§ 6.45 p.m.
§ Lord Airedale
My Lords, I have four amendments set down. If it please the House, I shall move the first amendment and speak to the other two together because the words proposed to be inserted in the Bill are the same in all three amendments.
The amendments arise because I simply do not understand the meaning of the words—
My Lords, perhaps I may interrupt the noble Lord. I believe that we are slightly out of order. I do not believe that the Question was put that the Bill be now read a third time, or indeed that Amendment No. 1 was called. If the Lord Chairman were able to do that it might help.
Read a third time.
Clause 1 [New offence of aggravated vehicle-taking]:
Lord Airedale moved Amendment No. 1:
Page 1, line 23, after ("vehicle") insert ("recklessly or carelessly").
The noble Lord said: My Lords, I have been thrown completely off my stride. I was saying that I had put down the first three amendments—and I hope that the bargain still stands that we can take the first three together—because I could not understand the meaning of the words,
owing to the driving of the vehicle, an accident occurred".
Those words appear in subsection (2) (b) and (c) of Clause 1 of the Bill.
§ At Report, I asked what those words meant. I do not consider that I received a satisfactory reply; I do not believe that I received a reply. It may be rather strange that we reach the Third Reading of a Bill in the second House and people still ask what the words mean. Perhaps I am obtuse. It may be that it does not matter very much whether or not I understand what the words mean. What is important—indeed vital—is that the courts understand what the words mean. The courts are responsible for administering criminal justice under the Act—as I suppose it will become.
§ Let me give two examples. A person commits the basic offence of taking a vehicle and driving it without the owner's consent. He is not a hooligan. He is probably by himself. He merely seeks to get from A to B, and he drives perfectly sensibly. Some drunken idiot drives along in the other direction on the opposite side of the road and crashes into him. A bystander witnesses the offence. The bystander is asked, "Did the accident happen owing to the driving of Mr. Smith's vehicle?" (Let us call him Mr. Smith.) The answer is, "No, it was owing to the driving of the lunatic who was drunk, and driving in the opposite direction". The courts presumably will agree with what the witness said. The courts will say that the accident was not owing to the driving of Mr. Smith's vehicle, and they will not convict the person of the aggravated offence under the Bill. The Bill is directed not against ordinary people (if I may call them that) who take vehicles, but against hooligans who go about in gangs taking vehicles and driving them dangerously.
§ I give another illustration. Mr. Brown is driving along perfectly sensibly, having wickedly committed the basic offence of taking somebody else's vehicle for which he deserves to be punished. A dog rushes out almost under his wheels. He swerves to avoid it and an accident occurs. A bystander witnesses the incident. He is asked whether the accident was owing to the driving of the vehicle. He says that it was not. He says that it was owing to the dog rushing out almost under the driver's wheels. Presumably the court will accept that evidence and will decide that the accident was not owing to the driving of the vehicle and the person will not be convicted of the aggravated offence.
§ I have moved amendments to insert words which indicate bad driving and not merely the driving of the vehicle. That would make the matter perfectly clear. If the court realised that in those two instances bad driving had to be proved, there would be no possibility of the prosecution proving that. Therefore, the matter would be made even more clear to the court.
§ I want the courts to be able to understand what this Bill is about. That is why I beg to move the amendment.814
§ Lord Morris of Castle Morris
My Lords, I support every cogent and persuasive word uttered by the noble Lord, Lord Airedale.
At earlier stages of the Bill, on these Benches we have attempted to point out that the phrase:owing to the driving of the vehiclemust mean either owing to the fact that the vehicle was being driven or owing to the fact that the vehicle was being driven dangerously, recklessly, carelessly, badly or in some other way. We have attempted to persuade the noble Earl that an adverb of one kind or another would add a pleasing touch of clarity to the clause. Consequently, we support this final attempt by the noble Lord, Lord Airedale.
My Lords, I was surprised when I saw the amendments tabled by the noble Lord, Lord Airedale, because, first, they were tabled so late that I thought that some of your Lordships may not have had the benefit of seeing them as they appeared on the Marshalled List only this morning.
Secondly, I was surprised because the noble Lord, Lord Airedale, is usually so punctilious on points of style and grammar and yet the first two amendments are clearly ungrammatical. Thirdly, I was surprised because the noble Lord has reverted to the concept of reckless driving which has been found unsatisfactory and was replaced by the idea of dangerous driving in the Road Traffic Act. The noble Lord, Lord Airedale, wants to slip us back into reckless driving.
The noble Lord explained what concerns him. He gave the astonishing example of Mr. Smith. He had taken somebody else's car and was driving along quite sedately, just like any old gentleman aged 60 or so. The fact that it was somebody else's car was irrelevant. Suddenly, hooligans smashed into him. The noble Lord, Lord Airedale, says that it is unfair that Mr. Smith should be prosecuted because, although the accident was "owing to the driving of the vehicle", hooligans have smashed into him. The reason that the words "owing to the driving of the vehicle" are important is because if Mr. Smith had not stolen and driven the car in the first place, the accident would never have occurred.
The noble Lord, Lord Airedale, goes on to give a second example in which the gentleman is ingeniously called Mr. Brown. He took a car. He was absolutely tight in somebody else's car. He was driving along when a stupid dog walked across the road which caused an accident. The noble Lord asks why that person should then be prosecuted when the accident was the dog's fault and not the driver's fault. If Mr. Brown had not taken the vehicle in the first place, there would have been no accident.
I find it hard to persuade the noble Lord, Lord Airedale. I believe that I said in Committee that I think that his morals are most peculiar. In this respect —and in this respect only—I believe that they are most peculiar. I do not know how he can feel sorry for a person who has stolen somebody else's vehicle and then happens to become involved in an accident which may not have been his fault. I ask the noble Lord to think about the person to whom the vehicle belonged. Not only had he been deprived of his vehicle but when it is returned, it is smashed to pieces. The noble Lord 815 seeks to point out that it was not the poor driver's fault. However, the whole philosophy of the Bill is that it is the fault of the person who took the vehicle.
