Schedule 2. — (Supplementary Amend Ments.)

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

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Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln 12:00 am, 13th July 1967

I beg to move Amendment No. 7, in page 15, line 12, after 'property' to insert: 'but did not include loss or damage due to an accident arising out of the presence of a motor vehicle on a road'. The Amendment arises from an Amendment which was tabled in Committee by the hon. Member for Isle of Thanet (Mr. Rees-Davies), the object of which was to restrict the powers of magistrates' courts to award compensation. What the hon. Gentleman probably had in mind was that magistrates' courts should not be concerned with claims of contributory negligence in motor accident cases. As I said in Committee, this seemed to me to be an eminently sensible Amendment, if that was the aim, though we did not necessarily accept the form of the Amendment.

There have been many criticisms of the possibility of magistrates' courts awarding compensation and dealing with difficult questions of fact on contributory negligence, which might take a lot of time. There seems to me to be substance in these criticisms. The only difference from the general approach shown by the hon. Member for Isle of Thanet is that in effect we suggest that no court, the higher courts no more than the lower courts, should, in dealing with criminal cases, consider the question of contributory negligence.

If we merely excluded magistrates' courts from doing so, it might be thought that we were giving the power specifically to higher courts and excluding magistrates' courts and, therefore, the higher courts would be expected to use the power. In any event, cross-examination might well be directed to the point, whether or not the judge decided to deal with it. It is, therefore, desirable to stop criminal cases from becoming trials about contributory negligence.

Photo of Sir Ian Percival Sir Ian Percival , Southport

We fully subscribe to the objective. The point was raised by the motoring associations, amongst other bodies, which were worried that a criminal trial might develop into a very unsatisfactory civil trial, as indeed it might. Although it is desirable to change the law to secure the objective just mentioned, care must be taken to ensure that we do not go too far.

An offence which is very common at present is for someone to take and drive away a motor vehicle without the owner's consent and, either accidentally or deliberately, to drive it in such a way as to damage it. Regrettably, it is not uncommon for somebody to take away a car without the owner's consent, drive it to an outlandish spot, and strip the windows or wireless out, and so on.

I find it not at all easy to apply the wording here. I appreciate the draftsman's difficulty here, because something has to be read as though it includes one thing and not something else. The wording of the Amendment refers to any loss arising out of the presence of a motor vehicle on a road". This language presumably was deliberately drawn widely so as to catch all the kinds of cases which we want to catch.

Might not the wording be so wide as to exclude even the kind of case to which I have referred? Does not the Under-Secretary agree that, in the kind of case to which I have referred, not only is it desirable in the interests of the owner of the vehicle, but it is a very useful power for the court to have, to make the criminals pay some sum within these modest brackets?

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

This is a novel point. I would like to take more time to consider that question. These are interim provisions. The question of reparation has to be considered in a much wider context and as part of the whole new approach to the penal treatment of offenders and of dealing with crime. I do not foresee that a tremendous amount of use will be made of a Schedule 2 award in the kind of cases which are mentioned. I have not examined the question whether someone who takes and drives away a car and damages it is then prevented from paying compensation. I should rather doubt it, but it is a matter on which I do not want to give an opinion on the spur of the moment.

Amendment agreed to.

Order for Third Reading read.—[Queen's recommendation, on behalf of the Crown, signified]

2.15 p.m.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

I beg to move, That the Bill be now read the Third time.

I do not take the view that the Bill makes any major changes, but it is a very useful Bill. First, it simplifies the law in a field where confusion and uncertainty have often been caused because of the intricate distinction between felonies and misdemeanours. That distinction will no longer plague future students of the law, or even practitioners. Secondly, the Bill reduces the number of crimes, which is not the case with every Bill.

I wish to express my appreciation, and that of the Government, to the Criminal Law Revision Committee, which produced the Report on Felonies and Misdemeanours, and also for the other Reports which have led to the further changes made by the Bill.

Lastly, I thank the hon. and learned Member for Southport for the way in which he has presented the case on Report.

