§ Mr. Greg Knight
I beg to move amendment No. 3, in page 1, line 16, at end insert'and such distress or anxiety is actually caused'.Perhaps I should tell my hon. Friend the Member for Sherwood (Mr. Stewart) at the outset that this is not a wrecking amendment and I am not seeking to impede the progress of the Bill. As I am sure my hon. Friend will remember, I am one of the Bill's sponsors. However, I also believe in the freedom of the individual and that we should all be deemed to be innocent of any offence unless proven otherwise. That is why I move the amendment.
It would place a requirement on the prosecution, in bringing any procedings under the Bill, to show that actual distress or anxiety was caused to the recipient of the letter.
As was mentioned on Second Reading, the Bill is based upon the Law Commission's report. The Law Commission reported on 30 July 1985 and, generally speaking, its report is excellent. However, I do not agree with all its conclusions. The Law Commission considered the very point that is the subject of my amendment. On page 19, paragraph 4.22, it said:One commentator suggested that proof that the communication actually caused anxiety or distress on the part of the recipient should be a prerequisite of a successful prosecution. But we think this would have several disadvantages.The report goes on to list those disadvantages and says:It would make prosecutions impossible in cases where the recipient was sufficiently strong-willed to be unaffected by this type of communication. It would also mean that the recipient would become an essential witness in almost every trial where there was a plea of not guilty".On the second point, what is wrong with that? Under our general criminal law, a victim who has been affected by a matter that is complained of almost invariably has to be a witness, unless we are dealing with an offence such as murder. Even in cases of child abuse, where there is common consent among all political opinions that the court proceedings can be a traumatic experience for the child—we are taking a step in the right direction in the Criminal Justice Bill—it is necessary, if the defendant requires it, for a witness to attend. I find it amazing that it could be suggested that someone who has received a threatening or abusive letter could have some reluctance to go to court. I am sure that the defendant would also have 1151 some reluctance about appearing in court. If the person who receives an abusive letter feels that the issue is not worth bothering about and he or she does not wish to go to court to pursue the matter, why should the sending of the letter be an offence?
I shall give two examples. Let us take the case of a father who is concerned that his daughter is seeing on a regular basis some particular youth. The father decides to send a warning-off letter to his daughter's boy friend. In that letter he gets carried away with his emotions and is rather abusive and threatening and makes allegations that are untrue. That letter is received by the boy friend who dismisses it as pathetic. Later, the boy friend's mother comes across the letter, is appalled at what the father has written and hands the letter to the police. Do we really want such cases appearing before the courts when the recipient is not in the least perturbed by the contents of the communication, but some interfering busybody decides that the matter should be pursued?
Some hon. Members might think that my next example is rather lighthearted. However, it still makes the point. A friend of mine recently brought to my attention a letter written from a daughter to her mother. The letter said:Dearest mother,I have been away from home now for one year and I feel that there are some things you should know about what I have been doing at college. I have met an unemployed Libyan who is wanted back home for mass murder offences. We have been living together now for seven months and I am pregnant. Unfortunately, my boyfriend has contracted AIDS and the doctors think he has passed the virus on to me. As I have only got 12 months or so to live I have, as a last fling, run up debts of over £15,000 using your credit card. I am truly sorry for what I've done. Please forgive me.Yours sincerely, your loving daughter.The letter goes on:PS. The above is not actually true but I have failed my first year exams. I thought I should somehow put this small piece of bad news into perspective.Let us examine that letter. The letter is false and the daughter intended to give anxiety or distress, certainly in advance of the redeeming postscript. Do we really want that sort of thing to be an offence? Do we really want cases where the recipient, who is not really bothered about the matter, finds that, because the letter falls into the hands of a third person, proceedings are then pursued through the courts?
If the recipient of the letter does not need to be called to court—which is the position in the Bill as drafted—but, nevertheless, proceedings are pursued, what about the ensuing publicity? There is no guarantee that the identity of the person to whom the letter is addressed will not be revealed in court. That may be extremely distressing to the person who has received an abusive letter—far more distressing that the actual receipt of the letter.
Therefore, the House should consider the amendment most carefully. If a letter is taken as a joke—whatever the intention of the writer; he might have intended it to be a most insulting and abusive piece of correspondence—why should there be an offence? Therefore, I commend the amendment to the House.
