§ 7.42 p.m.
My Lords, I beg to move that the Report be now received.
Moved, That the Report be now received.—(Earl Ferrers.)
§ Lord Airedale
My Lords, I expect that the noble Earl has had a rather busy day and is perhaps feeling hungry by now. I am sorry on his account that the business for today has been arranged in the way that it has. However, I must use this opportunity to mention that the Bill, having been pushed through another place in a single day, then came to this House and in Committee several noble Lords withdrew amendments on the express understanding that they wanted to study what had been said and reserved the right to come back on Report.
Nevertheless, at the end of the Committee stage the Deputy Leader of the House saw fit to move that the Report stage should be dispensed with. I believe that but for the timely intervention of the Opposition Chief Whip we may have lost this Report stage.
The noble Earl did not withdraw that Motion without a struggle. He said:If amendments are to be made, they can be made on Third Reading".—[Official Report, 11/2/92; col. 714.]So they can. But that is an argument in favour of dispensing with Report stages altogether. That may be welcome to governments but it is not at all welcome to noble Lords in Opposition. We need the stages of the Bill to develop and present our arguments.
The noble Earl can take some comfort from the Companion to the Standing Orders which says:if the Bill is reported … without amendment, the Lord in charge of the Bill may move forthwith—'That this Report be now received"'.However, the next paragraph says:It is however possible to postpone receiving the Report to a later date, even though the Bill has passed through Committee without amendment".The Companion is not expansive about that and does not fully explain the position. I understand that when the Companion is reprinted, which may not be for some time, that part of it will be expanded to explain the position, and in the meantime I shall briefly try to explain the position.
There are two kinds of withdrawal of an amendment. There is the simple case where the mover 242 is satisfied with the Government's answer and begs leave to withdraw the amendment. That is straightforward. There is the other situation, which arose several times in Committee, in which the mover of the amendment says, "I have listened to the Government's argument. I want time to consider the matter. I want time to consult people outside Parliament who are advising me. I reserve my right to return to this matter on Report. In the meantime, I beg leave to withdraw the amendment". I believe that that is the position. I hope that that will be included in the Standing Orders and that there will be no more confusion about the matter.
My Lords, the noble Lord was kind enough to let me know that he wished to raise this matter. I apologise to him and to the House for any indiscretions which I may have committed. But I find it difficult to accept the noble Lord's innuendo that I tried to manipulate the occasion quickly so as to bounce your Lordships out of having a Report stage.
The noble Lord quoted from the Companion to the Standing Orders which says that if no amendments have been made in Committee it is possible to dispense with a Report stage. No amendments were made in Committee and, looking cursorily at the brief I was given, I realised that it was possible to move that the Report be now received. I certainly did not wish to do your Lordships out of a Report stage. Had I done that against the wishes of your Lordships, I should have apologised profusely. Indeed, I apologise for the fact that I moved that Motion, even though I subsequently and—despite what the noble Lord, Lord Airedale, said—happily withdrew what I said.
I am most anxious that your Lordships do not think that by moving that Motion I was trying to do you out of a stage of the Bill. That was the last thing that I had in mind. If I gave that impression I apologise for it. I hope that your Lordships will take that in the way in which it is meant and that we can now move on to consideration of amendments.
On Question, Report received.
§ Clause 1 [New offence of aggravated vehicle-taking]:
Lord Morris of Castle Morris moved Amendment No. 1:
Page 1, line 22, at end insert ("by the accused or by another person incited by the accused").
§ The noble Lord said: My Lords, in moving Amendment No. 1 I shall speak also to Amendments Nos. 3, 5 and 6. We have been here before. I cannot say that this is the first or even the second time around this track and I apologise for going over what must be rather familiar ground. My reason for doing so is that we have received many representations, especially from lawyers—some in quite high places in the law —and practising magistrates who are anxious about the points that we have brought back for your Lordships' further consideration.
§ Amendment No. 1 refers to Clause 1. I accept without question that the purpose of Clause 1 as it stands is to make anyone guilty of the basic offence of taking and driving away a vehicle guilty also of any aggravated offence which occurs before the vehicle is 243 recovered. There was perhaps some slight confusion at earlier stages in that regard. I hope that we are now all agreed about the purpose of Clause 1.
§ Amendment No. 1 is not intended to destroy Clause 1 or remove the responsibility of the person I shall call the "passenger." It is certainly not intended to let anybody off the hook. The aggravated offence, as we all agree, can be, and often is, a horrific event and we do not wish to understate or underestimate it. But the amendment has two connected purposes. The first is to distinguish in law between an active participant and a passive passenger. We use the term "incited" to make that distinction. It seems to me that one is far more guilty than the other and that it is unjust and unfair for the same punishment to fall indiscriminately on both categories of person. Secondly, the amendment is intended to place the burden of proof on the prosecution to establish by the normal rules of evidence that an accused person is guilty of incitement rather than assuming the accused's guilt unless he can prove the contrary. As it stands the Bill is liable to convict people who had no intention of committing any serious crime and we are still unhappy with the promiscuous attribution of vicarious guilt.
I re-read carefully in the Official Report what the noble Earl the Minister said in this regard in Committee. I believe that I can locate my sense of unease at the point where he replied to a possible scenario involving passive passengers put forward by the noble Lord, Lord Airedale. The Minister used such words as,
I ask … what on earth they were doing there in the first place. They should not have been there".—[0fficial Report, 11/2/92; col. 693.]
§ That still worries me. On reflection, the answer to the question posed by the noble Earl regarding what they were doing there is that they were committing the basic offence. After that, there is and should be seen to be a possible range of culpability which the law should not casually and carelessly brush aside and disregard.
