Clause 4. — (Penalties for Assisting Offenders.)

Criminal Law Bill [Lords] – in the House of Commons at 12:00 am on 13th July 1967.

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Photo of Sir Ian Percival Sir Ian Percival , Southport 12:00 am, 13th July 1967

I beg to move Amendment No. 1, in page 2, line 33, to leave out 'other'.

Photo of Sir Eric Fletcher Sir Eric Fletcher , Islington East

With this Amendment can be discussed Amendment No. 2, in page 2, line 33, after 'person', insert: 'other than the husband or wife or parent or child natural or adopted of the person who has committed the arrestable offence', and Amendment No. 4, in page 3, line 19, leave out subsection (4), both standing in the name of the right hon. Mem- ber for Warwick and Leamington (Sir J. Hobson) and the names of other hon. Members.

Photo of Sir Ian Percival Sir Ian Percival , Southport

This is a case where there was even more agreement on both sides of the Committee on what one would like to do. I shall move the Amendment briefly, because originally it was raised by my hon. and learned Friend the Member for Solihull (Mr. Grieve), although in slightly different terms. I want to explain why the terms of this Amendment are slightly different from the one moved in Committee.

This Clause deals with the crime which is to take the place of accessory after the fact. Both sides of the Committee recognised that there were difficulties here. One difficulty is the position of the husband or wife who helps his or her spouse when that spouse has committed a crime. Another relates to the position as between parents and children. We all felt that, somehow or other, there was something different about these cases. The theory of the law is quite adequate when an outsider has committed a crime in cold blood but there are special relationships—for example, between husband and wife, or parent and child—and we felt that we wanted to make some exceptions.

One solution suggested was the exclusion of certain categories from the subsection, thereby excluding them from the possibility of being prosecuted for the offence. Another way out suggested was to give the Director of Public Prosecutions a discretion to decide who should be prosecuted, so that, H he had a case of wife helping her husband—which could be understandable having regard to family relationships—he would refuse his permission to prosecute.

The difficulty encountered in Committee, in relation to the exclusion of husband and wife, was that this subsection is so horrible a complication that an outright exclusion such as we had in mind might create greater difficulty. The hon. and learned Gentleman was good enough to write to me at some length on the matter.

This Amendment goes wider than the Amendment moved in Committee, which most of us recognised then to be too wide. I have changed my opinion for a simple and practical reason which I should tell the House. Our Committee proceedings seemed quiet. It did not appear that any one was taking an interest in us. But I had a letter from a Greek gentleman who said that he had seen the OFFICIAL REPORT of the Committee proceedings and that it was right that special relationships should be recognised. He said that, in the Greek criminal code, there are these exceptions. I wrote to him and asked whether he could let me have translations of the appropriate provisions. He kindly did so. I passed copies to the Under-Secretary. I will not go into details now. Suffice it to say that in the Greek criminal code not only are husband, wife and children, natural and adopted, excluded, but all familiars are excluded, and a familiar is defined in extremely wide terms. We have, therefore, the practical example of someone in a country which recognises the principle and applies the exclusions on a far wider basis than we are proposing—and we are told that it works.

1.30 p.m.

I ask the Home Office to try it. I am not suggesting that it is based on any legal history or argument, such as that referred to by the Under-Secretary in Committee when he said that at one stage husband and wife were regarded in law as one and, therefore, it could not be considered as an offence for one to help another. My plea does not rest on such technical or rational grounds, perhaps. In Committee, I said that we ought to recognise that there are some things which we cannot put on a wholly rational basis, and one is the special relationship which exists between people. Here we have a chance to deal with the matter. We recognise that there ought to be a special relationship between husband and wife and mother and father and children, and at least we could experiment in giving effect to our beliefs.

My second reason in support of the Amendment is that the alternative is so bad. The alternative chosen by the Government is to give a discretion to the Director of Public Prosecutions, and I think that that is bad for three quite separate but all very valid reasons. The first is that in principle giving a dispensing power is bad. It may well be neces- sary in some cases, but one of our monarchs several centuries ago lost his head for exercising dispensing powers.

Photo of Sir Ian Percival Sir Ian Percival , Southport

Well, he got into serious trouble. I thought he lost his head. He got into trouble for too freely exercising dispensing powers which he claimed for himself. His wings were clipped and his dispensing powers were cut down. That is because the law of the land should be certain and nobody should be above them, not even the monarch. Every time we give this discretion to the Director of Public Prosecutions we are giving him a dispensing power.