§ Mr. Michael Irvine (Ispwich)
The amendment tabled by my hon. Friend the Member for Derby, North (Mr. Knight) carries considerable dangers. He underestimates the way in which the need for the complainant to come to court and give evidence could undermine the whole 1152 purpose of the Bill. All too often complainants, particularly those who have received obscene and offensive telephone calls, make complaints, but when they discover that to carry it further they may have to go to court, they withdraw their complaints and no longer wish to proceed. The problem is that the complainants who are so put off are precisely those who are most frightened, most anxious and most in need of protection by the courts.
The great merit of leaving the Bill as it is, is that the test will be objective. It will be for the court to make a decision as to how offensive, objectionable or indecent the letter was; it will not be a matter of how a particular individual was affected.
The way in which the amendment is phrased:and such distress or anxiety is actually caused"—puts the spotlight on the complainant's character and disposition. It is not a matter of the complainant going to court to give cold, factual evidence. The complainant would have to go to court and give evidence about his or her state of mind and about the anxiety that was caused.
That could be very dangerous. By putting the spotlight on the complainant's character and disposition it could open up opportunities for a malicious defendant to start probing the complainant's character. Questioning could develop in which the complainant was asked whether she was a shy virgin or a woman of the world, whether she was the kind of person likely to be upset by the offending letter or whether she was the kind of person able to take it in her stride and shrug it off.
Such questioning could be extremely distressing. A malicious defendant defending himself could easily use it to make matters worse and to intensify the hurt. If the test is an objective one, the court could immediately cut off the defendant from such a line of questioning and say that it was irrelevant. However if it is a subjective test concerning the effect on that complainant, the remedy would no longer apply. The court would be constrained to allow the cross-examination to continue.
§ Mr. Greg Knight
Is it not a cornerstone of British justice that a defendant should have the right to challenge his or her accuser?
§ Mr. Irvine
It is a cornerstone of British justice that, if the accuser's evidence is necessary to complete the conviction and that evidence is challenged, the defendant should have that right. However the advantage of the Bill as it stands is that it makes it unnecessary in many cases for the complainant to face the defendant. It is wrong to think that every defendant should automatically have the right to come face to face with whoever is making the complaint against him. That can cause immense damage in cases of rape and indecency against children. We are now moving, thank goodness, in the direction of protecting children against damage of that kind by preventing them from having to come face to face with their accuser.
My hon. Friend's amendment would reverse that trend. In certain cases, it would provide an opportunity for a malicious and an unscrupulous defendant to make matters worse. My hon. Friend the Member for Derby, North put the case for his amendment very attractively, but at bottom it is flawed; it would be a dangerous amendment to accept.
§ Mr. Robin Corbett (Birmingham, Erdington)
If the hon. Member for Derby, North (Mr. Knight) were 1153 advocating the universality of the unquestioned and unchallenged right of an accused person to face his accuser, he would know immediately, and better than I, that with probably the most serious charge that could be brought against an individual—murder—that is not possible. This amendment is wrong.
It is no good, as the hon. Gentleman tried to do, to use the cover of freedom of the individual to excuse all behaviour unless real hurt or harm has been done—never mind the attempt to cause real hurt or harm. No hon. Member would say that any individual is free deliberately to cause distress, let alone harm, to another individual. That is not the kind of freedom to which, in a properly free society, any of us can subscribe.
The amendment means that, whatever the purpose or intent of the communication, if it caused no hurt it did no harm. That does not stand up to examination. The Law Commission report on poison-pen letters referred to the mental element, and in paragraph 4.25 on page 20 said:One of the essential features which distinguishes poison-pen letters from other types of communication is that they are sent for the purpose of causing anxiety or distress.There is no other reason for the way in which poison-pen letters are written. If somebody writes a letter to an individual in which he profoundly and stridently disagrees with the opinions or actions of that individual, puts an address on the letter and signs it, it shows that he is deeply opposed to what has been done. But that is another matter. Poison-pen letters do not arrive in that way.
We need to cotton on to the mental element and ask what is the motive. The purpose of writing a poison-pen letter is to cause harm, anxiety or distress to the person who receives it—and it is the person who penned the communication about whom we should be concerned. I say that in relation not only to punishment but to deterrence. I was interested to learn recently that in many cases a trained graphologist has the skill to trace the writer of a poison-pen letter, and that fact should be known. Apart from devising a punishment, we want to discourage the writing and sending of poison-pen letters.