§ Amendment No. 1, I repeat, is not intended to wreck the Bill. It is meant to refine a blunt instrument into something more like a precision tool. It is meant to permit greater sensitivity in apportioning due blame. I believe that it can surely be left to the courts to punish the offender according to his deserts. I beg to move.
My Lords, as the noble Lord, Lord Morris of Castle Morris, said, we debated these amendments in Committee. I am sorry to hear that I was unsuccessful in my efforts to persuade him to the Government's point of view. As I understand it, the noble Lord's argument is concerned with the injustice he thinks the Bill might do to what he called the "passive passenger". The noble Lord's point is that the passive passenger should not be punished more severely when he has neither caused nor incited the damage or dangerous driving. I would make three basic points in reply to the noble Lord.
First, the "passive passenger", so-called, is not passive in so far as the total vehicle-taking event is concerned. He is a proven criminal who has 244 committed the basic offence of taking someone else's vehicle without their consent or has allowed himself to be carried in it knowing it to have been taken in that way. No one can be convicted of the aggravated offence created by the Bill unless he has first committed the basic offence which I have just described. That is an important point, with implications for what I shall say in a moment about liability for the potentially lethal consequences of vehicle-taking.
Secondly, it is not correct to say that the Bill is unprecedented in making passenger and driver equally liable. The basic offence, at Section 12 of the Theft Act 1968, treats driver and passenger in precisely the same way. I would also draw your Lordships' attention to Section 35(2) of the Powers of Criminal Courts Act 1973. That section says that a person convicted of the basic offence in Section 12 of the 1968 Theft Act is liable to pay compensation for any damage to the vehicle occurring while it was out of the owner's possession, and that such damage is to be treated as resulting from the offence "however and by whomsoever" it was caused. So the offender is already liable to pay the price for the damage of others where he unlawfully took or travelled in the vehicle. The Bill takes that principle to its logical conclusion.
Thirdly, I would ask the noble Lord, Lord Morris of Castle Morris, to reflect on the speed and potentially lethal power of the vehicles which are taken for these purposes. It seems to me that there is an illuminating analogy with the way in which I understand the criminal law treats those who go jointly to commit a criminal offence where one of them carries a lethal weapon. If a group of robbers agree to take a gun with them, and to use it if need be, then all of them are jointly liable for any consequences which may arise from the use of that gun. Only if the robber who used the gun can be shown to have departed from the agreed plan can the others escape liability. The simple point I am seeking to make is this. These so-called joy riding events are indeed like taking a deadly weapon. That is why it is right to call them death-riding and not joy-riding. The circumstances of the taking are, by definition, irresponsible and the risks and consequences are entirely foreseeable. And so the Bill insists that all those who got involved share a moral and legal responsibility for what happened, except in the special circumstances set out in subsection (3) of the proposed Section 12A.
That position taken by the Bill seems to me to be correct and entirely morally defensible. It is invidious in the circumstances of vehicle-taking to single out particular individuals for degrees of culpability, as suggested by the noble Lord, Lord Morris of Castle Morris. They might all have taken a turn at driving or been a party to it in some other less provable way. And even if they were not, they knew what they were getting involved in. If one of them genuinely did not know and, having committed the basic offence, tried to prevent the accident, damage or whatever, then my advice to him is simple: "You knew this was someone else's vehicle and you knew the risks. You ought not to have got involved in the first place. What you have said may be taken into account by the court in passing 245 sentence in your case, and I suggest you go and make a clean breast of it. It may be that the court will find that your circumstances mitigate the penalty. But they do not excuse the offence and that is a lesson you will have to learn the hard way by going to court. Above all, don't do it again—and be sure to tell all your friends about the joy you found in joy riding."
The noble Lord, Lord Morris of Castle Morris, would, by his amendments, wish to take a much softer line with the offender. I hope that he will consider that in the light of what I have said. I hope that he will reflect on the catalogue of death, destruction and mayhem which is caused to innocent people by this crime. We had an example of it in today's papers. It must be something that requires firm and hard action.
§ 8 p.m.
§ Lord Morris of Castle Morris
My Lords, I said in my original submissions that I do not in any way underestimate the horror of these events. I did read with a heavy and sinking heart the account in The Times this morning of the particular case. Nevertheless, the noble Earl will not be surprised to learn that I am disappointed in his reply. On the first point he raised, we must simply disagree about the relative culpability of being a passive passenger. I am certain that he is not moved by my plea to see that there might be different degrees of culpability which could be distinguished without in any way mitigating the seriousness of the offence.
As regards his second point, I accept the precedents which he adduces. However, I would still argue that driver and passenger may display—not must display or do display—in certain cases very different degrees of guilt. As regards the third point which the noble Earl raised relating to communal guilt and the analogy which he drew, that brought back to my mind the very worrying case of Craig and Bentley, which has recently resurfaced. We are still worried in this particular Bill about people not being liable for consequences which they could not possibly have foreseen. It seems that the Government are going to insist that people should learn their lessons in a very hard way indeed. I am not convinced that that is necessary, but at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morris of Castle Morris moved Amendment No. 2
Page 1, line 23, after first ("the") insert ("dangerous").
§ The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 4. Once again, we proposed these amendments at Committee stage, when I argued that in the present state of the Bill an accused person can be convicted of an offence either under Clause 1(2) (b) if, because of the driving of the vehicle, an accident occurs by which injury is caused to any person, or, alternatively, under Clause 1(2) (c), if an accident occurs by which damage is caused to any property other than the vehicle.