2.17 p.m.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I am greatly obliged to the Under-Secretary for his closing comments. I echo his penultimate remarks. Almost everyone who has spoke during the proceedings on the Bill has begun by paying tribute to the members of the Committee and those who did some work on the basis of the work done by those members. I agree that it is appropriate to mark the conclusion of the Bill by repeating that tribute.

We on this side have always taken the view that this is a thoroughly worth-while Measure. We have always taken the view, however—this is where we have disagreed with the Government, though not in any spirit of bitter controversy; it has been, rather, a simply difference of opinion—that there was no disrespect in suggesting that the Committee might not always have been right. We have suggested that what the Committee did was to provide us with a basis on which to work. In some respects, the Committee was limited in its terms of reference, so it could not have done some of the things we have discussed.

On this basis we attempted at various stages to make changes in the Bill. On Second Reading we raised many points of detail, which we pursued in Committee. We regret the fact that it has not been possible to make any concessions on any of these points. The only relevance of this at the moment is that we think that the Bill is poorer because some of the things we asked for could not be conceded.

Today, in the Clauses and Amendments we have moved, we have had an opportunity to have very useful discussions in which everyone, except the Minister's Parliamentary Private Secretary, has been able to express very useful views, tough I do not suggest that it was beyond the Parliamentary Private Secretary's competence.

There is still one important part of the Bill about which not a word has been said today and on which I want to say a few words. We made it clear in Committee that we were far from happy about what is being provided in respect of alternative verdicts. I shall not go into detail; it is the principle about which I want to express concern on this the list opportunity of doing so.

As to the Committee's recommendations, although principles thus far have teen quite clear, there were two cases. One was that a statute prescribing an offence would provide that a person who was not found guilty of that offence night be found guilty of something else. That was one case in which there could be an alternative verdict. The other case was quite simple—

Photo of Sir Eric Fletcher Sir Eric Fletcher , Islington East

Order. The hon. and learned Member will appreciate that on Third Reading we cannot discuss anything that is not in the Bill.

Photo of Sir Ian Percival Sir Ian Percival , Southport

I am discussing what is in the Bill, Mr. Deputy Speaker, but I can only say why I think it is wrong by reference to the changes which it effects. This is merely a two-stage, short argument. The Bill is bad because it substitutes for what we have now something which is not as satisfactory. It would not be unfair to the House to try to put the second part of the argument, much as I wish to save time and get home to some food and sleep.

Secondly, if it were not for what is in the Bill, the position would be that in addition to the instance which I have given, a person charged with a felony consisting of, say, four ingredients might be convicted of another felony which consisted of three of those same ingredients. One always knew when a person was charged with a felony that if there were four ingredients and one of them was not proved but the other three amounted to another felony, that could be the alternative verdict. Likewise with misdemeanour. The one doubt was whether a person charged with felony could be convicted of misdemeanour the ingredients of which were contained in the ingredients of felony. As I understood its Report, that was why the Committee felt that something should be done about it. It would not be satisfactory simply to leave it alone.

Therefore, the Committee's recommendation and intention appears to have been to preserve the first kind of alternative verdict and, at the same time, to make alterations in the statutory alternatives then existing, particularly in relation to sexual offences. That was one limb of the Committee's expressed intention. The other was to ensure that no difficulty ensued on the abolition of felony because of the doubt whether a person could be convicted of a misdemeanour when the ingredients were the same as of a felony.

From reading the Committee's Report, as I have done many times, it appeared that that was what the Committee intended to recommend and to do. My complaint with the contents of the Bill is that the provisions relating to alternative verdicts go, we believe, much further and introduce wholly new principles on which it is to be decided whether there may be a finding of guilt on an alternative offence.

We are not happy about the position from two points of view. First, the only reason that we can see for giving this wider variety of alternatives is to strengthen the hand of the prosecution so that if it has made a mistake it will not be caught with it, and that if any offence turns up which is within the wide terms of the allegations in the indictment, the person may be convicted nevertheless.

We regard that as a wrong approach. In addition, for the reasons which we have dealt with in detail, it appears to us that that is unfair to judge, jury and accused. It is unfair to the judge by placing upon him the burden, very difficult to discharge, of deciding upon how many alternatives he has to direct the jury. In Committee, we spoke of a case in which there might have been 14 alternative verdicts. It is not fair on the judge to land him with that. In addition, it may defeat its own object, because if there were 14 alternatives and the judge directed on only 12, that would be grounds for appeal.

