§ 8.25 p.m.
§ The Earl of Onslow
My Lords, I beg to move that this Bill be now read a second time. For several centuries notices have been placed outside private buildings threatening, with gay abandon, to prosecute trespassers. All lawyers, but not always the general public, knew that that was all bluff. Trespass is a civil tort, and damage has to be proved. Sometimes it is possible to obtain injunctions against individuals to stop a trespass, but it is not possible for them to be fined or imprisoned for behaving in the kind of anti-social way that Mr. Fagan adopted last year. The self-same Mr. Fagan blew the gaff: he showed to all and sundry who read the press or watched television that even the most undesirable form of trespass can be committed with impunity.
Article 601 of the California Penal Code—the penal code of another common law country, and a country which in some ways has much stronger traditions of constitutional protection of the individual than do we—states:… a Trespasser entering or occupying property or structures without the consent of the owner, his agent or person in lawful possession thereof shall be guilty of an offence".Article 601.5 goes further. It states:…anyone who enters or remains in any non-commercial dwelling house or apartment or other such place without consent"—et cetera—shall be guilty of an offence".I am certainly not advocating the breadth of the Californian law, even though California has not experienced the difficulties postulated by the Home Office consultation paper, to which I shall refer later.
I want to emphasise that my Bill applies only to private residences or private rooms in other dwellings. It does not apply to agricultural land, industrial, or business premises. It is designed to close what is, after all, only a very narrow gap in the law. I think that it is important to show why my Bill is necessary. To do so, I give two examples of really very unpleasant behaviour in my own neighbourhood, and I believe such behaviour to be not uncommon elsewhere. A man, well known to the police, prowls around and looks for an open window, through which he climbs, without using force. He enters a bedroom and by just standing there wakes up the woman or couple. Needless to say, all hell then breaks loose. The intruder flees; the police are called, and invariably he is ambushed on the way home. He immediately admits what he has done, but so far he has not been convicted, as in law all that he has done is to trespass, however undesirably.
The village where I live would, by some people, be called an outer metropolitan suburb. In one of its small housing estates, peopled by executives and professionals, a trespasser has been visiting. The houses are of a type which could be appropriately let to foreign diplomats. The reason that I refer to foreign diplomats is that simple trespass on the premises of foreign embassies is already an offence under Section 9 of the Criminal Law Act 1977. Therefore think, my Lords, of the feelings of those executives or other 1180 people if, after he has pranced through their houses, the trespasser is prosecuted for simple trespass in the garden of their putative foreign neighbour. I would suggest that there their sentiments of outrage and sense of injustice would be totally understandable.
This morning I had a meeting with a very senior Surrey police officer, in order to ask him what would be the views of his police force. I believe that his views are of interest to your Lordships and, with his consent I shall pass them on to you. He feels that the Bill would be useful for the following reasons. Firstly, in the first of the cases I mentioned—in other words, that of the prowler who goes into the bedroom—the public feel that the intruder has committed, or ought to have committed, a criminal offence. Thus, when the police are found to be powerless it harms the police/public relations. The second reason is an even better one. It is that, if a potential thief climbs through the window of a house without breaking or entering, and is disturbed or found before he has stolen anything and if he has no outward evidence such as tools to commit a burglary (or whatever may be the technical term when an offence is committed), he may say, "All I was doing was curiously trespassing and looking around". Now it is known much more widely, as I said earlier, that trespass is not a criminal offence, and that man will get off.
He will either get off or, what is much more dangerous, a police officer knowing that the man is a criminal (because he could know these things) may be tempted to bend the law and the evidence. If it is a simple case for this sort of person to be convicted of an offence, then I would suggest it makes the law clearer and it removes a temptation which we would not like to be there.
When my noble friend Lord Elton made a statement on Royal security in this House last July, the need to legislate was put to him by my noble friend Lord Renton and by me, and probably also by other noble Lords. My noble friend and I even tried to amend the Criminal Justice Bill, which was then going through Parliament. Unfortunately, we were told that our amendment was outside the Long Title. Since this Bill has been announced, I have had a certain amount of correspondence and a certain amount of press comment which has been very favourable. In August, my noble friend Lord Renton and I discussed the matter and he sent to the Ministers concerned a simple draft Bill which would have treated trespass in people's homes in the same way as Section 9 of the 1977 Act treats trespass in foreign embassies.
On October 14th, Mr. Mayhew wrote saying that the Government's own review of the law was not quite complete, and we were asked to have patience. As there was no mention of it in the gracious Speech, we saw him on 15th November to stress the urgency, in our view, of legislative action. We were again asked to be patient pending the issue of the consultation document. Again, being good, loyal Conservatives, we did exactly as our Minister asked us. Meanwhile, in December, a summary of 474 of the Conservative's Party's discussion groups on "Crime and the Community" stated:Quite a number of groups was horrified to learn that entering homes uninvited was not considered an offence as such and said that the law should be changed".1181 The Home Office consultative document, published eventually at the beginning of February, acknowledges public concern in its opening pages and most specifically in paragraph 16, which says:the ordinary citizen who finds an intruder in his home would rather involve invoke the protection of the Criminal Law and the assistance of the police than involve himself in a physical struggle or litigation".That is an observation of the utmost common sense and reasonableness. The document sets out the present state of the law where it applies entry into people's homes, together with options and difficulties to which I will refer later. The document asks for comments by 3rd May and these, I presume, will be from such bodies as the Magistrates' Association, the chief constables, the National Council for Civil Liberties and other interested parties, as well as the general public.
Why then, my Lords, do I move the Second Reading of this Bill today? The answer is twofold. First, it is inconceivable that the consultation process should be completed without hearing your Lordships' views; and this Bill provides an opportunity. Secondly, if the Bill is acceptable in principle to your Lordships, to the Government and to the rest of us, we should have until Committee stage (I hope as soon after 3rd May as reasonable) to consider any improvements in detail or in drafting which the Government consider necessary in the light of the debate or any comments received meanwhile by the Home Office. Therefore nothing will be lost and much could be gained by the introductin of this Bill. If we get it right in this House, it would not need much encouragement from the Government or much time for it to pass quickly through another place. Sometimes that happens.
I now turn to the Bill. It has the merit of being short, in plain English, containing no cross-references to previous legislation. The method used in it is to take Section 9 of the Criminal Law Act 1977 and apply it to residential premises, adding a requirement that the prosecution must prove that trespass caused, or was likely to cause, "fear, distress, harrassment or serious annoyance", to anyone in lawful occupation of residential premises. It is the qualification part of that clause which is so important. This is the very filter which meshes out the small boys and the cricket balls, et cetera, to which the consultation document refers. It filters out the innocent. All the prosecution has to prove in the case of a foreign embassy is that the accused knew it was an embassy or building occupied by foreign diplomats covered by diplomatic immunity.
In my Bill, the prosecution also has to show that fear, et cetera, has been caused or is likely to be caused before a trespasser is guilty of an offence in a private house. I think it is certain that magistrates would have no difficulty in applying this part to ordinary life. After all, he who was so beloved of the 19th century judges, the "man on the Clapham omnibus" would, I suggest, have no difficulty at all. Criminal law requires value judgments to be made and the application of objective tests.
As to the provisions of the Bill, it starts with an interpretation clause, which says in subsection (2):the purpose of this Act is to protect people in their homes or other living quarters from intrusion".1182 Then it defines "residential premises" in detail and, in doing so, it attempts to cover the many different circumstances in which people live and should have their privacy protected. There are several twilight areas; for example, the common parts of blocks of flats. These are excluded by Clause 1(3)(b). The parts of stately homes to which the public are admitted are dealt with in paragraph (c).