§ The amendments that we are proposing ensure that the aggravated offence would apply only where the damage was linked in each case to the dangerous 246 driving of those in the vehicle. It seems to many of us that the higher penalties should not justly apply where the driving was careless or indeed blameless or where damage was inflicted on the vehicle without reference to the driving. At Committee stage the noble Earl the Minister replied that whatever happened to a car which had been taken and driven away, that must be the responsibility of the takers.
§ It is the unlimited and indiscriminate nature of that responsibility in law which continues to worry many of us. Eminent barristers have told me that this whole concept is alien and offensive to our law. A whole range of examples have been given. Perhaps the most extreme, although not the most unlikely, concerns the car which has been taken and is standing stationary at traffic lights when another car hits it. The aggravated offence will then have occurred. We feel that it is somehow basic to law and justice that there must have been some fault on the part of the defendant and that he should not be guilty of so serious a criminal offence if the events which made the offence aggravated lie completely outside his control. That is what lies behind Amendments Nos. 2 and 4. I beg to move.
§ Lord Gisborough
My Lords, I oppose this amendment. It would lead to a defence solicitor saying that the driving at the time was not dangerous. An example has been given. I can think of someone driving safely along a road over a period and then knocking someone down. The defence would say that the accident was due to a lack of due care and attention and not to dangerous driving. There is a big difference. That would allow a big loophole for the defence which would lead to people being let off when they should not be.
§ Lord Airedale
My Lords, I do not understand what the Bill means without the word "dangerous". Perhaps the word "reckless" would be equally suitable. The mere words,owing to the driving of the vehicle",could mean merely that the vehicle was in motion and not standing still. Surely we need a backbone to that expression either with words to the effect that the vehicle was being driven dangerously or recklessly or with other strong words of that kind.
My Lords, in these amendments the noble Lord, Lord Morris, seeks to excuse those whose driving was merely careless—I thought that was a slightly surprising word for him to use in Committee, but he did use it—or who were not otherwise the cause of the accident. I shall try to persuade the noble Lord that the Bill's approach is correct and justified.
The basic question posed by the noble Lord is why the Bill allows punishment for the person who is unlucky enough to be involved in an accident which causes injury or damage after he has taken the car. The noble Lord, Lord Airedale, sought to support him over this matter and said that it is bad luck if the car just happens to be moving and it is not being used dangerously. The fact is that somebody else's car has been taken and it should not have been taken. The taker has to be responsible for what happens whether the car is moving slowly or quickly or whether anyone is hurt or property is damaged.
247 The Bill contains various reasons why that is proposed. The simple reason is clearly not conclusive so far as the noble Lord, Lord Morris, is concerned. I would ask him to consider, in the circumstances of aggravated vehicle-taking, the fact that driving itself is a mischief. That is what most victims of this kind of crime would say. I believe they are right in that the criminal law should adopt the common-sense position too. If we were to accept the noble Lord's amendments, the vehicle-taker who writes off the noble Lord's parked car by accidentally backing the taken car into it would probably escape liability for the aggravated offence because he was not driving dangerously. The position is even worse when we come to consider personal injury. The noble Lord's amendments would prevent the proposed higher penalties being applied if the noble Lord's younger passenger was killed or maimed when the taken car reversed into the noble Lord's car.
It is perfectly true that the Bill has the effect of treating criminal takers who have accidents more harshly than the rest of us. I would not make any apology for that. The whole purpose of the Bill is to make these so-called "joy-riders" realise that their illegal driving is totally unacceptable and that they will not be allowed leeway to argue when things go wrong and when they are illegally on the road. It is true that some accidents just happen. But that does not mean that none of those involved bears any responsibility. In the case of vehicle-taking the law has long recognised that the offender should be liable to pay the price for an accident however and by whomsoever it is caused. I hope that the noble Lord, Lord Morris of Castle Morris, will reconsider the principle which is at issue here. It is that none of these accidents which happens afterwards, which the noble Lord seeks to weaken by putting in the word "dangerous", would happen if the basic offence had not occurred in the first place. I ask the noble Lord to try to be a little more robust about this.
§ Lord Morris of Castle Morris
My Lords, I shall read and consider carefully what the noble Earl said. What lies between us in the case he quotes is that we feel that it is not just a case of bad luck but that it is basically unfair and unjust not to discriminate and to sweep everybody in together.
I am not sure, but it occurs to me that the case that the noble Earl mentioned about backing into another car could be covered by Clause 1(2) (d) where damage is caused to the vehicle. I make no apology for not being brutal and robust. Robust is a word which we seem to be using quite a lot in the consideration of this Bill. I am not trying to be either robust or whatever the opposite of robust is; limp, I suppose, or wet. I am trying to be just and to avoid the kind of "gung ho" approach which one hears from time to time in various places—though never of course from the noble Earl —that if somebody has committed the basic offence then anything else can be pinned on him with justice and he deserves all that he gets. That is not justice as I understand it. However, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 to 6 not moved.]
Lord Airedale moved Amendment No. 7:
Page 2, line 2, leave out ("he proves that").
§ The noble Lord said: My Lords, this is the amendment which was moved in Committee by the noble Baroness, Lady Mallalieu, with a marvellously convincing, well-reasoned argument that I fear I shall not be able to rival; but I am pleased to see the noble Baroness in her place and able to give me support.
The first thing that I should say, because I believe it to be the most important, is that I sympathise with the predicament of a Minister standing at the Dispatch Box, who is not himself a lawyer, having to argue with lawyers. Nevertheless, I believe that in Committee the noble Earl mistakenly misrepresented the law when he said:
the defendant will escape liability where he can establish, on the balance of probabilities only, either of the defences which are covered in subsection (3)."—[Official Report, 11/2/92; col. 699.]
