§ 3.20 p.m.
§ Lord Glenarthur
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Glenarthur.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD WELLS-PESTELL in the Chair.]
§ Clause 1 [Riot]:
Lord Gifford moved Amendment No. 1:
Page 1, line 9, leave out ("is such as would cause") and insert ("causes").
§ The noble Lord said: We are about to enter the Committee stage of a Bill which I believe to be of the greatest importance to the expression of democratic freedom. The Bill, from the first clause onwards, grants to the police a great number of new powers, new legislative weapons. They are in possession already of a number of physical weapons and we are asked to approve an armoury of legal weapons. Many people have written to us expressing concern about whether a free society freely expressing dissent can exist when so many powers are given to the police. The amendment which I seek to move as Amendment No. 1 highlights an example of what seems to me to be an extended power.
§ I spent the past five months examining relationships between the police and a community of people in Tottenham. What was obvious was a remarkable variation in the attitude and approaches of different police officers to questions relating to public order and to community grievances. Some officers showed intense interest and concern and a readiness to listen to and work with whose who had grievances to express. Other officers, of high rank and low, acted oppressively, roughly and in ways which were motivated by prejudice. There is no question of saying that laws such as this are going to be used well by the police or badly by the police, but in looking at this Bill we must avoid the danger of thinking of the police as some kind of monolithic entity.
§ With Amendment No. 1, I propose to take Amendments Nos. 2, 4 and 5 because they have a 911 common theme. The first two amendment concern the offence of riot and the second pair concern the offence of unlawful violence. In each case, they seek to address what appears to be a remarkable innovation in the Bill. Both these offences, and particularly the offence of riot, are offences of the greatest seriousness. We shall be debating in a short while the penalty for riot. It is to be life, according to the Bill, or not exceeding 10 years, according to the proposed amendment. For unlawful violence, it is to be five years.
Yet there appears in both these clauses a provision—subsection (4) in the case of Clause 1 and subsection (3) in the case of Clause 2—to the like effect, namely:
No person of reasonable firmness need actually be, or be likely to be, present at the scene",
§ when one of these offences is committed. In other words, we are being asked to approve that offences carrying these heavy penalties may be committed although there is no person on the scene, no person likely to be on the scene, no victim therefore of the unlawful violence and no likely victim of the unlawful violence or the violence of riot.
That seems to be extraordinary. I can understand the provision when it comes to the offence of affray in Clause 3. The offence of affray is committed when people fight with each other. It may well be that when people fight with each other it is right that there should be no other parties present on the scene. But the offence of riot and the offence of unlawful assembly are meant to be the most serious offences where public tranquility and order are disturbed. My amendment seeks to delete the statement in Clause 1(4) that,
No person of reasonable firmness need… be… present at the scene",
and amend the first subsection by saying that riot happens,
Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as causes"—
that is my amendment—
a person of reasonable firmness present at the scene to fear for his personal safety".
§ There is always going to be someone present. "A person of reasonable firmness" would of course include a police officer if the object of the riot was the police and it was the police who were put in fear. For these heavy offences to be brought out when there is no likely victim gives, in my submission to the Committee, far too much leeway for the prosecuting authorities to bring charges under these serious offences where there is no need. I beg to move Amendment No. 1.
§ Lord Renton
Like the noble Lord, Lord Gifford, I too believe that this Bill is important because it will strengthen democratic freedom. But I hold that view for reasons which may differ from those of the noble Lord. I take the view that you cannot have freedom without order. There is too much disorder in our society and it is our duty to strengthen the law in the hope that we have more order and less disorder. It is in the light of that that I think we have to consider this first clause and the noble Lord's amendments.
912 Let us consider what the effect of the first amendment would be. The noble Lord wished to leave out the words,is such as would cause",and insert "causes". But if we read from the beginning of this subsection I am afraid we find that the noble Lord's amendment would undermine the effect of it. The subsection states:Where 12 or more persons who are present together use or threaten unlawful violence".The amendment is inconsistent with the concept of threatening unlawful violence because, in the nature of things, when a threat is made you should not have to wait until you know the cause of it before somebody is held to be guilty of the threat. Therefore, I say that the first amendment simply does not fit into subsection (1).
So we come to the second amendment, which is to leave out subsection (4) altogether. I find that subsection (4) is, in the context of the clause, perfectly reasonable. It states:No person of reasonable firmness need actually be, or be likely to be, present at the scene.It has been established for many years in the common law that, for example, merely threatening, causing fear, offering violence in a general way to people to whom these threats are directed can in itself be an offence. For us to say that no people need actually be present at the scene of the threat seems to me to be reasonable, and to eliminate the words in subsection (4) could, in certain circumstances—comparatively rare circumstances—cause difficulty when it is clear that there should be prosecution.
I do not think it is necessary for me to comment on the other two amendments to which the noble Lord referred, except to mention that his Amendment No. 5 has been superseded by his manuscript amendment and therefore we should ignore Amendment No. 5, as printed, and go by the manuscript amendment, which turns it into Amendment No. 5ZA. That means that instead of subsection (2) of Clause 2 being omitted, it is to be subsection (3).
§ Lord Gifford
The noble Lord is absolutely right. I should have made it clear that there has been a misprint, which is corrected by the manuscript amendment.
§ Lord Renton
I am grateful to the noble Lord. I turn, therefore, to subsection (3) of Clause 2. We find that it is in exactly the same terms as subsection (3) of Clause 1, and my comments would hold in the same way. I do not think that my noble friends on the Front Bench can reasonably accept this group of amendments.
§ 3.30 p.m.
§ Lord Glenarthur
The purpose of the amendments, as the noble Lord explained, is to replace what is known as the hypothetical bystander test in Clauses 1 and 2—but, curiously enough, not in Clause 3—with a requirement that there must be present a person of reasonable firmness who actually fears for his personal safety.
913 The need for the hypothetical bystander test is explained in paragraphs 3.31 to 3.39 and 5.35 of the Law Commission's report. Briefly, it establishes a common minimum threshold for these offences. If bystanders must be present then the success of any prosecution would depend, first, on third parties being present, and secondly, on their degree of fortitude
I am sure that that would lead to variable results. Where, for example, violent disorder was witnessed only by the police or by bystanders of unusual fortitude, no offence would be committed; while the same degree of violence might lead to a conviction if witnessed by someone easily put in fear, such as an elderly or frail person. It seems wrong that conviction for a serious indictable offence should turn on the timidity or temerity of who happens to be there. That seems to be largely the practical effect of the concern expressed by my noble friend Lord Renton.
These amendments seek to avoid this consequence by requiring that the bystander caused fear should still be one of reasonable firmness. But the commonest raction to mob violence is to make one self scarce. Anyone who deliberately stays at the scene of a riot is likely to be a person of more than reasonable firmness or perhaps less than reasonable common sense. If these amendments were passed and the police could not find a bystander of reasonable firmness who had stayed to witness the riot, then those involved would escape the consequences of their action.
The noble Lord suggested that the person of reasonable firmness present at the scene could be a police officer. That may be so, but the courts may find that a police officer is of more than reasonable firmness: hence his testimony would not be sufficient. In such a case, someone else would be required to be present. I hope that in the light of that explanation of the reasons lying behind the hypothetical bystander case, the noble Lord will feel able to withdraw his amendment.
§ Lord Gifford
I certainly do not agree with the noble Lord's last point. A police officer would be the person who a jury could quite capably find to be a person of reasonable firmness. Nor do I agree with his point about the people who run off in fear of the approaching riot, because they are precisely the people who fear for their safety. No doubt they could be called to give evidence.
I find it very worrying that we are strengthening within the law an offence which does not have to have a victim. 1 fully see the force of the point which is made about the mob surrounding an old lady. I do not intend to press these amendments at this stage, but I shall go away and think about that point and also the first point made by the noble Lord, Lord Renton. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved. ]
Lord Elwyn-Jones moved Amendment No. 2A:
Page 2, line 9, leave out ("life") and insert a ("a term not exceeding 10 years").
§ The noble and learned Lord said: Clause 1, as the Committee has already heard, deals with riot. 914 Subsection (6) of Clause 1 makes a person guilty of riot liable on conviction on indictment to imprisonment for life, or a fine, or both. I submit that riot is not so grave an offence that it should attract the penalty of life imprisonment. That is reserved as a penalty for the gravest of criminal offences: for murder or for the most serious offences against personal property.
§ I call in aid the view of the Law Commission on this matter which recommended a term of 10 years—and that, heaven knows, is a pretty severe sentence—as nearer the mark. It is that figure which I have inserted in my amendment. It is only fair that I should add, in eager anticipation of what the noble Lord, Lord Glenarthur, is going to say, that on Second Reading he said that the Government do not have a closed mind on this matter. I have reason to hope that since then his mind has indeed become more open and that the amendment I have proposed will meet that openness of mind and that requirement of justice. I beg to move.
§ Lord Renton
The view put forward by the noble and learned Lord, Lord Elwyn-Jones, having previously been put forward by the Law Commission, naturally commands respect. But we have had very serious riots in this country from time to time. If a riot causes death, great destruction of property, injury and disturbance of the lives of many people, we should think in terms of a very stiff penalty for it.
We must remember that when fixing maximum penalties we are intending only to cover the worst possible case that may arise. I should have thought that it would be very rare indeed for life imprisonment to be awarded as a sentence of the court after a conviction for riot. Nevertheless, one can imagine, in view of some of the very ugly riots there have been in recent years, in this country as well, that there could be the occasional case where life imprisonment might be appropriate. It could be in a case where it is not possible to prove murder or manslaughter but where, nevertheless, death, serious unjury and dislocation of life occurs. I hope that the Government will therefore say that they have this right in the first place.
§ Lord Hutchinson of Lullington
I should like to support the amendment. I say straightaway to the noble Lord, Lord Renton, that if he were to look at appendix C on page 22 of the Law Commission Report he would see some very surprising statistics on the sentences that have been passed over the five years covered—the worst possible offences under the public order situation. Apart from the years covered there, the maximum sentence ever passed in common law was in the neighbourhood of seven years, and there is one of those. Otherwise, there are few of five years, and all the rest are under five years.
The Law Commission said, I suggest very wisely, that when deciding the penalties of public order offences, first, they should relate to the current practice in the courts in regard to similar or parallel offences and, secondly, that they should be assessed in relation to the evidence that is necessary to prove a conviction.
As far as affray is concerned there is no need for anyone to be present, mere threats are enough, and three years is the maximum. As regards violent disorder, which is more serious and involves a combination of people, threatening violence is 915 sufficient, and five years is the maximum. When it comes to riot, which is the major disturbance with 12 or more people combining together, no one need actually be injured, no property need actually be damaged and there is no need for any offence such as grievous bodily harm or actual bodily harm, although they may of course arise in the course of a riot. The maximum penalty, I would suggest, and as the Law Commission says, should be less than for the most serious possible offence of causing grievous bodily harm and, of course, that of murder.
I suspect that life sentence was included in the Bill because of a certain sentence that was passed at the Central Criminal Court, a sentence which appeared to everybody who knew anything about the situation to be completely irrational and which, I understand, has been reduced, since the time when the Bill was before another place, to something like two years.
§ Lord Renton
Would the noble Lord care to confirm that the Law Commission's statistics on sentences awarded were all of them statistics for riot under the common law? May not the position have changed somewhat when the Bill comes into force because, instead of merely three people being enough to constitute riot under the common law, under the Bill no fewer than 12 people will have to be proved to have taken part, which surely alters the situation somewhat?
§ Baroness Macleod of Borve
I have always thought with regard to somebody going out to make a riot that, if he were given a deterrent in the shape of a very severe sentence, it might possibly deter him. One knows that it deters murderers. This has been proved: when they go out with a gun and kill somebody, afterwards they say that they wish they had never had a gun.
I feel that the maximum possible sentence should be included in the Bill because the judges in their wisdom will then impose whatever sentence they think right at the particular time for the particular offence. In view of the fact that 10 years is rapidly reduced to just over two years by the parole board, one realises that some of those who had gone out to take part in a riot would probably soon be out of prison to take part in yet another riot. I do not think that it would be fair on the judges to inhibit their sentencing to only 10 years. Like my noble friend Lord Renton, I am certain that the maximum penalty of life would hardly ever be imposed, but I feel very strongly that the judges should be able to impose it.
§ 3.45 p.m.
§ Lord Harris of Greenwich
I was surprised to hear the noble Baroness, Lady Macleod, who was one of my colleagues on the parole board, give some rather unusual statistics a few moments ago. As I understood it, she said that a 10-year sentence could become two years as a result of some decision by the parole board; but, of course, that is entirely inconsistent with the present parole scheme. There is no way in which the parole board could make such a recommendation.
§ Baroness Macleod of Borve
I was talking perhaps slightly off the cuff and my mathematics were wrong.
§ Lord Harris of Greenwich
The Committee can be assured then that that problem will not present itself.
Secondly, if the parole board makes any form of recommendation, Ministers are entitled to disagree with it, and no doubt they would in appropriate circumstances.
I hope that the Committee will hesitate before providing another maximum sentence of life imprisonment. Primarily the life sentence is for people convicted of murder and, in some cases, manslaughter. In certain special circumstances, of course, a person who has been repeatedly convicted of arson can be sentenced to life imprisonment, and on some occasions people repeatedly sentenced for offences of rape will be given a sentence of life imprisonment.
Recently your Lordships' House decided—I think rightly, although I am bound to say that I hesitated at the time—that in certain cases the courts could impose a life sentence for an offence of trafficking in category A drugs. On balance, I think that we were right to do that. However, I hope that we are not going to move into a situation where, in order to demonstrate our disapproval of certain types of behaviour, we automatically accept the argument that the only way in which we can demonstrate that disapproval is to create a maximum sentence of life imprisonment.
There are, I think, real risks involved in this approach. In some cases, I think that there is a danger that in a curious way it almost trivialises convictions for the ultimate offence of murder. If we constantly add one type of offence to another for inclusion in the category for which courts can give sentences of life imprisonment, there is a risk that that would take place.
Lastly, I hope that the Committee will hesitate before overruling the Law Commission on this matter. The Law Commission examined this situation with considerable care and attention—indeed, my noble friend Lord Hutchinson dealt with this matter a few moments ago—and provided, I think, a very persuasive argument as to why 10 years was right. Obviously, it is for Parliament to make the final decision, but I am bound to say that at present I have heard nothing that would justify overruling the Law Commission in this matter. I therefore very much hope that the House will pass the amendment.
§ Lord Hylton
I would be grateful if the noble Lord the Minister would consider the following case, and I apologise for not having given him warning of it.
Let us assume that a riot takes place and that somebody is severely injured or killed and that some or all of those who were behaving riotously are arrested, but the person who did the killing or injury gets away scot free. Surely it would be a very great injustice if a sentence as severe as life imprisonment was imposed on those who were behaving in a riotous manner but the actual killers or those who inflicted injury were not apprehended.