It may be necessary to amend the Bill at Committee stage to exclude fire escapes from the common parts but to include mobile homes among the types of private residence. I can think of nobody having any possible reason for being on a fire escape other than nefarious ones unless the house is burning. Lest anyone should think that the outdoor surroundings of residential premises are too widely described in paragraph (d), I must point out that no offence is committed unless fear, or distress and so on is caused or is likely to be caused. That will not happen unless the trespasser is close enough to the house. With that in mind, your Lordships will realise that, in practice, paragraph (d) would not give rise to any anxiety that the definition is too far reaching. There is no risk of a child whose ball goes over a garden wall committing an offence when going to retrieve it.
As for the example, given in paragraph 34 of the consultation document, of someone who passes through a neighbour's garden to gain access to his own allotment or land, no offence will be committed unless the person concerned causes the sort of trouble defined in Clause 2.
Clause 2 is the main clause of the Bill. It creates the offence and is, I trust, self-explanatory. It makes it clear that it is punishable only on summary conviction by a magistrate. The maximum sentence is 6 months imprisonment or a fine of £.1,000 or both. This is the same as in Sections 6, 7 and 9 of the Criminal Law Act 1977. In all maximum sentences, it is intended to cover the worst types of case; all other cases will involve the lower sentences. It is extremely rare for any maximum sentence to be passed.
Clause 3 provides the defence of lawful justification or a reasonable excuse for being on the premises, a necessary precaution to prevent people from being convicted when they have an innocent explanation of what they were doing. The belief by a person entering that he had a genuine right of entry would thus be a sound defence.
Clauses 4 and 5 give the same powers of entry and search as have been given to the police and those helping them by the Act since 1977. Clause 8 makes it clear that the Act applies only to England and Wales. We hope that it may inspire my noble friend the Lord Advocate, whom we are delighted to know will be speaking in the debate, to propose something similar for Scotland.
An Englishman's home is his castle, but the law so far in a minor extent has left a hole in its ramparts. With your Lordships help we can enable that Englishman to enjoy the privacy of his home, be it large or small, permanent of temporary, a palace or a council house, a nurses' bedroom or rooms in college. It would be very wrong to give protection only to palaces or Prime Minister's residences. Protection 1183 must be for all. Castles must not be selective. Castles must be for all.
My noble friend, Lord Renton, who has drafted this Bill tells me that I should claim credit for it, for its merits, and he will answer for its defects in detail. He is far too over-generous. It is his Bill as well as mine, for which I thank him very much. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time.—[The Earl of Onslow.]
§ 8.42 p.m.
§ Lord Mishcon
My Lords, if one Michael Fagan had not most wrongfully intruded into Buckingham Palace in June and July last year, I wonder whether this Bill would be before your Lordships today, with an invitation that it should be given a Second Reading. But it is absolutely true that when that event occurred the public was aghast and worried. Indeed, it came as a great surprise to many people, including some lawyers, that no criminal offence had been committed when somebody had wrongfully trespassed into a residence unless the intent of the entry was to commit a criminal offence or unless in some way it was associated with the perpetration of a criminal offence or an act of some violence. I can well understand, therefore, why this House and the nation at large should be very much interested in the matters that are being debated this evening.
The Home Secretary to his great credit, and moving with a speed to which the noble Earl did not pay sufficient homage as a loyal member of the Conservative Party, set up a consultative process with the help of the Lord Chancellor and the Attorney-General. What then transpired was that a very useful, interesting and clear document, written in admirable English (which is not always the virtue of documents which issue from Government departments) reached the public only last month, entitled Trespass on Residential Premises. That document deals with the various difficulties that face anyone who wishes to deal with an innovation in our law, as it would be, namely, to make trespass of the kind defined in this Bill an offence.
This trespass is not associated with the intent of committing a criminal offence or violence, but merely deals with a trespass which has an effect, or is likely to have an effect—to quote the exact words of the Bill:causes or is likely to cause fear, distress, harassment or serious annoyance".Comments were invited from the public and from all interested bodies that the noble Earl mentioned. He mentioned the Magistrates' Association, the chief constables; I am sure he had in mind also such distinguished bodies as the Bar Council and the Law Society. He invited those comments to be received by 3rd May this year.
If I may say so with great respect on behalf of the Opposition, having appreciated, as I did, the lucid and powerful speech made by the noble Earl, I can well understand that there was a desire to have the views of this House. I should have most respectfully suggested that those views are much better obtained if one is 1184 without the benefit of all the comments that will be made by various sections of the community. They would be much better obtained under the procedure of the House, either by putting down an Unstarred Question or by taking that glorious gamble, open to all Members of your Lordships' House, of participating in the ballot for short debates such as we have had this afternoon and this evening. I most respectfully query the wisdom of putting something before your Lordships for a general decision on principle, which is the purpose of a Second Reading of a Bill of this nature, when your Lordships have not had the benefit of the observations upon this discussion document.
Your Lordships may well have noticed the possibly significant absence of any Law Lord in the Chamber tonight and certainly the absence of any Law Lord on the speakers' list, with the exception of the distinguished lawyer, the Lord Advocate, whose address we shall hear, I have no doubt, at the end of this debate. I should be very surprised if he did not take the view that this is a rather premature stage at which your Lordships should be asked to come to a decision.
As this is a Second Reading, I promise I shall not enter into any point of detail. I shall not even tempt your Lordships to smile with me at the description of residential premises as being,research establishments, Inns of Court, or any other residential premises of a similar character".Many of us work in the Inns of Court and do not necessarily regard them as principally residential premises. That would not be the normal lot of a research establishment, either. But I shall not go on to Committee points. I should like to deal (very shortly I promise your Lordships) with matters of general principle.
One thing the document does say in its introduction—the noble Earl could not be expected to quote extensively from it, but he did not include this quotation, although I know that that was not deliberate—is this:The Government believes that any extension of the criminal law in this area would represent an important development which ought not to be undertaken without the fullest possible consideration".What your Lordships are invited to do, whether this Bill be amended or not, is to say that you are going to approve of an addition to our criminal law which has not been deemed necessary for century after century and which certainly did not follow upon the Royal Commission's report of 1976, which culminated in the Criminal Law Act 1977 to which the noble Earl referred. It may be a right thing to do, but is it the right thing to pass that as a matter of principle on Second Reading, before all the views have been accumulated and considered by your Lordships on this very discussion document to which I have referred?
The document itself, too, sets out three principles to be observed before embarking upon the dangerous act of adding to the criminal law and adding to imprisonable offences, especially at this time. This discussion document raises three vital criteria which should be looked at before one creates a new criminal offence. The first is,that the criminal law should be used to prohibit or to contain only that behaviour which is seen as meriting society's explicit disapproval to the extent of criminal sanctions to deter people from it and to punish those who are not deterred"—
§ Lord Mishcon
My Lords, I am most grateful to the noble Lord for asking me to do that. I am reading from page 7, paragraphs 18, 19 and 20. The document continues:A second principle is that in general criminal sanctions should be reserved for dealing with Undesirable behaviour for which other, less drastic, measures of control would be ineffective, impracticable or insuffcient".The third and final principle, to which the document calls very special attention, is:It is important that a new offence should be enforceable. Respect for and compliance with the criminal law as a whole depend on its being enforced".I pause there for a moment, in no way yet attacking the principle of this Bill, but merely raising a big question mark as to whether we are yet able to deal with a Second Reading. Can your Lordships imagine the number of private prosecutions that there could be, with people taking others to court for what they regard as wrongful intrusion, and the defendant then being made to discharge the onus placed upon him under this Bill—because he will have to appear before a court—of proving before a court that, in his view, he was there for good reason, and that his action was justifiable? All of us lawyers know that there are enough disputes brought before the court in regard to title, or by people who have orders for possession made against them in the court, and who feel entitled to go back to the landlord and tell him that he is being merciless and ought to extend the 28 days which have been given by the court for possession, and so on.