§ I do not believe that to be the case. The burden in criminal cases is the same whether it be on the prosecution or on the defence. It is not a burden equivalent to proving in a civil case that the case is decided on a balance of probabilities. Whether it be the prosecution or the defence on whom the burden rests, the burden has to be discharged. To use the words of Lord Chief Justice Goddard, which have been frequently approved, the court has to be satisfied and sure that the burden is discharged. That applies whether the burden is upon the prosecution or upon the defence. To give the impression that the defendant will escape liability where he establishes his defence on the balance of probabilities is misleading. If the burden is on the defence it has to be proved beyond mere probabilities. I hope I have made that point clear.
If I heard aright, earlier this evening the noble Earl was accusing the noble Lord, Lord Allen of Abbeydale, of lampooning. If that is so, I can only say to the noble Earl, "Physician heal thyself". We had from the noble Earl in Committee the most extraordinary parodies of some of the things that we had said from this side of the House. I do not want to give a long quotation, but shall take one simple example. The noble Earl, at the same column (column 699) said:
For the noble Lord, Lord Airedale, to attempt to use as a defence that a poor old fellow walking along in the middle of the night finds a car sitting in a side road and it is all right for him to pick it up and drive it away, leaves me astounded".
§ What leaves me astounded is that the noble Earl thinks that I ever said anything like that at all. If the subject matter of the debate is not too serious, it is perfectly good knock-about tactics to try to make your opponent's argument look absurd, but when we are talking about trying to make prisoners prove their innocence it is a serious matter. I hope that for the rest of the Report stage we shall not be treated with extraordinary parodies of what we have said.
§ The noble and learned Lord, Lord Ackner, opposed this amendment. He produced a formidable list of statutes compiled by an industrious pupil in his son-in-law barrister's chambers; statutes which partly placed the burden of proof upon the defendant. It may 249 be that those were all cases where the peculiar knowledge of what had happened rested with the defendant and not with the prosecution. But we do not really know. I do not know whether the Home Office knows the answer to that. If I were to put down a Question asking in how many cases miscarriages have occurred under those statutes where the burden of proof has been put upon the accused I suspect I would be given the answer that we do not compile the statistics in such a way as to provide the information requested. If the noble Earl thinks that the Home Office knows the answer, let him say so, and I shall be very pleased to table the Question. In any event the offence that we are talking about is about the most overt offence one could possibly have; people driving cars dangerously through the streets.
§ For the benefit of noble Lords who did not hear the example I was trying to give in Committee perhaps I may briefly repeat it now. A hooligan emerges from a pub at closing time. He takes a car and drives it dangerously. He runs into someone and injures them, or possibly kills them. There is a witness to the accident. He does not recognise the features of the driver in the dark but he manages to take down the registration number from the illuminated number plate. The hooligan decides that it is a hit-and-run case, so he drives the car to a safe distance where he abandons it and makes off. He is never apprehended. In the meantime, there is someone who has missed his last bus home and he is set upon walking home. He comes upon the abandoned vehicle and temptation gets the better of him. He gets into it and starts driving home.
§ He has committed the basic offence; of course he has. Unfortunately for him the police by now are looking for that car because the accident has been reported to them. They see it coming along, stop it, question the driver and want to know where he is going to and where he has come from. He does not know about this but reveals that he has driven past the scene of the accident. He is the only person who is known to have been driving that car that night. He is charged with the aggravated offence. The burden is upon him to prove that it was not he who caused the accident. How is he supposed to prove that? He will be very lucky not to find himself in prison.
§ That is the kind of case that we are disturbed about with the Bill. We have had so many distressing cases of miscarriages of justice that last March—very nearly a year ago—the Lord Chancellor set up a Royal Commission to investigate the whole of the administration of the criminal law. Its terms of reference occupy a full page. The Lord Chancellor particularly requested it to try to report within two years. We do not have very long to wait now, with any luck, for the report of the Royal Commission. Is this the moment to go on chipping away at the burden of proof and requiring people to prove their innocence?
§ Last week we had another disgraceful case of a miscarriage of justice. It led the Sunday Times to liken our criminal administration system—once our great pride—to the procedure of a banana republic. At least in this country we do not hush these things up. Our Lord Chief Justice is prepared to undertake the 250 painful duty of openly declaring that yet another terrible miscarriage of justice has taken place. Is this the moment, while we are awaiting the Royal Commission report, to be chipping away at the burden of proof and requiring prisoners to prove their innocence? I beg to move.
§ Lord Thomas of Gwydir
My Lords, I intervene rather reluctantly. I wonder whether the noble Lord who has just spoken consulted the noble Baroness, Lady Mallalieu, who has her name attached to the amendment, before he accused my noble friend the Minister of misleading the House on the burden of proof.
§ Baroness Mallalieu
My Lords, I rise from these Benches to support the amendment moved by the noble Lord, Lord Airedale, in the hope that the time there has been for reflection since the Committee stage will have led the noble Earl to give some thought to his position on this aspect of the Bill before it is too late. If he does not do so, a piece of bad legislation will leave this House and a small but potentially ripe breeding ground for the growth of miscarriages of justice will find its way on to the statute book.