§ Lord Somers
With the greatest possible respect to the noble Lords who have put their name to this amendment, and that is not merely formal praise because I do have the very greatest respect for them, I find myself practically in total agreement with what 917 has been said by the noble Lord, Lord Renton. In view of the present record of absolutely unbearable violence, including outrageous attacks on the elderly and the infirm, I cannot think that any desire to be kind to the criminal is any longer justifiable. I should have had some reason to think the amendment tolerable if it had mentioned a term of not less than 10 years—I know that that is not usual in our legal practice—but I cannot think that anything less is really suitable for the offences that one comes across today.
The Earl of Halsbury
May I ask the noble Lord the Minister in his reply to clarify the following point. If this amendment were allowed, what sanction would the courts have against the persistent offender, the bully-boy, the rent-a-mobster and the nasty brigade who make this their practice?
§ Lord Boyd-Carpenter
Following on that point, may I ask this specific question of my noble friend: If this amendment were adopted, would a second offence of riot also carry a sentence limited to 10 years? Your Lordships know that there are people in our society who are deeply involved in this kind of thing. Your Lordships could well envisage a case where someone is convicted and sentenced to 10 years imprisonment and, thanks to the parole board—here I take up the point of the noble Baroness—he is released well before the end of that 10 years and commits a second offence. If this amendment is accepted, for the second offence of riot would the court similarly be restricted to the imposition of only 10 years?
Perhaps I may make a final comment. One knows that there are certain organisations in this country, notably the National Council for Civil Liberties, who want to whittle away a good many of the strengths of this Bill, and the penalties that it imposes. I myself should be very disappointed if, on our first series of amendments, we started that process.
§ Lord Glenarthur
As the noble and learned Lord, Lord Elwyn-Jones, explained, supported, as he was, by the noble Lord, Lord Hutchinson of Lullington, 10 years was the maximum sentence recommended for riot by the Law Commission, and the Government accepted that recommendation in the White Paper that was published last May. We did so in the knowledge that the recommendation was in line with current sentencing practice as set out in Appendix B to the Law Commission's report. However, as the noble Lord, Lord Hutchinson of Lullington, has indicated, in November last year a sentence was passed at the Old Bailey which suggested that a 10-year maximum might not be in line with current sentencing practice. That sentence was a life sentence passed on a Chelsea football fan.
The sentence was made the subject of an appeal and the Government thought it right to keep the position open pending the hearing of that appeal. For that reason the proposed maximum sentence for riot which appeared in the Bill on its introduction in another place was life imprisonment; but we made it clear then, and I am certain that I made it clear at Second Reading and at other stages' of the Bill, that the Government had an open mind on the subject, and that we wanted to study with care the judgment of the Court of Appeal and listen to the views expressed in 918 Parliament before coming to a final decision. The Court of Appeal heard this particular case on 19th May and the sentence for riot in this case was reduced to three years.
My noble friend Lord Renton was particularly concerned with the specific harm that might arise for any particular offence. I can assure him that if there is evidence of specific difficulty in cases of grievous bodily harm, arson, criminal damage with intent to endanger life and that sort of offence, then life imprisonment will still be available as it is covered by another statute. I think that answers the point raised by the noble Lord, Lord Hylton, as well.
My noble friend Lord Boyd-Carpenter raised the question of second offenders. It would be a matter of 10 years being available every time and not a greater amount because it is a second offence. At Second Reading, a number of noble Lords urged us to return to a maximum of 10 years, and whilst I accept the strong arguments that have been put by the noble Lord, Lord Somers, and by my noble friend Lady Macleod, that there is some feeling on this issue, in the light of the Court of Appeal's recent judgment and the views that have been clearly expressed, both here and in another place, we believe that 10 years is the right maximum sentence for riot. Therefore I am happy to accept the amendment of the noble and learned Lord.
§ Lord Elwyn-Jones
I am grateful to the noble Lord for taking the view that he has so firmly expressed. I am bound to say that I was surprised, if not appalled, by some of the remarks that have been made. If a murder or a wounding has occurred in the course of a riot, then of course the police will seek out the offender and try him for those offences, which can carry a life sentence. Of course that will be the procedure that will be followed. The noble Lord, Lord Boyd-Carpenter, does not love the parole board, does he? It is a hypothetical situation. As the noble Lord, Lord Harris of Greenwich, has said, when a 10 year sentence has been passed, the idea of release after two years and a quick return to riotous behaviour is so fanciful and unreal that it ought not to disturb your Lordships.
§ Lord Boyd-Carpenter
If the noble and learned Lord will allow me, is he really saying that in the case of a second serious offence of riot he feels that, even then, the sentence should be 10 years or less?
§ Lord Elwyn-Jones
I feel that the term of 10 years for riot, even in the case of a second offence, is the right sentence. Ten years is 10 years is 10 years. It is not a small, trivial term that can be readily laughed off. I think that the Committee has a responsibility to give responsible advice in this difficult field. With very great respect, the recommendation of the Law Commission was considered with great care by a distinguished body, which is not famous for taking less than full responsibility. I support that recommend-dation, coupled with the practical arguments that have been made, that life imprisonment should be reserved as the special, severest penalty the law can provide. We have abolished the death penalty, and the sentence of life imprisonment, as has been said, should not be diminished in significance by being used for something less than the most grievous form of crime.
§ Lord Renton
Your Lordships will no doubt accept the advice given by my noble friend Lord Glenarthur. Perhaps I may say that in the light of his comments I, too, accept his advice, but I express the hope that there will not be serious riots in which death and injury take place and the offenders cannot be found. In the riots, the deaths and injuries that occur will no doubt have been caused by those who started the riots.
§ On Question, amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 [Violent disorder]:
§ [Amendments Nos. 3 to 5ZA not moved.]
§ Clause 2 agreed to. Clause 3 agreed to.
§ Clause 4 [Fear or provocation of violence]:
§ [Amendments Nos. 5A to 6 not moved.]
§ 4 p.m.
Lord Plant moved Amendment No. 7:
Page 3, line 15, leave out from ("another") to ("or") in line 18.
The noble Lord said: The law as it stands with regard to threatening, abusive and insulting behaviour is contained in Section 5 of the Public Order Act 1936. It stands on two legs and is stated in relatively unequivocal terms. One leg demands an intent to cause a breach of the peace, while the other focuses on the consequences of the behaviour rather than the state of mind of the perpetrator—that is,
whereby a breach of the peace is likely to be occasioned".
I suggest that it is on this latter leg that the great majority of arrests and prosecutions are based. That suggestion is supported by the High Court judgment in Parkin v. Norman 1982, which clearly states inter alia:
It is not necessary to prove an intent to use threatening, abusive or insulting words or behaviour".
§ That briefly is the existing state of the law.
§ A close look at the combined effects of Clauses 4, 5 and 6 of the Bill will show, I suggest, a subtle but dramatic change in the burden of proof for offences of disorderly behaviour. Clearly the intent or the state of the offender's mind must be proved in order to substantiate an offence under Clause 4. I recognise that the Government are anxious to maintain what is fashionably called a balanced view, but I suggest that the balance has been tilted too far in favour of the defendant against the needs of an orderly, peaceful society.
Clause 4 states:
A person is guilty of an offence if he"—
and the conduct is then outlined, followed by what we see as the gravamen of the argument:
with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked".
§ A constable will be required to show and to prove one of two impossibles: either what was in the mind of the offender or what was in the mind of the victim. The legal niceties are fine when presented in the calm 920 atmosphere of a court room or a debating chamber, but in the rough and tumble of a disorderly or violent situation on inner-city streets they can only present a massive obstacle to a young constable doing his best to keep the peace.
The necessity to show what was in the mind of the offender is reinforced by Clause 6(3). That states, in some of the plainest language of the Bill:
A person is guilty of an offence under section 4 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting".
I stress the words:
only if he intends",
or is aware that it may be".
§ Plainly that, coupled with the wording of Clause 4, will definitely rob the police of this country of one of their most useful weapons in their fight to maintain the public peace and to deal with disorder. The purpose of the amendment is to attempt to preserve the present situation. I beg to move.
§ Lord Gifford
It may be convenient if I speak to Amendment No. 9, which also seeks to reduce the long-windedness of Clause 4 in a slightly different way. Although the noble Lord, Lord Plant, and I have had differing views over many matters relating to public order, I think that we agree on this. It is essential that a clause like this, which will be operated day after day, both by police officers on the streets and by magistrates in magistrates' courts, should be clear in its terms.
We have Section 5 of the Public Order Act 1936, which has been operated for many years and which is much clearer in its terms. It says quite simply that it is an offence to use,threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned".Those words have been interpreted by magistrates in case after case, because this is a most important small-scale public order offence.
Now we are to substitute for that a much more complex provision in Clause 4(1) of the Bill. There are four quite separate alternative ingredients in the offence. The first two have the element of intent and so to some extent replicate the old law. The last one,or it is likely that such violence will be provoked",to some extent replicates the second limb of the existing law. The third one, which my amendment would remove, introduces new criteria—whereby that person is likely to believe that such violence will be used"—which I submit would be wholly unworkable in the ordinary rough and tumble of the situations for which the provision is designed, as the noble Lord, Lord Plant, said.
Exactly which of the proposed amendments is right—and there is another one in the name of the noble Lord, Lord Foot—I am not quite sure. But I hope that the Minister will agree to look at them all to see whether we can at the end of the day simplify what is a quite unnecessary, convoluted clause. It is much more complicated than the one proposed by the Law Commission in its draft Bill, and if it is not amended, 921 improved, streamlined and clarified, it will cause enormous difficulties for magistrates' courts up and down the country.
§ Lord Hutchinson of Lullington
Perhaps I may add a word or two on these amendments before referring to Amendment No. 10, which stands in my name and in the names of my noble friend Lord Foot and the noble Lord, Lord Mishcon. I have a lot of sympathy with the difficulties of the noble Lord, Lord Plant, in relation to what the police will have to do when faced with disorder on the streets. We would seek to remove in due course those words which involve the term "is likely to believe". When there is a phrase such as:whereby that person is likely to believe that … violence will be used or it is likely that such violence will be provoked",it requires an entirely subjective judgment by the police and by the court that has to try the matter later. Our view is that those words in Clause 4 are directly bound up with similar words used in Clause 5.
Our view about the two clauses is that words which are so broad and so vague as those should not be in a clause which carries imprisonment as a penalty. We see that there is a point in using those words in regard to an offence which is only triable summarily and for which the penalty is only a fine, for quick justice in magistrates' courts where it will not perhaps matter so significantly if such broad phrases are used. The two clauses lie together.
If I were to move my Amendment No. 10, I should do so with a view to Amendment No. 13 being considered in due course. That gives me the opportunity to say to the Committee that Amendment No. 13 is one of a number of amendments which have been put down in relation to Clause 5 for the improvement of that clause, if it is capable of improvement.
The intention is clearly expressed on the Marshalled List that certain noble Lords will in due course oppose the Question that Clause 5 shall stand part of the Bill. In a desire to save time, and in view of what has been said in relation to the time taken in Committee on Bills that come before us, we intend not to move those amendments which try to improve Clause 5—I say that because Clause 4 goes with it—because all those matters will be subsumed in the debate which the Committee will have on whether Clause 5 shall stand part of the Bill.
I hope that the Committee will appreciate that the intention is merely to ask. Members not to rehearse the arguments on specific matters in Clause 5 which merely make Clause 5 an unviable clause in total, so that the whole discussion can take place at one time. I do not intend to move Amendment No. 10.
§ 4.15 p.m.
§ Lord Foot
I wonder whether I may say a few words in support of my noble friend Lord Hutchinson. I also think that it would be convenient if we also consider Amendment No. 10, which stands in his name and mine. All the matters spoken to by the noble Lord, Lord Plant, and others and this matter are all part of the same issue.
Clause 4 replaces Section 5 of the Public Order Act 1936. Clause 4 and the 1936 Act deal with behaviour 922 of one kind or another which is threatening, abusive or insulting. Under the 1936 Act it is necessary to prove one of two things: first, that there is an intent to provoke a breach of the peace; or, regardless of intent, the conduct is such that a breach of the peace is likely to be occasioned.
Clause 4 gets rid of the breach of the peace test and substitutes a test of whether the conduct complained of is aimed at a particular person, and, secondly, whether it is intended to cause that person to believe that violence will be used against him or some other person, or is intended to provoke the use of unlawful violence by that person or another.
The purpose of the new test provided in Clause 4, by eliminating the breach of the peace element from consideration, is much to be preferred. One can easily think of circumstances in which unacceptable threatening words or behaviour occur without there being any likelihood of there being a breach of the peace. It has long since been recognised, as I understand it, that the 1936 Act is defective in that regard. It makes the only test whether there is likely to be a breach of the peace. Clause 4 does not stop there. It goes on to provide that it shall also be an offence if the threatening behaviour is such that the person against whom it is directed is likely to believe that such violence will be used.
Those are the words to which everyone who has contributed to this debate object. They are new. They require the court to consider whether the behaviour was likely to lead to unlawful violence or the fear of unlawful violence and likely to provoke such unlawful violence—essentially objective tests—and in the absence of sufficient proof of intent to consider what the effect of the behaviour was likely to be on the mind of the person or persons against whom the behaviour was directed. That is, as my noble friend said, a highly subjective test. It imposes an almost intolerable burden on the courts. It introduces a new element of uncertainty. It extends the court's inquiry not only into the state of mind of the accused person but also into the effect on the mind of the person against whom the behaviour was directed.
There is no need for the inclusion of such a provision. The difference between Clause 5 and Clause 4 is that in Clause 5 an offence of using insulting, abusive or threatening behaviour is created which is complete without any proof of intent on the part of the person engaged in that behaviour.
If we were to eliminate from Clause 4 the words to which objection is taken, under Clause 4—the much more serious offence—there would be an obligation on every occasion for the prosecution to prove to the satisfaction of the court that there was a guilty intent. In cases where that could not be sustained, it would be open to the prosecution to charge a person under Clause 5. In that event the test is purely objective and has nothing to do with the intention in the mind of the alleged offender.
I hope that it may be possible for us to dispose of the whole of this matter on that basis, so that when we come to Amendment No. 10 I can agree with my noble friend that it should not be moved.
§ Lord Renton
I hope that it will not distress noble Lords opposite if I say that I am in some measure of agreement with them.
§ Lord Renton
It seems to me that, although the intent behind Clause 4 is sound and good, it is going to cause trouble, especially in the magistrates' courts. Those conducting the prosecution on behalf of the police will find themselves in a position that is not entirely unusual of having to prove either the intention of the alleged offender or the likely effect upon the mind of the intended victim. It is not entirely unusual for either of those things to have to be proved in court under various provisions of existing law. But when one tries to unravel the formula contained in lines 14 to 19 of Clause 4, one can see that lay people especially, and indeed sometimes lawyers, will have a good deal about which to argue.
My plea therefore to my noble friend on the Front Bench is to take this away, to consider all that has been said, and to see whether he cannot get the formula simplified by the draftsman between now and the Report stage.