We do not think it fair to juries, because they have a difficult task already. If they have simply one charge on the indictment and have to remember that there are 13 other possibilities, it is too difficult. It is not fair on the accused, because he should be able to see clearly before the trial starts the offence of which he is at risk of being convicted.

We suggest that there is here an issue of principle. We must remember that a man on trial is innocent until he is proved guilty. The whole purpose of a criminal trial until after the conviction is to ensure that the accused has a fair trial. That is the sole function of the judge at a trial.

It is not the judge's duty to assist the prosecution in any way. On the contrary, it is for the prosecution to prosecute and to secure conviction. The judge is there, and there is the whole of the court rules, to ensure that the man gets a fair trial. It is contrary to that principle to widen the scope of alternative verdicts for the purpose of assisting the prosecution if it has made a mistake.

I accept that it is too late to do anything about it now. Once again, the only protection for the citizen against too wide a use of these powers will lie in the hands of judges and juries. So long as it is fully recognised, and I am sure that it is, in the courts that that is the function of judges and juries, it may be that no serious consequences will arise.

One danger is that the prosecution, if it wanted to cover itself, could put everything which it could think of in the particulars remotely connected with the offence and then hope that if its primary line of prosecution went wrong, it could pick up on one or two of the other offences expressly or impliedly included in the particulars. That is why it goes much further.

I hope that the Home Office and the Under-Secretary—I hope that the information has been passed on—realise that the practising members of the professions, and many of the judges, are not at all happy about this. They feel that it may be going too wide.

The only remaining safeguard is that the judges are there to protect the man on trial. We can safely leave it to them, but we on this side feel that we must be careful not to keep putting on the judges further duties which make their task that much more difficult.

We do not like these widened powers concerning alternative verdicts because it is a departure from what we had thought to be an important matter of principle, namely that the prosecution has to decide what it is charging a man with so that he knows what he has to meet. Only within certain narrow and well-defined limits should there be findings of alternative verdicts. The reason for doing what is sought to be done here appears to us to be that the prosecution may make a mistake. We do not think that is a sufficient reason for a departure from principle which casts an additional burden on judge, jury and accused That is the one point of principle arising on the Bill which I want to stress again for this reason. We are told, and we accept, that the whole of the criminal law is under review, that it is going to be thoroughly reviewed in the immediate future with a view to codifying it. We think that is a thoroughly desirable thing to do.

Photo of Mr Dick Taverne Mr Dick Taverne , Lincoln

May I interrupt the hon. and learned Gentleman? To put the record straight, may I make it clear, as I did in Committee, that it is not the purpose of the Bill to make prosecution easier and to help the police through these provisions. In fact, it is strongly contested that there will be any greater difficulty for defendants by way of alternative verdicts than under the present law.

Photo of Sir Ian Percival Sir Ian Percival , Southport

Of course, I accept what the hon. and learned Gentleman says. Perhap I am not expressing myself with complete accuracy. Whether it is intended or not, this is what we think will be the effect of it. We understand that the whole of these matters are going to be under review. For that reason we think it worth putting forward these views again at this stage in the hope that what we are now talking about and what has been said at all stages will be considered as part of the review.

Subject to that, we generally wish the B 11 well and we wish well to those who have got to understand it in order to put it into practice.

2.32 p.m.

Photo of Mr William Wilson Mr William Wilson , Coventry South

I should like to say a few words as we run into the 25th hour of this sitting. If the Bill deserves to be commended for any reason, it deserves commendation for Clause 1(1), which abolishes the distinction between felony and misdemeanour. Many years ago—too many years ago—I spent many hours trying to understand the difference between felonies and misdemeanours. I simply wish to say that if all those years ago I had thought that on Bastille Day, 1967, I would be present at the demise of the difference between felonies and misdemeanours, life would have been a lot happier.

Question put and agreed to.

Bill read the Third time and passed, with Amendments.