss this matter at any meeting that we had. But, turning just for a moment to the substance of the matter, I am well aware of the arguments which the Parliamentary Under-Secretary used at Committee stage, justifying what is a Government clause—not a Private Member's clause—in this Bill. However, I must say that, although I have the highest regard for the members of the committee who made this recommendation, I do not necessarily accept all recommendations from committees, however eminent they may be, and for one particular reason.
We cannot talk about creating new life sentences without taking some account of the position in our prisons at the moment. We now have more than 47,000 people in custody, living in conditions of intolerable squalor in many of those establishments, in conditions which are damaging both to the inmates and to the prison officers. But within that prison population of 47,000, we also have a most menacing increase in the life sentence population, and what we are being asked to do here is to increase still further that life sentence population. I very much hope that the Minister will deal with this aspect of the argument as well; namely, the life sentence position.
The conditions in many of our dispersal prisons, where these inmates are kept in custody, are extremely difficult, as the Minister will be aware. In many prisons, there is a dangerous, unstable situation and to add to the number of offences which can draw a life sentence is an extremely dangerous thing to do. I have heard no argument which justifies increasing a maximum sentence from seven years to life imprisonment.
Maybe there is a precedent—I cannot think what it could be—for ever having such a proposal put to the House to increase the maximum by such a massive margin. I repeat to the noble Lord, the Minister, that I hope he will look at this matter again. I am well aware of the recommendation which gave rise to this clause, but for Parliament to pass this, knowing as it does the gravity of the situation in our prisons, would be a very dangerous thing to do.
§ Lord Silkin of Dulwich
My Lords, I begin by saying how much I agree with my noble friend Lord Houghton. It really is unfortunate that a Bill which could be confined to a very simple short point to avoid, as far as possible, the nuisance of kerb crawling should have tacked onto it something as fundamental as that which we are now discussing. I say that it is fundamental, because it is right that one should consider this carefully as a general concept, if one is 893 thinking of increasing sentences to life imprisonment and, still more, from seven years to life imprisonment, and not simply in the context of a Bill of this kind.
That leads me—and I hope to be very brief—to my principal objection to the Bill as it stands. I entirely agree that one has to balance all kinds of different considerations—the legislature has to do so, just as the courts have to do so—when dealing with particular types of offence. I entirely agree that one of the considerations when dealing with attempted rape is that an attempt may be as evil and as damaging as the rape itself. One has to take that into account just as, when one comes to the next subsection, one has to take into account that an indecent assault on a girl under 13 may be equally as bad and as damaging to that girl as an attempted rape, yet the offence there is not put as justifying a penalty greater than 10 years.
The reality of the matter is surely that we have the penalty of life imprisonment for murder. We have it for manslaughter as well, and I agree that for manslaughter, sometimes, the events are of such lack of seriousness that a court will even pass the matter by altogether, or pass a sentence of only two or three years. Those are the exceptional cases. But what we are saying today in relation to murder is that a life sentence must really mean a life sentence—not in every case, but in many cases it must mean a life sentence. That has been said again and again by Home Secretaries, by Lords Chancellor and others, so that people feel that there is reality in the use of the life sentence when Parliament says that it should be on the statute book.
But are we really saying in the same way, in relation to this offence, that it must mean a life sentence. How many cases, I wonder, are there ever likely to be in which a life sentence would be imposed and must be imposed because no lesser one is possible for an offence of attempted rape? The two things are totally different in character; and the trouble is that once you put it on to the statute book that the maximum penalty is a life sentence, you are putting it on the same sort of level as murder and you are asking the court to look at it in the same sort of way. However sensible our judges may be in distinguishing between one type of offence and another, they cannot help having regard to the fact that both types of offence have that maximum penalty of a life sentence, and they will therefore look at them in the same way.
I hope that the very sensible suggestion made by my noble friend Lord Mishcon a moment ago will be accepted by the Government and by the noble Baroness who is in charge of the Bill, and that this matter, like all the others, will be considered again before Third Reading.
§ 7.30 p.m.
§ Lord Airedale
My Lords, perhaps I may very briefly give my reason for agreeing that Clause 3 does not belong in the Bill. When there is to be a very serious change in the criminal law it is a matter of great interest and concern to a great many Members of the House. It is simply not fair to expect them to scrutinise Private Members' Bills to see whether there are miscellaneous provisions in them, unrelated to the 894 main purpose of the Bill, which make serious changes to the criminal law. The Minister told us in Committee—I think he did; or at any rate he suggested it—that Clause 3 was justified because it followed the recommendation of a high-powered committee. I say to him that it is not the function of Parliament ever to rubber-stamp the finding of any committee, or even a Royal Commission. The function of Parliament is to study the reasons which the committee gives for arriving at its conclusion and for Parliament then to form its own opinion upon the reasoning put forward by the committee. That is another reason why I think it would be most unfortunate if this clause were inserted into the Bill.
§ Lord Glenarthur
My Lords, at the Committee stage the noble Lord, Lord Harris, suggested that it should be me, speaking on behalf of the Home Office, who dealt with this matter and not my noble friend. I hope my noble friend will understand if I take it because, she again indicated just now, this is really quite a wide matter. Indeed, the noble Lord, Lord Houghton of Sowerby, helped by his noble and learned friend Lord Silkin, has taken it even wider. Those noble Lords have talked about the whole subject of penal policy. The noble Lord, Lord Harris, extended it even further by drawing in the state of the prisons. Nobody could be more aware than I am, with my responsibility for prisons, of the difficulty associated with the huge numbers in prisons. I think it would be a mistake to go any further into that now.