§ Lord Silkin of Dulwich
I hope that the noble Lord, Lord Renton, will not feel aggrieved if I say that I agree entirely with all that he has said. It seems to me that where the draftsman has fallen into pardonable error is that he has tried to bring everything into the clause that he could think of, to cover all possible events that could conceivably happen. In doing so—it is entirely praiseworthy—he has made the clause extremely difficult either to construe or to operate in practice. Although noble Lords from this side of the Committee spoke, as usual, with great clarity and lucidity, they made me feel that if I was a member of a bench of magistrates, seeking, in a particular case, to dissect the facts in the light of the views that they have expressed as to the meaning of the clause, as it now stands, I would have very great difficulty.
Accepting that the draftsman had a purpose in adding these extra pieces to subsection (1), I agree with the suggestion of the noble Lord, Lord Renton, that the Minister should look at the clause again to see whether there is a way of effecting the purpose of the draftsman without the complications that the clause undoubtedly now contains.
§ Lord Denning
I can understand the desire to improve Section 5 of the 1936 Act, which talks about insulting words and so on likely to cause a breach of the peace. This clause is a very good attempt to get the matter clear. On the other hand, it is not perhaps as clear as it should be. I agree that it would be better if the clause was reconsidered because of the difficulties of the prosecution, sometimes, in proving the likelihood of what a person believes or not. I support the view that the clause should be taken back and reconsidered.
§ Lord Monson
There is little that I can add to the criticisms already made. I agree with everything stated by my noble and learned friend Lord Denning, by the noble Lords, Lord Renton and Lord Foot, and by the noble and learned Lord, Lord Silkin, in relation to the matter.
§ Lord Glenarthur
It appears from what I understood to have been the arrangements on grouping, reached 924 through the usual channels, that there have been some changes. In responding now to Amendment No. 7, I believe that it is the feeling of the Committee that I should respond also to Amendments Nos. 9 and 10 and that the noble Lord, Lord Hutchinson, will not be moving Amendment No. 13 as that would be subsumed in the Question whether Clause 5 shall stand part.
§ Lord Glenarthur
I am grateful. I shall therefore cover a certain amount of ground. The noble Lord, Lord Plant, has explained his concern that Clause 4, which is intended to be a restatement of the existing offence of threatening behaviour, was becoming unduly complicated. That was the burden, too, of remarks made by other noble Lords recently. The noble Lord went on to say that the police would find it more difficult to understand than the offence in Section 5 of the Public Order Act 1936 which it is designed to replace. I can understand his concern, but I am afraid I do not believe that his amendment would help matters. Indeed I fear that it would significantly reduce the usefulness of the offence to the police. I do not believe that this is what he wishes.
In seeking to shorten the wording of Clause 4(l)(b), the noble Lord's amendment deletes certain elements of the offence which must be retained if Clause 4 is to have broadly the same scope as Section 5 of the 1936 Act. Clause 4 seeks to cover a wide range of situations, and in taking, really, his axe to it in this case the noble Lord, perhaps unwittingly, would cause severe damage to its scope. His amendment, if carried, would exclude the situation in which a defendant taunts the police and this leads his associates to attack the police. It would exclude the defendant who hurls threats, abuse or insults at someone with intent to provoke him into violence, although the recipient in fact remains unmoved, and it would exclude the situation where the defendant's aggressive conduct is likely to cause fear of violence in the recipient.
I now turn to Amendments Nos. 9 and 10. As the noble Lord, Lord Hutchinson, has explained, his amendment would delete the tailpiece of Clause 4(1) which is the likelihood limb of the offence. Prosecutors would be required to prove that a defendant's conduct was intended to cause fear of violence or to provoke someone into violence. This would seriously weaken the offence. It is often possible to show that violence is likely to result if someone persists in aggressive behaviour; it is less easy to prove that that was necessarily the defendant's intent. The defendant may not have given much thought to the likely consequence. But if violence is the likely consequence of his threatening, abusive or insulting behaviour, we believe that he should be guilty of an offence. For him to be found guilty under Clause 4, that means retaining the likelihood limb of the offence.
In couching Clause 4 in terms of intent or likelihood we are not, as I am sure the noble Lord realises, breaking new ground. Clause 4 is modelled on Section 5 of the Public Order Act 1936, which penalises threatening behaviour which is intended or likely to occasion a breach of the peace. Section 5 was, in turn, modelled on Section 54(13) of the Metropolitan Police 925 Act 1839, which penalises threatening behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned. Certainly, the likelihood limb of the offence has a long pedigree, and I am not convinced that it has led to injustice.
What has sometimes led to injustice has been the rather loose interpretation on occasion of what constitutes a breach of the peace. We took to heart the Law Commission's strictures that breach of the peace should no longer be an ingredient of a modern statutory offence. The result is the rather more complicated wording about fear of provocation of violence of which the noble Lord, Lord Plant, complained. But I hope that the noble Lord, Lord Hutchinson, will give us credit at least for spelling out in clearer terms the conduct which is prohibited by this offence, and that he might accept that with this classification of what constitutes a breach of the peace, it is justifiable to retain the likelihood limb of the offence.
The noble Lord, Lord Gifford, follows the noble Lord, Lord Hutchinson, some way down the same path. He would like to delete the likely limb of the offence in so far as it relates to the victim of the threatening behaviour being likely to fear that violence will be used. Again, this would represent a significant weakening of the offence. This limb of the clause is intended to protect those who are subject to fearsome insults or abuse and who are not provoked into fighting back but are frightened and believe that they themselves are about to be attacked. An example would be a gang of youths hurling racialist abuse at an Asian woman who is most unlikely herself to respond with violence. But if the abuse is sufficiently threatening, or if the area has a history of racial attacks, she may well fear that the taunts will be followed by violence.
Another example would be workers running the gauntlet of shouting pickets. Where the strike breakers are heavily outnumbered they are most unlikely to respond with violence; but if the pickets are sufficiently numerous and threatening, that may well cause them to fear violence. In either case we believe that the law should enable the police to intervene, but they would be powerless to do so under Clause 4 if the amendment of the noble Lord were to be accepted.
§ Lord Gifford
Would not both those examples be covered by either the first limb—the intent to cause a person to believe that immediate violence is going to be used against him—or the "likelihood" limb in the last clause? Does not my amendment in fact pick out the one difficult area which is not necessary without jettisoning the "likelihood" test?
§ 4.30 p.m.
§ Lord Glenarthur
I do not think it does. I shall reflect upon the words of the noble Lord, if I may. But both the noble Lord, Lord Foot, and the noble Lord, Lord Gifford, objected to the element whereby that person is,likely to believe that such violence will be used".If we excluded those words, we would exclude threatening behaviour which intimidates another. The Law Commission report stated in paragraph 5.17: 926Section 5 does not cover conduct which intimidates another, and it is that conduct which we think should be clearly stated to be a criminal offence".I note the concern that other noble Lords have expressed, supported by the noble and learned Lord, Lord Denning, that this is complex. I agree that it is. It is what we believe the police require. I hope that this will also help the noble Lord, Lord Renton. I shall certainly consider whether or not we can make it any shorter. I believe that the policy is valid. We are trying to help the police here and to right what might otherwise be a very serious mischief. I cannot give my noble friend an unqualified assurance that we shall be able to improve it. I shall certainly look at it and see what can be done. I hope that in the light of that the noble Lord will not feel it necessary to press his amendment.
§ Lord Denning
May I add one word. Having heard what my noble friend Lord Glenarthur has said I have come round quite a lot. It may be very necessary in regard to an apprehended breach of the peace to consider the "likelihood", especially with regard to the person who is intimidated. There may not be any better words for doing it. This is a genuine attempt to meet a difficult situation by the law.
§ Lord Hutchinson of Lullington
May I ask the Minister this question before he finally sits down? Does he agree—and will he look into the matter when he considering this part of the clause—that one of the ridiculous outcomes of the wording at the moment is that someone could be convicted of this offence when the person does not believe that there will be any violence at all?
§ Lord Glenarthur
I wonder whether I may roll that up in my consideration as to whether or not the clause could be shortened? I shall certainly look at that point. I do not believe that that is the effect, but I shall study it with great care.
Viscount Colville of Culross
I wonder whether my noble friend in his consideration will address his mind to the interrelationship that I think the noble Lord, Lord Hutchinson mentioned, with Clause 6(3). It is not only the primary intent of the offender—although that has been very fully explained, and 1 quite understand and agree with the noble and learned Lord, Lord Denning, that we have to go further than that. We then get into the situation about "likelihood", which primarily depends upon somebody else thinking that something is going to happen. It may be the policeman or the Asian lady, or whoever. They will not respond themselves; nevertheless they think that what is happening may cause violence somewhere else.
One then goes on to the "awareness" test, which I appreciate is the restatement of recklessness in Clause 6(3). On the "likelihood" limb one has two different mental ingredients, as I understand it. One has the victim—or somebody who anticipates that somebody else will be a victim of violence—on the one hand, and also the offender himself, who has to be reckless about what will happen. This burden of proof has to be explained to the magistrates. I think that it ought to be made a little clearer in the Bill, before it finally goes on the statute book, as to how it will work. I do not 927 disagree with my noble friend that we are covering the right material here; but it is the combination of these two which seems to me to be likely to cause as much difficulty as anything else.
§ Lord Foot
May I make one point in support of what the noble Viscount, Lord Colville, has been saying. It seems to me that under Clause 4 as it is drawn at the present moment the offence which is dealt with there can be committed in two ways. One way is if a party which has intent to cause the person to believe that immediate unlawful violence will be used then uses language or behaviour of the kind which is prohibited here. That part of the clause creates an offence which is absolutely dependent upon there being a wrongful intent on the part of the offender. But when one goes to the test,whereby that person is likely to believe that such violence will be used",it appears to me that the whole criminal intent has been eliminated and one has an offence which occurs regardless of the intent on the part of the alleged offender.
As the noble Viscount, Lord Colville, has pointed out, when one turns to Clause 6(3) one sees the remarkable statement that there cannot be any offence under the clause unless the person is proved to have had a guilty intent. I imagine that Clause 6(3) was probably amended at some stage in the other place and that that is the reason why we have this apparent contradiction. I hope that the noble Lord will be able to look at that.
§ Lord Silkin of Dulwich
I want to add only one word. I am grateful to the noble Lord, Lord Glenarthur, for agreeing to look at this again, with a view to shortening it, as the noble Lord said. I would sooner say that it be with a view to clarifying it.
I seems to me, as I said in my earlier remarks, that the draftsman may be quite right in wishing to cover the situations, but what he has done is to make it difficult to follow. If the noble Lord can find a way in which, for example, the intent referred to by the noble Lord, Lord Foot, as opposed to the latter part of subsection (1), can be distinguished so that they do not cause confusion, then a few extra words will be worthwhile.
§ Lord Glenarthur
Of course I shall do my best to clarify as well as shorten. I shall also look at the point of my noble friend Lord Colville about the relationship between this clause and Clause 6(3).
§ Lord Plant
I have listened very carefully to what the noble Lord the Minister has said. I understand that he will be reflecting on many of the points that have been put to him. There is a good deal of feeling running through this amendment and the consequences of it. Quite clearly it will be wrong for me to press the amendment at this stage. I want to read as carefully as possible what the noble Lord the Minister has said. I think some of it is extremely important. He said that the police require the powers mentioned in relation to the amendment which I have moved. My amendment has been agreed with the Police Federation and so they 928 want it. Therefore, I would cross swords with the Minister on that issue. However, I shall beg leave to withdraw the amendment. I shall not press it at this stage, but I reserve my position as regards later stages.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 8, 9 and 10 not moved.]
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord Hylton
I should just like to raise a small point. In both Clauses 4 and 5 an exception is made which says that no offence is committed where the acts take place within a dwelling. I should like to ask what is the reasoning behind that exception, and why it says inside a dwelling and not inside a building? It seems to me that the situation may be rather worse where the behaviour takes place inside a private house or flat as compared with some other kind of building.
§ Lord Glenarthur
I shall endeavour to answer the noble Lord's point. Clause 8 contains the definition of a dwelling, and if the noble Lord refers to that clause on page 5 of the Bill I hope that he will find that the position is elucidated.
§ Clause 4 agreed to.
§ Clause 5 [Harassment, alarm or distress]:
Lord Monson moved Amendment No. 10A:
Page 3, line 33, after first ("or") insert ("seriously").
§ The noble Lord said: I must first apologise to the Committee for not having been present when Amendments Nos. 5A and 5B were called. Like a number of other noble Lords, I was engaged in acquatic pursuits at the time and we were running a little late. However, no doubt if this amendment is agreed to we can extend the same principle to Clause 4 when we return to it at the next stage of the Bill. I should also like to speak to Amendment No. 11 A, and I should like to touch upon Amendments Nos. 56A, 56E and 56H although it will probably be sensible to return to them next week because I understand that we shall not be dealing with Part III of the Bill until next week.
§ The purpose of Amendments No. 10A and 11A is self-evident. I imagine that 99 per cent. of us would agree on what is threatening and on what is abusive. On the other hand, what people consider to be insulting is extremely subjective. I gave a number of instances on Second Reading, and I shall not bore the Committee with them again today except to remind you that quite recently it appears that a number of people were quite gravely insulted by a photograph of the Labour parliamentary candidate for Fulham with his wife and children which appeared in an election address. That was considered to be grossly insulting to homosexuals. Therefore, nowadays people are insulted by very strange things.
§ As people can be sent to prison if convicted for offences under Clauses 4 and 5—and indeed the later clauses which I mentioned—it is extremely important that they should not risk being sent to prison for what most people would consider an extremely trivial insult. Therefore the reason for suggesting the insertion of the word "seriously" is to make clear that 929 it is an insult which most normal people would regard as a genuine insult and not something trivial. I beg to move.
§ 4.45 p.m.
§ Lord Glenarthur
The noble Lord has argued that "insulting" is a weak word, unlike "threatening" or "abusive", and that it needs to be qualified before it can be allowed as one of the elements in the low-level public order offences in Clauses 4 and 5, or as one of the elements in the offences of incitement to racial hatred in Part III of the Bill, which we shall reach before too long.
The noble Lord suggests that while "threatening" or "abusive" can be left unqualified, no prosecution should be brought in relation to insulting words or behaviour unless it can be shown that they were "seriously insulting".
The approach adopted by the higher courts has consistently been that the words "threatening", "abusive" or "insulting" are, as Lord Chief Justice Parker emphasised in Jordan v. Burgoyne, "all very strong words", which do not require further elaboration. Lord Reid made the same point in Brutus v. Cozens when he said:Vigorous and it may be distasteful or unmannerly speech or behaviour is permitted so long as it does not go beyond any of these limits. It must not be threatening. It must not be abusive. It must not be insulting. I see no reason why any of these should be construed as having a specially wide or specially narrow meaning. They are limits easily recognisable by the ordinary man".Words or behaviour which are rude or offensive are not necessarily insulting. In the Jordan case which I mentioned Lord Chief Justice Parker said that "insult" was used in the Public Order Act in the sense of "hit by words", which is what I believe the United States case law refers to as "fighting talk". It has to be distinguished from the strong expression of one's own views and criticism of opponents and their policies. Annoyance is not a reaction sufficient to justify describing the cause of the annoyance as "insulting". I could continue to refer to another quotation, but I think that I had better leave it there.