I have tried to explain before that the Bill is needed because gangs of youths habitually take cars and it is usually not possible to prove who was driving at a particular time, who did what damage or what they may have thought about it. The law as it stands has simply been inadequate to cope with that particular crime. The amendments in the name of the noble Lord, Lord Airedale, would have the effect of requiring the prosecution to prove what they cannot prove at the moment. Therefore, that would not improve the present position.
The third of the noble Lord's amendments adds insult to injury by providing that the deliberate infliction of damage is not an aggravating event. That would be aggravating only if the damage were inflicted recklessly or carelessly. I do not believe that the noble Lord intends that result. I hope he will agree that that is not his intention. The amendment would have the bizarre result that a defendant, who admitted that he had smashed up another person's car which he had stolen, would not be guilty of the aggravated offence because the act was not done recklessly or carelessly but merely deliberately. That would be a funny old how-do-you-do. I hope that the noble Lord will realise that his amendments are quite unsuitable.
§ Lord Airedale
My Lords, perhaps I may take what the noble Earl said in the order in which he said it. He began by saying that my amendments are ungrammatical. However, he did not specify in what way they are ungrammatical. They do not appear to be ungrammatical to me. Nobody else has suggested that they are. However, that is a minor point.
§ Lord Kilbracken
My Lords, is it not the case that in the first two amendments an adverb is used when it should be an adjective qualifying the word "driving"?
My Lords, the noble Lord said that I did not specify why the amendments are ungrammatical. I did not do so because I did not wish to embarrass him. However, as he has asked to be embarrassed, I shall do so.
As amended, the Bill would read:that, owing to the driving of the vehicle recklessly or carelessly, an accident occurred by which injury was caused to any person".
§ Lord Airedale
My Lords, I do not know what is ungrammatical about that. However, we must move on otherwise we shall be here all night.
The noble Earl then complained that I was late in tabling the amendments. First, almost the minimum time was allowed between Report stage last Tuesday and Third Reading. Furthermore, the noble Earl will remember that I met him yesterday evening and told him that I was tabling these amendments. I offered to let him have a copy of them in advance yesterday evening. However, he declined that invitation on the ground that those who were advising him were not 816 present at that time to advise him. Therefore, I have done my best not to rush this matter. I am sorry about that. We heard again the old refrain that has been running through this Bill, "He should not have been there in the first place".
§ Lord Airedale
I agree; hear, hear! He should not have been there and he committed the basic offence. We then had—I hesitate to call it a "paraphrase"—a "parody" from the noble Earl of what I was saying. If I may say so, that is an old parliamentary trick. If one does not have a good answer, one tries to make one's opponent's argument grotesque because that is all the ammunition one has.
I am hammering at a closed door. For reasons that I hope to give when we come to the Motion that the Bill do now pass, I do not believe that the Bill will do nearly as much harm as it might. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 2 and 3 not moved.]
§ 7 p.m.
Lord Airedale moved Amendment No. 4:
Page 1, line 29, at end insert:
("( ) A passenger in a vehicle is not guilty of an offence under this section if he neither aids, abets, counsels nor procures the offence.").
§ The noble Lord said: My Lords, perhaps I may give an illustration to explain the intention of Amendment No. 4. It is the case of two acquaintances, who are not close friends, on their way to a football match. One says to the other, "Let's take that car and drive in style to the football match." The second person, who becomes the passenger, agrees. They get into the car and are immediately guilty of the basic offence.
§ The passenger is certainly not a car hooligan. He has no interest other than to be driven sensibly to the football match. But the driver starts driving much too fast. The passenger says, "Stop that. We do not want to land in the next world. We want to get to the football match. Slow down." But the driver continues driving much too fast. The passenger continues to urge him to drive sensibly.
§ What else can the passenger do? If he seizes the steering wheel or grabs the handbrake he is almost sure to make matters worse. The driver pays no heed and continues driving dangerously and an accident occurs. The police investigate. They take statements. The passenger says, "I did not want him to drive like that. All I wanted to do was to get to the football match." The driver, in his statement, says, "That is perfectly true. He was trying to restrain me and I foolishly went on driving too fast and an accident occurred. It was entirely my fault and not his."
§ That is all the evidence available. Under the Bill as drawn, upon that evidence the passenger is guilty not only of the basic offence of taking the vehicle and driving it without the owner's consent, but guilty also of the aggravated offence. It is a novel piece of criminal law that if one is present at the scene of a crime and does one's utmost to prevent it, nevertheless one is guilty of that crime. It is quite extraordinary.817
Perhaps I can take from the noble Earl his example of a case of that kind. In his illustration the driver of the vehicle is accompanied by a group of robbers. The noble Earl said:
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".
We all agree about that. The noble Earl continued:
Only if the robber who used the gun can be shown to have departed from the agreed plan can the others escape liability". —[Official Report, 25/2/92; col. 244.]
If we substitute the driver for the robber and the passenger for the group we arrive at this: "Only if the driver who drove the vehicle can be shown to have departed from the agreed plan can the passenger escape liability." The noble Earl puts my case precisely. The passenger had no part in the aggravated driving. By being present at the scene of the crime, though doing his utmost to prevent it, he becomes liable to be convicted under the Bill of the aggravated offence. That is a complete nonsense. I beg to move.
My Lords, I have such admiration for the noble Lord, Lord Airedale, on almost every occasion other than on this Bill. All I can say is that words defy me to comprehend the logic of the noble Lord. He says that one finds two people walking along and they find a car—it may be the noble Lord's car sitting outside his flat. They say, "We want to go to a football match. Let us take that car." One says, "All right. I will drive it." The other says, "Yes, and I will sit in the passenger seat." When the person driving it drives too fast, according to the noble Lord, Lord Airedale, the second person says, "For goodness sake, do not drive so quickly, we might land up in the next world too soon. For goodness sake stop." But the driver, in his anxiety to reach the football match quickly, does not slow down and there is a smash.
Along comes the noble Lord, Lord Airedale, and says, "This poor fellow, the passenger, has done all he could to stop the man driving so fast. He did not want to have a smash."
The noble Lord, Lord Airedale, actually says that this poor man is now going to be guilty of an offence. What about the car of the noble Lord, Lord Airedale, which had been taken? The noble Lord, Lord Airedale, may have woken up and found his car gone; the next time he sees it it is smashed up. But according to the noble Lord, Lord Airedale, the passenger must get away scot-free.