The Bill has not been opposed from these Benches because we support and accept the good sense of increasing penalties for offences of taking and driving away vehicles where there are aggravating features. We support the good sense of making an offender responsible for the consequences of his actions. But it must surely give the noble Earl some pause for thought and occasion him real concern that in the other place practising criminal barristers from all sides of the House condemned the provisions of Clause 1(1) (3) and that the chairman of the Bar Council at that time attacked the provision as being unique in jurisprudence in making a defendant guilty of the aggravating event even though he does no other act than commit the basic offence and the event which makes the crime aggravated is outside his control unless he can prove it happened before he came along or after he had left the scene.
The noble Earl's remarks in answer to my noble friend Lord Morris of Castle Morris on the earlier amendment echo what he said on Second Reading which was, if I summarise him correctly, that if people want to be sure that they will not be convicted of any aggravated vehicle-taking, they should make sure that they do not commit the basic offence in the first place. With great respect to the noble Earl, that is the jurisprudence of the saloon bar.
This part of the Bill is bad law, we submit, for the following reasons. First, it changes the burden of proof so that a man has to prove his innocence. At this point I have to take issue with the noble Lord, Lord Airedale, as to the standard which would be required. I would accept that, where the burden is placed on a defendant in circumstances such as these, the burden he has to discharge is not the ordinary criminal burden. My understanding—I shall be corrected by others more eminent if I am wrong—is that he would simply have to discharge the burden that the noble Earl indicated on the previous occasion. What is wrong with this part of the Bill is that it runs counter 251 to the letter and spirit of Article 6(2) of the European Convention on Human Rights, to which I understand this Government are a signatory, which states that a person is innocent until he is proved guilty. Has the noble Earl considered this difficulty; and if not, will he please do so? If he has had advice, what advice has he received about that aspect of the Bill?
Secondly, the provision runs counter to what lawyers from Horace Rumpole downwards call the golden thread that runs through the English criminal law: the burden of proof lies throughout on the Crown to prove guilt. Of course there is other legislation where the burden of proof is reversed. The noble and learned Lord, Lord Ackner, referred to that at the previous stage when we discussed this amendment. For example, if you have cannabis plants growing in your garden it is up to you to establish that you did not know what they were, or you are guilty of cultivating them. If you live with a prostitute, it is for you to establish that you are not living on her immoral earnings, and so on. But these are exceptions to the general rule. The burden should be reversed only in exceptional circumstances and for good reasons. Such a provision is not to be used in situations such as this one. As the noble Earl has frankly and repeatedly admitted at the various stages of the Bill, the Crown cannot prove its case against any one individual so it makes them all guilty unless they can prove their innocence. No satisfactory reason has yet been given for taking a frankly alarming step in relation to this legislation. If there is one, I very much hope that the noble Earl will tell us tonight what it is.
A further reason for my submission that this aspect of the Bill makes bad law is that it is likely to be unfair from its very nature and likely to lead to wrongful convictions as a matter of plain common sense. If the original taker and driver away of a vehicle is charged after he has ceased to have anything to do with the car, he is unlikely to be able to call upon the driver who took over the car to support his defence and help him discharge the balance of probabilities in his favour. That other driver would himself face prosecution.
We all know that the main recipients of this legislation are likely to be young people. They will very often be from the same community and will very often know one another well and live in the same neighbourhood. There is thus every likelihood that intimidation, friendships, loyalties, rivalries, fear and so on will play some part in the background and will affect the availability of witnesses. Such factors are, therefore, likely to work against a defendant who has to call evidence from his associates to prove his innocence.
There is no point in passing criminal legislation unless it first reduces the incidence of crime, and, secondly, furthers the interests of justice. Good legislation is manifestly fair. The provision before us, which makes those who are not responsible for the aggravating features prove that they are innocent, far from strengthening the Bill actually weakens it by introducing a manifest unfairness and an area of potential miscarriage of justice into this piece of legislation.
252 In my submission, this part of the Bill is a classic example of rushed, muddled and confused legislation which has been brought in without sufficient thought in response to public clamour. I urge the noble Earl not to let such a damaging feature find its way onto the statute book. I plead with him to look again at the matter before Third Reading.
§ 8.30 p.m.
§ Baroness Hilton of Eggardon
My Lords, I too support the amendment, which, as my noble friend Lady Mallalieu has already so eloquently said, preserves the presumption of innocence until proven guilty. I have always understood that to be an important principle of English law.
Perhaps I may briefly be anecdotal. One of my very first arrests was more than 30 years ago. It concerned a tramp who hitched a lift from a driver in a stolen lorry. The tramp was one of the pathetic meths drinkers who used to frequent the bomb sites of Stepney in those days; he was pathetic, befuddled and demented. The case was quite properly dismissed because I could not prove that he knew that the lorry was stolen. If the legislation before us had been in force at that time and if the lorry had been involved in a serious accident, that demented and confused man would have had to prove his innocence. That seems to be contrary to natural justice.
The Bill is directed at young people rather than at middle-aged tramps. However, many young people accept lifts on impulse, when drunk or as a result of group pressure. I believe that to reverse the burden of proof removes an important protection from the innocent and overturns a vital element of our judicial process; that is, that the prosecution should be required to prove the guilt of the person accused.
My Lords, the basic philosophy behind the Bill is one which I know that the noble Baroness, Lady Mallalieu, finds difficult to accept. If there is a basic offence which has been undertaken by a number of people, it has in the past frequently been difficult to ascribe as to who actually took the car, who was driving it and who was driving it at the time of the accident. One person might have done so. But if he is accused he may say, "I wasn't doing it; it was someone else. My next-door neighbour Bert told me to drive". Bert may then say, "I didn't do it; Ted said that he ought to be doing the driving". You can have four people together who individually and collectively take the vehicle, who very often take it in turns to drive and who often do so badly and dangerously. As soon as anyone tries to say that one of them was responsible, they all turn around and say that it was someone else.