There is a second consideration. We were all appalled by what happened in the Fagan incident—appalled because of the lack of security and appalled because, from our point of view, this was, as it were, striking at the heart of the nation, with the embarrassment and—but for her courageous disposition—the fear that there might have been installed in the Monarch by an incident of that kind. The noble Earl referred to the fact that some of us are wondering whether or not it would be sensible—I am not expressing a definite view—to add to the list mentioned in the Criminal Law Act 1977 and put the Royal residences, and possibly some other establishments, on exactly the same basis as diplomatic premises, and make it an offence to trespass upon those premises.
It is absolutely true that there is an argument against that, but you would not need this Bill for that. The argument against it, if I may take the noble Earl's phrase, which he did not originate—as he will be the first to admit—is that every Englishman's home is his castle. It may be that the answer to this is that every Englishman is entitled to regard his home as being Windsor Castle, with exactly the same privileges. That may be the answer, but you cannot just except certain premises. That is a matter that must be carefully considered, after all the comments have been received on this discussion document.
I freely say to your Lordships, on behalf of the Opposition, that my noble friends and I have not made up our minds on these issues, and we shall not do so 1186 until we hear what the public, the institutes, the organisations, the police and everybody else have to say. I am not going to accept the verdict of the Deputy Chief Constable of Sussex—for whom I have admiration, even though I do not have the privilege of knowing him—as the view of the police.
So I come to my conclusion. I believe that the noble Earl, Lord Onslow, and the noble Lord, Lord Renton, are to be thanked for allowing us to express a view tonight. It must be a provisional view; I do not think it can be a view on principle. From the Benches where I sit, I shall certainly not ask this House to divide on the Second Reading. But after what I have said, I most respectfully suggest to the noble Earl and the noble Lord that it might be very wise—if I may say this most humbly—not to put to the House the Motion for a Second Reading tonight, but to withdraw the Bill. The First Reading has already been passed and there is no reason why the Second Reading, if they want it, should not take place at another date after 3rd May, or after the Government have had time, and after we have all had time, to consider what is really involved in an addition to our criminal law which may, or may not, be necessary.
§ 8.58 p.m.
§ Lord Foot
My Lords, about one matter there is no doubt. Everybody who listens to this debate and who takes part it in will respect the motives that have prompted the noble Earl, Lord Onslow, and the noble Lord, Lord Renton, to promote this Bill. Secondly, I am at a very considerable disadvantage in speaking immediately after the noble Lord, Lord Mishcon. It is hazardous at any time to follow him, but it is particularly hazardous when we are discussing a matter of legal importance, and he has managed to say practically everything that I was intending to say. Therefore, my speech will be, very largely, simply a matter of underlining very briefly some of the points which he has already made.
The first of them is the fact that this Bill is being brought forward in bland disregard of the advice and the warning which was quoted by the noble Lord from the introduction to the consultative paper. The Government there emphasised the importance, as they saw it—and I entirely agree with that—of there being the fullest possible consultation with everybody concerned before any decision was made. By bringing the Bill forward before the consultation process is complete—one only has to wait until the beginning of May for the full returns—the noble Earl has pre-empted the issue.
As the consultation document makes clear, there are three conceivable options. One is the option provided for by the Bill. Another option would be to introduce a law making it a criminal offence to trespass upon certain limited, vulnerable and important properties, in the same manner as the 1977 Act makes it an offence to trespass upon a diplomatic mission. The third option is to do nothing at all but to leave the law as it is and as it has been for the last many centuries. I cannot accept that bringing the Bill forward at this time enables this House to express a general view upon the various options, because the Bill goes for one option only and does not, therefore, provide us with a satisfactory form in which to discuss 1187 all the issues which are here involved.
The second reason for my doubt and objection to the Bill is that it creates a new criminal offence, one which has never been known before. As the noble Lord, Lord Mishcon, rightly said, surely it is very odd that at this time, of all times, when the general feeling of the informed public is that it is desirable to reduce the number of criminal offences and the number of offences which put people into gaol, we should be confronted with a Bill which is designed to extend the area of the criminal law. I would suggest that such an extension of the criminal law could be justified only if it could be shown beyond doubt that here there was some grave social evil which is not caught by the present law. Until we know the result of the consultations I do not believe that there is any evidence to show that there is such a grave social evil.
My third objection, again like that of the noble Lord, Lord Mishcon, is what I might call the provenance of the Bill. Surely it is perfectly true that nobody would ever have thought of introducing a Bill of this kind had it not been for the Fagan incident in the summer of last year. That event, which seemed almost incredible to the public at the time, was of so unusual and exceptional a nature as never to be repeated. Supposing that this Bill had been the law of the land before Mr. Fagan intruded into the Palace, does anybody believe that he would have been deterred and that the Queen would have been protected because a law had been passed to this effect? It is strange, is it not, that this Bill, which owes its existence to the Fagan incident, would have been ineffective in averting the mischief that was done on that occasion. It was an occasion never likely to be repeated. It would never have happend at all if the security arrangements at the Palace had not been grossly deficient. We are now asked to assent to a major change in the law. The incident of last summer is said to be justification for making a sweeping change to the criminal law of this land as it has been for so many years past.
The other defect of the Bill, it seems to me, is that it ignores the fact that the question of trespass and whether trespass on residential property should or should not be a criminal matter was fully considered by the Law Commission in 1976. The Criminal Law Act 1977 put into effect at that time the recommendations of the Law Commission. When the Law Commission were considering these matters they provided that there should be criminal sanctions in one or two very strictly limited areas. One of them was to enable a displaced householder to recover his property from a squatter. Another made it a criminal offence to trespass upon a diplomatic mission.
What was the criterion which the Law Commission thought fit to apply when they were considering making exceptions to what had always been the law—that trespass upon private property should be a civil, not a criminal matter? The criterion which they adopted is set out at paragraph 9 of the consultation paper. Perhaps I may read the relevant words.Important exceptions to the general rule that the criminal law does not involve itself in disputes over possession of property were created by the 1977 Act. The exceptions were made because of the degree of hardship which would arise if an immediate action could not be taken to restore to a displaced occupier the use of his living accommodation".1188 These are the words to which I draw your Lordships' particular attention:The general principle reflected in this legislation, therefore, is the need to protect the most pressing and urgent interests of people who are severely affected by the actions of others".We have no evidence to suggest that this proposed law is necessary in order to meet that criterion. I will not pursue the matter further.
I believe, with all respect, that the authors of this Bill are mistaken in bringing it before the House at this stage. I hope that they will accede to the very forceful argument of the noble Lord, Lord Mishcon, that the Bill ought, even at this stage, to be withdrawn. If the authors had held their hand, and then after the completion of consultations had initiated a debate in your Lordships' House on the whole issue raised by the consultation paper, that would have been a very valuable service. As it is, they have jumped the gun, and I am afraid that they have jumped the gun to little purpose.
§ 9.9 p.m.
§ Lord Campbell of Alloway
My Lords, I would wish to associate myself, without any qualification whatsoever, with everything that has been said by the noble Lords, Lord Mishcon and Lord Foot, including the tribute to the sincerity and motives on the part of my noble friends Lord Onslow and Lord Renton. If the concept of this Bill is truly reflected in the purpose clause—that is, to protect people in their homes or other living quarters from intrusion—the scope of this Bill extends far beyond the purpose clause. It extends to premises in which no one resides—
§ Lord Renton
My Lords, as my noble friend has given way, I must point out to him that if he reads carefully the definition of "residential premises", he will find that they are essentially premises in which people do reside; and that in what my noble friend Lord Onslow calls the "twilight areas", the Bill says that they should not be regarded as residential premises.