It may be that the passenger in the first place said, "Come on, Bert, let us take a car. Let us take this one. You drive it. I don't want to drive it." He may have instigated the taking of that car. The point is that one cannot argue about who said, "Let's take it" and who was driving. If they were party to the knowledge that it was a stolen car they were both party to the offence of taking without consent. Having taken the car without consent, if an aggravated offence occurs, they are both party to that aggravated offence.
I should be delighted to try to persuade the noble Lord, Lord Airedale, of the inability of his case to stand up to any kind of reasonable argument. I should be happy to continue the debate for a long while. But I fancy that that would not meet with your Lordships' 818 approval. I can only say that I find the noble Lord's arguments astonishing and suggest to the House that it would be inappropriate to accept the amendment.
My Lords, it was almost word-for-word. I did not like to rehearse exactly the same words, but they were not far from what the noble Lord said.
§ Lord Airedale
My Lords, let us take a single instance. In the course of the noble Earl's speech he raised the question of who was driving. In the example I sought to give the police took statements from the driver and the passenger. The driver said, "I was driving and did not take any notice of the passenger's encouragement to me not to drive dangerously." That is a single example of a gross parody of what has been tabled in the amendment.
I do not believe that in 1,000 years a court will convict somebody of an aggravated offence when that person, though present at the scene, was seen doing his utmost to prevent the commission of it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Obligatory disqualification]:
Lord Ackner moved Amendment No. 5:
Page 4, line 34, at end insert:
("( ) In section 22 of the Road Traffic Offenders Act 1988, which requires a court to notify the Secretary of State for Transport that an accused may be suffering from a disability, there shall be added the following subsection—
(3) Where a person is convicted of an offence under section 12A (aggravated vehicle-taking) of the Theft Act 1968 a relevant or prospective disability (within the meaning of section 92 of the Road Traffic Act 1988) shall be deemed to include a propensity to misuse or abuse alcohol or controlled drugs.".").
§ The noble and learned Lord said: My Lords, unlike all other amendments which have hitherto been moved, with the exception of the attempts to improve the rather inelegant Title of the Bill, my amendment seeks to add strength to it. I recognise that this Bill is designed to deal with a dangerous situation in regard to which the public are entitled to as much protection as the law can reasonably provide.
§ The majority of the offenders who are likely to commit this offence will be in their teens. At the time they commit the offence they are likely to have drunk too much or to be to some extent on drugs. Detention or imprisonment will safeguard the public only for the limited period that they lose their liberty. What is required is to ensure that they are kept off the road until they have achieved a proper measure of responsibility. Hitherto that has been obtainable only by virtue of disqualification, actual or prospective.
What this amendment tries to achieve is quite simply this: when such a young man or young woman is convicted and disqualified, actual or prospective, they do not regain their licence until they have appeared before the Medical Advisory Committee of the Department of Transport and satisfied that committee that they have mended their ways. Your Lordships may ask why that cannot be done at
present. The answer is quite simple. Section 22 of the Road Traffic Offenders Act 1988, which is referred to specifically in my amendment, requires a court to notify the Secretary of State for Transport where,
in any proceedings for an offence committed in respect of a motor vehicle it appears to the court that the accused may be suffering from any relevant disability or prospective disability (within the meaning of Part III of the Road Traffic Act 1988)".
Quite simply the trouble is that the definition of the word "disability" in Section 92 of the Road Traffic Act is far too narrow. The section is concerned with physical fitness to drive. That is apparent from the heading of the section and the sidenote. Section 92(2) provides that,
'disability' includes disease, 'relevant disability' means any prescribed disability
that is prescribed by regulations made by the Minister",
(b) any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public".
§ As regards this type of offence the probation officer's report frequently says "this young man (less likely, "this young woman") has a drink problem", in the sense that from time to time he takes too much drink or too much of a drug. He then takes somebody else's car and drives in a dangerous manner and causes damage either to persons or to property. He has not drunk or taken drugs in circumstances that have resulted in his becoming an alcoholic and as a result incapable of resisting the urge to drink and probably suffering some liver damage in consequence. This offence is an act of irresponsibility that occurs from time to time.
As I informed your Lordships during the passage of this Bill, the former judge, His Honour Judge Alfred Blennerhassett QC, who has been chairman of the Home Office committee on drink and driving and who is an expert on this subject, has sought without any success to persuade the Minister for Roads and Traffic to widen the definition of disability. I have previously quoted to your Lordships a letter from the Minister to Judge Blennerhassett dated 31st July 1991, which states inter alia:
It remains the Department's view, and one which is supported by the Medical Advisory Panel on Driving, Alcohol and Drugs, that alcohol misuse represents a relevant or prospective disability".
§ With the greatest respect to the Minister that just cannot be right. Alcohol misuse is an activity, not a disability. That it can lead to a disability when it results in alcoholism—that is a dependency on alcohol and usually physical damage—is not to be doubted. Let me make it perfectly clear. I am not seeking to criticise the Minister personally. He is the son of a former circuit judge with whom I practised when at the Bar and whom I used to visit in Cornwall when I was the presiding judge on the Western Circuit. What I am criticising is the advice that he has received on this subject.
§ Because I consider the point made by Mr. Blennerhassett a sound one, I decided to raise it in your Lordships' House. The noble Earl, Lord Ferrers, with whom I consulted prior to raising it, most 820 helpfully advised me that I should be going outside the scope of the Bill if I sought to make the appropriate amendment to Section 92 of the Road Traffic Act 1988. That is why my amendment is focused solely on a person who is convicted of an offence under Section 12A of the Theft Act, which is the very offence which this Bill is creating.
§ When marshalling my thoughts prior to Second Reading, almost as a conditioned reflex from one's days at the Bar, I thought that I would take a look at the leading textbook on Road Traffic Act offences. As a result I came across a reference to a decision in February 1981 of the Divisional Court presided over by Lord Justice Waller. The case was the Queen and the Chichester Justices ex parte Crouch reported only briefly in the journal, Justice of the Peace. However, I managed to get faxed from the Crown Office a photocopy of the transcript of the judgment. It was concerned with an application for judicial review of a decision made by those justices to refer to the Secretary of State, under Section 92 of the Road Traffic Act 1972, which is in similar terms to Section 22 of the Road Traffic Offenders Act 1988, to which I have already referred.