My second reason is perhaps more practical. I have a strong feeling that the Director of Public Prosecutions must be getting very much overloaded. This must have been a good idea when somebody first thought of it, when somebody first suggested giving a discretion to the Director of Public Prosecutions. It must have been passing the buck. This is what we usually do when we cannot decide for ourselves; we pass the buck by saying that the Director of Public Prosecutions shall decide or the courts shall decide.

It is all buck passing when we cannot reach a conclusion. It must have been quite sensible at first when we could see that there was an individual and he dealt with all the matters personally—ex-hypothesi he was a responsible individual whom we could trust, otherwise he would not be there, and we let him do it.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

My hon. and learned Friend no doubt appreciates that whenever we say that there shall be no prosecution except with the consent of the Director of Public Prosecutions there is a limit on what in a free society should be regarded as a basic right of the individual citizen—namely, the right to see that the law is enforced by himself instituting a prosecution.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I am grateful to my right hon. and learned Friend. I agree with him.

I was concerning myself with the overloading of the Director and wondering whether the Under-Secretary can help us in this matter. This will be the second time within 10 days that we have put another duty like this on the Director. That causes me to wonder how many offences there now are in respect of which the consent of the Director of Public Prosecutions is required. How many applications, roughly, are dealt with in a year? Is it 50 or 5,000? Who deals with them? Can they still be dealt with by the Director himself, or are they so numerous that they have to be dealt with by someone else?

If they are not dealt with by him, by whom are they dealt with? Whereas it would be right to pass this duty on the Director of Public Prosecutions when he performs it himself—the other objections which I have postulated still exist, but at least we know who is exercising a discretion—the minute that it gets too much for the Director himself and a number of other people exercise the powers, and nobody knows who is exercising them, then it seems to me that there is difficulty. The Director must be getting very overloaded, with the consequence that it is not the Director who is exercising these powers at all.

My third reason is of quite a different nature, but it is, nevertheless, important. The trouble about giving this discretion is that we are liable, wholly unintentionally, to provide a wholly unworthy person with a technical defence which lets him out when he ought not to be let out. I hope that the Under-Secretary will not think that this is pie in the sky. Within a month at the Old Bailey I have seen four counts of indictment against three accused knocked out simply because someone forgot to telephone the Director of Public Prosecutions before starting the information or whatever one has to start in magistrates' courts. When one has this power one is risking giving a wholly technical defence in a wholly unmeritorious case.

Those are the three reasons why I think that the alternative chosen by the Government is so bad. It is for the reasons I have mentioned that the exclusion method is worth a try—it has been worked elsewhere—and that the only other alternative, that chosen by the Government, is so bad, and I invite the House to accept Amendment No. 1.

Photo of Mr Percy Grieve Mr Percy Grieve , Solihull

Of all the issues with which we were concerned in Committee, the issue whether there should be any, and if so what, exemption from and limitations on Clause 4(1) appears to me by far the most important. I am reinforced in that view by the fact that the Criminal Law Revision Committee has very great doubts, as appears from its Seventh Report, whether some limitation or exemption should not be contained in the draft Bill with regard to the special position of husband and/or wife and of children. Although it was quoted in Committee, I make no apology for reciting again what paragraph 31 of the Report says: At first, we were inclined to recommend that the offence should not apply to things done for a criminal by his or her spouse, parent or child. There is a case for such an exemption on compassionate grounds. I think that there is a case on rather more profound grounds in the special case of the husband or wife.

The paragraph continues: On the other hand, it is difficult to devise a satisfactory exemption. Other family relationships, or perhaps professional or other relationships, might equally deserve protection, while there seems no strong reason for giving the exemption where, for example, a father and his grown-up son are both engaged in crime. That is a plain limitation of what we are considering.

The paragraph continues: Under the present law, as mentioned in paragraph 25 above, even spouses are not exempt from liability as accessory after the fact to felony. We came to the conclusion that there should be no exemption for any particular relationships but that as a safeguard against unjustified prosecutions the authority of the Director of Public Prosecutions should be required for a prosecution: This is provided by Clause 4(4). While I appreciate the difficulties which the Criminal Law Revision Committee envisaged in laying down special exemptions or limitation, I believe that it should not be beyond the capacity of the House to devise a statutory limitation where we think that there should be one on good valid grounds.

I was, therefore, heartened when the Under Secretary said in Committee in a debate on an Amendment in my name, which would have exempted husbands and wives from the provisions of Clause 4(1): In the circumstances, I would ask the hon. Member"— my hon. Friend the Member for Chippenham (Mr. Awdry)— not to press the Amendment, because I would like to consider this question again and see if perhaps a modified Amendment in the way that he proposed could be the way out or whether other relationships could not be included."—[OFFICIAL REPORT. Standing Committee F, 1st June, 1967; c. 126]. I was, therefore, rather disappointed that at this stage the Under-Secretary did not bring forward a proposal which would have met the considerable feeling in Committee that there should be a limitation on, or exemption from, Clause 4(1) in special cases.