I hope that I have been able to persuade the noble Lord that "insulting" has always been interpreted by the courts as a strong word, but that it does not mean merely rude or annoying; and that it does not need to be qualified by "seriously" in the Bill. I hope that the noble Lord will withdraw his amendment.
§ Lord Monson
The case' histories referred to by the noble Lord, Lord Glenarthur, give me some confidence. I must say that I should have thought that something which was strongly insulting in the way that he suggests the word is normally interpreted would also tend to be abusive as well; but perhaps there is some fine distinction which eludes a layman like myself. In view of what the noble Lord has said and in the absence of any comment from any other quarter of the Committee, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 11 and 11A not moved.]
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Before calling Amendment No. 12, I 930 should explain to the Committee that if that amendment is agreed to, I shall not be able to call Amendment No. 13.
Lord Plant moved Amendment No. 12:
Page 3, line 37, leave out from beginning to ("harassment") and insert ("likely to cause").
The noble Lord said: In reality, this clause owes its origin to a vain attempt by the Government to deal with the type of behaviour outlined in paragraphs 3.22 to 3.25 of their White Paper of last year. Paragraph 3.22 says:
Instances of such behaviour might include: hooligans on housing estates causing disturbances in the common parts of blocks of flats, blockading entrances, throwing things down the stairs, banging on doors, peering in at windows, and knocking over dustbins; groups of youths persistently shouting abuse and obscenities or pestering people waiting to catch public transport or to enter a hall or cinema; someone turning out the lights in a crowded dance hall, in a way likely to cause panic; rowdy behaviour in the streets late at night which alarms local residents".
Paragraph 3.23 says:
Concern over hooliganism of this kind has frequently been expressed at meetings held under the new police consultative machinery. The Government believes that the police should have adequate powers to control this sort of behaviour. This control is particularly needed when the behaviour is directed at the elderly and others who may feel especially vulnerable, including members of the ethnic minority communities. These people may not only feel unable to take action themselves to remove the nuisance, but may also be intimidated by the disturbance from taking part in activities in which they have every right to engage, or indeed from leaving their houses at all. The Government is concerned that the law should provide sufficient protection for those in this position".
Paragraph 3.26 of the White Paper says:
The main elements of a new offence intended to cover disorderly conduct which falls outside the scope of section 5 as amended might be as follows: (a) threatening, abusive, insulting or disorderly words or behaviour in or within view of a public place; (b) which causes substantial alarm, harassment or distress.
It is not easy to define the offence in a manner which conforms with the normally precise definitions of the criminal law, but which at the same time is sufficiently general to catch the variety of the conduct aimed at. The Government recognises that there would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions. For this reason the offence contains the safeguard that the behaviour must actually cause someone to feel alarmed, harassed or distressed (not that it is merely likely to do so). Any degree of annoyance or disturbance will not suffice: because the offence would be concerned primarily to protect the weak and vulnerable, the proposed definition requires evidence that the victim suffered substantial alarm, harassment or distress. The Government would welcome comments on the suggestion that a new offence on the lines described above should be created, and whether any further mischiefs or safeguards should be incorporated into it. If there were to be such an offence, it would not seem necessary for it to carry a specific power of arrest, and a sufficient maximum penalty might be a fine of £100".
§ It is apparent that the type of conduct which the Government are seeking to control, judging from their concern as expressed, is mainly rowdyism which causes alarm, harassment or distress. I stress the word "causes" because it is the consequences of certain behaviour that they are seeking to control, not the state of mind of either the offender or the victim. I suggest that the less than clear wording of this clause requires the importation of some independent evidence from that person likely to be caused harassment. Fear of court procedures—and worse, fear of reprisals—will, I suggest, have a serious deterrent effect upon elderly or weak victims in providing the necessary independent evidence.931
§ The simple amendment proposed would have the effect of removing unambiguously the necessity for independent evidence to be adduced, which would give a great deal of reassurance to the elderly, the weak and the vulnerable. I beg to move.
§ Lord Denning
I have a good deal of sympathy for this proposal, especially when one considers Clause 6(4), which provides that a person is guilty of an offence by intent. In those circumstances, it seems to me that it is unnecessary to have the actual person who is caused distress. Without the amendment, the clause reads:within the hearing or sight of a person likely to be caused harassment".It might be said that that person has to be called to give evidence. I think that would be undesirable in the case of old or infirm people who might be rather afraid to give evidence. Surely it would be sufficient to state,likely to cause harassment, alarm or distress".I should be quite content to let the amendment be and to remove those words from the clause.
§ Lord Glenarthur
The noble Lord's amendment would delete the requirement of a victim. That was inserted on Report in another place, as I am sure the noble Lord will recall. The burden of the remarks of the noble Lord, Lord Plant, suggests that he feels this would complicate the task of the police, that it would make the offence harder to prove and that it would require the victim to come to court to give evidence. That would undermine prosecutions because many victims would be reluctant to give evidence and thereby run the risk of further persecution.
With respect to the noble Lord, that is precisely why we did not go quite so far in another place as some people would have liked us to go and why we stopped short of requiring proof of actual alarm, harassment or distress. The clause merely requires that there is someone within sight or hearing who is likely to be caused harassment, alarm or distress. That will not oblige the prosecution to produce such a person in every case, but the prosecution must identify in each case who was likely to be harassed, alarmed or distressed. I hope that to some extent that is an answer to the noble and learned Lord, Lord Denning.
It will not be enough for the magistrates to feel that they would themselves have been alarmed or distressed or that someone else might have been, if present at the scene. They must ascertain who was there and whether that person (or persons) was likely to be alarmed, harassed or distressed by the defendant's conduct. There is no need for independent evidence of a witness, other than the police, in Clause 5 as drafted. That is why we have retained,a person likely to be caused harassmentetc., which were the words suggested by the noble and learned Lord, Lord Denning.
We do not believe that it is unduly burdensome for the prosecution to do what is suggested. The Association of Chief Police Officers is satisfied with the revised formulation of the offence. I am sorry that the Police Federation, in which I know the noble Lord, Lord Plant, has an interest, is still unable to accept it. 932 We are not prepared to remove the requirement for a victim, which we regard as a significant improvement to the offence. It is an important new safeguard which should help to quell any remaining fears that the disorderly conduct offence is a revival of "sus". Remarks like that have certainly been made at various stages throughout the passage of the Bill and I hope that what has been said will quell that particular concern. I hope the noble Lord will understand the force of what has been said and will feel able to withdraw his amendment.
§ Lord Plant
I thank the Minister for that explanation. I cannot be overjoyed at what he has said. I still think my amendment is right, but in view of the comments that have been made I shall not proceed with the amendment.
§ Amendment, by leave, withdrawn.
The Deputy Chairman
Before calling Amendment No. 13, I should explain that if Amendment No. 13 is agreed to I shall not be able to call Amendment No.14A.
§ [Amendments Nos. 13 and 14 not moved.]
§ 5 p.m.
Lord Monson moved Amendment No. 14A:
Page 3, line 38, after ("or") insert ("acute").
§ The noble Lord said: This is by way of a compromise amendment between Amendment No. 14, which to my surprise is not being moved, and the Government's own position, which is presumably to leave the Bill exactly as it is. In my view, harassment and alarm, even without any qualification whatsoever, are quite serious and unpleasant things to be on the receiving end of. I strongly back the Government in their presumed view that there is no need to weaken or qualify those words in any way.
§ Distress is a very different matter. It is rather like insult. People can be distressed by what other people consider to be quite trivial matters. A person of puritanical disposition might be distressed by somebody wearing a rather rude T-shirt. Other people might be distressed by somebody wearing a T-shirt with a political slogan on it which is very much contrary to their point of view. That is the reason for the proposed insertion of the word "acute" before "distress". I use "acute" rather than "serious" because it seems to me to be better English, but I am not wedded to that word and if the Government consider that "serious" is more appropriate in a statute, that is fine with me. The intention is that, for the subsection to operate, the stress caused would have to be not trivial distress but distress of a fairly acute nature. I beg to move.
§ Lord Broxbourne
If I may intervene for a brief moment, the object of the amendment of the noble Lord, Lord Monson, as I understand it, is to qualify and clarify the reference to "harassment". I had hoped—
§ Lord Broxbourne
I see. Only "distress". In that case, I shall not pursue the point; but I had hoped that 933 the noble Lord, Lord Hutchinson, was going to move his Amendment No. 13. Do I understand that that is not to be moved?
§ Lord Broxbourne
I am sorry it is not moved. I was going to venture to say a word in support of it in giving greater clarity, but no doubt the noble Lord applies the principle of non tali auxiliu, nec defensoribus isis and has decided not to proceed.
§ Lord Glenarthur
As I think I have said before to my noble friend Lord Broxbourne, I cannot possibly translate the last part of his remarks; I wish I were able to do so. What I think is going to happen is that the noble Lord, Lord Hutchinson of Lullington, may raise some of the points that he was going to raise on an earlier amendment, perhaps when it comes to the debate on the Question, that Clause 5 stand part, or subsequently.
§ Lord Glenarthur
To return to the amendment of the noble Lord, Lord Monson, the noble Lord has proposed that instead of inserting a requirement of "substantial", which was one of the suggestions in an amendment that has not been moved, we might instead have the requirement of acuteness. We did not want to catch conduct which is merely trivial, which is why we originally toyed with the idea of including "substantial". That is why we have strenuously resisted suggestions that "annoyance" or "disturbance" should be included among the possible consequences.
We were eventually persuaded to drop "substantial" because it was suggested that it would present the courts with an impossible task of measurement. That applies very much to Lord Monson's amendment, which, of the three words, would qualify "distress" alone by the word "acute". But when does "distress" become "substantial distress" or "acute distress"? As the Law Society has commented, one can imagine some sharp cross-examination of a victim on this point. On reflection, we felt that "alarm, harassment and distress" were all strong words, in rather the same way as I described earlier, and that they did not need further qualification.
§ Lord Monson
I am not nearly as happy about the Minister's reply this time as I was last time. I still feel that people could be caught as a result of having offended somebody in what a reasonable man, a worldly man, would consider extremely trivial. I think that the sensible thing is to wait to see what happens to this clause when we debate whether Clause 5 shall stand part. While reserving the right, possibly, to bring up this matter again, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 14B not moved.]934
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ Lord Elwyn-Jones
I rise to oppose that Clause 5 shall stand part of the Bill. In my submission, Clause 5 creates a new offence in wide and vague terms which, I submit, extends the bounds of criminality much too far. I am comforted in raising the question by the thought that I am to be followed by the noble and learned Lord, Lord Scarman, whose experience in dealing with these matters publicly and judiciously has no equal in this country; and that will enable me to shorten my observation so that more expert advice may be given to the Committee.
The offence of disorderly behaviour, which is at the heart of Clause 5, covers, as the Committee will see from the terms of the clause:A person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour"—and I should have paused at, "if he uses threatening, abusive or insulting words". They will suffice. There is no indication as to intent and no indication as to who is to be aimed at—mere words! Then we come to,or behaviour, or disorderly behaviour"—not a phrase previously known as establishing a crime in itself in our criminal law. Then we come to:within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby".In my submission, this offence creates a wide extension of the criminal law. There is no need to be in the presence of anyone to be actually alarmed, harassed or distressed, or for the offence likely to be caused to be serious or substantial. If offensive conduct is repeated after a warning by a police officer, or a further offensive act is committed, the offender can be arrested without warrant. That is provided for in Clause 5(4).
The penalty for the offence is a fine of £400 which can be imposed by magistrates; so that there is no right to trial by jury in respect of this new offence and it may well be that a person accused would have to face the court without legal representation. The concept of the offence of disorderly behaviour was first tentatively put forward in May of last year in the Home Office White Paper, Review of Public Order Law. No such proposal has been made by the Law Commission in its report on offences relating to public order. It is significant that the White Paper recognised that there would be justifiable objections as to wider extension of the criminal law which might catch conduct not deserving of criminal sanctions. Indeed, the draft offence in the White Paper contained the safeguard that disorderly conduct must actually cause someone to feel alarmed, harassed or distressed and that the degree of annoyance or disturbance should be substan-tial. The White Paper also stated that it was not necessary for the offence to carry a specific power of arrest and that a sufficient maximum penalty might be a fine of £100. Those safeguards have been dropped by the Government, as one sees from the terms of the Bill.
There has been widespread fear expressed that this new offence will inhibit freedom of speech covering, as it does, words and that political and public protest would run the risk of being classified as disorderly behaviour. Real anxiety has been widely expressed 935 about that risk and that possibility. The offence of disorderly behaviour has been put forward as a method of dealing with hooligans, but already destruc-tive behaviour which involves damage or attempted damage to property is covered by the Criminal Damage Act, and behaviour which involves violence or threats of violence is covered by Clause 4 of the present Bill.
I submit it is very significant that the National Association of Probation Officers, a responsible body with much experience of dealing with alleged offenders in this field, has produced a report, having carried out a survey of probation officers in inner city areas. They say they were unanimous in their belief that the new offence would create conflict in the streets. They state:the Association of Probation Officers acknowledges that the apparent increase in disorderly behaviour causes all responsible people concern. However, it is our belief that the new offence of disorderly behaviour will place many of our clients prone to boister-ous and extrovert behaviour at risk of arrest by over-reactive policing".Probation officers are not sentimental characters: they have heavy responsibilities which they carry out responsibly. It is at any rate their opinion that the offence will create a new breed of potential criminal, particularly among young people.
In my submission, this new offence will create more problems than it will solve. It is far removed from what should be a minimum test of public disorder, namely, the threat of damage to persons or property, which rightly concerns the public today as well as the police and the Home Office. I believe it will have a detrimental effect on police and community relations and could well divert police activity from the more serious areas of crime which disturb our community in this dangerous period of rising serious crime.
§ 5.15 p.m.
§ Lord Denning
I hope the clause will remain as it is, because it is high time that our law did something to put down disorderly behaviour. I will give your Lordships a series of cases which have come before the courts. Let me take first the case of Brutus v. Cozens in 1973. What happened there was that a game of tennis was being played on No. 2 court at Wimbledon and while that was all going on very peaceably Mr. Brutus jumped over the fence, ran on to the court and stopped the proceedings by issuing leaflets and the like. Ten other people followed him. They stopped the whole game, to the great annoyance of all the spectators. There it was. Brutus was charged under the Public Order Act 1936 and I am afraid he got off, because it was said that his words were not insulting. Let us hope that situation can be reversed. Lord Reid in this Chamber said that he thought perhaps it ought to be punishable but, on the other hand, the statute then did not cover it. I would say that anyone who interferes in such matters—for instance, people have run on to a cricket pitch, pulled up the stumps, walked off with them and stopped the game (and this man said he did it because of apartheid which had nothing to do with the game of tennis at all)—should be convicted, and the man would have been convicted had this section been in force.