§ Quite briefly what happened was this. Mr. Crouch had drunk far too much. He pleaded guilty to the usual drink-driving offence. He was suspended for some 21 months and heavily fined. The solicitor who was seeking to make a plea in mitigation thought that he was making a satisfactory point in favour of his client and said, "my client had a drink problem" whereupon the clerk to the justices, who knew his law, or some of it, said "very well, we will refer you to the Minister". It is apparent from the report that the chairman of the magistrates took the view that, because the applicant appeared to have a drink problem in the past and because he admitted driving a vehicle with a high concentration of alcohol in his blood, that suggested a significant tolerance to alcohol with the result that he might be suffering from alcoholism.
The Secretary of State's letter to the court also expressed the view that he thought that it had been disclosed that the defendant was an alcoholic. It was also clear from the report that the clerk had advised the Bench:
Although it is not a physical disability, alcoholism can fall into the definition of "disease" because it is known to cause irreversible brain damage".
In this situation it is not surprising that Lord Justice Waller, giving the judgment of the court, said:
In this case all that was said by the solicitor acting for the Applicant was that the Applicant had a drink problem and this was a first conviction for an offence of this nature. In my judgment, that does not suggest at that stage either that he was suffering from a relevant disability or prospective disability. It may be it could be said that it was a prospective disability but that is not sufficient in my judgment for the court to draw it to the attention of the Secretary of State … a statement that he had had a drink problem does not go far enough to suggest that the Applicant is in fact an alcoholic and, in my judgment, there was not sufficient material in this case on which the magistrates could properly refer the matter to the Secretary of State".
In Committee, that decision was described (perhaps understandably in view of the advice that had been consistently given to the department) by the noble
Lord, Lord Brabazon of Tara, as "an inconvenience". That was at col. 710 of Hansard for 11th February. It clearly supports the view which Mr. Blennerhasset had taken for a very long time that the definition of Section 92 is far too narrow. The department appears to have been totally unaware of this decision, since guidelines were issued to magistrates seeking to encourage them to refer more cases. They were referring very few. The guidelines stated:
A driver who has an alcohol or a drug misuse problem may properly be regarded as suffering from a relevant or prospective disability within the meaning of Section 92".
As your Lordships are fully aware, guidelines from however important a source, cannot extend the meaning of the words used in an Act of Parliament.
For completeness sake and finally, I should inform your Lordships that "prospective disability" upon which I believe the noble Lord, Lord Brabazon, will rely, means:
… any other disability which—
It can have no application to what we are considering. Dr. John Kemm, senior lecturer at the Department of Public Health and Epidemiology at the University of Birmingham, in a letter which he wrote to me on the 21st February last, said:
Considering non-dependent alcohol or drug misuse to be 'prospective disability' would be justified if it could be shown that people showing these behaviours inevitably progressed to become dependent. However there is ample evidence that this is not so and therefore classing alcohol or drug misuse as a 'prospective disability' cannot be defended".
§ It would indeed be very depressing if an opportunity was lost to make a significant contribution to the public's protection from this very dangerous crime with which we are dealing, because those advising the Minister have apparently an invincible repugnance to admitting that they have been in error in failing to recognise the narrowness of the definition of "disability" in Section 92 of the Act. That appears to be the real motivation for resisting this amendment. I beg to move.
§ The Earl of Swinton
My Lords, I am not suffering from an alcoholic problem—at least, I do not think I am. I may be very stupid but perhaps I may ask the noble and learned Lord, or my noble friend on the Front Bench, when he comes to answer, whether there is any great punishment in taking away driving licences. The young people who commit these crimes tend not to have driving licences. The last thing that they are worried about is whether they have a driving licence.
§ Lord Ackner
My Lords, I take that as being a question to me. This Bill is designed to protect the public. There are doubts which have been aired as to whether it will achieve that. The Bill will only achieve it by the deterrent of the punishment, be it in a detention centre or in prison, or community service, and by the deprivation of a licence. So if the young man goes on driving and is caught, he will lose his 822 liberty yet again. There does not appear to be available any other method of dealing with this type of offence.
§ Lord Lucas of Chilworth
My Lords, when we started out at Second Reading, there was general agreement that this Bill, as it was then written, had a limited effect. However, we agreed that it was a useful piece of armament in the business of the taking away of motor cars and the resultant accidents in which these people became involved.
It seems to me that the noble and learned Lord, Lord Ackner, with the best will in the world, is now trying to attach to this Bill some element which has to do with drink and driving. That may be very commendable because all your Lordships are concerned at the number of cases of motoring offences where drink is involved. I understand that there are about 120,000 cases a year. I suggest here that this is the wrong Bill in which to give further support to drink and drive legislation.
The noble and learned Lord quoted His Honour Judge Blennerhassett's splendid report where he discusses this matter. As a result, in June 1990 further regulations were laid under the Road Traffic (Driver Licensing and Information Systems) Act 1989 to deal with some further elements of drink and drive; that is known commonly, as I understand it, as the high risk offender.
From a purely practical standpoint, it seems to me that we have a piece of legislation in place that deals with drivers who are convicted of a drink-drive offence with two-and-a-half times the legal limit of alcohol in their blood—the legal limit being 80 milligrams in 100 milligrams of blood. Some may say that two-and-a-half times is not very much because a large number of cases involve people with five times the limit. It also provides for people so convicted, that where there is a conviction a second time within 10 years, further penalties accrue. So I should have thought that in a way we have a piece of legislation already in place that deals with the problem which the noble and learned Lord seeks to resolve in this Bill.
If there is a gap in the current legislation, I suggest that this is not the Bill in which that loophole can be put right. We would have to go back and make an amendment to the 1989 Act—certainly not the 1988 Act.