May I say very briefly why I consider that there should be such a limitation or exemption? The case with which I have always been particularly concerned and thought was particularly important was that of husband and wife. I have no hesitation in saying that there are cases where the duty a husband owes to his wife, or a wife to her husband, may be stronger and supersede the duty one or other owes to the State. I concede at once that the ordinary citizen, even though he may have relationships of affection or ties of blood with a wrongdoer, may be under an obligation to the State to denounce that wrongdoer or at any rate not to impede his arrest or apprehension.

But can the rule be said to apply in the special case of husband and wife? Certainly, the common law never thought that it should. Until the case Holley, referred to in paragraph 25 of the Criminal Law Revision Committee's Report, it was always thought that wives at any rate were not capable of being accessories after the fact to their husbands' felonies. I do not want to go into legal technicalities, but I am not even sure that that rule was abrogated by Holley's case, because it dealt with a special situation, where the wife was an accessory not only to her husband but to an accomplice of her husband.

It seems to me that the common law was profoundly sensible in taking this attitude. The basis of the rule was always said to be twofold. First, as my hon. and learned Friend the Member for Southport (Mr. Percival) said, husbands and wives were considered to be one in law, as indeed they still are. Therefore, one could not help the other, because one person cannot, save metaphorically speaking, help himself.

1.45 p.m.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

Does my hon. and learned Friend recall that Lord Mansfield said that husband and wife are one in law, and that that one is the husband?

Photo of Mr Percy Grieve Mr Percy Grieve , Solihull

My right hon. and learned Friend hits the nail on the head, because the second basis which was said to exist for the common law rule was that the wife was in any event under the domination of her husband. The law assumed that what she did was under his domination and that therefore she could not be liable for it under the special circumstance.

Perhaps that rule might be regarded as a little out of date in 1967. Few wives are perhaps under their husband's domination to that extent, but I think that the House would still recognise that the relationship of husband and wife is wholly special. They owe a duty to one another with which the law should not interfere. Where, for instance, a husband is a fugitive from justice, is it not the wife's duty not only to harbour him and take him into the matrimonial home—after all it is his as well—but to protect him, hide him, shelter him from justice? Is a husband not also under a similar duty to his wife?

It seems to me that this raises a very profound and important issue. The wholly special relationship between husband and wife should not only be countenanced by the law but protected by it, and the law should say that where a husband or wife is sheltering the other from justice it should not interfere. I concede at once that the Amendment with which we were concerned in Committee took the matter too far. For example, it might have protected a wife who drew a gun on the police in protection of her husband, and, of course, we should not wish to do that. We should not wish to exempt from the operation of the law an Act that is positively wrongful in the very nature of things by one spouse in the protection of the other. But where the action is the mere hiding away, the mere—and I refer to the Bill impeding of "his apprehension or prosecution" in that sort of way, there should be a special provision in the Bill to protect that relationship.

The Amendment we are discussing goes further than that. It is concerned also with children, including natural and adopted children. I would not press all those categories for special exemption upon the consideration of the House. I have spoken entirely of the special relationship of husband and wife. There are compassionate grounds why the law should not condemn too strongly a parent who protects his child from the law, or a child who protects his parent, but those are not relationships which from time immemorial have been specially regarded by the law as the relationship of husband and wife has been specially regarded.

The provision that no proceedings shall be instituted without the consent of the Director of Public Prosecutions might be sufficient to deal with those cases. The D.P.P. would consider whether what the parent or child did was justified. However, it is not for the D.P.P. or anybody else to consider whether what a spouse does is justified. The mere fact of the marriage is, I suggest, justification in itself, provided that no positive act of wrongdoing is done—as, for example, in the case of one spouse drawing a gun on the police or a similar occurrence.

As it stands, Clause 4 puts a burden on the D.P.P. which bids fair to be intolerable. After all, the offence of being accessory to another's crime is an extremely common one. It is committed every day of the week and examples of it appear daily before quarter sessions, magistrates' courts and assizes. The Under-Secretary to some extent conceded that for the D.P.P. to have to consider every such case before permitting a prosecution to be brought would put an intolerable burden on him. The hon. and learned Gentleman said: I see the force of the hon. Gentleman's argument on this point and that about subsection (4). If an Amendment is not made on the lines of No. 13, perhaps in the modified form suggested, there must be some other safeguard and the requirement of the consent of the D.P.P. would be one way. I also see the force of the argument that we should not unnecessarily multiply his burden." —[OFFICIAL REPORT, Standing Committee F, 1st June, 1967; c. 126.] The Clause will unnecessarily multiply his burden and I fear that, in practice, it will prove extremely difficult to administer.

