Malicious Communications Bill (Hansard, 19 May 1988)

§ Lord Campbell of Alloway
My Lords, I beg to move that this Bill be now read a second time.
The Bill comes from another place, where it was introduced by my honourable friend Mr. Andy Stewart. It is based upon the 1985 Law Commission report on poison pen letters. It creates a new offence in any one of a quadruplicate set of circumstances.
Where any person sends to another person, with intent to cause distress or anxiety, a letter or other article such as, for example, a tape or computer software which conveys:

(i) a message which is indecent or grossly offensive;

(ii) a threat; or

(iii) information which is false and known or believed to be false by the sender; or

(b) any other article which is, in whole or part, of an indecent or grossly offensive nature. there is the commission of the new offence.
Sending articles in that context, with each of those quadruplicate set of circumstances, includes delivery and causing to be sent or delivered. The offence is liable summarily; the maximum penalty is a fine of 496 £400; the Bill would come into force two months after its enactment in England and Wales and may become effective in Northern Ireland by Order in Council, subject to annulment by resolution by the House. The state of the law in Scotland—this will be no surprise to your Lordships—is such that it is really quite unnecessary and not appropriate that the Bill should apply to Scotland.
In the case of a threat used to enforce a demand, if the sender shows that he believed that there were reasonable grounds for making the demand and that he believed that the threat was a proper means of reinforcing that demand, then no offence is committed. However, subject to that exception, the criminality resides in the action, irrespective of whether it causes distress or anxiety—a matter which was discussed in another place.
A further matter that was discussed in another place was whether, in context with threat, "reasonable belief' was appropriate. However, the test is not "reasonable belief', but belief that there were reasonable grounds—which is not quite the same thing, although both are subjective.
In the other place the question arose as to whether the test should be subjective or objective. That was a matter upon which my honourable friend Mr. Patten gave an assurance that attention should be paid to that question in your Lordships' House, if your Lordships were so advised.
In a sense, the new offence fills a gap between nuisance telephone calls—which were an offence under Section 43(1) of the Telecommunications Act 1984—and an offence under the Post Office Act Section 11(1)(c), which only applies when material is sent, or is attempted to be sent, by post. Of course there is a possible element of overlap between that offence and the new offence. Indeed the term "indecent" in Clause 1 overlaps to some extent with the term "grossly offensive". However, both terms are used in the analogous offences under the Telecommunications Act and the Post Office Act to which reference has already been made, and so far this has not given rise to any difficulties.
It is right that your Lordships should know that although the Bill is based upon the Law Commission Report it departs from it in six significant ways: the penalties are reduced; the burden of proof that a threat was warranted is now upon the defence; the protection is now afforded even wider to include third parties; the offence now includes causing to be sent or delivered, thereby widening the ambit; the "reasonable excuse" defence has been wholly excised; and there is the enabling clause as regards Northern Ireland.
The hope must be that this modest, non-controversial measure may commend itself to your Lordships as reasonable, timeous and requisite. I beg to move.