At Committee stage, and again this evening, the noble and learned Lord discussed the Crouch case. I know he will forgive me if I do not use the legal terminology. He understands quite well what I mean. In Committee, my noble friend the Minister said that what occurred was perhaps a little unfortunate. It occurred in 1981. Since 1981 we have had a fair raft of traffic and driver legislation and, most notably, drink-drive legislation. I think my noble friend the Minister would agree that such legislation has met with some success alongside the changing attitudes of society to drink-drive offences. We should leave that matter where it is. We should deal with this Bill, which deals with a different type of offence that may lead to the aggravated offence and with a different type of offender, as it stands and get it on the statute book. We shall then have that other piece of weaponry in the 823 armoury. If we still have doubts about drink-drive issues, we must come back to them in a more appropriate piece of legislation.
§ Baroness Masham of Ilton
My Lords, I should like to join in the debate, having rushed round from the Throne because of what the noble Lord, Lord Lucas, has said. It is our duty in this House to try to improve legislation, however late the stage may be. As a member of a board of visitors of a young offenders' institution I know very well that the offences of these young people are aggravated by drink and drugs. I come from the North. On Teesside and in Newcastle the problem is very serious and a great worry to the local population. Before bringing the Bill to Parliament, the Home Office must have done some research. Can the Minister say how many of the young people who have taken cars without permission were under the influence of drink or drugs? I support the noble and learned Lord, Lord Ackner.
§ The Minister of State, Department of Transport (Lord Brabazon of Tara)
My Lords, I have listened carefully to the noble and learned Lord, Lord Ackner. He has spoken with his customary force and eloquence in moving the amendment. We have also exchanged letters on the subject since we discussed the amendment at Committee stage. I fear, however, that we are still somewhat apart on the interpretation of Section 22 of the Road Traffic Offenders Act 1988 and on the need for the amendment before us.
The noble and learned Lord has taken great care to make his amendment relevant to this Bill. He explained as much in moving the amendment today. However, the problem with which he is really concerned is much wider, and fundamentally quite different. It concerns the fact, which I do not dispute, that the courts learn of a number of cases of persons who may for medical reasons be a risk to other road users, yet very few of these cases ever get reported to the Secretary of State, despite the very clear duty to do so in Section 22 of the Road Traffic Offenders Act 1988.
The fact that I am not enthusiastic about this amendment must not be taken to mean that I am complacent about the problem of lack of notifications. Far from it. But I very much doubt whether this amendment would help matters, well-intentioned though it undoubtedly is. Indeed, I fear it could do harm to the procedures we use to deal with those drink-drivers—the vast majority—who are not involved in aggravated vehicle-taking. That will perhaps explain to the noble Baroness, Lady Masham, my anxiety about the amendment.
Let us consider what the effect of the amendment would be. For reasons of scope, which I fully understand, and which the noble and learned Lord has explained, it applies only to persons convicted of one particular offence—aggravated vehicle-taking. Moreover, it applies only to the duty of the courts under Section 22 of the Road Traffic Offenders Act, and not, for example, to the duties of drivers or the Secretary of State under Part III of the Road Traffic 824 Act. Only in a very limited context, then, would alcohol or drug misuse be "deemed" a relevant disability.
As I explained at some length in Committee, the Government take the view that the existing term "relevant disability" does cover a situation where fitness to drive is impaired through misuse of alcohol or drugs. Indeed, applicants for driving licences are required to declare that they do not suffer from relevant or prospective disabilities, including "alcohol or drug misuse or dependency". I should remind your Lordships that, when the relevant parts of the Road Traffic Act 1991 come into force, new and tougher penalties will be introduced for those who knowingly drive while physically unfit or after making a false declaration of physical fitness. We should certainly not want to weaken the definition that would apply for that purpose.
The noble and learned Lord has mentioned the opinion of Dr. John Kemm, senior lecturer in social medicine at Birmingham University, who has said that in his view alcohol misuse is not a disability. Dr. Kemm's opinion was discussed by the Secretary of State's honorary medical advisory panel on alcohol and drug misuse. The panel comprises national experts in this field and is chaired by Dr. Philip Connell, CBE, who is adviser to the General Medical Council in these matters. The Secretary of State's panel unequivocally advised that alcohol misuse may constitute a relative or prospective disability in the terms of the Act.
Equally important for road safety is the high risk offenders scheme. I am grateful to my noble friend Lord Lucas of Chilworth for reminding us of this and for providing some facts and figures about it. The scheme is prescribed under the current powers relating to disabilities, and it forms an important element in our road safety policy. Many of the people dealt with by the scheme would be correctly described in the terms used in this amendment; that is to say, they have,a propensity to misuse or abuse alcohol".They would not necessarily be "alcoholics" and at the very least there would often be insufficient evidence available to the court to describe them as such. Indeed, Mr. Crouch, who has often been mentioned in our proceedings, would himself have been caught by the scheme if he had committed the offence today.
Let us imagine that such a person is convicted of a serious drink-drive offence in which he was driving while three times over the legal blood-alcohol level. He is disqualified and, under the Motor Vehicles (Driving Licences) Regulations, the circumstances therefore obtain under which the Secretary of State may make medical inquiries as to his fitness to drive so as to ascertain whether or not he is suffering from a disability. Now let us suppose that the person in question wishes to challenge the right of the Secretary of State to make any inquiries. He may say that what gót him into trouble was not alcoholism, but rather "a propensity to misuse or abuse alcohol". At present I trust this argument would get him nowhere. But if this amendment were carried, could he not then argue that, as that propensity is deemed to be a relevant 825 disability in the case of aggravated vehicle-takers only, it cannot possibly be a relevant disability in his case, as he was driving his own car and not a stolen one?
If there is any danger of such a challenge succeeding, and putting the whole of our policy on high risk offenders in jeopardy, I must say that it is not a gamble which the Government are prepared to take. So while I have considerable sympathy with the aims of this amendment, I fear I cannot commend it to the House.
Having said that, however, let me assure the noble and learned Lord that I am not in any way rejecting his plea for the Government to get tough, or should I say even tougher, with drink-drive offenders, whether they offend in a stolen car or their own. Indeed, from the victim's point of view the distinction is irrelevant.