The noble Lord, Lord Mishcon, suggested that this should be discussed elsewhere. I shall return to that point in a moment, if I may. All those noble Lords who have taken part in this debate so far have put their arguments forward, but before I give an answer to the noble Lord I should like to place one or two points on record. In doing so I may repeat some of the things, that I said in Committee, but I do not think there is any harm in that.
Of course it is not the purpose of Parliament to rubber-stamp what committees produce. I am not suggesting that. I do not think anyone in your Lordships' House could say that any recommendations, from either the 15th Report or the 16th Report—have in any way been rubber-stamped, judging by the discussions we have had today. They have been scrutinised with very great care. On the question of Government time, I should like to have been able to give a pledge of an early opportunity for full-scale amendment of legislation on sexual offences, as on many other matters, but I am quite sure that your Lordships will feel that to do so would be irresponsible.
I say that because, given the competing priorities and crowded parliamentary timetable which all Administrations face, and bearing in mind that I cannot in any event anticipate the Queen's Speech, I am not able to do so. But to my mind it would be more irresponsible and would be more open to criticism to neglect the opportunity to give courts adequate powers to punish serious offences when a suitable vehicle for legislation presents itself. I believe that this Bill is such a suitable vehicle; I understand that others do not. My 895 honourable friend in another place, whose Bill it was, was convinced that this was the case, and that is why she included Clause 3. The clause was considered and approved in another place, and through my noble friend Lady Vickers, it now comes before your Lordships for agreement. I propose to say little more about this now, but I want to state fairly clearly, so that they are on the record, the main points with which it is concerned.
This penalty increase is not a matter of now or never, but it is a matter of now or later. After the full consideration given to the general and particular principles at issue, I believe that it would be foolish and dangerous not to take the chance now before Parliament to enact Clause 3 of the Bill. I will refer to the points of substance, which are briefly these. First, as has been said, the Criminal Attempts Act 1981 enacts the general principle that the maximum penalty for an attempt should match the maximum for the full offence. 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.
Secondly, the Criminal Law Revision Committee considered the general principle in the light of the particular offence of rape and concluded that the rule should apply. Thirdly, "worst cases" means worst cases. This was a point raised by the noble and learned Lord. Lord Silkin, when he was talking about the length of life sentences. One imagines, for example, a rapist who may have been convicted several times for the full offence and who may indeed have served one or more terms of imprisonment. Finally, he attempts yet another rape but is interrupted by the arrival of other people. If the court is convinced that the pattern of offending points to the rapist needing to be detained until he is no longer a danger to women, it is absurd for the court to be fortuitously denied the power to pass such a sentence. The criminal law should protect women adequately, and that is a simple rationale for Clause 3 as it stands.
I believe that women need the protection of this clause. They deserve it. I think they would be disappointed without it. The Criminal Law Revision Committee recommend it. Attempted rape can be no less dreadful than rape itself, and to my mind it deserves the option of a severe penalty. Having said that, I note the concern which has been expressed by various Members of your Lordships' House that this probably ought to be discussed in another forum to see if it is possible to take it forward in another way—a modified way, or whatever. I hope that in saying that I am quite prepared to arrange a meeting of this kind the noble Lord, Lord Monson, will feel able to withdraw his amendment at this point.
§ Lord Monson
My Lords, I am most grateful to the noble Lord, Lord Harris of Greenwich, for his support. He introduced a most interesting new point, which had not occurred to me, about the ever-growing number of life prisoners and the difficulty this poses to the prison service. I am also grateful to the noble and learned Lord, Lord Silkin, for his support. I am 896 grateful to the noble Lord, Lord Glenarthur, for his reply, but I am bound to say that he has not answered the inherent contradiction in the Government's attitude. I say "Government's attitude" because the clause we are talking about is the brainchild of the Home Office. It is not the brainchild of the noble Baroness, Lady Vickers.
The inherent contradiction is this. If this amendment is not accepted, the maximum sentence possible for the most horrifying case of indecent assault imaginable—and one can imagine some very horrifying cases—will be a mere 10 years, whereas the maximum sentence for an almost innocuous case of attempted rape, where the woman in question was neither frightened to any degree, possibly because she knew the assailant quite well, nor had a single finger laid upon her will be life imprisonment. I think that is indefensible.
Before I decide what to do, perhaps I may ask the noble Lord, Lord Glenarthur, how long we shall have to consider these matters before the next stage of the Bill, because that is a point of some importance.
§ Lord Glenarthur
My Lords, I am in some difficulty on this matter because I believe that a day has been set aside, through the usual channels, for the next stage of the Bill. I cannot however remember off the top of my head when that day is.
§ Lord Glenarthur
My Lords, I am very grateful to the noble Lord the Opposition Chief Whip. This is a matter that will have to be discussed through the usual channels, but I shall do my best to make sure that a meeting will take place early.
§ Lord Monson
My Lords, I am very grateful to the Minister for that assurance; I think that will give us adequate time. I sense that the general feeling of the House is that this amendment should be withdrawn at this stage, but I reserve the right possibly to return to it at the next stage of the Bill. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Interpretation]:
§ [Amendment No. 12 not moved.]