Martyn Jones (Clwyd South, Labour)

I remind the Committee that with this we are discussing the following amendments: No. 9, in clause 6, page 3, line 3, leave out ‘for use' and insert

‘which he intends to be used'.

No. 10, in clause 6, page 3, line 3, leave out ‘connection with' and insert ‘furtherance of'.

No. 11, in clause 6, page 3, line 3, at end insert

‘carried out by him or any other person'.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

I welcome you to the Chair of the Committee this afternoon, Mr. Jones. I cannot claim to have made more than introductory comments on the group of amendments under consideration during this morning’s sitting, so I will reiterate.

The clause, as the Committee will recall, deals with the possession of articles for use in frauds. The issue is whether there should be an express intent in the clause. There is no mens rea provision at the moment. Interestingly, in clause 7, there is such a provision, so there is a difference between the two clauses. The only thing that might be construed as intent is the importation of the form of words from the Theft Act 1968:

“for use in the course of or in connection with any fraud.”

I understand that that has been construed to imply intent. It is certainly not explicit and it requires interpretation.

The question is whether we should make it absolutely explicit that the article in question should be in the possession of the person with a clear intent to commit a fraud. The hon. Member for Beaconsfield (Mr. Grieve) has already moved amendment No. 5, which would insert the word “intended” after “article”, so the clause would read

“any article intended for use in the course of or in connection with any fraud.”

As I intimated to him in an intervention, my difficulty with that wording is that an article may be intended for use in fraud but by a different and separate person from the person who is carrying the article or has control of it. So I am not sure that the amendment specifically addresses the issue that we wish to raise.

In amendment No. 9, I propose an alternative form of words, which makes it clear that the person who is guilty of the offence has the article in his possession or under his control and intends it to be used in the course of, or in connection with, fraud. That makes the connection between possession and intent absolutely explicit and, I think, improves the wording of the clause.

Amendment No. 10 would make the connection still more explicit. I understand that the Solicitor-General may say that it is better to have conformity between the two pieces of legislation, so that they are expressed in the same terms. I think that “in furtherance of” is better than “in connection with” because there are many items that could be used in connection with fraud but are not intended for use in a fraud. A printer on which counterfeit documents are produced might be an article that is used in connection with fraud but there may be no intent to do that, whether implicit or explicit, in possessing that printer. The words “in furtherance of” make it clear that there is a causal relationship and one of intent between possession and use in the prosecution of a fraudulent or dishonest act. I commend that amendment to the Committee.

Amendment No. 11 is perhaps a counter-balance to what I said earlier. If it is clear that the intent must be proven by the prosecution, it seems to be entirely reasonable that the provision should not require that the article for use in the fraud is to be used by the self-same person. What I am suggesting is that, by inserting

“which he intends to be used”

and adding

“carried out by him or any other person”

we will retain the sense by which an article might be carried by one person, to be used by another, but we insert the clear requirement for intent to be proven.

The clause as currently worded is capable of being construed in the way that I want it to be construed, but it is not unambiguous. My amendments would strengthen the provision, make the intent clear, and to a considerable degree bring clause 6 into line with clause 7, where the intent is clearly stated.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

Welcome to the Chair, Mr. Jones. Hopefully we will make some brisk progress today under your chairmanship. I am sure that we will all have an interesting debate on some of the clauses.

I detect some difference in view between the Opposition parties. The Conservatives seem to want a more specific intention drawn into the clause, whereas the Liberal Democrats want a broader, or general intention of the sort that the Government favour. The objective of the Liberal Democrats seems to be to insert into the clause that which we believe is already there by case law. The view of the Conservatives, unless I have misinterpreted it, is to be much more specific about the nature of the intention.

We have been living with an offence worded in the same way as clause 6 for nearly 40 years. That offence is in section 25 of the Theft Act 1968, which applies not only to burglars but to those going equipped to commit a cheat. A cheat is defined as a crime of obtaining property by deception under section 15 of the Theft Act. The years since 1968 have provided case law on the  provisions, the most important of which for our present purposes is Ellames, which I mentioned on Second Reading and is referred to in the explanatory notes.