§ Mr. Greg Knight
I hope that the hon. Gentleman is not suggesting that every poison-pen letter is sent anonymously. I can think of letters sent to cause distress or anxiety when the sender was trying to change the recipient's opinion. Has the hon. Gentleman not received, during his time in the House, letters that were clearly designed to cause him distress or anxiety, perhaps by putting in a forceful way a view different from his own? We must not lose sight of the fact that we are making laws for the courts to interpret and apply. I acknowledge that many letters are sent anonymously to cause concern and distress, but those which are not would also fall foul of the Bill, unless my amendment were accepted.
§ Mr. Corbett
The hon. Gentleman will immediately accept that I am the most modest and moderate of men and that nothing I have ever done or said as a Member of Parliament would justify anyone in my constituency or outside it sending me such a letter. Nevertheless, I have said or done one or two things which, much to my surprise, prompted some people to react strongly. I do not receive such letters by the sack load, and would not want it to be thought that such was the case. However, there is an important distinction to be made. I have never detected in 1154 such letters any other purpose than the author wishing to make clear to me the fact that he thinks I am a bonehead, and that I must be on the brink of being certifiable because I hold views with which he strongly disagrees.
There is nothing wrong in that kind of letter being sent to Members of Parliament. One would prefer it if people wrote politely, but there is a difference between people legitimately expressing their views strongly and those who deliberately set out to cause harm and distress. Perhaps it is so that in our line of work we have, or are encouraged to have, thicker skins than other people.
At constituency level, all of those who have complained to me have received unsigned letters. It is my feeling—no more than that—that that is part of the sickness.
§ The Minister of State, Home Office (Mr. John Patten)
The amendment is important, and obviously my hon. Friend the Member for Derby, North (Mr. Knight) has thought deeply about it. As I listened to my hon. Friends the Members for Derby, North and for Ipswich (Mr. Irvine) I thought that I would find myself in the difficult position of having to arbitrate between two hon. Gentlemen learned in the law. That is never a comfortable thing to do, but, happily, a talented amateur appeared in the shape of the hon. Member for Birmingham, Erdington (Mr. Corbett), and I found the combination of the arguments of my hon. Friends and those of the hon. Gentleman totally persuasive. Clearly there is a coalition between the two Front Benches. I know that I can say such things on a Friday, because usually our proceedings are not widely reported, and the hon. Gentleman's general management committee will probably not hear about it. However, I shall keep a copy of the Official Report against his future good conduct.
Although his arguments were extremely telling and sophisticated, my hon. Friend the Member for Derby, North will not be surprised to hear that his argument changes fundamentally the underlying purpose of the Bill. I think that that is a mistake. The target of the offence is the sending of a communication that is unacceptable and has a malicious purpose, and at the heart of that offence is the serious endeavour to harm someone else. My hon. Friend's amendment proposes that it should be an offence only if the sender succeeds in causing harm, so that it becomes an offence of causing distress by certain means, rather than an offence of using the means with a malicious purpose.
The result of that could be that someone who takes every possible measure to blight the life of his innocent victim commits no offence if, through some unforeseen chance, the attempt fails. Perhaps, for instance, the letter is opened by someone else, or for some other reason fails to reach the intended recipient. Perhaps the recipient is a person of resilient character who shrugs off the attack, as Members of Parliament often have to do. But, if the missive gets through to a normally sensitive recipient, the sender will be guilty of the offence.
I do not think that that can be right. The purpose and the means are in each case the same; the criminal action is the same. All that distinguishes the two cases is the result, and that is not under the control of the sender. I need not remind my hon. Friend the Member for Derby, North that, under the criminal law on attempts—which he, as a distinguished practitioner at the Bar, knows well—the penalty for attempting an offence is exactly the same as that for the offence itself. I agree with the Law 1155 Commission that the criminality resides not in the success of the action, but in the action itself. It is the action of sending a poison-pen letter that, I trust, the House is united in trying to stamp out.
I hope that, on reflection, my hon. Friend will feel able to withdraw his amendment after having heard the arguments of the hon. Member for Erdington and my hon. Friend the Member for Sherwood (Mr. Stewart).