§ Lord Mishcon
My Lords, as one would expect of the noble Lord, Lord Campbell of Alloway, he has moved the Second Reading of the Bill with great 497 clarity. It is an important little Bill. I suppose that if we were to try to describe the practice of sending poison pen letters we might shortly describe it as cruelty anonymous. It is in that atmosphere that I rise to support, in a general way, this measure. As the noble Lord, Lord Campbell of Alloway, said, there is a gap in the law. There is a gap between criminal libel, for example, which I do not think he mentioned, and the other statutory offences.
Criminal libel will not cover a case where nothing defamatory is said but something offensive, something menacing is said. Furthermore, in most cases one would have to prove that a breach of the peace was apprehended as a result of any criminal libel; and so there is no doubt that there is a gap in the law. One passes an Act of Parliament hoping that one will mitigate to some extent the horrible practice of sending poison pen letters or sending articles. Articles have a very broad meaning, the precise nature of which I do not intend to detail to your Lordships. However, your Lordships have sufficient imagination to know what might and does occur offensively through letter-boxes in various circumstances.
The fear is of course that one passes an Act of Parliament with good intent but one knows in one's heart of hearts that the number of cases that one will ever be able to bring are few, by virtue of the fact that cowardice is the spirit usually lying behind poison pen letters. The result is that the person who writes them is usually untraceable, though the person who puts something through the letterbox may conceivably he traceable.
One then turns to the question of whether one should have an Act of Parliament when one has not proved to the satisfaction of Parliament that the practice is so widespread that it deserves a legislative measure. Your Lordships may be interested to know that in a similar obnoxious practice relating to offensive and indecent telephone calls Parliament was informed that above 500 cases are reported every day, including Saturday and Sunday. So one can imagine that the number of poison pen letters of the kind that we are describing in the legislation is pretty prolific.
One then wonders why there has not been an outcry; why it is that there are not more attempts at prosecution. I am afraid the answer is that many people have to be informed by lawyers whom they may consult that at the moment there is no way in which a prosecution can be brought, even if the person can be indentified. There is the gap that the Bill fills.
The only other comment I have to make is that having said that it may be difficult in many cases to prosecute and that we are legislating here with the knowledge that we possess as ordinary folk; that this cruel practice is prevalent, even if we cannot prove the statistics; knowing that we are going to legislate through this measure, the next question—it is the final one with which I deal—is: are we being consistent in regard to the penalty exacted under the Bill?
The noble Lord, Lord Campbell of Alloway, mentioned the fact that the penalty provided in the Bill is not the same as was recommended by the Law 498 Commission in the draft Bill which it appended to its report. The penalty there, as I remember it, was £200 with a possibility of imprisonment. I think that I am right in saying that. The penalty under the Bill is £400: that is, scale 3 as against scale 5.
If one tries to have a little consistency, I am afraid that I have to remind your Lordships of something that happened in your Lordships' House. I do so because I believe that as a result of what happened we should be careful when we come to examine the question of penalty. Perhaps your Lordships will forgive me if I quote from paragraph 4.55, on page 30 of the report, which states: In regard to the suggestion for amending section 43(l), we have noted that Parliament recently had the opportunity of increasing the maximum penalty under it". That is Section 43(l) of the Telecommunications Act 1984. We were dealing in the House on that occasion with the penalty to be exacted in respect of that section.
The report continues: In the House of Lords a backbench amendment to the relevant clause in the Telecommunications Bill would have provided a maximum penalty of six months' imprisonment for the offence as an alternative to a line. During the short debate on the amendment, concern was expressed by its proponents about the large number of reported cases of nuisance telephone calls (some 500 each day) and the fact that many of these calls had a terrifying effect on the, often lonely, people who received them. In opposing the amendment, the Lord Advocate said that, because of the width of the offence, mans of the cases brought under it were petty cases for which it would be undesirable to send offenders to prison. He also drew attention to the offence proposed in our working paper"— that is the offence with which we are dealing under the Bill— for dealing with the sending of grossly offensive communications and suggested that it might be better to await the outome of our review before proceeding. Consequently the amendment was withdrawn and the maximum penalty remains a fine of only £400". I remind the House of that point because the noble and learned Lord the Lord Advocate was expecting us, when we dealt with legislation of this kind, to have that debate in mind and to look at the question of consistency of penalty. How inconsistent it is! I gave that instance to remind your Lordships.
I now turn to paragraph 2.7 of the report, which deals with the offence under Section 11 of the Post Office Act 1953, for any person to send indecent or obscene material through the post". We are reminded in the report that the maximum penalty on summary conviction for that offence is a fine not exceeding £2,000. On conviction on indictment, the court may order imprisonment for a term not exceeding 12 months in addition to imposing a fine. That is for the offence of sending indecent or obscene material through the post.
We are in danger of being completely inconsistent when that is the penalty for committing those offences under the Post Office Act while we are saying that the sending of poison pen letters, if their author is discovered, charged and convicted, cannot be sentenced to any term of imprisonment and is subject to a maximum fine of only £400. If we are really trying to deter these people from doing this obnoxious thing, it seems to me we not only need to have a proper deterrent and consider that very carefully but we must also be consistent in regard to 499 our penalties. Otherwise we are doing something a little irresponsible. Subject to those comments, I support the Second Reading of this Bill.

§ The Parliamentary Under-Secretary of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington)
My Lords, I wish to congratulate my noble friend Lord Campbell of Alloway on taking up this Bill and bringing it forward for the consideration of this House. The Government offered this Bill their full support during its passage through another place and we intend to offer similar support in this House.
This is a difficult area in which to legislate. One does not wish to catch the robust expression of sincere opinion, nor does one wish to bring the criminal law into trivial private quarrels carried on in correspondence. What my noble friend and I want to do is to penalise those who set out to wound others by sending them harmful matter. My noble friend's Bill steers a careful course through this difficult territory. I believe that this Bill will make an important addition to the criminal law. It clearly struck a chord with all parties in the other place. I believe it will strike a chord with noble Lords in this House. It tackles behaviour which is clearly criminal and provides an effective penalty and an effective deterrent. It is an admirable and necessary Bill. It has the Government's wholehearted support and I hope that noble Lords will have no difficulty in giving it a Second Reading.

§ Lord Mishcon
My Lords, before the noble Baroness sits down. I wonder whether, having heard my speech, she would care to alter what she said? Perhaps she might say that her noble friend and the Opposition, as well as herself, supported this Bill.

§ Baroness Trumpington
Gladly, my Lords.

§ Lord Campbell of Alloway
My Lords, though I shall he brief there is no disrespect or want of sincerity in what I have to say. I am extremely grateful to the noble Lord, Lord Mishcon, for his erudite and most constructive contribution. I think that the noble Lord accepts that, in accordance with the Law Commission report and our own knowledge of life, the practice is so widespread as to warrant legislation.
The point that the noble Lord makes on consistency of penalties is a very serious, well thought out and important one. It may well be that this matter will have to be considered at a later stage of the Bill. I say no more about it at this stage, where we are dealing with points of principle. I am extremely grateful to my noble friend the Minister for her support and for the remarks she made.
Before concluding, I wish to congratulate the draftsmen on having produced a Bill where the precision of the draftsmanship is matched by the clarity of expression. It is an intelligible Bill. I also wish to acknowledge the work of the Law Commission and of course the initiative of my honourable friend Mr. Andy Stewart and the help I have had personally from the Home Office with the 500 preparation of these documents. I respectfully ask that this House give the Bill a Second Reading.
On Question, Bill read a second time and committed to a Committee of the Whole House.