Committee (3rd Day)

Part of Serious Crime Bill [HL] – in the House of Lords at 3:45 pm on 15th July 2014.

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Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 3:45 pm, 15th July 2014

Profound apologies. I was discerning perhaps a twinkle of support this side and one welcomes every little support one can get in this place. I apologise profusely to the noble Baroness.

In so far as “wilfully” is concerned, this is an extremely important development. Lawyers well appreciate that “wilful” can mean an act of deliberate commission or omission. On the other hand, intelligent lay men, be they magistrates, jurors or in any other capacity, might find it very difficult to consider that something which is pure omission can be wilful.

Then there arises the almost theological question of whether “recklessly” should be included. I think—but I might be corrected, and for this reason I shall turn to the authorities on the other side—that in so far as the statutory definition of wilful is set out here, it is in fact the classic definition adopted by this House in a case of recklessness called Caldwell in the 1980s. It was the case of a tramp, if I remember rightly, going into unoccupied premises and striking matches, who was found guilty of arson on the basis of recklessness. If am right about that, there is no dispute about the difference between recklessness and wilfulness in this connection.

I will make a general comment on Clause 62, which will not have to be repeated on clause stand part. Section 1 of the 1933 Act is 80 years old. I am one year older than the noble and learned Baroness, and therefore I was about a year old when this became law. The verbiage is much older than that. The verbiage comes from the Poor Law Amendment Act 1868, virtually all of it from Section 37.

That Act was passed in order to deal with the problem of the Peculiar People. The Peculiar People were very devout people who believed that, whenever there was illness in the family, you should not go anywhere near a doctor. You should pray to Almighty God, and accept the will of Almighty God. The consequence was that, when death occurred, and many of these people were prosecuted for manslaughter, a humane jury found them not guilty because of their utter devoutness, although, of course, it represented utter unreasonableness. It was to deal with that particular issue that Section 37 was passed.

This means that we have today still the remnant cobwebs of that Victorian verbiage. Victorian verbiage in a statute sometimes can serve us well. The Offences Against the Person Act 1861 is a classic example which will be with us for many generations, I have no doubt. However, there are cases in which one can look afresh at the whole situation and possibly create an instrument that is more consistent with the needs of the 21st century.