§ Mr. Andy Stewart (Sherwood)
I believe, as the Law Commission believed, that the criminality is not in the success of the action but in the action itself. The result of the amendment is that the prosecution would have to prove beyond reasonable doubt that distress or anxiety had been caused. That means that, although the defendant admits that he sent the article and meant it to hurt, the victim must come to court and be cross-examined by the defendant or his representative as well as the prosecution, to satisfy the court that he intended to cause distress or anxiety.
Does my hon. Friend really think it necessary to put the victim through such an ordeal? I hope that, on reflection, he will feel able to withdraw the amendment.
§ Mr. Greg Knight
I am disappointed to find myself alone in my view. Being alone in my view, however, never causes me any particular difficulty.
I was not convinced by my hon. Friend the Member for Ipswich (Mr. Irvine). We are dealing with criminal proceedings, and I consider it of the utmost importance to ensure that cases are brought to court only when there has been a grave and weighty breach of the law.
My concern is that, as drafted, the Bill would allow some cases, which ought not to, to appear before the courts. The hon. Member for Birmingham, Erdington (Mr. Corbett) described himself as modest and moderate. I accept from my dealings with him that he is a modest person, but I wonder whether membership of the Labour party is consistent with the claim that he is moderate. He referred to a letter that he received in which somebody called him a bonehead, and said that it might be covered by the Bill. I should have thought that the sender would probably argue under clause 1(1)(a)(iii), that the information was not false.
I can envisage cases coming before the courts when they ought not to. An abusive letter might, for example, be sent intending to cause distress or anxiety to a Member of Parliament who was away on holiday. He may have a temporary secretary who opens the letter, is amazed and upset by it and hands it to the police. Do we want such a case to come before the courts? My feeling is that we do not.
Perhaps I may correct my hon. Friend the Minister. He referred to me as a practitioner at the Bar. The only bar at which I have ever practised is that which he and I went to after long sittings on the Licensing Bill. I am a solicitor, not a barrister. I had the benefit, however, during the Committee stage of the Criminal Justice Bill of listening to what seemed like well over 100 hours of the soothing tones of my hon. Friend the Minister. He is a well-known crusader against injustice. I listened carefully to him, especially his fear that my amendment might severely weaken the Bill.
He has partly convinced me. I think that the best way in which to proceed is that if, as I hope, the Bill becomes 1156 law, those of us who are worried lest it be used to pursue fairly frivolous cases should keep a close watch on the situation. If we feel that injustice is being caused, we shall return to the issue, perhaps in a future Session.
I do not want my hon. Friend the Minister or my hon. Friend the Member for Sherwood (Mr. Stewart) to have the impression that I want to wreck the Bill. I hope that their assurances are correct and, on that basis, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Andrew Hunter (Basingstoke)
I beg to move amendment No. 4, in page 1, line 16, at end, insert—'(1A) For the purposes of this section a letter or article shall be held to be indecent if it contains material which offends against reasonable standards of propriety in a public place'.
With this, it will be convenient to take the following amendments: No. 5, in page 1, line 16, at end, insert—'(1B) For the purposes of this section a letter or article shall be held to be grossly offensive if it contains material which the sender should reasonably have expected would insult the recipient or would, if published, be libellous'.
No. 6, in page 1, line 16. at end insert—'(1C) For the purposes of this section a threat shall include threats to the physical wellbeing of the recipient, his family or acquaintances, the public reputation of the recipient, his family or acquaintances, or the security of property of the recipient, his family or acquaintances'.
§ Mr. Hunter
I shall employ a three-pronged argument. First, I shall clarify the fact that, although I want to amend the clause, I accept and welcome the principle that underlines it. Secondly, I shall demonstrate how clause 1 is flawed and, therefore, in need of amendment. Thirdly, I shall attempt to demonstrate that my amendments are entirely consistent with the purpose of the Bill and would make it better.
The essential principle of clause 1—the establishment of the offence—is to be welcomed because of the inadequacies of existing legislation. My amendments are consistent with that proposition. We know that the common law offence of criminal libel is too limited. That argument was fully explored on Second Reading. Many categories or manifestations of malicious communications are not covered by the offence of criminal libel.