I hope therefore that I can end my part in tonight's debate on a more positive note. The noble and learned Lord may not have persuaded us to accept his interpretation of the Crouch judgment, or of the meaning of "disability" in the Road Traffic Act 1988, but we do agree that the system of relevant driving disabilities and the notification procedure needs looking at.
The fact is that, across the whole range of relevant and prospective disabilities, the Driver and Vehicle Licensing Agency gets not much more than 200 referrals per year from the courts, whereas from all sources it gets around 1,000 notifications every working day of persons medically unfit to drive. So it certainly appears that a number of potential referrals by the courts are not being made. This seems to be a general problem, and not one confined to alcohol or drug misusers.
I have already assured the noble and learned Lord in correspondence that the Government are monitoring the situation carefully and that we are keeping an open mind on the possibility of primary legislation in a future Session to deal with it. In fact, the Government have already set up an official group to review the working of the whole system of notifying disabilities. We have asked the group specifically to consider notifications concerning unfitness to drive through misuse of alcohol or drugs. It will look very carefully at possible changes to the framework of legislation including Sections 92 to 94 of the Road Traffic Act 1988 and Section 22 of the Road Traffic Offenders Act. The group will report, on this aspect at least, by the end of the year and a consultation document will be issued on any proposed changes. Any legislation arising from the review will be able to avoid the pitfalls that beset any amendment limited by the scope of the Bill.
I must point out to the noble Baroness, Lady Masham, that I do not in fact have the figures for which she asked. But my point is that we want the provision to cover the whole ambit of drink driving rather than just aggravated vehicle-taking. With that explanation, and the assurance that I have given about our concern in the matter and what we are doing to address it, I hope that the noble and learned Lord, Lord Ackner, will feel able to withdraw the amendment.
§ Lord Ackner
My Lords, perhaps I may first answer what the noble Lord, Lord Lucas of Chilworth, said. The high risk scheme, commendable though it is, does not touch what I am dealing with. I am not dealing with alcoholic youngsters who have doubled or trebled the limit; I am dealing with those who have drunk too much but who may well be within the limit or below it. Therefore, the high risk scheme has no relevance. As regards the noble Lord's observation that much has happened since 1981, I must say that nothing has happened since 1981 or 1988 with regard to dealing with a definition which is too narrow. That is the point at issue.
The noble Lord, Lord Brabazon, is saying that irresponsibility equals disability. But, with great respect, that just is not so. Disability in this legislation is hedged around with physical disability. I need to quote only one portion of what the noble Lord said in Committee:In medical circles alcohol misuse implies the taking of alcohol to the extent that it causes harm to oneself or others, or is illegal". [Official Report, 11/2/92; col. 708.]"Harm to oneself" means affecting one's liver or one's heart —producing a physical prejudice; it does not mean losing one's inhibitions to the extent of driving like a lunatic. That is what we are concerned with. Here lies the whole misunderstanding, and the inability of those advising the Minister to realise that he has a problem with the definition.
If I had been given an assurance that the definition would be looked at and dealt with within the foreseeable future in a new road traffic Act, I would have been persuaded by the rhetoric. But, instead, it is said that, "We propose to do nothing about the definition. Your attempt to do something about it is, by necessity, circumscribed by the scope of the Act. It does so little that we should ignore it".
I must remain consistent. I have said throughout that I am trying to strengthen the Bill. I have been told that, if I press the amendment to a Division and succeed, it will wreck the Bill because there will not be sufficient time to deal with an accepted or passed amendment. I do not wish to do that. But at least I have put firmly on record on the occasions that I have addressed the Chamber the fact that I think the resistance to widening the definition borders on —and I must be moderate—pigheadedness to a degree.
§ Lord Brabazon of Tara
My Lords, before the noble and learned Lord sits down, I must remind him, with the greatest respect, that I have promised an urgent and thorough-going review of the matter. I have promised that it will be completed by the end of the year. Indeed, I referred to that in my speech. Moreover, it will cover the points about which the noble and learned Lord is concerned.
§ Lord Ackner
My Lords, I believe the noble Lord said that the trouble was that we do not agree that the definition requires widening. That being so, I cannot see how the review will achieve that which I have set out when we are in complete disagreement on the vital point. Hence my lack of optimism and hence my high degree of pessimism. I have already indicated why I shall withdraw the amendment. I do so not because I 827 am convinced but because I do not wish to wreck the Bill. Accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 7.45 p.m.
My Lords, I beg to move that this Bill do now pass.
We have had considerable discussion of the merits of the Bill as it as passed through your Lordships' House. For that we are chiefly indebted to the noble Lords, Lord Morris of Castle Morris and Lord Airedale, and to the noble Baroness, Lady Mallalieu, whose amendments have directed our attention to some of the major issues in the Bill. The noble and learned Lord, Lord Ackner, raised the problem which was originally identified by His Honour Judge Blennerhassett.
The noble and learned Lord is, of course, always a devastating advocate, most especially I find when he is on the other side of the argument to myself, as was shown this evening. I was, therefore, particularly grateful to the noble and learned Lord for intervening so formidably on my behalf—I might almost say in my defence—in Committee when, as a mere layman, I presumed to contend with such a distinguished lawyer as the noble Baroness, Lady Mallalieu. My gratitude to the noble and learned Lord, and I am sure that of my noble friend Lord Brabazon, went sliding down the Richter scale of appreciation when he returned to His Honour Judge Blennerhassett's views for the third time today. However, I can assure the noble and learned Lord that our sense of gratitude shot up again when his sense of parliamentary prudence restrained him from dividing the House on the matter.
Perhaps I may summarise the doubt which some have had about the Bill. I think that it is that, in our eagerness to protect the public and in order to ensure that those who take cars should pay for the full consequences of their crime, we have lost sight of some of the principles of good law. I know that the noble Lord, Lord Airedale, entertained some considerable difficulties in understanding the concept of the Bill or the anxieties of those whose cars are taken and ruined. I do not think that the Bill will result in the conviction of the innocent. I hope that it will ensure quite the reverse; namely, the conviction of the guilty.