For these reasons, I strongly urge the Under-Secretary to accept the Amendment. I do not pretend that it is perfect, but we are dealing here with one possible way of meeting this situation. I end as I began, by saying that, insofar as we are concerned with the special relationship of husband and wife, we are dealing with one of the most important issues which arise in considering the Bill.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

I regret that I have not been able to come to the House with a suitable form of words to give effect to what was the general feeling in Committee, where the hon. Member for Chippenham (Mr. Awdry) moved an Amendment designed to exclude husbands and wives.

He referred on that occasion to a number of acts and pointed out that the Amendment was designed to deal not only with the harbouring of criminals but with the impeding of justice. He said that, as the Amendment stood, it went rather wide because there were some acts which might be done by a wife to protect her husband which one would not wish to see exempted from prosecution. The hon. Gentleman rather agreed with the view that there might be some serious crimes for which one should seek to retain some sort of deterrent to prevent spouses from perverting the course of justice.

I undertook to try to give the House a form of words which would be a limited protection to a wife or husband in the case of one spouse assisting another. Unfortunately, it has not been found possible to find such a form of words. My private secretary wrote to the hon. and learned Member for Southport (Mr. Percival) at the earliest possible opportunity, to allow the hon. and learned Gentleman ample opportunity to reconsider the matter; and he and his hon. Friends have tabled the Amendment under discussion.

I will explain why we are faced with this difficulty. The circumstances under which a wife or husband could not be prosecuted under the Bill are, in any event, extremely limited because a number of conditions must be fulfilled. First, the husband must have committed an arrestable offence. Secondly, the wife must have known or believed that the husband was guilty of that offence or some other arrestable offence. Thirdly, she must have done some act with intent to impede his apprehension. Fourthly—this is a requirement of Clause 4(1)—she must have had no reasonable excuse for doing that act. The fourth point is particularly important.

One normally understands from the phrase "harbouring a criminal"—which is taking him into the home—that that would not apply if the wife simply allowed the husband to come back into the matrimonial home. It is extremely difficult to think of an offence of harbouring—the offence with which the Committee was particularly concerned at that stage—which was not already dealt with by the safeguards expressed in the Clause. It was, therefore, difficult to see what acts could appropriately be made subject to statutory exemption in favour of spouses, for one could imagine any number of cases where—as the Committee at the time seemed to agree—one would want to deter certain acts. For example, one would not want to take out serious cases of crimes committed where a wife gave false information or destroyed evidence.

It would seem impossible by Statute to draw a line which would distinguish the circumstances in which the public interest might require a prosecution and those where clearly it would not. One would not wish to see a wife prosecuted simply because, on being asked by a policeman if her husband was in the house, she replied, "No", although she knew that he was in the house. One can visualise many cases of that kind. It is impossible to distinguish between those cases, where one would wish to see an exemption made, and those cases where one would not.

The alternative approach adopted in the Bill was to require the consent of the Director of Public Prosecutions, and I appreciate that this has been criticised. I cannot tell the hon. and learned Member for Southport how many offences require for D.P.P's consent. I suggest that the question is one for the Attorney-General.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

Even if the hon. and learned Gentleman cannot tell us the detailed number of statutory provisions under which the consent of the D.P.P. is required for a prosecution, would he agree that in recent years it has been growing at the rate of three or four offences a year?

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

I cannot give the figure, but is certainly true, as I recognised in Committee, that there is an increase in the burdens being placed on the D.P.P's shoulders and that one wants to minimise them if possible. I do not know if I entirely agree that one must resist this because the powers are intolerable. In some cases chief constables have a discretion about whether or not they prosecute, and everyone recognises that this is sensible. There are certain offences where it is not in any way unreasonable that the D.P.P. should consider whether or not he wants to prosecute. I disagree with the hon. and learned Member for Solihull (Mr. Grieve) that one is likely to see a large number of cases where the D.P.P. will be consulted. Prosecutions for this sort of offence—accessory after the fact—have been extremely rare in cases of husband and wife. With the safeguards and in the circumstances that must exist, and which I outlined earlier, I do not expect that one would find frequent cases where the Director would have to be consulted.

2.0 p.m.