My hon. Friend the Member for Sherwood (Mr. Stewart) would argue that his Bill, and particularly clause 1, puts matters right, but I shall try to argue that he may be proved mistaken unless my amendments are accepted.
Similar to the inadequacy of the common law offence of criminal libel is the inadequacy of section 11 of the Post Office Act 1953, which, among other things, makes it an offence to send indecent or obscene material through the post. That can apply to some forms of malicious communications, but the offence is intended primarily for the protection of postal workers.
My hon. Friend the Member for Sherwood no doubt believes that, in the clause, he has the situation right and has made good previous legal imperfections. Clause 1 now provides for a new summary offence of sending or delivering a malicious communication. It makes it an offence to send to another person a letter or other article which conveys an indecent or grossly offensive message, to send a threat, or to send false information which the sender knows or believes to be false.
1157 However, the Bill may not achieve its objective. Clause 1 needs more attention. Its essential weakness is that it inadequately defines each of the three possible categories of an offence. It inadequately defines the terms "indecent" and "grossly offensive" and what constitutes a threat. On Second Reading, it was accepted by several hon. Members that the Bill was not deficient in those respects. It was accepted that it would be the responsibility of the courts to interpret whether an allegedly malicious communication was indecent, grossly offensive or threatening. It was further accepted that the judgment of the courts would constitute sufficient and objective assessment of whether a communication fell into one of those three categories.
I am unhappy about such a proposition. It may be argued that clause 1 leaves the courts operating in a vacuum. They must have something more objective and definitive to which they can refer. To deny the courts that leaves too much room for subjective assessment and may well lead to intolerable inconsistencies in interpretation and application.
A Home Office note which many of us have received argues that "indecent" and "grossly offensive" require no further qualification or explanation. However, I am not convinced. The Bill is too open to unacceptably varying interpretation by the courts. A clearer definition of what is indecent or grossly offensive and what constitutes a threat is also required.
The amendments introduce an element of objectivity and a yardstick of measurement which will clarify and promote consistency in interpretation and application, and the Bill will be the better for that. Amendment No. 4 defines indecent as thatwhich offends against reasonable standards of propriety in a public place.That is a fair and reasonable measurement of what is indecent.
Amendment No. 5 defines "grossly offensive" asmaterial which the sender should reasonably have expected would insult the recipient or would, if published, be libellous".Here, too, there is an objective yardstick of measurement and a comparison with existing laws of libel.
Amendment No. 6 defines threats in three ways, asthreats to the physical wellbeing of the recipient, his family or acquaintances, the public reputation of the recipient, his family or acquaintances, or the security of property of the recipient, his family or acquaintances".The Bill would be a better Bill if those further definitions were incorporated.
I entirely accept the principle underlying clause 1, but it is inadequately expressed. The terms must be given the clarity that is lacking. I therefore urge the House to accept the amendments.
§ Mr. John Patten
I think that my hon. Friend the Member for Basingstoke (Mr. Hunter) and I are at one in wanting the Bill, should it pass its stages, as I hope that it will, to be effective in carrying out its aims. I listened with great care to my hon. Friend's arguments and I am grateful to him for tabling these amendments and for phrasing his arguments in the tripartite way that he did for the convenience of those of us who were listening. At one stage during his speech, I had to go to that invaluable volume, "Dod's Parliamentary Companion" to check that at no stage in his distinguished career had my hon. Friend been a barrister, because he set out the arguments in a 1158 masterly way. I am not able to call him my hon. and learned Friend yet, although perhaps, a second, third, or fourth career at the bar is on the horizon. I am deeply grateful to him for putting the arguments in that way.
The words that my hon. Friend has used will not, in practice, improve the Bill. I shall answer his arguments in a three-part way, by looking at them not in the thematic way that the used, but amendment by amendment. Therefore, I shall take the amendments separately, beginning with amendment No. 4 and the problematical issue of how to define the word "indecent". My hon. Friend may recall some debates on this issue in the Committee on which he served considering the Criminal Justice Bill. Nowhere in the statute is the word "indecent" defined. It appears most particularly in provisions that are closely analagous to this clause. I am thinking of, for example, section 11 of the Post Office Act 1953, which lists offences of sending indecent or obscene material through the post, or section 43 of the Telecommunications Act 1984, which sets out the offence of sending an indecent message by the public telecommunications system.