936 The next case we had concerned an electricity board in Cornwall. There they were not going to make a nuclear power station but their intention was to make a survey to see whether the site was suitable for a nuclear power station: that was all. It was quite a remote area of ground: nothing spectacular at all. They went on to the ground with their rigs, lorries and machines; and they started digging a bit. Then some protestors, banding themselves together, went in and stopped the whole process. They sat on the rigs and prevented digging; they laid down in front of the lorries and stopped them; and work could not go on at all. The Devon and Cornwall police, I am afraid, said they could not do anything. It was not a breach of the peace. The people were not threatening to break the peace at all; they were only stopping the work.
There it was. The police were quite nonplussed and they did not know what to do to deal with these men. They came to the Court of Appeal eventually and there we managed to get a compromise solution. But surely that was disorderly behaviour, which was punishable. Surely they ought to have been taken off to the magistrates and perhaps bound over or fined a few pounds, or something like that, just to show that disorderly behaviour of that kind could not be permitted.
After I think of those two cases which came before the courts, I think also of Wapping. Lorries having a perfect right to go and take the newspapers from that depot to be delivered are met by thousands of people thronging the streets and trying to stop them—and succeeding to a large extent in stopping them. Is not that disorderly behaviour? There is also the matter of pickets. When men have a right to work and to go to work, are they to be harassed by insulting words, and not only insulting words but prevented by disorderly behaviour from going to their work? Is it not right that there should be an offence of disorderly behaviour?
I would even go so far as to refer to the recent activities concerning hippies in this connection. What could be more disorderly than invading a person's land, as they did, against the owner's will, creating a whole nuisance and not going off the land when they knew they had no right there? Surely that is all disorderly behaviour which the law ought to be able to stop.
I would even go so far as to include those students who would do all they could to stop freedom of speech in the universities and who behave in the most disorderly way—shouting and so on. Is not that disorderly behaviour, and do not the illustrations I have given to your Lordships come within the words which we have now got in the Bill? I would say it is unfortunate that we have not previously had them in a Bill. In nearly every case which I have cited, your Lordships will see that those concerned used threatening, abusive or insulting words or behaviour, or disorderly behaviour.
Is it not right that this should now be a punishable offence? I do not say it is a grave offence, but one for which, if they go on with it, a police constable should be able to arrest them and take them before the magistrates, with perhaps a small fine being imposed. In other words, I would suggest the time has now come when we should have the law made strong enough to 937 prevent misconduct and disorderly behaviour of this kind so that the police can operate in cases of emergency—involving not a large fine, but perhaps involving being taken before the magistrates, so that good order can be kept.
So I ask the Committee to support this clause. Although it was not in the Law Commission's report, I suggest that the Government have done very well to bring this clause forward for Parliament to pass. I support the clause and think that it should stand.
§ Lord Scarman
1 follow the noble and learned Lord, Lord Elwyn-Jones, in submitting that this clause should not stand part of the Bill. A very good reason for that submission I find in the entertaining and fascinating account of cases that the noble and learned Lord, Lord Denning, has just given to the Committee. The Committee will have noted the extraordinary range of activities which are covered by those cases and which it is said that this clause would cover.
One of the main objections to this clause is that it is far too general. Are we really going to entrust to magistrates a general roving commission over what can be included in disorderly behaviour? Of course, disorderly behaviour can be very serious, can be very criminal and can be a real threat to public order; but disorderly behaviour may also be far from criminal, and, although not to be encouraged, equally ought not to be made a subject of the criminal law.
The more general is the argument that is developed in favour of the presence of this clause in the Bill, the more the Committee should look at it with suspicion. It is a salutary warning that we should not expect the whole of our lives, in public places or elsewhere, to be regulated in detail by a series of offences and punishments emanating from a clause of the most general application.
I remember, in a different branch of the law, the fury with which judges before our time attacked the general warrant. I have even heard the noble and learned Lord, Lord Denning, indicate the importance that warrants should be specific. That is a great tradition of the English common law. It is an equal, parallel tradition that criminal offences should be specific and this clause cannot stand against that criterion. So much for the generalities.
I implore the Committee not to be misled by our current preoccupation with public order into legislating in a way which may lead magistrates' courts to impose criminal offences for matters which are no more than offences against our idea of morals. If it is more than that, it gets into the criminal sphere.
I shall not be long, because I agree with what the noble and learned Lord, Lord Elwyn-Jones, has said, but I should like to say just a few words about the place of this clause in this Bill. This Bill is essentially concerned with public order and the four offences that precede this offence in Part I of the Bill are essential to enable the police to control our public places, to prevent, if they can, disorder breaking out and, if it does, to give them the powers to suppress it. These are very important matters indeed, dealing with the possibility of the development of serious disorder.
The offence in Clause 5 does not really have anything at all to do with that picture. Indeed, I think 938 I can tell the Committee that during the Brixton inquiry it was made quite plain to me by a number of police officers that they were quite content with the law as it then stood. I have no doubt that they would welcome its reformulation and restatement, which is what we discover in the earlier clauses of Part I, but they felt it was adequate and that they could, together with their common law powers in relation to breaches of the peace, handle the matter from the point of view of law perfectly well. Their problems were very different, dealing with operations against riotous crowds and so forth, but the law, they thought, was adequate for their purposes.
Clause 5 does not really deal with the disorder situation which can lead into riot. Clause 5 has an origin with which I myself have some sympathy, and I expect others of the Committee have sympathy as well. Clause 5 is there to protect a weak individual—an old lady, an old man or a child—who finds himself or herself harassed or put into a state of alarm and distress in the street; a situation which is completely overwhelmed in major, or indeed minor, disorders of the street. This is a situation that can occur where there is really no disorder at all, but there is an incident occurring in the street which ought not, in our view, to occur.
There is police power to handle that, if it comes to the attention of a policeman. If there is no policeman there, it does not much matter what the law is. The weak does not prevail against the strong. If there is a policeman there, he already has sufficient common law powers, and has exercised them for centuries, to intervene and prevent what is going on. So one asks: if this does not really add anything to the powers of the police to deal with what can be a pathetic and worrying situation for individuals, and therefore for all of us, is it a deterrent? The deterrence here is in being found out by the police. It is not really the prospect that there might be a fine not exceeding level 3 on the standard scale. There really is not here a problem that ought to trouble our courts unless, when there is an intervention to prevent it, something criminal supervenes.
It is because I believe that this clause will in no way help to control serious disorder or to prevent riot, because it is really not needed to deal with the street scenes which it contemplates, that I fall back on the general principle that it ought not to be part of our law, because it is too much of an omnibus, gather-all offence, and as such liable, I fear, to abuse and to developments which we might find very distasteful indeed. There is a real problem—the protection of the weak. There are ways and means by which the police, and others of us, can protect the weak. This clause is not needed and, for the reasons I have indicated, it is undesirable and inconsistent—and I say this in the presence of the noble and learned Lord. Lord Denning—with the true development of English law.
§ 5.30 p.m.
Viscount Colville of Culross
Before the noble and learned Lord sits down, I listened very carefully to what he said about this. He said that there are powers now in the common law to deal with this sort of thing. It would be of very great interest to the Committee if, from the enormous experience that he has not only 939 judicially but from his other public duties, he could explain a little more about that. Some of the powers of the police to deal with what used to be breaches of the peace or anticipated offences were codified in the Criminal Law Act 1967. Some of them were codified in the Police and Criminal Evidence Act which we passed in 1984. Among those who have to try to enforce this law, there is now some doubt about what is left by way of common law, not least when it comes to going into private premises—for instance, the staircases or lifts in large tower blocks. What can the police and the private citizen still do under the common law to deal with the problems that the noble and learned Lord talked about? If the noble and learned Lord can throw some light on that I believe he will do an enormous service to the Committee.
§ Lord Scarman
The noble Viscount is quite right to suggest that recent developments in statute law indicate that there may be a gap. The last thing I wish to do is to mislead the Committee or the House. If I have doubts, the Committee and the House are going to hear of them. I share the concern that the common law powers which one has known for a long time may have suffered some erosion. If so, to that extent the power of my argument is diminished. Of course it is. But I would say that we must face that directly. We should not try to bridge a gap which may or may not be there. It has to be looked at much more carefully than we can do this evening. We must not try to bridge that gap by enacting an offence with trivial judicial consequences in terms so broad that a great number of people may find themselves criminals where, on any view of it, they would not be guilty of criminal conduct.
§ Lord Boyd-Carpenter
I am sure the Committee is greatly indebted to my noble friend Lord Colville of Culross for eliciting those further remarks from the noble and learned Lord, Lord Scarman. Naturally, your Lordships listen with very great respect—I say this most sincerely—to anything the noble and learned Lord, Lord Scarman, says, as indeed to what is said by the noble and learned Lord, Lord Elwyn-Jones. But certainly both those noble and learned Lords left me with an uncertainty which is very much connected with the intervention of my noble friend Lord Colville of Culross.
We know that, as a matter of fact, there have been and continue to be very serious disorders in many parts of this country. There have been continuing disorders and I shall come to one of them in particular which I think is relevant to this amendment. That therefore poses this dilemma to those who take the line of the noble and learned Lord, Lord Scarman. Either, as he was suggesting in his speech, the powers of the police are adequate to deal with this matter, in which case he is driven to the conclusion that the police are falling down on the job because they are not maintain-ing order; or there is, as he said in reply to my noble friend behind me, some doubt as to whether they have the powers. That is a very different situation.
One of the major purposes of the Bill is to try to secure that our police, faced as they are with what we all acknowledge to be situations of enormous difficulty and personal danger, shall at least be reinforced by 940 knowledge that they have the appropriate legal powers. Noble Lords will have noticed that it has not been so far mentioned in the debate on this amendment that one of the features of the clause in question is the giving of the power to arrest without warrant. I suggest to the Committee that that of itself in the context of these disorders is a very important thing.
The noble and learned Lord, Lord Elywn-Jones, was inclined to suggest that there was nothing in this clause to indicate what the intent of the accused person needed to be. With respect, I think that that suggests that the noble and learned Lord has not turned over the page and looked at subsection (4) of Clause 6, which lays down quite clearly that the offence is committed only if there is the intention contained in that subsection.
But I want to come back to the general disorder. I take the case, because it is a very good example, of the long continuing organised disorder that takes place in Wapping near where certain newspapers are produced. At Second Reading I had to declare an interest because at that time my daughter worked on one of those newspapers. She now works elsewhere and so I have no interest to declare. But I do know directly from that and from other sources that for months those people trying to earn their living, in producing in this particu-lar case probably the greatest newspaper in the world, have had to struggle through alarming, disorderly scenes, getting through only with the help of the police and sometimes unable to get through at all. One of these journalists told me only the other day that when trying to get back to her office it was quite impossible to get in at all. She had had to give up her attempt to return to her own office in Wapping to do her job. In a civilised society that is an intolerable state of affairs.
No system can prevent occasional outbreaks of disturbance in various places which produce that situation for a day or so. But to have that kind of thing going on month after month with the police engaged very heavily in struggling with it—with police and other people being hurt month after month; people in trying to go about their ordinary business and earn their living being inhibited by violent conduct by a certain number of people—is intolerable in a civilised society. As I understand it, it is one of the purposes of this Bill to make quite sure that this kind of thing does not continue.
The noble and learned Lord, Lord Elwyn-Jones, said that this clause would divert police efforts from apparently more serious duties. I do not know whether the noble and learned Lord knows of the enormous number of police who have been on the streets of Wapping for months, struggling to the best of their very gallant ability to deal with all this outrageous behaviour. To give them, what I gather the noble and learned Lord, Lord Scarman, now concedes may well be further powers in order to deal with this problem, is not going to divert their efforts; on the contrary, I would suggest to the Committee that it is going to make their efforts more likely to be effective. Therefore I very much hope that this very important clause will survive in the Bill.
§ Lord Grimond
I am obliged to the noble Lord. Speaking as a layman—I am an out-of-date and defunct lawyer—I am sure that he has some reason to offer as to why these very serious matters at Wapping which he has mentioned cannot be dealt with under Clauses 3 and 4. If the noble Lord can explain why that is, I shall be most grateful.
§ Lord Boyd-Carpenter
It is not for me to explain the operation of other clauses. I shall simply confine myself to the argument, which I hope that the noble Lord, Lord Grimond, will accept, that the Wapping situation seems to be one to which Clause 5 would be highly relevant. If that be so, and unless it can be established negatively that Clause 5 has nothing whatsoever to do with the Wapping situation, which no one has so far seen fit to argue, then the Wapping argument is relevant. If there are further clauses in the Bill that are relevant in this regard, as I know there are, then so much the better. After all, such is the main purpose of the Bill.
I hope therefore that despite the criticisms that have been levelled at Clause 5 from very distinguished sources, the Committee will feel that the measures in question, and Clause 5 in particular, should go into our law. I concede to the noble Lord, Lord Grimond, that Clause 5 will not of itself cure the situation—of course it will not—but the carrying of a Bill of this kind, including Clause 5, will give a clear indication to the evil-doers on the one hand, and to the police on the other, of the determination of Parliament to see that the kind of incidents that have been occurring in our streets in the past year or two are not permissible and will not be permitted to continue.
I said on an earlier occasion—although my noble friend on the Front Bench appeared to be rather unreceptive to the point—that I knew that there were organisations outside who wished to erode and weaken the Bill. I am sure that that is for the highest of motives and I attribute no ill-intentioned motives to those organisations. However, there is a clear conflict of view between them and those who say, as some of us argued on Second Reading, that, faced with organised disorder, it is essential that the balance of the law should be moved a little in favour of the general provisions that the noble and learned Lord, Lord Scarman, does not like, and a little away from the strict libertarian views' that we are able to afford in more law-abiding times, and a little more towards strengthening, at least marginally, the legal position and the legal powers of those responsible for maintain-ing order. I see Clause 5 as being very relevant to that argument.
§ Lord Scarman
I rise for a moment, before the noble Lord, Lord Hutchinson, speaks, to make a personal statement. I apologise to the Committee for having at this very moment to leave the Chamber. I do so for urgent family reasons. I had hoped to stay to listen to the whole debate, which will be a very interesting one, but for family reasons I cannot do so. I make my apologies to the Committee and to the noble Lord, Lord Glenarthur.
§ 5.45 p.m.
§ Lord Hutchinson of Lullington
My name appears among those who gave notice that they wished to oppose Clause 5 standing part of the Bill. I should therefore like to say a few words. I shall say them with modesty, and now with great sympathy and affection, following the noble and learned Lord, Lord Scarman.
I may say at once to the noble Lord, Lord Boyd-Carpenter, and to the noble Viscount, Lord Colville, that we are not opposing this clause because we do not appreciate on these Benches the appalling situation that has already been described, or because we do not wish the law to be effective and to be a law that the police can understand and that the courts can understand and administer. That is common ground.