The real injustice lies in a situation where gangs of youths can take vehicles illegally, where they can race them, crash them and cause all manner of injury, damage, mayhem and devastation, and then walk away with an inadequate punishment simply because the law has been unable to pin responsibility for what has occurred on any particular one of them—even though it is quite evident that they were all involved in one way or another. That situation is one which can rightly be called unjust, and it is a situation with which we are too familiar.
The Bill aims to right that wrong, not by punishing the innocent but by saying to gangs of thugs that if they were all involved in taking the vehicle they will all suffer the penalty for the consequences of that crime. That seems to me to be a common-sense approach 828 and, more important than that, a just approach—one which will commend itself to the sense of justice of the British people.
The noble Baroness, Lady Mallalieu, who is not present in the Chamber this evening, described my argument on Report as the,jurisprudence of the saloon bar".I thought that that was quite witty, but somewhat unfair. Quite how the noble Baroness knows about saloon bars is a matter which, I am bound to say, has dilated my imagination —but one which I judged it better not to pursue but to keep in the realms of fantasy. In this case, though, the punishing of gangs of thugs collectively for the damage that they cause I consider to be the jurisprudence of common sense.
I believe that we are all agreed that the law as it stands is not satisfactory, and that all too often the punishment which is meted out to so-called, "joy riders", is totally inadequate and does not begin to reflect the gravity of their offences. The aggravated offence, which is provided by the Bill, should help to remedy that. It should provide a further and valuable weapon in our armoury against car crime. I commend the Bill to your Lordships.
Moved, That the Bill do now pass.—(Earl Ferrers.)
§ Lord Morris of Castle Morris
My Lords, it will come as no epiphanic surprise to anyone to learn that we on these Benches are all a little disappointed at the progress of this Bill through your Lordships' House, since neither we, nor any noble Lord on any other Bench has succeeded in convincing the Government that anything in it could possibly be improved. In the sporting phrase, "We haven't laid a glove on it."
We do not oppose the Bill because, clearly, something must he done about the alarming increase in car crime over the past few years, with 494,000 recorded offences of theft or unauthorised taking of motor vehicles in 1990—a 25 per cent. increase on the previous year. Only today, one newspaper has reported the case of a police constable in Cleveland who has been forced to retire at the age of 24 after a neck injury that was received when his patrol car was rammed by a stolen vehicle. We on these Benches do not in any way underestimate the seriousness of this virtual epidemic of lawlessness.
What disappoints us is that we have been completely unable to refine what we see as the heavy handedness of the Bill. We cannot believe that it is in the best interests of law and justice when we refuse to discriminate between different degrees of culpability. I refer to the law which makes passengers and drivers equally guilty of the aggravated offence on the very dubious moral grounds that they should not have been there in the first place. That lack of discrimination in Clause 1 between the dangerous driver and the passive passenger seems to us to be regrettable.
Similarly, we are saddened that we have been unable to convince the Government that to reverse the onus of proof in Clause 1(3) (a) and (b) is unnecessarily strong. Although precedents for it have been quoted, we are not convinced that it is necessary, for this offence, to overturn the basic assumption of English law that a person is innocent until he is proved to be guilty.
829 Perhaps your Lordships will permit me a brief personal reminiscence. I was an officer cadet at Eaton Hall Officer Cadet School in 1951 when, on Monday morning, the commanding officer paraded the entire school and berated us for our lack of community spirit in that only 20 people had turned out to watch the rugby team on the previous Saturday when they were beaten by a cricket score. The commanding officer announced that there would be extra parades for the entire week. After dismissal, B Company sent a deputation to the commanding officer to clarify that it would not be involved in the extra parades since the entire company had been on leave for the whole of the previous week and could not have supported the team. The commanding officer rejected that submission in words that I still recall, saying, "The fact that B Company was on leave is irrelevant. I can only assume that, had they been present they would similarly have failed in their duty". The analogy is imperfect and the circumstances are not parallel, but I venture to think that the passive passenger who is unable to prove his innocence may well feel the same sense of outrage and injustice—a passion which will do little to bring about either repentance or reformation.
As the Home Secretary said, "The Bill is not the whole answer to car crime, and nor does it pretend to be." We would urge upon the Government the vital necessity of continuing discussions with the car manufacturers to impress upon them the need to make cars harder to take away unlawfully. Similarly, we hope that they will encourage the insurance companies to recognise and reward those car owners who take every possible precaution against the law-breaker. Above all, we hope that the Government will do everything in their power to multiply the motor schemes for young people, such as the one in south London, where only 9 per cent. of those attending have reoffended, while in the immediately surrounding area, the figure has been 80 per cent.
Finally, we hope that the Government will take up the constructive suggestions that were made when this Bill was given its Third Reading in another place, that the Home Office should publish a pamphlet on this change to the law which can be widely distributed to schools, workplaces and to all other places where it may come to the attention of those likely to commit the offence so that young people may be brought to understand how serious and dangerous it is to take and drive away a vehicle.
I should like to thank all noble Lords who have contributed to our debates on this Bill, especially perhaps my noble friends Lady Mallalieu and Lady Hilton of Eggardon, the noble Lord, Lord Airedale, and the noble and learned Lord, Lord Ackner. I should also like to pay tribute to the virtually impeccable patience and courtesy of the Minister, whose task it has been to steer this aggravating measure through your Lordships' House.
§ Lord Airedale
My Lords, this is the traditional occasion when we hope to be able to congratulate one another and ourselves on having made a wonderful job of improving the Bill that we are considering and when we can depart with smiles all round. We cannot claim to have improved this Bill because we have not 830 done anything at all to it. However, before proceeding with the rest of my speech, perhaps I may say that, under considerable pressure throughout the passage of the Bill, the Minister has shown unfailing courtesy and patience despite—I am sorry to say—a most unfortunate tendency, in the absence of a solid argument to present against seriously produced amendments, to attempt to parody, ridicule or lampoon the arguments that have been advanced by his opponents. We are not taken much further unless solid arguments can be presented against solid arguments.
