Clause 30 - Providing false information
Identity Cards Bill
4:00 pm
Mr Humfrey Malins (Shadow Minister, Home Affairs; Woking, Conservative)
I beg to move amendment No. 228, in clause 30, page 26, line 15, leave out from 'false' to end of line 16.
I seek nothing more than an undertaking from the Minister that he will reconsider clause 30(2)(b). The amendment would remove the words
''is reckless as to whether or not it is false.''
I shall give the reasons for reconsidering the provision. It deals with someone who provides false information to someone else, perhaps in confirming the contents of an entry in the register. Such a person providing false information would be liable to penalties.
Clearly, the Minister has tried to assist the defendant by saying that the defendant has to know or believe the information to be false. That introduces an element of moral culpability—that is to say, the matter goes beyond the actus reus and involves some form of mens rea.
My point is that ''reckless'' is a very difficult word. It is increasingly frowned on in criminal law. In road traffic legislation, there used to be a charge of driving furiously. I am not even sure that it does not still exist in some jurisdictions, but I think that it has been taken away from our road traffic Acts. There used to be a charge of reckless driving, which I imagine fell somewhere between driving dangerously and driving without due care and attention. Reckless driving is no longer a charge.
The word ''reckless'' is used with tremendous caution in criminal cases because it is difficult to define. It has been particularly condemned in certain criminal damage cases. For example, what if someone slams down the telephone in a public kiosk when in a temper, and the thing breaks in half? It cannot necessarily be said that that person intended to break it in half. They were terribly angry because they could not get through but, on the other hand, there is a certain degree of moral culpability in slamming it down.
Case after case involves talking about recklessness and whether that is an essential element of an offence. All I would say to the Minister is that that is difficult territory. Judges find it extremely difficult to direct a jury on what ''reckless'' actually means. Does it mean negligently or carelessly? To what extent does recklessness involve knowledge? Directions to juries from judges over the years in cases using the word ''reckless'' have been fraught with difficulty.
If the Minister thinks that it is essential to include subsection (2)(b), so be it. However, we are doing our duty in Committee by pointing out the problem with that word, of which he, as a very skilled lawyer, will be well aware. Will he ponder the position between now and Report to see whether any improvement could be made?
Mr David Curry (Skipton and Ripon, Conservative)
We have listened to quite a lot of Latin phraseology today, in a little private discourse between the lawyers. Those of us who are not lawyers and are not familiar with that phraseology occasionally come across an Anglo-Saxon word that we think we understand, but then we see it in the context of the Bill and begin to wonder what on earth it can conceivably mean. I speak as a simple hack, not a lawyer, and I know that if I put the word into a piece, my editor would say, ''What do you mean by it?''
I had one rule when I was a Minister: I would never sign a letter that contained the word ''appropriate'', on the grounds that it always stood for something else. It meant ''right'', and ''not appropriate'' meant ''wrong'' or ''silly''. Yet I found that the word is used endlessly in Government to disguise what is actually meant.
I take the point made in the analogy of the telephone. I have to tell my hon. Friend the Member for Woking that I am not well versed in the operations of photocopiers of the sophistication of those in Portcullis House. There are occasions when one seeks to make them do a simple task, and one is overcome by a very powerful urge to express one's disapproval in a physical form. Whether that would be described as a ''reckless'' action I am not quite sure.
Surely, if ''reckless'' stays in the Bill, there has to be some test of what is meant by recklessness. All that the word is doing is standing as code for a much longer explanation of what is ''reasonable'', a word that is constantly used in the Bill. One would have to start by defining what ''reckless'' could conceivably mean before one could discover whether something was reckless or not; that must depend on particular circumstances. I realise that, in legislation, it is necessary at times to use particular words that are difficult to define, but about which one has an instinct as to what it is trying to do. That is why I think that ''not appropriate'' is such an indispensable phrase for Government.
I hope that the Minister will think about the matter again. I looked at the word and thought, ''This is curious; it looks a rather direct word.'' Then I thought, ''What does it mean?'' I could write a significant dissertation on that in Anglo-Saxon and still not get us very far. I am sure that the Minister would like to reflect on the matter.
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
I shall attempt to give the right hon. Gentleman and the hon. Member for Woking a relevant if not an appropriate response to their arguments.
The clause seeks to protect the integrity of the information on the register by interdicting—criminalising—behaviour that deliberately seeks to put information that is wrong on to the register or action that is carried out in a frame of mind in which the person could not care less about the consequences of his actions. That is my understanding of what ''recklessness'' means. In my days of practising criminal law it was a phrase that was well known to those of us who practised in the courts. It is not easily defined in the sense that the right hon. Member for Skipton and Ripon suggests.
Mr. Curry rose—
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
With all due respect to the right hon. Gentleman, who is a wordsmith, my understanding is that recklessness as an alternative to intention is a common feature of the criminal law, but I will check if I am still up to date. In my view, ''reckless'' involves the state of mind of a person who does not care what the consequences of his actions are. Such a person, in this context, ought to be as culpable as someone who intends the consequences. That is why the clause is drafted as it is.