I will be a bit broader than the explanatory notes in identifying some of the issues here, as that may be helpful to the Committee. Mr. Justice Brown said during the Ellames case:

“In our judgment, the words in section 25(1) of the 1968 Act: ‘has with him any article for use’ mean ‘has with him for the purpose’ (or ‘with the intention’) ‘that they will be used’. The effect of section 25(3) is that if the article is one ‘made or adapted for use in committing a burglary, theft or cheat’, that is evidence of the necessary intention, though not of course conclusive evidence. If the article is not one ‘made or adapted’ for use, the intention must be proved on the whole of the evidence—as it must be in the case of an article which is so made or adapted, if the defendant produces some innocent explanation. We agree with the learned authors of Smith and Hogan: Criminal Law...that section 25 is directed against acts preparatory to burglary, theft or cheat”—

and that questions of Mr. “D’s”, the defendant’s—

“knowledge of the nature of the thing can hardly arise here, since it must be proved that he intended to use it in the course of or in connection with”

the burglary, theft or cheat

“and that the mens rea for this offence includes ‘an intention to use the article in the course of or in connection with any of the specified crimes”.

He continued:

“In our view, to establish an offence under section 25(1) the prosecution must prove that the defendant was in possession of the article, and intended the article to be used in the course of or in connection with some future burglary, theft or cheat. But it is not necessary to prove that he intended it to be used in the course of or in connection with any specific burglary, theft or cheat; it is enough to prove a general intention”—

I think that is the important phrase here—

“to use it for some burglary, theft or cheat; we think that this view is supported by the use of the word ‘any’ in section 25(1). Nor, in our view, is it necessary to prove that the defendant intended to use it himself”—

which is the point that the hon. Member for Somerton and Frome (Mr. Heath) made—

“it will be enough to prove that he had it with him with the intention that it should be used by someone else.”

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I shall take this opportunity to clarify a remark that the Solicitor-General made earlier, when he thought that there was a difference of approach between the hon. Member for Somerton and Frome and me. I do not believe that there was. I understood fully the difference between the two forms of wording and, as I acknowledged at the outset, the wording proposed by the hon. Gentleman may be better than mine, but our intention was identical. I want to make it clear that I certainly was not seeking, by way of the amendment, to narrow the provision so that it had to be proved that the person intended to use the article in some specific form of fraud. On the contrary, the proposal was merely that it would be for use in fraud.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I am grateful to the hon. Gentleman for that clarification of his position and I accept that both Opposition spokespersons want an outcome that is not too different from what the  Government want. The question is whether we need to import that by way of amendment or whether it is, in effect, already imported.

Section 25 of the Theft Act 1968 needs to be replaced by clause 6, because it does not cover cases in which the possession takes place in the home, and the objective is that the provision should include such cases. Concern about it being used against people who have no fraudulent intention is misplaced, as Ellames makes it clear that an intention is required. Amendments Nos. 5 and 6 are unnecessary because the Ellames case will be imported, in effect, into the clause.

Amendments Nos. 10 and 11 are also unnecessary. The part of Ellames that I quoted makes it clear that the intended fraud does not have to be committed by the possessor; it may be committed by someone else.

The same case provides authority for attaching a wide meaning to “in connection with”. This part of the Ellames judgment is relevant to that. I think that I have already quoted some of it, but essentially it says:

“The object and effect of the words ‘in connection with’ is to add something to ‘in the course of’.”

Whether “in furtherance of” would carry such a wide meaning is open to question. We do not want to risk not covering any of the huge variety of acts that may be preparatory to fraud. Opposition Members may believe that “in connection with” is too wide, but I do not agree, as the whole offence is underpinned by the requirement for a general intention to commit fraud, so no truly innocent person has, in my view, anything to fear.

All four amendments are not only unnecessary but undesirable, because they would take us away from the section 25 wording and thus deprive us of the case law associated with the existing provision, and the case law has been extremely useful in making it clear to the courts where they ought to be going. Accepting the amendments would have implications for section 25, which will remain in force to cover burglary and theft. We do not want to have one form of wording for one set of offences and different wording for a very similar set of offences relating to fraud. The courts would want to construe what the difference was, and we know from this discussion that no difference is intended.