I must say that Clause 5 is not really relevant to disturbances of the kind that have occurred in Wapping of which the noble Lord, Lord Boyd-Carpenter, has made mention. As the noble Lord, Lord Grimond, has argued, such disturbances should be dealt with by other clauses in the Bill, and can be so dealt with. We are here dealing with matters that go outside violence and outside threats and which bring into the criminal law, in relation to public order, matters of social behaviour.
I ask the Committee to consider seriously the wording of Clause 5. The question for the Committee is whether the wording of the clause does not go far too wide and criminalises behaviour that no one in this Chamber would want to see criminalised. There are a number of amendments put down by myself and other noble Lords to get rid of disorderly behaviour, to delete "harassment, alarm or distress", to insert the word "substantial", and so on. None of those amendments has been moved because, as I have already explained, we wanted to save the time of the Committee and not rehearse the arguments that can be rehearsed on this Question. I therefore ask for the indulgence of the Committee in rehearsing one or two of the arguments that cover the general question of Clause 5 standing part of the Bill.
In the White Paper, as has already been mentioned, the Government spelt out in terms how difficult they have found it to define any offence that would catch what they described as minor acts of hooliganism and that would at the same time conform with the normally precise definitions of the criminal law. I quote from the White Paper:The Government recognises that there would be justifiable objections to a wide extension of the criminal law which might catch conduct not deserving of criminal sanctions".I ask the Committee to bear in mind those words while considering Clause 5, because the Government, in the White Paper then went on to state—very rightly, I suggest—that:It was therefore essential to build in safeguards".They then spelt out those safeguards.
There were four of them. The first was that someone must actually be caused to feel alarm, and that it must not be merely conduct likely to arouse alarm. Somebody must be alarmed. Secondly, the alarm must be substantial. They emphasised that by saying that they wanted to deal not with a victim of normal firmness, as in other parts of the Bill, but with the weak and the vulnerable.
943 Thirdly, there should be no power of arrest. That mirrors, if I may say so, the unease and the suspicion to which the noble and learned Lord, Lord Scarman, referred on Second Reading, when he saw a power of arrest in a public order Bill wedded to a clause that does not carry imprisonment. The fourth safeguard was to impose a small fine for such an offence of a maximum of £100.
Those safeguards have, in Clause 5 as presently drafted, all gone—and not only that; I shall refer, if I may, to what was said by the noble Lord, Lord Boyd-Carpenter, about the defendant and what was required in the way of intention as set out in the Bill. If the noble Lord will read the Bill even more carefully, he will find that on the vital matter of reasonableness and knowledge, which is the very essence of the alleged offence, the burden of proof is, astonishingly, reversed. So not only are those words so broad, and not only are those new criminal offences created, but in this particular case the accused person is to be forced into the witness box to establish his innocence.
I know that Members of the Committee will therefore understand the implications of this clause which refers to disorderly behaviour. There is no definition of disorderly behaviour among the definitions. What is disorderly behaviour? the dictionary states that it is absence of order; confused; irregular; untidy; violating constituted authority or recognised rule; unruly. Any abuse or insult, spoken or written, likely to cause alarm or distress amounts, under this clause, to a criminal offence. No victim has to give evidence, whereas of course the accused, as I have said, must give evidence in order to meet the shift in the onus of proof.
As the noble and learned Lord, Lord Scarman, said at Second Reading, it may be easy—I cannot remember who it was who said at one stage that we all know what abuse is—but the judges have found it extremely difficult to decide what is an insult and what is or is not an abuse in the circumstances in which those matters arise.
May I just try a litmus paper on the Committee's prejudices in relation to this clause? Would any Members of the Committee be distressed by a march through their residential area of gays and lesbians, of punks or hippies? Would any Members of the Committee be alarmed by the overexuberance of scruffy students on a rag day, or harassed by overenthusiastic sellers of lottery tickets outside a cinema, and so on? Would any Members of the Committee be alarmed by semi-inebriated groups of under-graduates or, may I say, Irishmen or West Indians leaving a public house in the evening?
Is such behaviour to be criminalised because a vulnerable member of society complains to the police? Are such citizens to be open to street arrest, bundled into the wagon and locked up for the night? As the noble and learned Lord, Lord Scarman, with his great experience of these matters, said at Second Reading, he observed in his inquiries an increasing tendency by the police in situations of disorder to use the method of arresting persons, taking them off to the police station and keeping them in custody before releasing them eight or ten hours later without charge. That, of 944 course, is one of the dangers of giving a power of arrest unless that power of arrest is connected with something very clear as to the person's behaviour.
I suggest that this clause gives to the police on the streets an unacceptable power which will lead in all certainty to an exacerbation of the sensitive situation in the inner cities. Indeed, whatever the noble Lord the Minister says, it will lead to the same kind of mistrust which we all remember under the "sus" laws; and that is a very serious danger.
The National Association of Probation Officers has been mentioned. The association views this clause as one of great danger for young persons and juveniles who, more than ever, will come before the courts. Everyone now involved in these matters agrees that the best cure for crime among the young at this sort of level is prevention, caution, and trying to deal with the young not by bringing them to the courts at an early stage or arresting them, bringing them up and sending them into custody, but by trying to prevent these matters at an early stage.
I suggest that it is basically fear of violence and threats of violence which we wish to meet—fear of a breach of the peace, in that time-honoured phrase. The Law Commission pointed out that that is now insufficient and that we should replace it with "fear of violence" and "fear of threats". It is essential that this clause should be taken out of the Bill. The Government should go away and come back with a clause which we can all agree is clear and definite and will meet the mischief which all of us recognise exists.
§ Lord Campbell of Alloway
I make a brief intervention? First, I apologise for not having been here when the debate on clause stand part was opened. It was my intention to be here and I offer my apologies.
The first point is that surely this is not a question of prejudice, on whether one is in favour of gays, offended by gays or lesbians, or sellers of lottery tickets. It is not that at all. Surely it is merely a question of how any of these people behave. Therefore, with respect to the noble Lord, Lord Hutchinson, the point of prejudice does not arise. Where I agree with the noble Lord—
§ Lord Campbell of Alloway
The clause is related to behaviour. The point I make is that it is the behaviour of gays and lesbians or the lottery ticket sellers, or whoever else it may be, that is relevant, and not the prejudice that any member of the public, or indeed any Member of the Committee, may have one way or another in that context.
Where I agree with the noble Lord and the noble Lord, Lord Grimond, is that I cannot see that this clause has anything to do with the Wapping saga. There are of course other clauses which are designed for that situation and I think one only has to look fairly at the defences under subsection (3) and the level of fine under subsection (6)—which I believe is £400 maximum—to realise that certainly this clause is not designed to meet the Wapping situation and that there are far more appropriate means with which that can be dealt.
945 Having made that concession, I should have thought this clause ought to stand part of the Bill for the reason which emerged in the common ground between my noble friend Lord Colville of Culross and the noble and learned Lord, Lord Scarman, that clearly there is a gap. It is common ground that there is a gap. It is common ground that that gap ought to be bridged. It is common ground that it is the weak who are exposed. As no other way has yet been devised to provide a bridge and as this is a provision which, at all events, affords a modest minimum penalty, I commend it to the Committee as being of value, and in being of some value in filling that gap it ought not to be rejected.
§ Lord Gifford
Nearly the whole debate so far has been about the part of this clause concerning disorderly behaviour. So far as that is concerned, I would not want to add one word to the immensely thoughtful speech of the noble and learned Lord, Lord Scarman.
Before the Minister replies, we must remember that this clause goes far wider than disorderly behaviour. It takes within its scope,threatening, abusive or insulting words … writing, sign or other visible representation which is … abusive or insulting".It raises the further issue of the right of free speech. We know that in the rough and tumble of political debate, in public meetings, at Speakers Corner and during processions things are said, placards are exhibited and effigies are made up which insult and abuse. There is a long enough tradition in English public life starting well before the cartoons of Rowlandson and Gillray of insults and abuse being directed in pursuit of serious political purposes; yet if a police officer takes the view that such a placard or words spoken are insulting or abusive and may distress a person present, that police officer has the right under the law to dictate to the person to take the placard down or to stop the speech. Then it is left to the defendant in the magistrates' court under Clause 5(3)(c) to argue that his or her conduct was reasonable. We will have the magistrates' court become the forum of debate as to whether a certain placard, certain words or effigies were reasonably exhibited.
The noble and learned Lord, Lord Denning, has left his seat, but he was also the champion of individual rights in another case, the case of the Prebble pickets where people stood without violence outside an estate agents and held up placards. The placards were highly uncomplimentary to the estate agent and may have caused distress because, in troubled times and times of argument and conflict, the expression of one view can cause distress; the expression of it in a sharp or strong way on a placard can cause distress. But, if there is no violence and if there is no breach of the peace, is the power to be given to a single police officer who may receive a complaint or may even imagine that of that kind of political debate, the censor of what may or may not be displayed or carried by way of writing or circulated by way of leaflet?
That is a further breadth of the clause which I suggest to the Committee is wholly objectional and is in addition to the very strong objections that I support to the breadth of the offence of disorderly behaviour.
§ 6 p.m.
§ Lord Butterworth
I hope that we shall accept the clause because I regard it as extremely important in the armoury of the police against hooliganism.
It has been suggested that the clause is too widely drawn and we have had much reference to disorderly behaviour; but in the courts disorderly behaviour is no new concept. I speak as a magistrate. Courts have no problem in determining what it means to be drunk and disorderly. Disorderly conduct is well known in the courts. Indeed, there is a rather splendid sentence in the White Paper at paragraph 3.24, which I should like to quote:If a person who causes this type of disturbance is drunk, he may be charged with the offence of being drunk and disorderly; but there is no corresponding offence to cover similar conduct by a person who is not drunk, even though the nuisance caused is no less, and may be thought of as more culpable in someone who is sober".I would have thought that we should congratulate the draftsman on the clause. I think that it is a well drafted and well-balanced clause. If I may, I should like to explain why I think that.
One has the police confronting the hooligan and it is said that the "sus" danger may be repeated, but when one turns to Clause 5(4) one sees how limited is the power of arrest. First, the constable must warn the offender and ask him to stop. If the offender then engages in further offensive conduct immediately or shortly after the warning, then the constable may arrest. He will take him away from the unpleasant, distressful situation. But, if it is a young offender whose character is not blemished, he has to come before the court and, under Clause 5(1), the offence has to be strictly proved. More than that, under subsection (3), three special defences are given to the accused.
It is for those reasons that I say that I think this new offence has been enclosed in a clause that is magnificently drafted, and we should congratulat the draftsman.
§ Lord Grimond
I speak with some diffidence as a non-lawyer, but I am a politician. As has been said, the clause has great relevance to the conduct of politics in this country. Before I come to that, may I thank the noble Lord, Lord Campbell of Alloway, for supporting my view that the clause has little or nothing to do with the disturbances at Wapping. I do not believe that it can be right to repeat ineffectually in a Bill what is already in the Bill with far more potential effect.
§ Lord Boyd-Carpenter
Is not what has been happening in these past few months on the road to Wapping exactly what is described in the clause?
§ Lord Grimond
In my view it is dealt with in Clauses 3 and 4, and very adequately dealt with if in fact it is not already dealt with under the common law and other statutes, which I strongly suspect it is.
To return to the main point I wish to make, it relates to threatening, abusive behaviour or insulting words. Anybody who has been in politics any length of time will have been at innumerable public meetings at which threatening, abusive and insulting words are used. In fact, many people consider that their public meeting has been a failure unless they are used. Of 947 course, they have to be in the hearing or sight of someone likely to be caused distress. As has already been said, distress is pretty wide in meaning, and such words do cause distress very often—not to the speaker and not to the platform but to the people in the audience. Therefore, a criminal offence is committed. I cannot believe that that is right.
Having been in Parliament for some time, I may say that there have been occasions, much as I regret to mention it within this great Palace of Westminster, on which abusive words have been used and have caused distress. They have caused distress because they are now repeated over the wireless and, indeed, over the television.
There may be reasons for dealing with disorderly behaviour, although I should have thought that they are adequately dealt with in Clauses 3 and 4. I do not believe, however, that the Bill should go through with the inclusion of the words used in Clause 5(4)(a) with their possible repercussions upon the conduct of public debate in this country.
§ Lord Broxbourne
When I had the privilege of addressing noble Lords on the Second Reading of the Bill, I confined my observations primarily to Part II. I said then by way of preface that I wholly support Part I of the Bill, and that of course includes Clause 5. That support still stands in spite of the persuausve words of my noble and learned friend Lord Scarman, whom I hold in such very high personal regard.
Against the background of that general support I want to make only two brief observations. First, the Committee will note that Clause 5(2) states that:An offence under this section may be committed in a public or a private place".Those words are in stark contrast to the approach in Part II of the Bill dealing with public assemblies. If I may, I shall revert to this point when we come to the amendment standing in the name of the noble Lord, Lord Stanley of Alderley, and the amendment tabled in the names of my noble friend Lord Middleton and myself. For the moment I simply indicate that there is an onus of explanation on Ministers to explain this dichotomy.
My second point concerns the use of the word "harassment". As I indicated to the Committee when a slight misapprehension took place earlier in the proceedings, I was ready to testify in support of the amendment which was on the Marshalled List in the name of the noble Lord, Lord Hutchinson, but which was not moved by him. I need hardly tell the Committee that it is a great deprivation to be denied the rare and refreshing pleasure of being in accord with propositions coming from the Alliance Benches. I hope that the noble Lord will not take it amiss if I say that I hope he is as eager to disavow mistaken policies and suggestions as he has been to disavow a point with which some of us are inclined to agree. As it is, I can only echo the words of the Morning Standard in 1846 when commenting on the change of front of Sir Robert Peel in regard to the Cora Laws: He has convinced others; how comes it he has not convinced himself?
The substitution of the words proposed in his abortive amendment would have been an improvement, because in my respectful submission 948 the word "harassment" is not a satisfactory word for statutory usage. The difficulty is that it is not clear. The Oxford English Dictionary gives two basic meanings for the word "harassment": the active meaning of the action of harassing and the passive meaning of the fact of being harassed. No doubt the second meaning is intended here. I cannot say to the Committee that the use of the term is grammatically incorrect, but I think that more usually it signifies an active sense—that is, the action of being harassed, rather than the fact of being harassed.
I think that this ambiguity is liable to cause doubt and uncertainty, at any rate to those who are not professionally engaged in the interpretation of statutes. As this provision comes within the context of the criminal law, it is obviously desirable to avoid ambiguity and uncertainty and that so far as possible "he who runs may read". There is no definition of harassment in the Bill, which is all the more surprising as there are definitions of "violence", "offensive conduct" and even "intoxication", as to which one would have thought that a definition was less necessary than in the case of "harassment".
Therefore, while expressing support for the clause, I respectfully ask my noble friend to consider before the next stage of the Bill whether some alternative form of drafting—possibly in the words of the noble Lord, Lord Hutchinson, or otherwise as may be appropriate—may be substituted for this ambiguous and unsatisfactory expression.