Photo of Mr Percy Grieve Mr Percy Grieve , Solihull

In an endeavour to protect the special position we have been considering, is it not the fact that by Clause 4(4) all charges of having been an accessory would have to be referred to the D.P.P.? That was my point, and I hope that I was right in making it.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

Yes, I must confess that that is so. But there must still be cases where there has been no reasonable excuse, no lawful authority; where there has been an arrestable offence, and some one knows or believes the person concerned to be guilty. Such cases will be pretty rare. It is not one of the major burdens one is placing on the shoulders of the Director. There are, of course, other cases where that is a most serious consideration.

If one cannot simply say what the circumstances are in which wives should be exempt, one faces the further difficulty of exempting certain relationships and not others. That was implicit in the speech of the hon. and learned Member for Solihull, because he was speaking to a different Amendment. The Amendment we are considering suggests that a parent should be exempt, and the hon. and learned Gentleman himself said that if a father and son were engaged in serious crime one would not wish to see them exempt from being accessories. He was therefore not speaking to this Amendment.

It is a natural difficulty that is bound to arise. The Greeks, as the hon. and learned Gentleman told us, exempted all familiars—

Photo of Mr Percy Grieve Mr Percy Grieve , Solihull

I thought that a familiar was something that sat on one's shoulder.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

They exempted a large number of different relationships. If one exempts a father and son, what about brother and sister? It is extremely difficult to draw the line, and it seemed to be the wish in the Committee to restrict the exemption to husband and wife only.

As I say, I regret that I have not been able to find a limited set of circumstances in which it would be possible to make a clear exemption and avoid reference to the Director of Public Prosecutions. In a sense, we regard this present provision as a second best, because the ideal is, unfortunately, unobtainable, as we see it.

Photo of Mr David Renton Mr David Renton , Huntingdonshire

If I may say so, I have been extremely interested in the Under-Secretary's speech, and I fully appreciate the difficulties he has mentioned. It is so often assumed that legislation is easy; that we can find a form of words for every situation that is likely to arise in practice. Speaking only for myself—I cannot speak for my hon. and learned Friends—I appreciate his point about the difficulty of finding an alternative form of words to those in subsection (4). I regard that difficulty as a very interesting and telling example of the limits of legislation. I sometimes think that we would be better as Parliamentarians, as legislators, not to pretend too easily that we can legislate for every single thing that people think of from time to time.

As I say, I fully appreciate what the hon. and learned Gentleman has said, but he was on very unsure foundations when he argued, I thought a bit cursorily, about bringing in the Director of Public Prosecutions. We have a quite extraordinary situation here. It is not only the administrative burden, to which my hon. and learned Friend the Member for Southport (Mr. Percival) referred, that is increasingly falling on the Director's office. It is not only the interference with the basic liberty of the subject—that is the opportunity to prosecute to see that our criminal laws are enforced. It is that the grounds, the reasons, put forward for bringing in the Director of Public Prosecutions and making his consent necessary are now being widened in the most extraordinary way.

Originally, as I understand it, the Director's consent was required by Parliament, but there was danger of frivolous prosecution, of malicious prosecution and of unreasonable prosecution. Also, in some cases, the Director's consent was required because there was particular public interest, an interest of the State, and it was therefore right to ensure that the prosecution should be handled by an official of the State or, at any rate, that the prosecution should have his blessing and, therefore, his consent. But none of those things applies here. There is not likely to be malicious, frivolous or unreasonable prosecution. The interests of the State are no more involved in an important way here than in any prosecution of house breaking.

What, therefore, is the reason put forward? As I understand it, the reason as expressed by the Under-Secretary is: "There has been great difficulty over the drafting of subsection (1) of Clause 4. Therefore, let us confess that it is a very difficult matter, and in case anything goes wrong let us add a safeguard in the form of no prosecution except with the consent of the Director." With great respect—and I do respect the thought that the Under-Secretary has given to this point—that is not a good enough reason for adding to the burdens of the Director.

I do not know whether, bearing in mind the fact that we are now pushed right up against the end of the Parliamentary timetable, there is any method at all of adjusting this matter, but I think that my hon. and learned Friends are right to insist, as they have done, that in cases like this the consent of the Director is unnecessary and, in my opinion, it is a regrettable and unwise extension of his powers.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I am most grateful to my hon. and learned Friend the Member for Solihull (Mr. Grieve), who has deployed all the arguments with such care and cogency, and to my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), and I echo the unhappiness and unease they have expressed about the replies we have been given. We regard this provision as unsatisfactory, and hope that the Under-Secretary will have another look at it.

Amendment negatived.