The Bill was cobbled together in great haste to deal with what is not exactly a new phenomenon, but with the multiplication of a new phenomenon—the taking of vehicles by hooligans in gangs and the driving away of those vehicles through the streets at 70 miles per hour. It has been unfortunate that there has been no time for the Bill to distinguish and identify the hooligans against whom it was aimed from what I may call the ordinary person who, down the years, has taken people's vehicles, probably by himself and not in a gang, and has driven that vehicle away, thus committing the basic offence but no more. The result of that haste and of that failure to identify the people against whom the Bill is aimed has been that every person who has taken a vehicle unlawfully, whether a hooligan or not, has been scooped into the net, just like the trawl net that trawls in the mature fish, the immature fish, the eggs and the plant life upon which the fish depend. That is no way to proceed.
Indeed, it was quite unnecessary because the existing law was perfectly adequate to deal with the ordinary case of taking a vehicle without the owner's consent. As the Minister said: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."—[Official Report, 25/2/92; col. 244.]The Minister also mentioned the compensation that is payable. Referring to the relevant section of the 1973 Act, he said:That section says that a person convicted of the basic offence … 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."— [Official Report, 25/2/92; col. 247.]The noble Earl cannot possibly say that the Bill was necessary in order to deal with cases of ordinary vehicle-taking.
The Bill was rushed through the House of Commons in a single day. It came to this House. I am sorry to refer to the matter again but I believe that it is important. At the end of the Committee stage a Motion was moved from the Government Front Bench to dispense with the Report stage. By great good fortune the Opposition Chief Whip, who cannot be expected to be in his place the whole time, was present. He protested and by a narrow piece of good fortune the Report stage was permitted to take place. I am advised that there is no known precedent for a Report stage of a Bill to be restored once a Motion has been agreed to by the House that the Report stage be dispensed with.
831 So last Tuesday we came to our Report stage, and what happened? At 20 minutes past three o'clock the noble Earl took his place on the Government Front Bench in charge of the Third Reading and passing of the Charities Bill. At two minutes to seven o'clock the noble Earl made his final speech on that Bill. It occupied nearly four columns of Hansard. At 7.42 p.m. the noble Earl, without refreshment or time to rethink, was pitchforked into the Report stage of this Bill. I do not believe that the government business arranged for that day was in the least defensible. It was unfair to the noble Earl. It was also unfair to noble Lords who wished to move amendments on Report and who were entitled to be answered by a Minister coming reasonably fresh to his task. I am sorry to say that I regard that Report stage as having been largely a disaster.
The Bill has been rushed through Parliament under the nose of the Royal Commission. That was established by the noble and learned Lord the Lord Chancellor about a year ago in order to inquire into the whole of the administration of criminal justice in this country. The noble and learned Lord asked that the report be produced within two years and therefore we hope to have it in one year's time from now. I hope that the right honourable gentleman the Home Secretary, having listened to the strong reservations about the Bill expressed by distinguished lawyers in another place, will see fit to put those reservations before the Royal Commission. I hope that likewise the noble Earl will inform his right honourable friend of the strong reservations that were expressed in this House in order that they too may be considered by the Royal Commission.
Today the noble Earl said that he did not believe that there would be any conviction of the innocent under the Bill. That was contrary to the view expressed by the noble Baroness, Lady Mallalieu. I believe that the Bill will not do a great deal of harm. By the time that the Royal Commission has considered the Bill and expressed its opinion upon it, it will cease to exist in its present form. It will be either a dead letter, or more appropriate legislation will be put in its place.
I do not wish to end on a sour note. I compliment the noble Earl on his patience and good humour, and I think that I had better sit down.
My Lords, that was a happy note on which to sit down and I appreciate the noble Lord's comment greatly. I am also grateful to the noble Lord, Lord Morris of Castle Morris, for his description of what happened to poor old B Company. The story was not particularly relevant but it was very good.
I know that the noble Lord, Lord Airedale, does not like the Bill; he has made that perfectly plain. He said that I parodied, ridiculed and lampooned all his arguments and that I did not produce solid arguments against solid arguments. Although I believe that I did 832 produce solid arguments, I am prepared to accept that I did not persuade the noble Lord that they were either solid or good. However, I did not wish to upset him unduly if I ridiculed some of the things that he said, as he suggests I did.
The noble Lord said that the Bill has been rushed through Parliament. That is a slight exaggeration. It went through another place fairly quickly. In this House it has had a Second Reading, Committee stage, Report stage and Third Reading. Apart from Second Reading, amendments were tabled at each stage. The noble Lord referred again to the fact that, as he put it, only by a narrow piece of good fortune was there a Report stage because I moved that the Report be now received after no amendments had been agreed in Committee. That is a perfectly normal procedure. In no way did I seek to bounce your Lordships or to truncate the proceedings.
The noble Lord, Lord Airedale, was in his place this afternoon when your Lordships dealt with the Prison Security Bill. Again, no amendments were passed in Committee. The noble Lord might have noticed that I moved that the Report be now received and he did not complain—
§ Lord Airedale
My Lords, surely the case this afternoon was totally different. No noble Lord connected with the Prison Security Bill said that they wished to reserve their position until Report, having consulted their advisers outside Parliament. That is what happened during the Committee stage of this Bill. Noble Lords were not told by the noble Earl that the Report stage would be abandoned and that therefore there would be no opportunity to move amendments. The two situations are totally different.
My Lords, I have now explained to the noble Lord, Lord Airedale, on three occasions how that came about. It was not my intention to bounce your Lordships but the noble Lord seems convinced that that was the case. I can say only that I am sorry that he feels that. I appreciated his expression of care for me in saying that he was sorry that I had to deal with the Charities Bill and then the Aggravated Vehicle-Taking Bill. He said that my speech occupied four columns of Hansard. I believe he will find that the speech he made this evening occupies five columns. When I made a mild bleep that possibly to deal with the Aggravated Vehicle-Taking Bill after the Charities Bill might be excessive, I asked someone what would happen about the poor Minister who had to deal with both Bills. There was a silence and I was told that it was the ministerial diet day.
I am grateful for the spirit in which your Lordships have dealt with the Bill. I realise that at times noble Lords did not find it an easy measure to contend with. I commend the Bill to the House.
On Question, Bill passed.
§ House adjourned at nine minutes past eight o'clock.