Mr David Curry (Skipton and Ripon, Conservative)
It is important that the common understanding of the meaning of the word should not diverge too far from the strict legal understanding of its meaning. I do not think that the word ''reckless'' is used in common speech with the sort of absolutism—extreme intention—with which the Minister has used it. Similarly, the word ''decimate'' is used to mean wiping out, when in practice it means one in ten. If people were decimated, we would be talking about a relatively modest massacre. What matters is the way people understand the word in common parlance. Surely the Minister could find a better word. ''Reckless'' means a bit over the edge. It does not necessarily mean going hell for leather. He said he would try to find another word, and I think it would be helpful if he could.
Mr Stephen McCabe (PPS (Rt Hon Charles Clarke, Secretary of State), Home Office; Birmingham, Hall Green, Labour)
On a point of order, Ms Anderson. For the benefit of all members of the Committee, could I clarify that the word ''recklessly'' is being used in the same sense as it was being used in the previous amendment moved by the hon. Member for Woking. It would be awkward to discover that there were two different meanings for two different amendments where the same word was employed.
Mrs Janet Anderson (Rossendale and Darwen, Labour)
The hon. Gentleman's point is a matter for debate and not a point of order.
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
I am reminded of my early days as a solicitor in the west of Scotland when a man handed me two summonses, one for a breach of the peace and the other for being drunk and incapable. When I asked him how he was pleading, he said he was pleading not guilty to both as they occurred on separate occasions. I said to him, ''What is the defence to the breach of the peace charge?'' He said, ''I was too drunk to be able to make that sort of noise. That is my defence.'' I said, ''Well, what is the defence to the being drunk and incapable charge.'' He said, ''I am a teetotaller.'' I said, ''There is an inconsistency here.'' He said, ''You are young. You will learn. There are two separate cases and two separate defences. Just get on with it.''
The hon. Member for Woking tabled an amendment to include ''reckless'' in one clause and an amendment to remove it from another clause. He understood its meaning in the one case and did not understand it in the other.
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
I understand exactly what the right hon. Gentleman is saying. If he wants an example of a word the misuse of which constantly irritates me, it is the word ''heartless''. It has come to mean something entirely different from its actual meaning. I remember a friend of mine suggesting on one occasion that I should assist him to sue somebody who suggested he was heartless. When I explained that it just meant he was unlucky he was astonished, because he had never used the word in that way. With respect to the right hon. Gentleman and the hon. Member for Woking, I do not think that ''reckless'' has moved into that phase. The word refers to the state of a person's mind and is well understood, particularly in the context of criminal law. It means what I say it means and people understand that.
We ought to discourage people from acting as if they could not care less what the consequences of their actions are when it comes to providing information for the register. Otherwise we will not be able to protect the integrity of the information in the register. Consequently, while I am prepared to see if I am still up to date with the present meaning of the word, at the moment I am defending inclusion in the clause.
Mr Humfrey Malins (Shadow Minister, Home Affairs; Woking, Conservative)
This has been a fascinating if short debate. I pay tribute to the hon. Member for Birmingham, Hall Green (Mr. McCabe), who intervened a moment ago to point out that we had put forward a word in one clause and were challenging it in another. I regret to say that the Minister knows the answer to this as well as I do—which is that lawyers are quite capable of arguing one case one day and the opposite the next.
The Minister has been kind enough to say that he will have a little think. Frankly, the dangers of ''reckless'' have been illustrated during the debate. That is the purpose of the debate. The concept of ''reckless'' as meaning one who could not care less is novel even to me, though I have heard that ''reckless'' means just giving no thought to the consequences of one's actions. The best answer, I suspect, Mr. Conway—I welcome you back to the Chair—is perhaps to say that we know what ''reckless'' means and do not need to say so, because any sensible person knows the meaning. The problem is that that brings problems in the courts.
The Minister is going to reconsider the usage, and I cannot ask more of him. That is a generous offer, and I beg leave to ask to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)
I beg to move amendment No. 199, in clause 30, page 26, line 19, leave out 'two years' and insert 'one year'.
Mr Derek Conway (Old Bexley and Sidcup, Conservative)
With this it will be convenient to discuss the following amendments:
No. 200, in clause 30, page 26, line 21, leave out 'twelve' and insert 'six'.
No. 202, in clause 31, page 27, line 17, leave out 'twelve' and insert 'six'.
Mr Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)
I welcome you back, Mr. Conway. I rise to address three amendments—
Mr Richard Allan (Shadow Spokesperson for the Cabinet Office, Cabinet Office; Sheffield, Hallam, Liberal Democrat)
On a point of order, Mr. Conway, I think that we are out of sequence. I think that we have moved on from the clause to which these amendments apply, having skipped over them. We now seem to be moving back again. I am confused.
Mr Derek Conway (Old Bexley and Sidcup, Conservative)
I do not think so, but I get confused myself from time to time. We are still on clause 30. We have not done clause stand part yet. It is often helpful if the Committee uses the running order rather than the amendment sheets.
Mr Richard Allan (Shadow Spokesperson for the Cabinet Office, Cabinet Office; Sheffield, Hallam, Liberal Democrat)
My amendment paper is wrong.