§ Lord Campbell of Alloway
My Lords, I gave way to my noble friend because I had not, even at that stage, begun to develop the reason for what I had said to your Lordships. I repeat—and I shall explain and hope to satisfy your Lordships—that the scope of this Bill extends to premises in which no one ever resides; gardens, yards, lawns, drives, and so on and so forth, but I shall come to that point later.
The Bill also does not exclude accidental trespass. Whatever my noble friend Lord Onslow may have said, the Bill does not do so. That is an aspect, with the difficulties involved, to which paragraph 25 of the consultative document refers. This extension of incidence beyond the ambit of the purpose clause gives rise to serious reservations on questions of principle, to which it is proper to draw your Lordships' attention on Second Reading. These are reservations, the rectitude of which—
§ The Earl of Onslow
My Lords, if my noble friend will give way, he says that accidental trespass is not excluded or is not a defence. I would have thought that the words,or reasonable excuse for being on the residential premisesmeant that if a man says, "I am very sorry, but I lost my way on my way to see somebody", then any reasonable magistrate will regard that as being a perfectly valid and reasonable excuse.
§ Lord Campbell of Alloway
My Lords, I was trying to move away from the details of this Bill's drafting owing to the embarrassing position in which I find myself vis-à-vis my noble friend Lord Renton. But as I am compelled to deal with it, I shall stand my ground and make good my submissions.
The rectitude of some of these matters is dealt with in paragraph 3 of the consultative document. The reservations which I have expressed relate to the creation of an offence established by proof of subjective criteria as a matter of causation, where the defence of lawful justification or of reasonable excuse does not, in terms, apply to unintentional trespass. It is not, with respect, as was stated by my noble friend Lord Onslow, an objective test; it is a subjective test. We are not, as was stated by my noble friend Lord Onslow, concerned with the man on the Clapham omnibus. That is only relevant to civil litigation; we are concerned with criminal litigation. Furthermore, these criteria, which are subjective, oblige the magistrates to consider what causes, and what is likely to cause but does not cause, any of the four statutory emotions. My Lords, in context with this Bill, a somewhat refined and esoteric exercise.
Of course, there are precedents in the law for the use of "likely to cause" in other statutes, as the broad equivalent of "calculated", in circumstances which are always designed to exclude intention as a constituent element of the offence. But why exclude intention? In my submission, it is not appropriate to eviscerate intention; it ought to be a constituent element of this offence. Why? Because it affords the only effective safeguard against injustice by accidental trespass.
This is not just a case of the estranged husband trudging up the driveway of his father-in-law's house to seek a reconciliation with a reluctant wife, against the express wish of the father-in-law, or the tramp cooking his breakfast in the stable yard without lawful justification or reasonable excuse. Suppose the owner or occupier of a house goes on a business trip, leaving his servant in charge, and he says to the servant, "Admit no one". The servant admits his brother-in-law, who happens to be a drink-sodden ex-pugilist addicted to drugs. The owner returns unexpectedly and is confronted by the brother-in-law and suffers one of the statutory emotions, say fear. Is there lawful excuse, reasonable excuse, lawful justification?
Suppose a visitor to some stately home unwittingly strays into some part of the house or the garden—I emphasise garden because under paragraph (d) that is included—which exceeds the area of his authority or his invitation, and so causes distress or serious annoyance to some aged aunt who is at work on her tapestry. The offence is committed. Suppose, for example, the aged aunt is so engrossed in her tapestry that she fails to notice the intrusion and so in fact is 1190 caused no distress or annoyance—but, of course, if she had noticed she would have been caused, or would be likely to have been caused, such emotion—and the intrusion was noticed by some guide, who suffered none of the statutory emotions, nor was likely to, who reported it to the owner.
I mention these matters not in order to be disrespectful in any sense to those who are concerned with the drafting of this Bill, but to show really that it does not sufficiently safeguard against accidental trespass. Although I do not doubt the sincerity of the assertion of my noble friend Lord Onslow that he thinks it does, I submit that it plainly does not. One really comes to this. If we are to prune these drafting provisions to conform with the shape of that purpose clause, to remove some of these legal and metaphysical problems with which magistrates might well be confronted, what should be done?
I am no draftsman and I make no pretence to be one, but may I advance some tentative suggestions on matters of principle; although of course I accept that it is possible to entertain many views. They are very simple. First, on residential premises. On Clause 1(3)(a)—the long paragraph (a) at the beginning—why could not one revert to the simple concept of permanent or temporary living quarters used for private habitation? Why not delete Clause 1(3)(d) altogether with the driveways, the tennis courts, the yards, and so on? On the offence, to ensure that the offence is only committed if the accused is aware that he is on residential premises without authority, or remains there knowing that he has exceeded such authority, why not quite simply substitute for lines 16 to 18 just this:Any person who knowingly trespasses on residential property shall be guilty of an offence.".With the simplicity that that involves one provides a fair and reasonable protection against accidental trespass.
The possible advantages of adopting the suggestions which I have tentatively put forward would be to create an offence where the accused knew he was, without authority or having exceeded such authority, on premises used for private human habitation. This would have the further advantage of rendering the lawful justification or excuse provisions wholly otiose; they would not be necessary. Once one makes the offence one of intention, that the accused knew he was on residential property without authority, there is no need whatever to have the defence clause at all. There would be other advantages. As regards residential premises the conflict, as I see it, between Clause 1(3)(d) and Clause 1(4)(a) could be removed. As regards the offence, problems associated with causation, the "likely to cause" which does not cause, the qualitative distinction as regards annoyance and the unwitting trespass would all be resolved. The third advantage would be that as regards due administration there would be simplicity.
I assure my noble friends that I have advanced these proposals in only a constructive spirit, but are any of these counter proposals apt to prevent the mischief embodied in the basic concept of the purpose clause? If so, as a matter of principle, will these counter proposals be acceptable to your Lordships and, what is much more important, will they be acceptable to Her 1191 Majesty's Government, because without their acceptance and support we shall all toil in vain?
I should have preferred my speech to serve in lieu of comments to the Home Office for consideration along with other speeches which your Lordships have made and will make in this debate. I should have preferred the due process of consultation to continue so that my suggestions could be properly considered. Perhaps they are wrong, and I know that my noble friends on either side of me disagree with me, but we cannot entertain a serious and constructive discussion here. I should have thought, with respect to your Lordships, that this is a matter where reservations should be leisurely entertained and properly considered. That certainly would have avoided the dilemma in which I find myself tonight.
§ 9.25 p.m.
My Lords, I very much welcome the Bill of the noble Earl, Lord Onslow. We have needed some legislation of this kind for a long time. In fact, when I realised what the present situation was, I was quite horrified. I think that the noble Lord, Lord Mishcon, spoke for myself and everybody else in the country when he underlined that fact. I therefore very warmly support the intention of the noble Earl's Bill and I very much hope that, if the Government cannot accept it with some amendment, they will very soon produce a Bill of their own which will put things right.
I am in the unfortunate position of not having realised until too late this evening, so that I might get hold of it and read it, that there was a consultative document. Therefore, I find myself at a certain disadvantage compared with the rest of your Lordships. However, I have considerable reservations about various parts of this Bill. The noble Lord, Lord Campbell of Alloway, has, I think, mentioned all my reservations about Clause 1(3) paragraphs (a) and (d) and Clause 2. Therefore, as he has already said everything I was going to say, only he put it very much better, and the noble Lord, Lord Mishcon, has also spoken at some length about this, I shall not repeat what I was going to say. But I do very much hope that this Second Reading, if it turns out to be such, will be helpful, if not to the birth of a new law as a result of this Bill, then in enabling the Government to bring in a Bill of their own which will deal with the situation.
§ 9.27 p.m.
