Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I beg to move amendment No. 104, in clause 30, page 26, line 25, leave out from ‘false’ to end of line 26.

We can see from the clause that a person is guilty of an offence if he provides information that he knows or believes to be false, or if he is reckless as to whether it is false,

“(a)for the purpose of securing the making or modification of an entry in the Register;

(b)in confirming ... the contents of an entry in the Register; or

(c)for the purpose of obtaining for himself or another the issue or modification of an ID card.”

We come again to my favourite word. If the Minister likes the expression “rolling out”, I enjoy the expressions “modification” and “modified”. It is interesting that we are discussing the modification of an entry in the register, which I accept is a proper use of the word within the context of an Act of Parliament. The Government sought to persuade us last week that when they use the word “modify” in respect of a report or statutory instrument, they mean “amend”, and that we were being provided in the earlier clauses with an opportunity to allow Parliament to amend secondary legislation. I do not know about that, bearing in mind how they use “modification” throughout the subsequent parts of the Bill, including clause 30.

However, I want to ask the Minister by means of amendment No. 104 whether I am right in thinking that the criminal law treats the reckless disregard of truth or falsity in exactly the same way that it treats the known falsity. If one knows that they are telling a lie, they will be treated in the same way as they would if they could not care less whether they were telling a lie. Is it therefore necessary to add

“or ... is reckless as to whether or not it is false”?

The new policy might be one of being super-abundantly clear in legislation that creates offences and that, for example, if information were laid against an individual who had done such a thing before magistrates, or an indictment were to be drawn against   an individual before the Crown court, the Crown might wish to set out those two levels of knowledge as alternatives. It is important to be clear about the Government’s intentions before we allow the clause to stand part of the Bill.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

The hon. and learned Gentleman knows more of criminal law than I do, but I hope to convince him that it was necessary to draft the clause in this way. He will know that recklessness—as an alternative to intention—is a common feature of the criminal law. A person acts recklessly if he is aware of a risk and, in the circumstances known to him, it would be unreasonable to take the risk. Having regard to the definition of “false” under clause 43, which includes

“any inaccuracy or omission that results in a tendency to mislead”,

it is clear that a person might be reckless as to the veracity of the information he is providing.

I can understand members of the Committee being concerned to ensure that those who mistakenly provide false information, or even perhaps negligently provide false information, are not criminalised by the clause. I can give the hon. and learned Gentleman an assurance that such people will not be criminalised. That is not our intention. However, he will know that recklessness is a higher test than a mistake or negligence and, in my view, reflects a culpability that should be criminalised, given that we all want the register to be maintained to the highest possible standards.

While prosecutions for recklessly providing false information might be few and far between, it is right that the option should be left open to prosecutors and juries. It goes almost without saying that the effect on the accuracy of the register will be the same, regardless of whether a person intended to provide false information or was reckless in providing false information.

The hon. and learned Gentleman asked whether the term “reckless” is strictly necessary, and I hope I have explained why it is. We must also be explicit about the fact that there are alternative states of mind—so I am told—such as knowing information to be false, believing it to be false or being aware that it might be false. However, taking the risk is reckless. There are obviously gradations of being reckless. The clause has been drafted in this way to allow the courts to have regard to all the possibilities for someone providing false information.

I am not an expert, but I gather than recklessness is a common ingredient in criminal offences. It was recently endorsed by the House of Lords in a case in which a previous House of Lords decision was overruled. As a result, recklessness is now subject to a subjective, not an objective, test. The key question is whether the defendant himself appreciated the risk he was taking, not whether the reasonable man would or would not. I hope that means something to the hon. and learned Gentleman.

For the reasons I have outlined, we believe it important to maintain under the Bill the fact that recklessness is a common alternative in the criminal   law to intention. It is of course important that people who apply to join the register do so knowing the risks of failure to provide information that is secure. The recklessness test is a higher test than simply making a mistake or being a bit negligent in terms of the information provided. That, I hope, captures what the hon. and learned Gentleman seeks. We need to keep the Bill as drafted. With that in mind, I ask him to withdraw the amendment.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

We are talking about the state of mind of the person who provides the false information. A state of mind is a fact. It is usually to be inferred from what someone says or does or knows. I know the difference between negligence and recklessness. I wanted to know whether, for the purposes of the criminal law, there is a difference in this case between recklessness and deliberate behaviour. I think the Under-Secretary has persuaded me that what the Government intend is in line with the current state of the criminal law.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

If it will help, I shall repeat the point. Deliberate behaviour is obviously covered by the intention to supply false information. That is the deliberate act. Recklessness is where people provide information knowingly, rather than mistakenly or negligently. They know the risks involved in doing so. There is a difference. Obviously the intent is within the Bill. Recklessness, being a higher test than negligence or anything else, is also in the Bill. I think that clarifies the point, or at least I hope it does.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I am grateful to the Under-Secretary for that intervention. There are occasions when further elaboration leads to greater confusion, rather than greater certainty. To prevent the Bill from getting more rather than less confused, I will stop this conversation. I beg to ask leave to withdraw the amendment.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I beg to move amendment No. 105, in clause 30, page 26, line 29, leave out “two years” and insert “one year”.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following amendments:

No. 106, in clause 30, page 26, line 31, leave out “twelve” and insert “six”.

No. 108, in clause 31, page 27, line 34, leave out “twelve” and insert “six”.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

We had this discussion in relation to other offences earlier in the Bill and it is about the length or the quantity of penalty that should apply to someone who provides false information whether deliberately or recklessly, but certainly not negligently. I simply want the Government to justify the two-year prison sentence in view of the 12-month prison sentence available under clause 31(7). It is up to the Government to discharge the burden of proof here, and I look forward to hearing them do so.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

As the hon. and learned Gentleman explained, the amendment would reduce the maximum penalty for providing false information from two years to one year. We take the view that a one-year maximum sentence would not reflect the seriousness of the offence. The two-year maximum sentence is consistent with the broadly analogous offence of possessing false documents, which we discussed in relation to clause 27 and which also attracted a sentence of two years. The offence of unauthorised disclosure of information from the register also attracts a maximum penalty of two years.

We believe that there is some consistency in what we are arguing. The stronger sentence is designed to reflect the seriousness with which we consider this and the importance of the integrity of the register.

As we discussed in relation to the magistrates courts, the Bill provides that on summary conviction the maximum penalty is 12 months’ imprisonment. 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. The amendment would amend that to six months. It is essentially the same amendment as was tabled in relation to clause 27   for the offence of possession of false documents. As I said, we will resist this amendment too, because we want the courts to have exactly the same powers under that Act in respect of the offences listed in the Bill as they have with respect to other offences. The amendment would limit their powers when they had a broader power across the piece.

I see no need to detain the Committee further. Given that we have been over this ground, I hope the hon. and learned Gentleman will withdraw the amendment.

Edward Garnier (Shadow Minister, (Assisted By Shadow Law Officers); Harborough, Conservative)

I will withdraw the amendment, but we might need to return to the issue. In the meanwhile, anyone who wants to provide false information, be it recklessly or deliberately, had better travel to Scotland or Northern Ireland to do so. I beg to ask leave to withdraw the amendment.