§ 6.15 p.m.
I shall not prolong the very long discussion of the Committee, and I rise for only a brief moment to take up and possibly reinforce one or two points that have been made. I am one of those people who are quite seriously concerned that if this clause were to stand part of the Bill, in more than one respect it would create more problems than it would solve. The particular problem that I should like to underline at this stage in the Committee's discussion—and it has already been touched on—is the problem in regard to the police on the one hand and the probation service on the other.
It is worth remembering that it is not only the police who are charged with upholding the law and the legislation at which we are now looking; it is also the probation service, which is a court service. It is essential that, among others, those two services in particular should work in harmony. By and large they do so. They have their respective tasks and their respective ways of performing them. As has already been made clear, the probation service deals with clients who in many cases are alienated, extremely difficult and irresponsible. The task of the probation service (which I have reason to know it performs with extreme skill) is to lead such people in the direction of more social behaviour and to bring them back into the mainstream of society; and it does so with considerable success.
By labelling such acts as criminal behaviour or criminal acts, this clause as drafted—I am looking at the words in Clause 5(1) (a)—will have the effect of strengthening the hands of the police at the expense of the work of the probation service. It will risk creating disharmony between them. It will weaken the 949 probation service, and what is even more important, it will further alienate those young people in particular who are already against society. In my view it is very important that we should not push them further along the road of criminality by turning some of the words and actions contained in this clause into criminal acts.
§ Lord Peyton of Yeovil
I should like to say that, like the noble Lord, Lord Grimond, I am a somewhat "defunct" lawyer. What worries me about this debate is that one speaker after another is able to point out with great lucidity the difficulties and objections which may arise from a clause such as this, and yet I have not heard any of those who oppose this clause produce some more effective way in which those minor acts of bullying can be brought within the compass of the criminal law.
I do not wish to speak at any great length, but there were two comments from the noble and learned Lord, Lord Scarman, which caused me some concern. It is difficult in his well-understood absence to put an exact construction on his words, but what he said was that we should not be misled by our current preoccupation with public order into taking action of this kind. I wondered whether he was suggesting that perhaps our current preoccupation with public order is somehow misplaced. I myself do not think it is. At any rate, the noble and learned Lord went on to say that the purpose of Clause 5 was to protect the weak, and he then said that there were other ways in which the police and others could do that. My noble friend Lord Colville of Culross intervened and I do not think that the noble and learned Lord, Lord Scarman, fully answered the anxiety which my noble friend then expressed, which is an anxiety that I share.
I am no great admirer of our modern contributions to the statute book. Most of them have considerable defects. They are hard to understand and certainly they create problems. I do not think that this clause should be singled out for opposition on those grounds. I believe that it is a genuine attempt to cope with a need.
I take the point made by the noble Lord, Lord Hunt, that we must seek to avoid alienating further those who already feel themselves at a distance from society, but we must give careful thought to the weak, who find themselves on the receiving end of these minor acts of bullying. It is for that reason that I express the hope, despite the misgivings that many members of the Committee have expressed with such eloquence, that we should allow the clause to stand part of the Bill.
§ Lord Wigoder
Depite the extraordinarily wide nature of the clause as drafted, I shall make a speech that consists of only one sentence. A man and his wife are walking along the street, they have an argument, one of them uses an expression which is abusive to the other, intending it to be abusive, and the other is momentarily distressed. Do members of the Committee appreciate that that would then be a criminal offence under the clause?
§ Lord Beloff
Have not the noble Lord who has just spoken and others who are lawyers consistently diverted our attention during the debate from the core of it, which is a need to defend persons in our society 950 who are so vulnerable that even words may affect their being? I do not think that the robust language of the hustings in Orkney and Shetland, which was for long enjoyed by the noble Lord, Lord Grimond, is at all what we are thinking of. I consider, for instance, the position of members of the ethnic minorities in parts of our great cities who, as daily evidence shows, are subject to abuse, calculated abuse and threats, not necessarily resulting in violence but to an extent which makes them feel alienated from our society (and we have much evidence of that) and who come to us with complaints that the law is not doing enough to protect them.
It seems to me that the clause at least endeavours to give them some protection by saying that words which are intended to wound can be regarded as a breach of the law and subject therefore to criminal sanctions. To oppose the clause is to disregard the vulnerable in the interests of legal perfectionism. I hope that the Committee will not be convinced by those objections.
§ Lord Donaldson of Kingsbridge
I must say a word or two more in the debate. It is important that the view of either side should not be misunderstood. My noble friends who propose that the clause should not stand part of the Bill are perfectly clear in their minds that there has to be a provision which does what both sides want but without doing very much more. We do not ask that people should be allowed to do what they like and commit acts of hooliganism without interference. We are asking that, after this long and extremely interesting debate, the Government should go away to see whether they can do something rather more effective and rather less dangerous than the provisions in the clause.
It is important that the two sides should understand one another. We do not want to see happening any of the examples that have been given, even the Wimbledon one, which certainly has nothing to do with the weak. We do not want hooliganism to succeed, but we do not want to make criminals out of tiresome young people.
§ Lord Moyne
Let me make one small point. I do not speak against the clause or the objectors, but it reads:A person is guilty of an offence if he … displays any writing … within the … sight of a person likely to be caused … distress".Surely that covers publication in a newspaper. The provision could be used to violate the freedom of the press. I am sure that that is not intended. But I echo a little what the noble Lord, Lord Donaldson, said, that the Government ought to think again about the clause before the legislation is finalised.
§ Lord Glenarthur
We have had a long and full debate on one of the most important clauses in the Bill. The noble and learned Lords, Lord Elwyn-Jones and Lord Scarman, have concentrated on what they see as the dangers and difficulties with the clause, and I shall return to those points shortly. Let me repeat at the outset what the noble Lord, Lord Hutchinson. has already said, that we have always recognised that it was important to frame a new offence very carefully indeed. During the passage of the Bill we have listened to the doubts expressed and, as a result, we have introduced important new safeguards to protect the interests of defendants.
951 The Opposition in another place accepted the need for a new offence, and that broadly has been the thrust of many of the comments made this afternoon. They welcomed the Government's attempt to provide the police with more effective powers against hooliganism. We remain convinced that the new low-level offence is vital if we are to fulfil our clear duty to provide additional protection for citizens from the mindless hooliganism which increasingly affects their daily lives and to which my noble friend Lord Beloff referred. Sadly, we live in an age when courtesy and regard for others appear to be on the decline. Hardly a day goes by without our reading about elderly people who are terrified to leave their homes at night, or of ethnic minority families who have to move house to escape persistent harassment which makes their lives a torment.
Public order is not concerned just with riots and demonstrations. It is also about public tranquillity, which is a point made by my noble friend Lord Renton and added to by my noble friend Lord Peyton of Yeovil in different words. For many people in this country their public tranquillity and the quality of their daily lives are being blighted by petty, mindless hooliganism. I do not believe that anyone can realistically feel otherwise, despite the concern expressed by the noble and learned Lord, Lord Scarman. We are not talking just about boisterous behaviour, to which I thought the noble and learned Lord, Lord Elwyn-Jones, was referring when he drew attention to the National Association of Probation Officers.
The blighting of people's lives by these activities is a point which the police have stressed to us time and time again from their daily experience of policing the communities in their charge. As the noble and learned Lord, Lord Scarman, said, when violence, damage or assaults occur, the law is, by and large, adequate and the police have the power to act. But the evil at which the new offence is aimed is largely outside the grasp of the law. With all respect to the noble and learned Lord, I do not think that he fully answered the point put to him by my noble friend Lord Colville of Culross. The new offence does not address violent crime but the sort of behaviour which has imposed a climate of fear and misery on many of our housing estates.
Gangs of youths terrorise the elderly residents. They think nothing of loud, boisterous behaviour at 2 o'clock in the morning. They tip refuse through people's letterboxes and bang on their windows and doors. As my noble friend Lord Campbell of Alloway said, those are the matters that can lead to distress to those who are within sight or hearing. The Government do not believe that that is acceptable behaviour. It cannot be. People should not continue to be frightened in that way. It is intolerable that they should suffer such behaviour. That is why a new offence is needed and why it has been warmly welcomed by the police.
As I said, we do not believe that it is right to penalise simple high spirits. We are alive to the need to ensure that the new offence is not a replacement for "sus". The most important difference is that the Clause 5 offence requires a victim. That is one of the major changes that the Government made in another place.
952 The prosecution will have to show that there was someone present within sight or hearing of the accused who was likely to be caused alarm, harassment or distress by the accused's behaviour. The court will have to ascertain who that person was and whether he or she was likely to be alarmed, harassed or distressed by the behaviour in question.
The noble and learned Lord, Lord Elwyn-Jones, supported by the noble Lord, Lord Hutchinson, thought that the word "disorderly" was too wide. As my noble friend Lord Butterworth has said, that is not a new term in our statute law. For many years we have had an offence of being drunk and disorderly. It is now in Section 91 of the Criminal Justice Act 1967. The courts have no difficulty in deciding what constitutes disorderly behaviour in that context. I cannot spell that out more succinctly or with more attention to logic than my noble friend did.
The police have power at common law to deal with breaches of the peace. That does not always enable them to protect other citizens from aggressive behaviour. We have deliberately proposed disorderly behaviour as one element in the new offence in Clause 5, at a slightly lower threshold than breach of the peace. The courts have also suggested that "disorderly" indicates less aggressive conduct than would be required to constitute a breach of the peace. That is part of the rationale of the new offence.
If there is a breach of the peace, the police have power to intervene and if necessary to make an arrest. The difficulty so often revealed in case law is that when the police are called to a disturbance—often late at night—they have no power beyond that of asking the participants to go home. If the revellers refuse to do so, there is little that the police can do, for as the Committee will know far better than I, a disturbance of the peace is not a breach of the peace.
Contrary to popular belief, the police have no general power to move people on. Before the police can intervene there must have been or be likely to be a breach of the peace, or a criminal offence must have been committed.
Disorderly conduct, and particularly the disorderly element of the offence, fills a gap in the law where at present the police have to rely on their powers of persuasion and bluff. We hope that they will continue to rely on their powers of persuasion, but when those fail and their bluff is called, and the revellers refuse to go home, or the youths continue to run through the shopping precinct, we think that the police should be able to act more effectively than they can at present. That is why we have added "disorderly" to the other elements in the offence and why we have included a power of arrest if someone ignores a police warning to stop. Of course, disorderly behaviour on its own is not sufficient to commit the offence; it must be disorderly behaviour committed within the sight or hearing of someone who is likely to be alarmed or distressed.
The offence also contains important safeguards. The accused must intend or be aware that his conduct is threatening, abusive, insulting or disorderly. Secondly, if the defendant was unaware or had no reasonable cause to believe that his conduct was likely to cause another harassment, alarm or distress, he will not be guilty of the offence. Thirdly, there is a general defence for the accused to prove that his conduct was reasonable.
953 My noble friend Lord Broxbourne mentioned harassment. Harassment can have the active and passive features to which he referred. We were conscious of that when preparing Clause 5, but as my noble friend acknowledged, it is a proper use of the word to use it to describe the consequences of behaviour set out in Clause 5(1)(a) and (b). It is because the word aptly describes the mischief that we seek to catch that we have used it on this occasion.
The noble Lord, Lord Gifford, mentioned the writing of signs and so on. He raised the general matter of free speech. We thought hard and long before extending Clause 5 to writing signs, and so on, for the reasons that the noble Lord gave. We decided to do so because of our particular concern to catch instances of racial harassment—a matter which I am sure the noble Lord will feel is a proper one to be dealt with. They can often take the form of racialist graffiti or the daubing or displaying of different slogans. I am sure that the noble Lord will agree that such racial harassment is a serious mischief and one which should be accounted for by the clause.
§ Lord Gifford
Is not racial harassment dealt with in Clause 19? If it is not, we can improve the clause. Clause 19 deals with words or gestures which are threatening, abusive or insulting which are either intended or likely to stir up racial hatred. It is an apt description of the real grievance which I agree should be included in legislation and which the noble Lord intends to include in the Bill.
§ Lord Glenarthur
I do not think that it goes as far as the writing of signs or the daubing of slogans. I do not believe that that would be encompassed by the use of the word "gestures". I shall look at the point that the noble Lord makes. I do not believe that Clause 19 goes as far as he suggests.
The noble Lord, Lord Hutchinson of Lullington, mentioned powers of arrest. If a gang of youths is persecuting an elderly person or an Asian family in its home and does not stop when required to do so by a constable, then of course there should be a power of arrest. I am not sure what the noble Lord's point was. Was he saying that hooligans should be allowed to carry on regardless? I cannot believe that he was. I am sure that he will realise that the power of arrest is limited. There is a further safeguard in the power of arrest. No one can be arrested for this offence unless he has refused to stop his mischievous behaviour on being warned to do so by a policeman.
Lord-Hutchinson of Lullington
The Minister asked what I meant. The White Paper went out of its way to say that there should be no power of arrest, because of the dangers of having a power of arrest for offences of this kind which deal with such a low level of criminality. Perhaps he can explain.
§ Lord Glenarthur
It is surely important in that case that safeguards are built in. I should have thought that that was the answer to the noble Lord's concern.
Perhaps I may return briefly to add to the answer that I gave to the noble Lord, Lord Gifford, on Clause 19 and the relevance of Clause 5 to racial hatred. Clause 19 deals with incitement to racial hatred and 954 not harassment, as in Clause 5. I hope that that explains the point.
My noble friend Lord Boyd-Carpenter mentioned Wapping. It is true, as he said, that there have been the most appalling scenes of disorder at Wapping. They would be caught by Clause 5. It is equally true, as my noble friend Lord Campbell of Alloway and the noble Lord, Lord Grimond, pointed out, that a range of other public order offences are committed. Threatening or violent pickets will offend against Clause 2 or Clause 4 of the Bill and against Section 7 of the Conspiracy and Protection of Property Act 1875—the offence of intimidation.
The police have made large numbers of arrests at Wapping under the existing law, and in cases of low-level disorderly behaviour they might in future occasionally use Clause 5. But to deal with scenes like Wapping is not the main justification of the new offence which is directed much more to the matters that I described earlier and that were described, too, by my noble friend Lord Colville.
We recognise the concern expressed about the possible scope of this new offence. But, as I said at the beginning, the Opposition agreed in another place that there was a need for a new offence to deal with hooliganism provided that it had proper safeguards. We believe that we have incorporated sufficient safeguards and that we have now got the balance right. This is an important new protection for the victims of harassment and other forms of hooligan behaviour. It is behaviour that strikes at the heart of many people who deserve the sort of protection that this Bill tries to achieve. I hope that the Committee will agree that Clause 5 should stand part of the Bill.
§ Lord Elwyn-Jones
The Committee has fully ventilated and discussed all the relevant issues arising from this clause. Accordingly, it is time, I believe, to take the opinion of the Committee upon it.