§ Baroness Phillips
My Lords, the noble Lord, Lord Campbell of Alloway, said that he found himself slightly embarrassed. I can assure him that he is no more embarrassed than I am at once again having to disagree with my noble friend on the Front Bench, who speaks so firmly for the Opposition that I assume that this has been discussed among the Opposition. I would just reassure the noble Earl, who by this time must be feeling rather depressed, that I at least am not going to criticise his Bill. I feel that we have once again, with the exception of my noble friend who has just spoken, been listening to the Law Lords: the legal experts. I think that it is useful that occasionally in debates of this sort we hear from the people who have not had the advantage of studying the law in the same way as my noble friend Lord Mishcon and the noble Lords, Lord Foot and Lord Campbell of Alloway.
1192 It was a profound shock to many people to learn that an intruder who gets through the security defences of Buckingham Palace can confront the Queen in her own bedroom and cannot be prosecuted for this offence on its own. I would say to noble Lords who have suggested that this is exceptional that I had a very similar experience when I woke up and found a man in my room. He compounded the matter by stealing my handbag, so he had at least committed an offence. But I would say to your Lordships that the matter of intruders getting into houses is not exceptional. We are not dealing with something that is a one-off. It may be a one-off to get into the Palace, hopefully, but it is certainly not generally an exceptional circumstance.
If a gate-crasher attends your private party and refuses to leave, as I understand it you may use reasonable force to eject him. We come back once again to the definition of "reasonable force". What is "reasonable"? What will be defined as "reasonable"? If you call the police, the policeman may assist you but it is not his duty to do so, and indeed he can be protected by saying that it is not his duty to do so unless you can prove that a breach of the peace was about to be committed. This is not easy. Strange events occur nowadays.
Quite recently a group of protesting prostitutes occupied a church and refused to leave because the police had no powers to take action against them—in other words, they were trespassers. Squatters occupied a house in my own borough. I would point out to the noble Lord, Lord Foot, that there is one slight defect in the law relating to squatters which was shown up by that incident. They occupied a house that was not already occupied by the people who had bought it. But is was intended to be converted by a group who had bought it for the use of mentally handicapped young people. They were in the process of converting it when the squatter got in. I should not say this as a magistrate, but I was delighted when six unknown persons went in and threw the squatter out, thus committing an offence, although the squatter had not committed an offence. I understand that they also put his belongings in the front garden, very thoughtfully covering them with plastic sheeting. Those belongings were interesting, bearing in mind that he was a squatter and unable to pay rent. They included very expensive video and camera equipment. That is an interesting comment on the kind of people who are unable to pay rent.
I would only draw your Lordships' attention to the fact that ordinary people have the great feeling that they are not getting natural justice, and that is the matter about which we must be concerned. We have heard a great deal about how we should have waited for the consultative document. I am amazed that my noble friend on the Front Bench used this argument, because the noble Earl drew attention very subtly to the fact that when he talked about bringing forward the Bill, the consultative document mysteriously appeared. We all know the fate of consultative documents. Indeed, the noble Lady did not even know that there was a consultative document. If there is any kind of consultation how many people will know about it? How many people will reply to it? Ultimately, how quickly will the Home Office act when they receive the consultations? We must not 1193 place too much reliance on the mass of evidence that is going to flow to the department as a result of the consultative document.
I would draw attention—and I hope that this will comfort the noble Earl—to the fact that I should like to see an extension of the Bill. I appreciate that this is impossible, because the consultative document and the Bill refer to residential premises and as I understand it, the church to which I have referred would not be covered by the provisions of this Bill when it became law. There are many commercial and industrial premises where a trespasser, as described in the Bill, certainly causes fear, distress, harassment or serious annoyance. I could give your Lordships a number of examples, but I shall give just one. The shopkeeper opens his premises evey day to the public who are invited to view the goods on display and "treat"—that is the phrase—and buy them. Unfortunately it is becoming all too common for individuals and groups to enter the shop not with any intention of viewing the goods, treating or indeed buying, but with the intention of causing harassment and irritation to the legitimate customers.
Perhaps some of your Lordships do not go into supermarkets—there are times when I wonder whether your Lordships go into the real world at all, in view of some of the discussions that we have—but I am sorry to say that this happens in all shopping precincts, and I invite your Lordships to go to one on a Saturday afternoon. Gangs of youths jostle, harass and generally annoy the genuine shopper, who not unreasonably decides that she will go elsewhere. These people are not committing any offence until they actually do something. The noble Lord nods his head. I do not speak without some knowledge of this. When the police are called they have to prove that a breach of the peace is about to be committed and, generally speaking, they are unable to do just that. If there is some way in which we can get round this, perhaps the noble Lord, Lord Foot, will be able to advise some of the people who constantly call to me for help. The shopkeeper has the right to invite the trespasser to leave the premises. If the trespasser resists his invitation, he has the right to use reasonable force to eject him. This is a very difficult business in which very few shopkeepers will engage.
A public restaurant is another very common example where this could happen. One suffers irritation by people who rush up and down committing no technical offence; they have been invited to come in, so they are not even trespassers in the sense that they have gone into someone else's premises. But they do make life difficult. It is just another example, from which we suffer all the time, of the tiresome minority who make life more and more difficult for the majority who want to move about their business and pleasure without interruption.
I feel very strongly in this matter and I think that the consultative document will be a good start. This Bill is a good follow up. I am quite sure that your Lordships, with your usual ability to sort through every word, will be able to deal with it in the way we have heard this evening. There is a sense of natural justice which must be satisfied. If people intrude on premises which are private, they are entitled to be ejected or at least to be dealt with under some kind of law. Some noble Lords 1194 have suggested that this law would be too severe. The noble Earl made the point that it is very unusual for people to receive the maximum penalties of the law. Indeed, in relation to six months' imprisonment, some people would say that this is now becoming increasingly unusual, even for theft, unless it is accompanied by violence. Therefore, I wish this Bill a fair passage. If, eventually, the Government have the moral courage to accept the Bill, that would be excellent. If at the end of May they receive a mass of evidence which they can incorporate in the Bill, equally, that would be good. But this is a start.
§ 9.37 p.m.
§ Lord Renton
My Lords, after the three no-hope speeches which preceded them, I am sure that your Lordships will be gratified and enthused to hear the warm support given to the Bill of my noble friend Lord Onslow by the noble Lady, Lady Saltoun, and the noble Baroness, Lady Phillips, who stated more vividly than perhaps any mere man could have done the need for the Bill, which, as I have found since the Fagan incident last summer, is felt by so many of the women of this country.
The noble Lord, Lord Mishcon, supported by the noble Lord, Lord Foot, said that we should await the consultative document and asked why we had introduced the Bill. I hope that I am not saying anything rude about the Home Office, for which I have a great regard. Indeed, I spent four and a half of the best years of my life there, and in my first session with the late Lord Butler of Saffron Walden we got five Bills onto the statute book before Easter. They have all stood the test of time. One of them was the Life Peerages Act, to which so many of us owe our presence in this House. So I am a pro-Home Office man.
However, I must say on this occasion the feeling of my noble friend and myself was that, unless we took some initiative, nothing would be done. After all, I sent in too simple a Bill in August last, and it was not until we saw my noble friend and my honourable and learned friend, as we call him in the other place, Mr. Mayhew, in mid-November that there was any suggestion of a consultative document at all. Instead of being chided for ignoring the consultative document, perhaps some appreciation is due to us for having helped the Home Office to get a move on. After all, when the period for consultation ends on 3rd May, that will, if my arithmetic is right, be no less than 10 months after the Fagan incident.
As the noble Baroness, Lady Phillips, mentioned, it was surely not just the Fagan incident that has caused concern. There have been many cases of other circumstances which have come before the courts. Of course the point she makes about shops is, in a sense, a separate point, and we have not attempted to deal with it, but no doubt the noble Baroness will wish us to consider it when we come to the Committee stage.