We referred to some of these issues during earlier debates on this measure. I said then, and I shall say again now, that the word has not caused the courts any difficulty in practice thus far. Given that there is no definition in other statutes, to give one here would only create doubts in the minds of the courts as to the meaning of the word in those statutes. I appreciate my hon. Friend's intention to help, but in the absence of the lack of any evidence that they need help, or that they are interpreting the word "indecent" too liberally, I think it best to leave well alone, and I hope that my hon. Friend will consider that as he ponders my reaction and that of others to amendment No. 4.
§ Mr. Hugo Summerson (Walthamstow)
Before my hon. Friend leaves amendment No. 4, I should be grateful for his assistance on a couple of matters. I am not a lawyer, so he need not look it up. The first is that this amendment talks about:material which offends against reasonable standards of propriety in a public place".If I get a nasty letter which offends me at home, and if I take it into my local street market, which is a public place, and read it out, would the acid test be that it offends only people in the street market and not me in the privacy of my home? The second point concerns the definition of public place. What may be offensive in Westminster Abbey, which is a public place, may be thoroughly inoffensive at Speaker's Corner on a Sunday.
§ Mr. Patten
My hon. Friend may not be a lawyer, but he has put both his questions in a legalistic framework. One of the problems of being at the Dispatch Box, with the lawyers of one's party behind one, is that, although it is a relief when a non-lawyer stands up, if he uses legalistic terminology, it is additionally confusing. We are trying to deal with the intent, the desire and the carrying out of an act which is likely to cause distress. It matters naught whether the offence is committed in a private place or in Walthamstow market place—if Walthamstow has a market place.
§ 2 pm
§ Mr. Patten
Amendment No. 5 seeks to restrict the court's interpretation of the phrase "grossly offensive". I must tell my hon. Friend the Member for Basingstoke that I see no need for it. As I said in speaking to amendment No. 4, there is a danger in trying to guide the courts when there is no evidence that there is a problem for the courts. At the Law Commission's suggestion, the words "grossly offensive" are taken from a comparable offence in section 43 of the Telecommunications Act 1984, which Act is working extremely well. The words are not defined there, and I am not aware of the courts having any trouble in dealing with the concept. We do not want to set the courts too hard a problem.
Amendment No. 6 is rather different. It does not define a threat but simply makes it clear that the word "threat" includes particular kinds of threats. The words "shall include" are not exclusive, and that raises a rather different danger of definition. If the statute contains a partial list, there is a risk that it will be assumed that the items on the list have particular importance and that items not on the list are not particularly important and do not have equal value. Here again, the courts might wonder whether Parliament was telling them that certain kinds of threat are to be included.
On each of the three amendments, one can pronounce the same sentence, that they set out to try to improve the Bill and are very carefully worded. But, alas, because of the way in which they would either fetter or perhaps confuse the courts, they would not have the effect that my hon. Friend the Member for Basingstoke wishes them to have.
§ Mr. Andy Stewart
I concur with my hon. Friend about amendments Nos. 4, 5 and 6. If we accept what my hon. Friend the Member for Basingstoke (Mr. Hunter) said about amendment No. 6, the courts might be tempted to infer from the list that threats falling outside it may not be threats for the purpose of this offence. Clearly we must try to avoid that. I do not think that any court would be likely to interpret a threat in such a way as to exclude any of the matters covered by the amendment. By the same token, there is no reason to confine threats to this list.
In the light of what I and my hon. Friend the Minister have said, perhaps my hon. Friend the Member for Basingstoke will feel able to withdraw his amendment.
§ Mr. Hunter
In the light of my hon. Friend the Minister's thorough and complimentary, if not flattering, reply, it would be discourteous of me to do anything other than seek to withdraw the amendment. I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Mr. Greg Knight
I beg to move amendment No. 2, in page 2, line 2, leave out '3' and insert '5'. The amendment is self-explanatory. I seek to increase the penalty available to the courts under the Bill. For the benefit of hon. Members who are not lawyers, I should say that level 3, which is mentioned in the Bill, enables the court to impose a fine of up to £400 but does not entitle it to impose imprisonment. The amendment seeks to remove level 3 from the Bill and to insert level 5 which currently provides for a maximum fine of up to £2,000 or six months' imprisonment or both.