§ 6.41 p.m.
§ On Question, Whether Clause 5 shall stand part of the Bill?
§ Their Lordships divided: Contents, 131; Not-Contents, 82.955
|DIVISION NO. 1|
|Abinger, L.||Cameron of Lochbroom, L.|
|Airey of Abingdon, B.||Campbell of Alloway, L.|
|Alexander of Tunis, E.||Carnegy of Lour, B.|
|Allenby of Megiddo, V.||Carnock, L.|
|Allerton, L.||Coleraine, L.|
|Ashbourne, L.||Colwyn, L.|
|Auckland, L.||Constantine of Stanmore, L.|
|Bauer, L.||Cork and Orrery, E.|
|Beaverbrook, L.||Cowley, E.|
|Belhaven and Stenton, L.||Craigmyle, L.|
|Beloff, L.||Craigton, L.|
|Belstead, L.||Croft, L.|
|Bessborough, E.||Cullen of Ashbourne, L.|
|Boyd-Carpenter, L.||Davidson, V.|
|Barbazon of Tara, L.||De La Warr, E.|
|Broxbourne, L.||Denham, L. [Teller.]|
|Butterworth, L.||Denning, L.|
|Buxton of Alsa, L.||Dilhorne, V.|
|Caccia, L.||Drumalbyn, L.|
|Caithness, E.||Elles, B.|
|Elliott of Morpeth, L.||Montagu of Beaulieu, L.|
|Fanshawe of Richmond, L.||Montgomery of Alamein, V.|
|Ferrier, L.||Morris, L.|
|Fortescue, E.||Mottistone, L.|
|Gainford, L.||Moyne, L.|
|Gisborough, L.||Munster, E.|
|Glanusk, L.||Newall, L.|
|Glenarthur, L.||Norrie, L.|
|Gloucester, Bp.||Nugent of Guildford, L.|
|Gray, L.||Orkney, E.|
|Greenway, L.||Orr-Ewing, L.|
|Hailsham of Saint||Pender, L.|
|Marylebone, L.||Peyton of Yeovil, L.|
|Hardinge of Penshurst, L.||Plant, L.|
|Harmar-Nicholls, L.||Portland, D.|
|Harvington, L.||Quinton, L.|
|Hemphill, L.||Radnor, E.|
|Henley, L.||Rankeillour, L.|
|Hives, L.||Rochdale, V.|
|Home of the Hirsel, L.||Russell of Liverpool, L.|
|Hooper, B.||St. Aldwyn, E.|
|Hunter of Newington, L.||St. Davids, V.|
|Hylton-Foster, B.||Sanderson of Bowden, L.|
|Kimball, L.||Sandford, L.|
|Kinloss, Ly.||Selborne, E.|
|Lauderdale, E.||Shannon, E.|
|Lawrence, L.||Sherfield, L.|
|Layton, L.||Skelmersdale, L.|
|Lindsay, E.||Stanley of Alderley, L.|
|Lindsey and Abingdon, E.||Stodart of Leaston, L.|
|Long, V.||Strathclyde, L.|
|Lucas of Chilworth, L||Swinfen, L.|
|Lurgan, L.||Swinton, E. [Teller.]|
|McAlpine of West Green, L.||Terrington, L.|
|Macleod of Borve, B.||Teviot, L.|
|Malmesbury, E.||Thomas of Swynnerton, L.|
|Mancroft, L.||Tonypandy, V.|
|Margadale, L.||Ullswater, V.|
|Marshall of Leeds, L.||Vaux of Harrowden, L.|
|Massereene and Ferrard, V.||Vickers, B.|
|Merrivale, L.||Vivian, L.|
|Mersey, V.||Whitelaw, V.|
|Middleton, L.||Windlesham, L.|
|Molson, L.||Wise, L.|
|Monk Bretton, L.||Young, B.|
|Monson, L.||Zouche of Haryngworth, L.|
|Addington, L.||Hampton, L.|
|Amherst, E.||Hatch of Lusby, L.|
|Ardwick, L.||Hunt, L.|
|Avebury, L.||Hutchinson of Lullington, L.|
|Aylestone, L.||Hylton, L.|
|Barnett, L.||Jacques, L.|
|Birk, B.||Jeger, B.|
|Boston of Faversham, L.||Jenkins of Putney, L.|
|Bottomley, L.||John-Mackie, L.|
|Carmichael of Kelvingrove, L.||Kagan, L.|
|Chitnis, L.||Kilbracken, L.|
|Cledwyn of Penrhos, L.||Kirkhill, L.|
|David, B.||Lincoln, Bp.|
|Dean of Beswick, L.||Llewelyn-Davies of Hastoe, B.|
|Denbigh, E.||Lloyd of Kilgerran, L.|
|Denington, B.||Lovell-Davis, L.|
|Diamond, L.||Mackie of Benshie, L.|
|Donaldson of Kingsbridge, L.||McNair, L.|
|Donoughue, L.||Mayhew, L.|
|Elwyn-Jones, L.||Melchett, L.|
|Ennals, L.||Morton of Shuna, L.|
|Ewart-Biggs, B.||Nicol, B.|
|Falkender, B.||Northfield, L.|
|Foot, L.||Oram, L.|
|Gallacher, L.||Pitt of Hampstead, L.|
|Gifford, L.||Ponsonby of Shulbrede, L.|
|Glenamara, L.||Prys-Davies, L.|
|Graham of Edmonton, L.||Ritchie of Dundee, L.|
|Gregson, L.||Ross of Marnock, L.|
|Grey, E.||Seear, B.|
|Grimond, L.||Sefton of Garston, L.|
|Serota, B.||Wallace of Coslany, L.|
|Shackleton, L.||Walston, L.|
|Silkin of Dulwich, L.||Whaddon, L.|
|Stallard, L.||White, B.|
|Stoddart of Swindon, L.||Wigoder, L.|
|Taylor of Blackburn, L.||Williams of Elvel, L.|
|Taylor of Gryfe, L.||Wilson of Rievaulx, L.|
|Taylor of Mansfield, L.||Winstanley, L.|
|Underhill, L.||Ypres, E.|
§ Resolved in the affirmative, and Clause 5 agreed to accordingly.
§ 6.51 p.m.
Lord Plant: moved Amendment No. 15:
After Clause 5 insert the following new clause:
§ (Offences involving missiles.
§ The noble Lord said: I think it might be agreeable and convenient to noble Lords if I move Amendments Nos. 15 and 16 together. One deals with missiles, and the other with fire bombs. Mr. Justice Popplewell in his interim report on football ground safety resulting from the tragic Bradford fire disaster recommended that missile throwing per se should be a criminal offence. He later modified his stand, suggesting that it could be caught by the provisions of Clause 5. This, I believe, will be stretching Clause 5 beyond the bounds of common sense into the realms of what could be described as the "Chipping Sodbury Barbed Wire Act". The potential of this type of offence to spark off large-scale public disorder needs no cataloguing from me. I therefore argue that it is an offence of such a nature as to merit individual recognition and should be included in this Bill as a specific offence.
§ As noble Lords will see from subsection (3) of the new clause this offence is envisaged as a relatively minor one and only to be tried summarily. Dealing with the second new clause relating to fire bombs, most noble Lords will realise that the illegal use of petrol bombs or similar explosive devices would be covered by criminal offences created by the explosives legislation. May I remind noble Lords that almost every facet of this Bill is similarly covered by the existing law. This is a consolidating and modernising Bill. I therefore contend that an Act of 1871 may equally need revision and a specific offence of manufacturing, possessing or throwing a device similar to a petrol bomb should be—nay, demands to be—included in this Bill.
§ The premeditated preparation, availability and use of these awesome devices in inner city riots—especially in the view of the Police Federation—demand special recognition. The awful consequences of their use, as demonstrated at Handsworth—where, I need not remind members of the Committee, two lives were lost as a direct result of the use of petrol bombs—and Broadwater Farm are such that we feel public repugnance should be shown by the availability of a prison sentence for any person 957 convicted of possessing or using such an article. My amendment was drafted to include prison sentence for life. However, in the light of what noble Lords have decided earlier this afternoon, the Government may feel that they would wish to revise the prison sentence for life which I have included to perhaps the 10 years which we agreed earlier. I beg to move.
§ Lord Denning
May I say a word in favour of this clause. I can well understand that there are many offences which are already covered by the law. This may well be covered by the Explosives Act. But petrol bombs are a new danger in our time causing conflagration and trouble. I see no reason whatever why we should not specifically put on the statute book a clause to prohibit them and to punish severely those who take part in their use. Therefore although it may not be necessary, it is a very good thing to have on the statute book a clear and specific clause against evils of this kind.
§ Lord Silkin of Dulwich
Nobody in this Chamber would in any way wish to condone the type of conduct about which the noble Lord, Lord Plant, has been speaking, or to water it down in any way. The doubt which I have about these clauses is not related to the need for condign punishment for those who make use of the practice described here. It is simply a question of whether this is the proper place to deal with it, and whether it is necessary to deal with it, or whether it is already in the offences dealt with in the explosive substances legislation. That is legislation which, my memory tells me, is always subject to the necessity to obtain the consent of the Attorney-General for prosecution because some instances of this kind of conduct that I remember coming across were not worthy of imprisonment for life—or indeed in some cases any imprisonment at all—whereas others were extraordinarily serious. There is therefore that safeguard in the explosive substances legislation.
If these clauses were passed into law, with regard to these clauses in this legislation, that safeguard would immediately disappear because they are not subject to the same safeguard. Quite apart from that, do they make provision for any matter which is not included already? I hope that the Minister will be able to tell us. If they make such provision would it not be appropri-ate, if more is needed, to include it in the specific legislation rather than in a Public Order Act. People can do all kinds of things which are in breach of public order. If every single one of them formed a part of a Public Order Act then the Act would spread to several volumes. The question is: what is special about this type of conduct that requires it to be put into a Public Order Act rather than to find its place in that part of the statute law to which Parliament has consigned it in the past?
§ 7 p.m.
§ Lord Harmar-Nicholls
The factor that makes this special is that there has to be premeditation. Many other implements are used which are frightening the public now—and with very good reason. It could well be that one could have the weapon and various items but not necessarily with the intent of using it for a purpose that falls foul of the law.
958 As regards this amendment there must be some premeditation. For example, you must have acquired the liquid, you must have mixed it with something else; you must have prepared it. I believe that the premeditation aspect makes this a clause which ought to be looked at with some sympathy. I understand the problem of trying to identify every missile and so on, but the premeditation aspect gives the amendment special significance and that is perhaps slightly different from what the noble and learned Lord has just said from the Dispatch Box.
§ Lord Glenarthur
I fully understand the anxiety which lies behind these new offences and I know that the Committee will join with me in paying tribute to the courage of the policemen last year who had to face a hail of petrol bombs at Handsworth, Tottenham and Brixton. The manufacture and throwing of petrol bombs at the police is an intolerable evil which needs to be punished vigorously. However, I have to say to the noble Lord, Lord Plant, that—rather as the noble and learned Lord, Lord Silkin, was suggesting—there is no point in Parliament creating new criminal offences to deal with acts which are already criminal, and I say that despite the comments of the noble and learned Lord, Lord Denning, on this point.
Each of the elements in the noble Lord's proposed offence is already covered by the criminal law. Those who manufacture—and that presumably covers intent in the way in which my noble friend described it—or possess petrol bombs are generally charged under Sections 3 or 4 of the Explosive Substances Act 1983. Section 3 carries a maximum of life imprisonment, as does Section 2, which can be charged against those who throw petrol bombs. As an example, a young man who was convicted of manufacturing petrol bombs during the 1981 riots in Leeds was sentenced to four years' imprisonment.
Despite the singular and hideous menace of petrol bombs and petrol bombers, we are not aware of any gaps in the law which have caused difficulty either to prosecutors or to the police. After last year's riots the Home Office made inquiries of the police forces most directly involved about the adequacy of the law against petrol bombs. All the forces concerned had made arrests for petrol bomb offences and none had experienced any difficulties in bringing charges. However, if the noble Lord, Lord Plant, can show that there is a gap in the law—and, with respect, I do not think that he has demonstrated that—it is naturally something that we would want to look at urgently. My honourable friend in another place indicated his willingness to look at precisely that point.
Similar considerations apply to the second new clause moved by the noble Lord. The police service have been asking for some time for a specific offence of missile-throwing. They argued their case to the Home Affairs Select Committee of another place who concluded that there was insufficient detailed evidence to justify recommending the creation of a new offence.
Knowing the matter was of particular concern to the police, we specifically addressed the problem of missile-throwing in the White Paper, and we described there the difficulties which the police reported to us. The difficulty is simply stated: it is that when people throw missiles, whether during a riot, or at a football 959 match, it is not always possible to prove where the missiles land. The definition of violence in Clause 8 has been designed to meet this difficulty. It specifically includes as an example of unlawful violence:throwing at or towards a person a missile of a kind capable of causing injury which does not hit or fails short".As a result the new public order offences should meet the case where at football matches and similar occasions people pick up and throw missiles in circumstances where the injury or damage cannot always be identified. The single missile-thrower should be capable of being charged either with possessing an offensive weapon or under Clause 4 of the Bill; and in serious cases of group violence the prosecution can, where appropriate, charge missile-throwers with violent disorder, which would expose them to a maximum penalty of five years' imprisonment. Again we need the evidence if we are to proceed with that.
So far as the Bill being a consolidating Bill is concerned, we are only consolidating public order law: the common law public order offences in the statute law and the Public Order Act 1936. We cannot consolidate all the law relating to other offences—assault, wounding, offensive weapons and so on—which may be committed in the course of public disorder, without having a Bill of quite inordinate length.
As regards the Popplewell recommendations, the noble Lord was right in saying that in paragraph 4.7 of his report Mr. Justice Popplewell, as he was then, was clearly of the view that missile-throwing should constitute an offence. We believe that it does. In particular the Bill makes it clear that throwing a missile at or towards a person will be caught by the offences in Clauses 1 to 4 of the Bill. The alcohol legislation, which we passed last year, made it an offence to possess cans and bottles on the terraces. This Bill extends the offence to fireworks. If in future it appears that there are further gaps in the law, naturally we will consider the matter again.
§ Lord Hylton
Is the Minister able to tell the Committee the maximum penalty that can be imposed on a person who throws a petrol bomb into a building, either destroying it or severely damaging it without necessarily injuring any person inside the building? I ask that because it has become a powerful means of intimidation in Northern Ireland and one fears that those practices may be copied in England.
§ Lord Plant
I thank the noble Minister for his explanation. It appears that if I pursue this amendment to a vote I shall be mangled between my own Front Bench and the Government forces. Therefore, I shall not pursue the amendment at this stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 16 not moved.]
§ Viscount Davidson
Before moving that the House do now resume, I suggest that we do not resume this Committee stage before 8.5 p.m. I beg to move that the House do now resume.
§ Moved, accordingly, and, on Question, Motion agreed to.
§ House resumed.