The philosophy behind the Bill is that if people corporately take a vehicle, they are collectively responsible for what happens to it. I do not think there is anything wrong in that. Indeed, the noble and learned Lord, Lord Ackner, confirmed that view in Committee. He said:I should have thought that this is just that class of litigation because it will be immensely difficult to establish exactly who among a number of young men was doing what and why".—[Official Report, 11/2/92; col. 698.]253 The noble and learned Lord agrees with that approach, and that is the approach that the Bill has taken.
I was sorry to find that I have evidently needled the noble Lord, Lord Airedale, this evening. I do not know why he seems to have it in for me. He first tried to suggest that I bounced your Lordships into doing without a Report stage. However, I have explained that I did not do so. He then said that he hoped that we would not have any more exaggerations this evening as regards my interpretation of what he said. The noble Lord was very upset by my explanation of his remarks. Of course I did not write his words down. I see that he wishes to intervene. I gladly give way.
§ Lord Airedale
My Lords, I have already received one apology at the beginning of the proceedings from the noble Earl. It would be churlish of me not to repay the compliment and express my regret that I appear to have misdirected myself as to the burden of proof required of a prisoner in proving his defence as against the prosecution proving the case against him. I am sure that the noble Baroness is right and that I am wrong in the matter. I unreservedly apologise to the House for having made that mistake.
My Lords, the noble Lord is very kind. I thought that he was going to apologise to me for having said that I misrepresented him. However, his generosity did not extend that far down the track. Nevertheless, I took the liberty of finding out what I said. When referring to the noble Lord, Lord Airedale (at col. 699 in Committee) I said:He says that a person wanders along in the middle of the night and wants to go home—Mr. Smith—and he finds a car sitting there. He therefore drives the car and takes it home. Along comes Mr. Plod and says, 'That car has just run over an old lady and it is your responsibility"'.I then continued:The noble Lord is quite right. The Bill will catch that person".I believe that the noble Lord took offence at my remarks. He said that it was a gross exaggeration of what he had said. But what did he say? At col. 698 he said:Then along comes Mr. Smith who is the basic offender. I urge the noble Earl to accept that it is possible to be a basic offender. Mr. Smith has missed his last bus home and all that he wants to do is to get home. He discovers the vehicle standing by the roadside. He gets into it and drives carefully towards his home. In the meantime, the police have discovered that the vehicle with that registration number is very much sought after. They spot Mr. Smith driving the vehicle towards his home. They stop it and take Mr. Smith's particulars".I do not think that my synopsis of the noble Lord's remarks was at all bad. Of course I did not write down his words verbatim; I took them down in my mind. With the greatest respect to the noble Lord, I think that he should not get too touchy about such matters. I did not really do him a disservice in that respect.
If the amendment achieved its purpose it would not in theory alter the category of offenders liable to conviction of the new aggravated offence. It would change what are presently defences so that they would become elements of the offence to be proved beyond reasonable doubt by the prosecution. The reason for doing that would be to ensure that the burden of proof 254 rested on the prosecution and not on the defence, thereby maintaining the principle which the noble Lord, Lord Airedale, reminded us in Committee has been described as the golden thread running through the web of English law.
To the extent that the Bill creates defences rather than qualifying the definition of the aggravated offence, I accept that there is what amounts to a small shift in the burden of proof, though certainly not a total reversal of the usual burden of proof. However, I do not accept that this is a dangerous or unprecedented departure from fundamental legal principles. As your Lordships know, much of our time is spent on Bills which contain offences of what is sometimes called strict liability, the strictness of which is mitigated by defences of reasonable excuse or due diligence, all of which are for the defendant to establish. The few defences such as provocation and duress which need only be raised by the defendant and must then be disproved by the prosecution are the exception and not the rule.
The justification for the usual approach is partly a practical one: the matters relevant to the defence lie peculiarly within the knowledge of the defendant. It is very much easier for him to establish the defence on the balance of probabilities than it would be for the prosecution to disprove it or to prove its opposite beyond reasonable doubt. To provide an offence and a defence should, therefore, ensure that the guilty are punished while allowing the innocent to go free.
So in this case the act which is forbidden by the criminal law is unlawfully taking vehicles when that is aggravated by one or more aggravating circumstance. If it can be proved that someone has taken a vehicle unlawfully, and that an aggravating event has occurred, the prosecution has made its case for convicting the person concerned of an aggravated offence. If, after all, there is then some reason for not convicting him, it is fair that this should be for the defendant to establish.
Requiring the accused to prove his defence does not amount to a reversal of the burden of proof, because the two elements of the aggravated offence are the basic taking without consent offence and the aggravating event, and both of those must be proved beyond reasonable doubt by the prosecution. This contrasts with the much more draconian provisions in, for example, the prevention of corruption legislation of 1889 to 1916 (under which certain gifts are presumed to have been given and received corruptly unless the defendant can prove the contrary) and in Section 30 of the Sexual Offences Act 1956, to which the noble Baroness, Lady Mallalieu, referred, (under which a man who lives with a prostitute is presumed to be knowingly living on the earnings of prostitution unless he can prove the contrary). In these, and other cases, a presumption is made as to the guilt of a person, who may be entirely innocent, unless he can prove that some integral element of the offence did not occur.
The Bill does not create any presumption of guilt; it simply allows a defence to people who have been 255 proved to have committed the basic offence, even though it has also been proved that an aggravating event took place.
I do not think that this approach is unjust or unfair, and I do not think that it will result in the conviction of the innocent. I hope it will avoid the acquittal of the guilty, and I make no apology for saying so, as this seems to me an entirely reputable purpose of the criminal law.