Mr Derek Conway (Old Bexley and Sidcup, Conservative)
The Committee is testing to make sure I am awake.
Mr Humfrey Malins (Shadow Minister, Home Affairs; Woking, Conservative)
On a point of order, Mr. Conway, I am confused. I have been given another bit of paper. I have just spoken to amendment No. 228, which relates to clause 30.
I now see, Mr. Conway—do forgive me. Amendments Nos. 199, 200 and 202 may now have been slipped into clause 30, whereas on an earlier bit of paper they were in clause 29. That is entirely my fault for not having an up-to-date bit of paper. May I be forgiven, but I think, Mr. Conway, when you called amendments Nos. 199, 200 and 202, you were entirely correct. That was my confusion, for which I apologise.
Mr Derek Conway (Old Bexley and Sidcup, Conservative)
That is quite all right. It is difficult when we are all hopping around the place. As long as we are all happily on clause 30 and amendment No. 199, we can have Mr. Mercer tell us his views.
Mr Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)
Thank you, Mr. Conway. I thought I understood what was going on, but I am now less certain. However, I thank you for your clarification.
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
You are better off ignoring it all.
Mr Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)
I leave that up to the Minister, as he intervenes from a sedentary position.
I am speaking to the three amendments, which I hope are short and probing. The first two apply to clause 30 and amendment No. 202 to clause 31. The first two are on providing false information and the third on tampering with the register. All three are intended to probe the Minister about length of sentence and consistency. I have no doubt that there is a simple explanation, which the Minister will make clear.
On amendment No. 199, can the Minister explain why a term of imprisonment should not exceed two years? Why should it not be one year, as we propose in the amendment?
Notwithstanding the comment below clause (30)(c), which states,
''in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 . . . the reference in paragraph (b) to twelve months is to be read as a reference to six months'',
Amendment No. 200 would merely bring consistency in sentencing between England and Wales, and Scotland and Northern Ireland bringing,
''a term not exceeding six months or . . . a fine'',
in both cases.
Amendment No. 202 makes similar proposals. Where clause 31 states,
''on summary conviction in England and Wales . . . imprisonment for a term not exceeding twelve months'',
the amendment would replace ''twelve months'' with ''six'' or a fine not exceeding the statutory maximum on both. That would bring consistency of sentencing between Scotland and Northern Ireland, and England and Wales. Can the Minister explain those three points?
Mr Des Browne (Minister of State (Citizenship, Immigration and Counter-Terrorism), Home Office; Kilmarnock and Loudoun, Labour)
Welcome to our Committee this afternoon, Mr. Conway.
Amendment No.199 would reduce the maximum penalty on indictment for providing false information from two years to one year. The one-year maximum would not reflect the seriousness of the offence. The hon. Gentleman seeks consistency; he will find it in the two-year maximum sentence for the broadly analogous offences of possession of false documents dealt with in clause 27. There has to be consistency in the Bill and in the structure of penalties. The offence of unauthorised disclosure of information from the register also attracts a maximum penalty of two years. That is why it is considered to be the appropriate penalty. That deals with matters on indictment.
Matters that are proceeded with by way of summary procedure attract different and lesser penalties. The decision on how to proceed ought to reflect the seriousness of the offence. Prosecutors both north and south of the border—or, indeed, in any other part of the United Kingdom—will take into account the penalties available when deciding where to prosecute an offence given its seriousness. If the hon. Gentleman is looking for an analogous penalty outwith the Bill to show that it is proportionate, he will find an analogous penalty on false statements to procure a passport under section 36 of the Criminal Justice Act 1925 which is also set at two years. There has to be broad consistency over a range of similar types of offence.
In summary conviction, the Bill provides a maximum penalty of twelve months' imprisonment for the offences in clauses 30 and 31 in England and Wales. Until the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to 12 months is to be read as a reference to six months. Amendments Nos. 200 and 202 would replace that with references to six months. The hon. Gentleman argued that that would bring them into line with Scotland and other parts of the UK. That is essentially the same as amendment No.196, which was introduced in relation to the offence of possession of false documents in clause 27.
I resist the amendment for the same reasons that I resisted the amendments to clause 27. It is right that the Bill enables magistrates to make use of their extended—and indeed, in the context of the Criminal Justice Act 2003, their developed—sentencing powers in relation to those offences. In England and Wales that will be once the relevant provisions of the 2003 Act come into force. That is consistent.
In the summary penalties, we seek to give courts in all parts of the United Kingdom the right to use maximum penalties, bearing in mind that the prosecutor will then have that range of penalties before him or her when deciding which court—and the nature of which jurisdiction—the prosecution will be taken in.
Mr Patrick Mercer (Shadow Minister (Homeland Security), Home Affairs; Newark, Conservative)
Well, I regret asking that; it is all as clear as mud. No, it is absolutely clear, and I am most grateful to the Minister. I take his point about consistency and amendment No. 199, and I am sure that greater exposure to the magistrates benches, which I shall no doubt have in due course, would make clear why amendments Nos. 200 and 202 have been satisfactorily explained. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 30 ordered to stand part of the Bill.