I say to the noble Lord, Lord Mishcon, that we have had debates in your Lordships' House on consultation papers and on White Papers, and we have done so before the Government have been able to collect all the opinions expressed outside. Both the Green Papers on trade unions we discussed well before the end of the 1195 consultation period, and I think that both Front Benches were glad that that was done.
§ Lord Mishcon
My Lords, I am sure that the noble Lord would want to be fair to the point that I made. I said how welcome it would have been if there had been an Unstarred Question, or the gamble had been taken of a short debate. My point was that it is not usual to bring a Bill before the House during a consultation period.
§ Lord Renton
My Lords, I was just coming to that point. I venture to suggest that if we had waited to have a short debate on the ballot, or an Unstarred Question, it would not have enabled the progress to be achieved which could be achieved, if the will is there, by this Bill receiving a Second Reading tonight, the Committee stage not being taken until after 3rd May, and the Government and all concerned meanwhile having the opportunity to consider improving the drafting of the Bill. After all, my noble friend Lord Onslow and I were only enthusiastic amateurs when it came to drafting.
I feel that, instead of being chided in the way we were by the noble Lords, Lord Mishcon and Lord Foot, some appreciation might have been given for the, shall I say, gentle spurring and the progress which may result from a Bill being introduced at this stage in your Lordships' House. After all, it would mean progress because, if we had waited until the end of the consultation period and then the Government had perhaps either drafted a Bill or handed it to a Private Member in either House, or introduced it themselves, it would have been more difficult to get it on to the statute book this Session than if your Lordships give it a Second Reading tonight. Therefore, my advice to my noble friend would be not to withdraw the Bill. Especially after the speeches of the two noble Baronesses, I hope he will not do so.
It would be tempting to attempt to answer the various points of detail and drafting that have been made, but perhaps I may say to my noble friend Lord Campbell of Alloway—he is indeed a friend in the best sense of the word—that the points which he made and described as points of principle seem to me to be mainly points which can be attended to in Committee, and some of them were drafting points. I go so far as to say that it was clear to me that in some respects he misread the Bill and was not aware of precedents. I cannot blame him for not being aware, because he is not an author of the Bill, whereas as an author of it I endeavoured to study the various precedents. Precedents have to be adapted. In trying to fill this narrow but serious gap in the criminal law we are breaking new ground. But to the extent that there are precedents I think that it would be helpful to mention them, very briefly.
I refer, for example, to the Matrimonial Homes Act 1967, in which, I am glad to say, there is a compendious description of a dwelling-house. It is stated to include:any building or part thereof which is occupied as a dwelling…".What the Act then goes on to state answers the criticism that my noble friend made of Clause 1(3)(d). The Act then states:and any yard, garden, garage or outhouse belonging to the dwelling house and occupied therewith".1196 There are various ways in which residential premises are described—all of them I agree more compendiously—but we felt it right on this occasion, if only to put all our cards on the table, to go into some detail in the description of residential premises. I hope that it will be felt that it was right for us to do so. I should be glad if parliamentary counsel could find a compendious way of describing the various circumstances in which people dwell, but excluding those circumstances in which it would not be right to consider a person to be a trespasser, and in which there is no real threat to privacy. I deeply respect my old friend—though not in the strict sense, my noble friend—Lord Foot, because we have known one another for more years than we should like to say. I respect his views about the right to privacy. One might have wished that sooner or later Parliament would have had on the statute book an Act dealing in a general way with privacy, but meanwhile surely it cannot be wrong for us to legislate in this simple way on the most serious threat to privacy with which we are faced.
My noble friend Lord Campbell of Alloway referred to the inclusion of the words "or likely to cause" in the description of the offence. There are of course precedents for that phrase—good precedents, and fairly numerous ones. The Factories Act 1961 refers to… a contravention which was likely to cause the death of, or bodily injury to, any person …".Section 50 of the Road Traffic Act 1930 refers to leaving a vehicle in a dangerous positionin such circumstances as to be likely to cause danger to other persons using the road";and goes on to state that the person concernedshall be guilty of an offence".One could multiply the examples, near examples, and analogies which are to be found in the statute book.
However, it all comes to the point that the magistrates are accustomed to having to decide issues involving the subjective state of mind of an accused, issues involving the subjective state of mind of a victim—and reference has been made to that—and the objective situation which arises as, for example, on the use of the words "likely to cause".
Between now and the Committee stage one will be glad to consider the detailed suggestions that have been made for the improvement of the Bill. I would believe that there is an answer to most of them. But there it is. The parliamentary counsel will, I hope, be instructed by the Government to consider this matter, not necessarily waiting entirely until the conclusion of the consultation period but getting on with it meanwhile; because many views will be expressed, no doubt, between now and 3rd May. I have great confidence in parliamentary counsel. They will, no doubt, produce something different from what we have said. I only hope that it will also be something better. In conclusion, may I say that I feel that my noble friend Lord Onslow deserves credit for his desire to influence your Lordships and the Government and to get this serious gap in the Bill filled, so that, as noble Baronesses have said, the public can feel easier about the state of our law.
§ 9.52 p.m.
§ The Lord Advocate (Lord Mackay of Clashfern)
My Lords, may I first say how grateful we are to my noble friends Lord Onslow and Lord Renton for giving us this opportunity to discuss such an important subject and one which has occasioned a great deal of public concern. Reference has already been made to the incident which so dramatically focused public attention and concern on this area of the law. An immediate consequence of the incident was that steps were taken to tighten up security. I hardly need add that my right honourable friend the Home Secretary is continuing to keep a very close watch on the operation of security measures to protect the Royal Family.
For our purposes tonight, however, the lesson which many people took from that disturbing incident was not the need to improve security at Buckingham Palace, vital though that was, so much as that it revealed, apparently, a loophole in the criminal law. How could it be that no charge could be preferred against the intruder save that relating to his consumption of wine not belonging to him? It was absolutely clear, from the volume of correspondence subsequently received by my right honourable friend the Home Secretary, as well as from comment in the press and generally, that large sections of the public had thought the criminal law already dealt with that situation and were shocked to learn that it did not.
My right honourable friend the Home Secretary, recognising the depth of public concern, decided that the law in this area must be closely examined, and this he arranged to do in consultation with my noble and learned friend the Lord Chancellor and my right honourable and learned friend the Attorney-General. The Secretary of State for Scotland has set in train a parallel review in Scotland. As your Lordships know, the upshot of it was that my right honourable friend the Home Secretary intimated on 11th November that he proposed to undertake a process of consultation. I think that my noble friend Lord Renton visited my honourable and learned friend Mr. Mayhew on 16th November, and the consultation paper was issued on 2nd February, setting out a number of issues on which wider debate seemed necessary.
I am greatly obliged to the noble Lord, Lord Mishcon, for the very kind comments he made about the consultation paper and the way in which it was written. I believe that these comments were very well based and deserved. The debate tonight is a valuable and constructive contribution to that debate and I am glad that one consequence of it at least has been that it has brought the existence of the consultation paper to the attention of the noble Lady, Lady Saltoun. I should like to say how useful it has been that others than lawyers have taken part in this discussion. I welcome particularly what was said in that connection because these are matters of concern to all of us. Lawyers are apt sometimes to get too engrossed in technicalities and it is always refreshing to hear what was described as an ordinary person's comments—although the person was really a very extraordinary person.
Against the background I have described it is perhaps the more surprising that the criminal law has 1198 not hitherto been deployed in relation to trespass as such on residential premises. I say the criminal law has not penalised trespass "as such" because there is, of course, a considerable body of criminal law designed to protect the ordinary citizen in his or her home from unwelcome intruders, even though the act of trespass itself is not a criminal offence. So, for example, when the trespass is accompanied by the use or threat of violence to secure entry, and the trespasser knows there is someone on the premises opposed to that entry, or if the trespasser is carrying a weapon, he is liable to prosecution under the Criminal Law Act 1977. It is also an offence to enter property with intent to commit an offence. If the intention is to steal, to indict grievous bodily harm or commit rape, or to do unlawful damage, then that is burglary, punishable with up to 14 years' imprisonment. And, of course, the general criminal law applies to a trespasser on residential premises who commits theft or criminal damage, or any other offence, as it does elsewhere.