The noble Baroness, Lady Mallalieu, said that I favoured the legislation of the saloon bar—quite a graphic expression. I have said before that, if people do not wish to be convicted and punished for the aggravated offence, they should not commit the basic offence. That does not seem to me to be the language of the saloon bar; it seems the language of common sense. Nobody forces people to take other people's cars, and if people do take cars, they must accept the consequences of what happens to the cars.
The noble Baroness referred to the European Convention on Human Rights. I do not believe that the Bill is contrary to Article 6 of the convention because no one is presumed guilty of the offence. The prosecution must prove guilt of the basic offence and on the count of the aggravating event beyond reasonable doubt. If it does so, the burden then shifts to the defendant to establish his defence.
For those reasons, I hope that your Lordships will see fit not to accept the amendment as tabled by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Airedale.
§ Lord Airedale
My Lords, I shall not say anything for a fourth time about the example that I first sought to give in Committee. However, in view of the masterly speech by the noble Baroness, Lady Mallalieu, I could not possibly consider withdrawing the amendment now if the Minister is not prepared genuinely to say that he will give the matter further consideration. I should like to hear him say that he will go to his right honourable friend the Home Secretary and ask, "Do you really think it wise to risk further miscarriages of justice so soon before the expected report from the Royal Commission into the whole of our criminal law administration?"
Unless I can have some assurance that the Minister will think again about this matter before Third Reading, I cannot withdraw the amendment.
My Lords, I am quite happy to consider anything before Third Reading, but I am bound to tell the noble Lord, Lord Airedale, that I do not find his argument in the slightest bit convincing. Although I am happy to consider it, I do not give any undertakings whatsoever that I shall accommodate him. The fact is, as I have tried to explain, that this amendment would weaken the whole principle behind the Bill and there is no justification for it.
§ Lord Airedale
My Lords, I am sorry to say that I find that profoundly unsatisfactory and I wish to test the matter in a Division.
§ 8.45 p.m.
§ On Question, Whether the said amendment (No. 7) shall be agreed to?
§ Their Lordships divided: Contents, 29; Not-Contents, 44.
|Division No. 1|
|Addington, L.||Judd, L.|
|Airedale, L. [Teller.]||Lockwood, B.|
|Allenby of Megiddo, V.||McNair, L.|
|Craigavon, V.||Mallalieu, B.|
|Desai, L.||Masham of Ilton, B.|
|Dormand of Easington, L.||Mason of Barnsley, L.|
|Ezra, L.||Morris of Castle Morris, L.|
|Falkland, V.||Parry, L.|
|Graham of Edmonton, L. [Teller.]||Pitt of Hampstead, L.|
|Hacking, L.||Richard, L.|
|Hatch of Lusby, L.||Shepherd, L.|
|Hilton of Eggardon, B.||Taylor of Blackburn, L.|
|Hylton, L.||Tordoff, L.|
|Jeger, B.||Winchilsea and Nottingham, E.|
|Ailesbury, M.||Howe, E.|
|Ampthill, L.||Joseph, L.|
|Astor, V.||Liverpool, E.|
|Auckland, L.||Long, V. [Teller.]|
|Balfour, E.||Lyell, L.|
|Beaumont of Whitley, L.||McColl of Dulwich, L.|
|Beloff, L.||Marlesford, L.|
|Blatch, B.||Mersey, V.|
|Blyth, L.||Murton of Lindisfarne, L.|
|Brabazon of Tara, L.||Newall, L.|
|Brigstocke, B.||Oxfuird, V.|
|Brougham and Vaux, L.||Renton, L.|
|Butterworth, L.||Renwick, L.|
|Carnegy of Lour, B.||Seccombe, B.|
|Carnock, L.||Skelmersdale, L.|
|Cavendish of Furness, L.||Strathmore and Kinghorne, E. [Teller.]|
|Denton of Wakefield, B.||Thomas of Gwydir, L.|
|Faithfull, B.||Ullswater, V.|
|Ferrers, E.||Waddington, L.|
|Fraser of Carmyllie,L.||Wade of Chorlton, L.|
|Gisborough, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 8.52 p.m.
Lord Morris of Castle Morris moved Amendment No. 8:
Page 2, line 10, at end insert:
("(c) he was not driving the vehicle and he had taken reasonable steps to make sure that driving, accident or damage would not occur.").
§ The noble Lord said: My Lords, this amendment, which was moved by my noble friend Lady Mallalieu in Committee, is motivated by precisely the same intention as the two previous groups; namely, to discriminate better between the degrees of culpability. However, in this case it has the additional advantage that it provides an incentive towards better behaviour.
§ As the Bill is drafted, there is no incentive whatever to any passenger to try to persuade the driver to return the car, drive it with care or in any other way to mitigate the offence. At the Committee stage the noble Earl felt unable to breach in any way the doctrine of total responsibility by everyone involved after the basic offence was committed.257
§ We have heard little indication that he may change his view tonight. It seems to be a case of, "They should not have been there in the first place." However, eminent lawyers, including my noble friend Lady Mallalieu, have used such phrases to me as, "The jurisprudence of the saloon bar", and "The legislation of the off-licence." I wonder whether, on reflection and since so many practitioners of the law have been worried by the whole doctrine, the noble Earl may feel able to offer any mitigation of its rigour, with this amendment in mind. I beg to move.
§ Lord Hylton
My Lords, the noble Earl explained on the previous amendment that the Government were concerned about offences committed by groups of people. Perhaps this amendment will afford him an opportunity to tell us whether or not in such circumstances the offence of conspiring would he a way out of the difficulty which seems to trouble him.