I hope that my hon. Friend the Minister will accept the amendment. The level of fine in the Bill is inadequate. That 1160 is not just the view of a few Conservative Members. The Law Commission, which considered the matter thoroughly, came to an indentical view. In paragraph 4.48 on page 28 of its report, the Law Commission gave some of the reasons why it favoured level 5. One reason was that a magistrates court can deal with an offender in certain ways only if the offence carries the penalty of imprisonment. The report said:A magistrates' court cannot make a hospital order under what is now section 37 of the Mental Health Act 1983 unless the defendant has been convicted of an offence which is punishable on summary conviction with imprisonment. Since some of those who send poison-pen letters are likely to be suffering from some condition of the mind which requires medical treatment or other help, it is desirable that these powers should be available to magistrates.That is true. In many cases when threatening, abusive or libellous letters are sent, the sender of the letter may well need treatment. The Bill as it stands would prevent a court from making that sort of order because it would have the powers only to fine the guilty person.
There are compelling reasons why my hon. Friend the Minister should consider accepting the amendment. He might say that the Bill seeks only to deal with matters that are not so grave and weighty that we should consider giving the courts the power to pass a custodial sentence. In some cases, however, the behaviour is so grave and weighty as to warrant imprisonment. In Regina v. Penketh—a 1982 case, reported at 146 JP, page 56—a woman had appealed for a penfriend and had written to a person who turned out to be Penketh. He began to bombard her with letters and it reached the stage when she did not want to hear from him further. Penketh wrote to the woman's son's headmaster and, among other things, stated that he was the father of her child. He ultimately pleaded guilty to criminal libel and was placed on probation for three years, with a condition that he make no attempt to contact the woman again. However, he repeatedly breached that probation order and was ultimately sentenced to imprisonment which, on appeal, was determined to be nine months.
There will be cases when the courts determine that imprisonment is necessary for offences of this nature. I hope, therefore, that my hon. Friend the Minister will seriously consider accepting the amendment.
§ Mr. John Patten
The Committee wishes to have as speedily as possible legislation that helps not only to punish but to deter people who send poison pen letters. We feel strongly about this matter, but we must remember that, when legislating we should not simply consider the offence or offences before us. We should set them against offences across the whole range of the criminal law.
The punishments for offences must be put in context. It is not wholly realistic to divorce each offence from the wider context of the criminal law. The gravity or seriousness of one offence must be related to the gravity or seriousness of similar offences. It comes down to a judgment of what will mete out the right sort of punishment—what will deter effectively—and what will not, at the same time, introduce disproportionate punishment compared with the punishments available for other offences.
It has been suggested that the maximum penalty for the offence should be increased to level 5—a fine of £2,000. Currently the Bill provides for a level 3 fine of £400. To move from level 3 to level 5 is a considerable increase. My 1161 hon. Friend the Member for Derby, North (Mr. Knight) may wish to reflect—his reflections might cause him to withdraw the amendment—on the grounds of comparability with similar offences already on the statute book.
The sending of a malicious communication certainly causes distress to the recipient, but we must not make the penalty out of proportion to the gravity of the offence and out of proportion to other offences already on the statute book. The penalty at level 3 is the same as that for broadly similar offences under the Telecommunications Act 1984 and Public Order Act 1986.
We must be consistent and keep the penalties for similar offences in line. On that ground alone, I hope that my hon. Friend the Member for Derby, North will consider withdrawing his amendment.
§ Mr. Andy Stewart
In view of what I said on Second Reading and what my hon. Friend the Minister has said, I do not consider that an increase in the penalties is either necessary or desirable. In the light of that, I wonder whether my hon. Friend the Member for Derby, North (Mr. Knight) would consider withdrawing his amendment.
§ Mr. Greg Knight
My hon. Friend the Minister said that a sentence needs to be a deterrent. That is the basis of my argument. This is one of the rare occasions when his eloquence has failed to convince me, and I believe that level 5 rather than level 3 is appropriate.
My hon. Friend the Minister also referred to matters of judgment. I to have to decide, as a matter of judgment, whether I divide the Committee, and effectively ensure that my hon. Friend the Member for Sherwood (Mr. Stewart) loses his Bill, or accept something as being better than nothing. I conclude that the latter would be the best course of action.
I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 1 and 2 ordered to stand part of the Bill.