I have described the criminal law in this area in some little detail because I think many people may not have been aware of its full extent. People who have picked up the impression, following the Fagan incidents, that anybody can come into their homes and behave just as they please, can take, I hope, some reassurance from what I have said—namely, that there are provisions to deal with those who have some criminal motive or whose conduct is criminal in any respect.
In other cases, however, this is a matter which traditionally has been the province of the civil law. Before the Fagan intrusions, it was, I suppose, generally accepted that people did not go uninvited into other people's homes unless they had crime in mind. The danger now—to which some of your Lordships have referred—is that certain types of people, realising that they will not be liable to prosecution, may be tempted to emulate the behaviour of Mr. Fagan, not at Buckingham Palace but in ordinary houses, and to do so just for the fun of it. I do not know how serious the risk of what might be termed "copycat intrusion" is but I wholly sympathise with concern at any such prospect.
Your Lordships have also referred to other situations which may not at present be covered by the criminal law but should be. I can see the difficulties encountered by the police when, for example, an intruder is discovered before he has actually committed an offence, and that they would prefer perhaps to be able to arrest him and deal with him without having to wait for an offence to be committed. But these situations surely also existed before Mr. Fagan's notorious escapades. Should we not then ask ourselves why it was possible for us to manage for so long without the criminal law in this area, with no apparent ill effects, until, that is, the events of last summer? Normally when one asks that in other contexts the answer is simply that the law is the same as it has been for many, many years and has just not adapted to the conditions and requirements of modern society. But this cannot really be said of this particular piece of the law. The law in this area was—as the noble Lord, Lord Foot reminded us—thoroughly overhauled as recently as the Criminal Law Act 1977, which followed much 1199 deliberation and an inquiry by the Law Commission into the law of England and Wales.
We must, therefore, look elsewhere for an explanation. The answer, I believe, is probably two-fold: first of all, that hitherto no one saw much need for the criminal law to extend beyond the realm of burglary and the other offences which I have mentioned; and second, that the criminal law was not really seen as an appropriate instrument to deal with acts of trespass as such—what I shall call for convenience "simple trespass", to distinguish it from trespass, associated with a definite criminal motive, or other criminal conduct. Now, however, we find ourselves in a situation in which we must reassess whether the involvement of the criminal law is required to deal with the situations which noble Lords have described. This raises not just issues of technical drafting and detailed administration but also issues of general policy, which I suggest are not as clear-cut as has occasionally been suggested.
Parliament is rightly cautious about creating new criminal offences, and certain general principles have been evolved over the years, which I think may be helpful here. As the consultation paper issued by my right honourable friend the Home Secretary suggests, the criminal law should not be invoked in every case to redress a private wrong, but only where it is established also that the public interest requires it. That is an essential precondition, if you like; and some of your Lordships have argued forcefully that it is met in this particular instance.
In additon, we require of statutory criminal offences that it should be clear that respect for the law cannot be maintained if people are genuinely uncertain of its boundaries. If the law is not clear, and people are uncertain of its boundaries, respect for the law is thereby undermined. We also require that the criminal law should be enforceable—as sound common sense, as well as principle, demands. We cannot put the police into situations made impossible by the very nature of the law involved. And, lastly, we need to ensure that any new criminal offence does not have unintended side-effects, by, for example, catching those whose behaviour was not at all the target at which the legislation was aiming.
Leaving aside points of detail, I turn to examination of how the Bill measures up to the broad principles I have sought to describe. Your Lordships will have your own views, based on your own experience and what you may have heard from others, on the extent of the need for a criminal offence in this area. I think it is common ground between my noble friend Lord Onslow and ourselves that there is a gap in the law, and that this can result in some extremely alarming forms of behaviour escaping without criminal sanctions. My noble friend has given some examples of these, and the consultative document, at paragraphs 23 and 24, gives some further examples of patently offensive and unreasonable behaviour which might not be caught by the criminal law.
I do not think there can be any doubt that a strong argument can be put for saying that these warrant the use of criminal sanctions. As the consultation paper 1200 also points out, however, the difficulty lies in distinguishing between these and other more innocent or trivial forms of trespass, about which many may feel a good deal less strongly. It is this wider context which causes the Government the greatest concern and, as I shall explain a little later, makes us anxious to ensure that any new offence would not have undesirable side effects.
The next point is whether the boundaries of the proposed criminal offence are clearly enough drawn to avoid genuine uncertainty over whether or not one is committing an offence. Illustrations have been given about that by my noble friend Lord Campbell of Alloway in relation to this Bill. As to enforceability, I do not think we are yet really in a position to judge whether the offence would give rise to insuperable difficulties for the police and the courts. I do believe that it might often place the police in a difficult position where, for example, estranged relatives each accused the other of trespass and causing serious annoyance. It would not always be possible for the police, on the spur of the moment, to unravel the rights and wrongs of such a dispute. But might it not be feasible—and a sensible step for them to take; allowing tempers to cool—in the first instance merely to advise the parties of their rights, as the police might understand them, to take civil action? The weight attached by the police or the courts to such potential difficulty is one of the crucial matters on which I know my right honourable friend the Home Secretary is looking to his consultations for guidance. It is interesting to see that my noble friend Lord Onslow, in making preparations for his very interesting speech tonight, thought it right to consult a senior officer of the police force of Surrey, as he told us.
The last principle that I enumerated was the need to avoid unintended side effects. There I have a question to put to your Lordships and it is this. Can we be sure that the Bill will not allow the criminal law to be drawn into matters which all would agree are better dealt with outside it? The remarks of my noble friend Lord Campbell of Alloway, are again relevant to that question. What, in fact, will prevent a party to a dispute—for example, over property—using the threat of prosecution merely to frighten or irritate the other party? I entirely accept that in such cases a conviction would be unlikely, but I am quite confident that a good deal of trouble could be caused before that result was reached.
I know that my noble friend Lord Onslow has made a brave attempt in Clause 2 of the Bill to meet this point by in effect restricting the offence to circumstances in which fear, distress, harassment or serious annoyance is caused or is likely to be caused. I think we must recognise, however, that even with such a tightly drawn provision the risk is still there. It needs to be recognised that there may be a price which has to be paid for creating a new criminal offence on the lines proposed. I entirely recognise that we could by such means catch the notorious kinds of cases described by my noble friend. The question which needs to be answered is; is this of a sufficiently high social priority to justify the sort of risk I have just described? There may well be many who will answer, Yes; and there may be some who will be impatient that the question 1201 even needs to be asked. But I submit that the Government would be in dereliction of their duty if they did not ask people to address their minds to this important consideration which has implications not only for civil liberties but also for the work of the courts and the police.
This is why I say that the noble Earl's proposals have implications for policy as well as for mere drafting. The question is very much—and in the best of all possible senses—a political one. It requires balancing the need to cope with an obvious and manifest abuse against the dangers of creating an offence which, however tightly circumscribed, might affect activities which are quite unsuitable for being dealt with by way of the criminal law.
The Government fully recognise that informed opinion and the public in general may well come down in favour of proposals something on the lines of those put forward today by my noble friend. It is far from self-evident, however, that this will be everyone's opinion, and in the Government's view it was only right that these issues should be put out for the widest possible consideration and comment.