My Lords, the practical point about the amendment is that the defence that is provided by it could be argued by any passenger. It would have to be accepted if he could establish on the balance of probabilities that things were as he said they were.
The new defence would severely weaken the Bill, making it all too easy for proven criminal takers to escape liability for the new aggravated offence. It would be a defence for the person to say, "I wasn't driving, Sid was, and what's more, I shouted at Sid to stop and he didn't". Sid could then turn round and say, "I wasn't driving, Bert was driving." If the amendment were to be accepted, we would not be able to find out precisely who was the person driving at that moment. The fact would be that they were all involved in the act. That is why we seek the provisions in the Bill.
There is a moral point involved, which I made earlier in reply to the first amendments about why passengers should also bear liability for punishment when they become involved in those events and things go wrong. The Government simply do not accept that passengers should avoid liability. The present law does not accept it either, as I explained, nor, so far as I am concerned, should the moralist.
I hope that the noble Lord, Lord Morris of Castle Morris, will agree that the special circumstances invented in his "difficult case" are circumstances which can be accommodated both as regards the decision to prosecute and as regards a plea of mitigation, if the case gets that far. I think that it would be unfortunate to put this provision in the Bill and I hope that the noble Lord, Lord Morris, will see it that way too.
§ Lord Morris of Castle Morris
My Lords, we seem intent in the Bill on proceeding by anecdote and recital of anecdote and revision of anecdote. Surely, the case of Sid and Bert which the noble Earl produced is not unlike other cases which magistrates hear daily. X says that Y did it, Y says that X did it. It is up to the magistrates or the judge hearing the case to decide on the balance of evidence who has done what. I do not 258 believe that this is in any way a unique problem for the law. It must happen regularly in every court in the land.
We keep offering the noble Earl ways in which it would be possible for him to allow some form of discrimination to take place. I am grateful to the noble Lord, Lord Hylton, for producing the idea of a possible conspiracy defence. It seemed to me, as he made the case, well worth exploring. So far as I know, it has not been raised at any previous stage of the Bill. I still wish to commend the proposal to the noble Earl, but he seems to be absolutely adamant against any such thing. I must therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 3 [Obligatory disqualification]:
§ Lord Morris of Castle Morris moved Amendment No. 9:
Page 4, line 21, leave out first ("obligatory") and insert:
("(a) obligatory where the vehicle was driven or the damage was caused by the offender or by another person incited by the offender;
(b) discretionary in any other case.").
§ The noble Lord said: My Lords, one is worried by mandatory penalties in principle, but it must be granted that in some cases they are necessary and would be effective. I shall certainly allow that under the Bill in the vast majority of cases there must be disqualification. That seems obvious. One would not dispute it. However, I would also argue that cases are bound to exist where mandatory disqualification would not be in the interests of either justice or good sense. For example, a young man with no previous convictions for anything at all gets into a friend's car and then learns it has been taken and driven away. In a hundred yards that car hits another car and causes damage which creates an aggravated offence. Leaving aside all question of whether the young man should be regarded as equally, less or more guilty than the driver, he will automatically be disqualified for one year. He will suffer insurance penalties which may continue for considerably longer.
§ Magistrates are, after all, the people who will decide these matters for the most part and they are the experienced practitioners. They might well feel that disqualification of such a person in such a case would work against the best interests of the rehabilitation of that offender. However, as things stand, they would have no choice in this matter.
§ We have considered this amendment before. I hope the noble Earl will take it away and will at least think about it. It asks only for an element of discretion to be available to the courts in such cases. We are asking that disqualification should not be mandatory but rather that magistrates and judges should be allowed discretion. Surely that is not much to ask in a Bill that is as tight as this one. I beg to move.
My Lords, the noble Lord's amendment seeks to distinguish between those aggravated offenders who could be shown to have driven the vehicle concerned or to have caused damage, or to have incited the person who drove or caused damage, and other aggravated offenders. The latter would be subject only to discretionary 259 disqualification, as they are for the basic offence. I struggle to try to go along with the views of the noble Lord, Lord Morris of Castle Morris, and I find it an uphill task. I cannot go along with him on this occasion.
Like Section 12 of the Theft Act which creates the basic taking offence, this Bill does not distinguish drivers of taken cars from their passengers. They are all guilty of one offence, and they should all be liable to the same maximum penalties. These penalties should be higher than those provided for the basic offence to mark the greater seriousness of the aggravated offence. Passengers in an illegally-taken car are already liable to disqualification from driving at the discretion of the court. It is right that passengers who are guilty of an aggravated offence should be subject to obligatory disqualification for at least a year. I believe that is the correct course to take. I hope the noble Lord will appreciate that an aggravated offence should attract a greater penalty than just the basic offence.
§ Lord Morris of Castle Morris
My Lords, the noble Earl finds it an uphill task to agree with me on these amendments. I can only remind him that uphill 260 walking is bracing, salutary, health giving and good for us. I think he should do much more of it and make a much greater effort.
I cannot agree that all these aggravated offences can be lumped together as automatic disqualification offences. We on these Benches have said before that in the case of this Bill there should be certain circumstances in which discretion is given to magistrates to try to help offenders rather than simply dishing out a mandatory punishment about which they can do nothing, regardless of their experience.
However, it seems that on this amendment, as on each amendment we have proposed tonight, even where we have had to press them to a Division, the Government are resolute as regards not conceding an inch. I regret that that is the case and I am disappointed. However, it seems there is nothing we can do to pierce the noble Earl's defences. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.