It is necessary to ensure that we keep the similar case law and the similar intention. I do not think that there is any great disagreement of principle between any of us on how we would like the clause to be applied, but I want to ensure that we maintain the clarity of the provisions, that the courts know what they are about and that the jury is therefore able in due course to make a judgment about the outcome of a case.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

I am most grateful to the Solicitor-General for the way in which he has approached this discussion. I agree with him: I do not think that there is any difference in our intentions—in what we want the clause to do. I believe that, were section 25 of the 1968 Act not to be in place and were we to be creating an offence today in isolation, my wording would be better. I have been quite plain about that. My wording is more explicit.

However, the Solicitor-General is confident that the Ellames case, imported into consideration of this offence,  will identify the necessity to prove intent and will be construed in terms of the article being in the possession of one person, although possibly being used by another person in the commission of a fraudulent act. If that confidence is well placed—I have no reason to suppose that it is not—I think that the provision comes to the same conclusion as my amendment, were it agreed to.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

Let me provide some reassurance. In construing a statute, the courts are able, under Pepper v. Hart, to take account of ministerial statements in the House and explanatory notes. The explanatory notes on the Bill draw attention to the case of Ellames. It may be helpful to tell the hon. Gentleman that Lord Steyn said in Westminster city council v. National Asylum Support Service in 2002 that explanatory notes

“cast light on the objective setting or contextual scene of the statute and the mischief at which it is aimed, such materials are always admissible aids to construction.”

The fact that the explanatory notes specifically mention Ellames means that the case is important.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

I think that we have successfully Pepper-and-Harted Pepper v. Hart, which is helpful in respect of any future construction placed on the clause. On that basis—I understand what the hon. Member for Beaconsfield said—I do not intend to press my amendments.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I welcome you to the Chair, Mr. Jones. I reiterate what I said to the Solicitor-General a moment ago in my intervention. The purpose of my amendments was not to narrow in a huge fashion the definition of the person who would be caught by clause 6.

It is worth bearing in mind—perhaps we have not touched on it—that the clause differs in one important material particular from going equipped to cheat or to commit theft, in that that is restricted to a person not at their place of abode. It was clearly envisaged that that definition should refer to the person with the bag marked “swag” with a jemmy inside it. That has a rather old-fashioned ring about it when viewed by the standards of 21st century crime. The Bill would widen the scope of the effects to include equipment found in a person’s home. There may be some common ground between the hon. Member for Somerton and Frome and I on that.

In view of the fact that I suspect that a great deal of the relevant equipment could also have an innocent use—I am not an expert, but I can see that there may be innocent uses for the sorts of equipment that could be used for the purpose of fraud, including computer fraud—we have to be careful about ensuring that we leave people with the ability to mount a satisfactory defence and prove their innocence and do not start moving towards an offence of strict liability.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

May I give an example? I have a CD-ROM, as have many members of PICT—the parliamentary information and communications group, or whatever it stands for—that enables us to enter a locked PC. That could conceivably be used to break into a computer illegally to extract internet banking information—

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

A virtual jemmy.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

Yes; an internet jemmy, in fact. Would that not fall under the auspices of the clause?

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

My hon. Friend makes a good point. That was precisely the source of my concern. As to the difference in wording between what I should like to see included and that of the hon. Member for Somerton and Frome, on reflection I am not sure that it makes a huge difference. It is clear that the word “intended”, inserted by my amendment, could apply to an article that was intended for use by another as well as for use by that person. My amendment is more limited in scope than the hon. Gentleman’s, which is why I was surprised to hear the Solicitor-General suggest that I was trying to narrow the scope further than the hon. Gentleman.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The observation was from the hon. Gentleman’s broader comments, rather than on the clause. I tend to agree with his interpretation of the difference—or not—between his amendment and that of the Liberal Democrats. It was listening to his remarks rather than looking at the clause that caused me to make the comment.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I am grateful to the Solicitor-General. This was a probing amendment, and he has provided a great deal of reassurance. I hope that the debate, having gone on the record, can, if necessary, be quoted along with the explanatory notes should any issue arise. I certainly agree with the Solicitor-General that it is probably undesirable for there to be a difference in wording between this and going equipped. However, there is an inherent difference of wording in that the scope of the offence is wider because it applies to people’s domestic premises.

With that in mind, I beg to ask leave to withdraw the amendment.