As noble Lords know, a deadline of 3rd May was set for comments on the consultation paper. This was the shortest period consistent with the time required for internal consideration and discussion by the organisations consulted, some of whom have large and scattered memberships. We are concerned, however, to ensure that in this area of the law affecting individuals' rights and their privacy we get any change that is required absolutely right. That is why we have taken the trouble to set out the issues in the consultation paper, which is not the sort of document that can be produced overnight. Now we have that document and have put people to the trouble of considering it—I am sure they are glad to do so, given the importance to many of them of these issues—but now that we have taken this step, we as a Government feel bound not to reach final conclusions in advance of having the benefit of the advice we have sought and which we know will have been very painstakingly considered.
So far we have not received very many replies from those who were asked to comment. As noble Lords might expect, after an initial flurry of instant comment things settle down until very near the end of the consultation period, when longer considered contributions start to be received in greater numbers. From the replies received to date, however, no clear picture has emerged from those whom we specifically consulted —certainly not such as to add to the value of your Lordships' debate.
In all these circumstances, the Government find themselves at this particular time unable to commend the Bill to the House unreservedly. We do recognise, however, that the Bill has considerable merit and I certainly applaud the work which has so clearly been put into its preparation by my noble friends Lord Onslow and Lord Renton. We are, I need hardly say, in complete sympathy with the need to ensure proper protection for people in their own homes.
From what I have already said, however, it will be apparent that we are not yet as confident as the Bill's sponsors that it has resolved all the difficulties arising in this area. Whether in the course of its passage 1202 through your Lordships' House it can be improved to enable it to do so remains to be seen. For the Government's part, we would certainly not wish to oppose its Second Reading and we shall watch its progress with interest. We shall, I hope, be able to give a more definite indication of our views during later stages of the Bill.
In the meantime, I would repeat our thanks to my noble friends for giving us such a valuable opportunity to discuss these important questions. The debate has provided us with a most helpful indication of feeling in the House. My right honourable friend the Home Secretary will certainly take full account of the views that have been expressed in this debate in reaching a conclusion on the course of action that he should follow in this very important matter.
My Lords, before the noble and learned Lord sits down, may I ask him whether the Scottish Office has produced a similar consultative document, of which we have never heard and which we have not been offered on the little pink slips that we are sent?
§ Lord Mackay of Clashfern
My Lords, the answer is that the work of preparation is going ahead in the Scottish Office but has not yet been completed. The Scottish Office is slightly behind the Home Office on this particular occasion. I hope that the consultation paper will be issued fairly soon.
§ 10.11 p.m.
§ The Earl of Onslow
My Lords, I must first thank all noble Lords who have taken part and I will try, if I can read my own writing, to answer some of the points raised by noble Lords who have spoken.
The unfortunate part of Mr. Michael Fagan is that what he has done has let the cat out of the bag and the bag is no longer catproof. So by his terrible act, which was so widely publicised, he has changed conditions which have applied heretofore. There was also a slightly unattractive aspect in what happened to Fagan, in that, when the authorities realised that he could not be prosecuted, they tried to throw the book at him; but it was rather a bent book and it missed. Finally, he was sent to a secure mental hospital, which I strongly doubt would have happened had he just been caught trespassing at No 2 the Grove, Upper Sodbury-on-the-Marsh. I believe that would not have happened. This is not to impugn the honesty or integrity of those people who did that but it left that slight impression in my mind.
I believe it is true that society has shown explicit disapproval of that sort of behaviour. My noble friend—and I use that word totally advisedly because he made the nicest remarks about my maiden speech to me—Lord Foot raised the point, which is a very valid point, about showing a need to introduce new criminal offences. This may not be an exact parallel, but some months ago a Bill went through your Lordships' House protecting the rights of trainers on Epsom Downs. It produced a fine of, I think, £50 if people rode their ponies on the trainers' ground. I 1203 suggest to your Lordships that that is a much less serious offence—although admittedly the penalty is not six months' imprisonment or a £1,000 fine—than the offence that I have described, which was committed in the locality of a home by a man who has persistently gone around entering people's houses. It appears that he has been convicted under the Vagrancy Act, and the unlawful purpose that has been construed by the magistrates is that he was likely to cause fear; that was an unlawful purpose. I do not want to go too deep, but I suspect that that might be overthrown on appeal. So there is the danger that on an occasion such as this, there is a temptation to try to find a law that is not there—which carries a greater danger in justice than one relatively simple one.
I was very interested in what my noble friend Lord Campbell of Alloway said. He proceeded to go through the Bill and make a lot of, from his point of view, perfectly reasonable drafting points, and said it produced innocent trespass, et cetera. He then proceeded to recommend a far wider offence than he was accusing us of introducing in this Bill. He said that anybody who knowingly goes into a private residence should be guilty of an offence. That is Article 601 of the California Penal Code. I specifically said, and I think my noble friend Lord Renton specifically said, that we do not want to go as far as that. I do not think public opinion would accept that we should go as far as that.
A lot has been made of the effect this is going to have on the police. The police have very wide discretionary powers which they use on a great number of occasions. Several of your Lordships, I would suggest, have been caught in a built-up area going at more than 30 miles an hour and have not been prosecuted. I have a suspicion that that noble Lord who murmured may have been prosecuted. But the police do have discretion not to prosecute, and they use it on the whole very wisely.
The possibility that we should consider legislating for people to have what I may call privileged trespass—in other words the Windsor Castle, 10 Downing Street syndrome or the Russian Embassy syndrome—I think is abhorrent. I think we should not suggest that certain people only should have protection. The protection must be for all, and in a way it is the weaker members of society, the old, the frail and the frightened, who need protection more than somebody who is living in privilege and has the use of guards, et cetera. In no way am I trying to say that what happened at Buckingham Palace was not appalling, because it was appalling. But I think the protection must go to No. 2 The Close, Upper Snodbury, as well as to Buckingham Palace and 10 Downing Street.
My Lords, my noble friend Lord Campbell made great play of the fact that Clause 2 contains "metaphysics". I think that was the word he used. I would suggest that the criminal law is full of metaphysical judgments. Danger is something which is a metaphysical judgment. Some people would think riding over large fences when fox hunting is dangerous and some would think it not dangerous. There is an element of judgment that has to me made. When someone is accused of careless driving, "careless" is 1204 not an objective word; you have to make a subjective judgment.
§ Lord Mishcon
My Lords, I interrupt the noble Earl only for one purpose. Sitting behind the right reverend Prelate, as he is, is he quite sure that he is correctly using the word "metaphysical"?
§ The Earl of Onslow
My Lords, absolutely certainly not. I have always wanted to know what it means. The noble Lord, Lord Campbell, used it originally, and I was assuming that it meant what he was talking about—fear, et cetera. If I was using the word "metaphysical" in the wrong sense, of course I apologise to your Lordships. However, I think I have made the point that there are occasions when the criminal law has to make value judgments.
I agree with my noble friend Lord Renton that his and my actions have put the spur to this document. The reason we did not wait until after 3rd May is that it is possible that this is the last moment when a Bill such as this could get on the statute book before the next election—assuming that to be in October or even early in the New Year, but certainly in this Parliament. If as a result of the consultations which arise it is shown that the received view in our approach is totally wrong there is no way that this Bill can become an Act of Parliament. If, however, the consultations show that there is merit and force in the method that we are adopting, then I suggest that this is a helpful move.
We will, of course, listen with great sympathy to any amendments that are put forward within the global context of the Bill. When we come to the definition of private residence—where the clause refers to Inns of Court and research establishments—it seems to me crystal clear, because it says "part of" earlier, that it does not apply to the laboratory, and so on. It applies to the flat where the professor might live. In a school, for example, it applies to the caretaker's flat. In the Inns of Court it applies especially to where my noble friend Lord Renton lives. It applies to the residential part of buildings, which may include all the other things which are left out.
I again thank your Lordships for the attention that you have been kind enough to give me. I thank your Lordships for your comments, and with that I beg to move that the Bill be now read a second time.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.