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New Clause—(Penalty For Displaying On Footpaths Notices Deterring Public Use)

Volume 467: debated on Tuesday 19 July 1949

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(1) If any person places or maintains, on or near any way shown on a definitive map, or on a revised map prepared in definitive form, as a public path or road used as a public path, a notice containing any false or misleading statement likely to deter the public from using the way, he shall be liable on summary conviction to a fine not exceeding five pounds.

(2) The court before whom a person is convicted of an offence under the last foregoing subsection may, in addition to or in substitution for the imposition of a fine, order him to remove the notice in respect of which he is convicted within such period not being less than four days as may be specified in the order; and if he fails to comply with the order he shall be liable on summary conviction to a fine not exceeding two pounds for each day on which the failure continues.

(3) It shall be the duty of a highway authority to enforce the provisions of this section as respects any public path, or road used as a public path, for which they are the highway authority; and no proceedings in respect of an offence under these provisions

shall be brought except by the authority, required by this subsection to enforce these provisions as respects the path or road in question.—[ Mr. Silkin.]

Brought up, and read the First time.

I beg to move, "That the Clause be read a Second time."

It was represented in the course of the Committee stage that there is a danger of owners of land putting up notices which are false or misleading. It has been represented that there is a danger of certain persons putting up notices on access land or on land which is the subject of a right of way for the purpose of misleading the public into believing either that it is dangerous to go on to that land or that, in fact, there is no right of way. The favourite example is "Beware of the bull" when, in fact, there is no bull at all and no right to have a bull on the land. This Clause is designed to provide for penalties against any person who puts up
"a notice containing any false or misleading statement.…"
It provides not only for a penalty and for a continuing penalty, but it also permits the highway authority to take steps to remove the notice.

Question put, and agreed to.

Clause read a Second time.

I beg to move, in subsection (1), to leave out "or misleading." I wonder whether it would be convenient if we discussed, with this Amendment, the following Amendment, in subsection (1) to leave out "likely," and to insert "designed." They are on a similar point and I think it would be for the general convenience of the Committee if we discussed them together.

I am not objecting, nor do my right hon. and hon. Friends object, as the Minister will have observed, to the general lines of this Clause. Nevertheless, when we are adding to the criminal law we must take considerable care that, in fact, we are not being unfair or enacting anything vague so as to make a person liable to a criminal penalty when nothing criminal is intended. Curiously enough, when the right hon. Gentleman was summarising his Clause, he used words that would have been unexceptionable, had they been contained in the Clause. I think he said something like this—and I am quoting from memory: "putting up some false statement for the purpose of deterring." If there were anything like that in the Clause, I should not object to it.

My Amendments are designed to make it quite clear that the person who is to be guilty of the mischief aimed at under this Clause will, in fact have a guilty intention, and they are also designed to produce definiteness instead of vagueness in two respects. A false statement is comparatively an easy matter to ascertain by any court which inquires into it or by anybody who is responsible for it. "Misleading" is very much vaguer, and I think it is dangerously vague. "Likely to deter" is, I think, again something which does not involve anything whatsoever in the way of motive. If my two Amendments were adopted, the words would read:
"Containing any false statement designed to deter."
I think that would give the right hon. Gentleman a remedy against the mischievous type of thing which he wishes to hit, without endangering, in any way, any innocent man.

At first sight I was somewhat surprised at the fact that the hon. and learned Member for the Combined English Universities (Mr. H. Strauss) had put down this Amendment and was fighting the last ditch on behalf of misleading notice boards, but on second thoughts it appeared to me that there was method in his madness, because in a certain part of my constituency there is a very large notice displayed at the side of a public right of way which says something like this:

"The Tories fought for and will keep the social services."
I am not quite clear, Mr. Bowles, whether that is the kind of misleading notice to which these Amendments refer. In fact, I am not at all sure whether it comes under the heading of a misleading notice or that of a false notice, but certainly it is one or the other.

It is also likely to deter the public from using that path. Certainly the effect on me is that, whenever possible, I go round by another way in order to avoid my sense of reason and justice being outraged by having to pass this notice board. I have no doubt that quite a number of my constituents do the same. The hon. Member's motive in putting down this Amendment is, therefore, quite clear. I am only surprised that he did not delete the word "false" as well.

Leaving that point and turning to the immediate reference of this Amendment in the Bill, I very much hope that the Minister will resist it because obviously there are a large number of notices which, while not being strictly false, would be likely to deter innocent ramblers from the use of the right of way—a notice like "private land," for example, placed near a footpath. That is not a false notice, for it would be placed on private land, but if it were placed in juxtaposition to a footpath it would be likely to deter a person innocent of the law from making use of that right of way.

It would be misleading; that is precisely the point I am making. It would not be false but it would be misleading if it were placed in juxtaposition to a public right of way; it would be likely to intimidate a person innocent of the law and prevent him from using the footpath. There is the good old diehard, "Beware of the bull," where no bull, in fact, exists. "Beware of the bull" is not a false statement; it does not say that there is a bull there, but it does mislead people into thinking that if they go on to the land they are likely to encounter a large quadruped. Therefore, the effect of these Amendments would be greatly to reduce the value of the new Clause.

I should like to hear the Minister on this. The hon. Member for West Wolverhampton (Mr. H. D. Hughes) has indulged in some witticisms, and at this stage I certainly do not resent that: it enlivened the proceedings of this Committee. However, when we are creating a new criminal offence, I think it is very important—and I have some confidence that the Government will agree with me in this—to see that we give the ordinary protection to people who may fall within the mischief of the new law. My objection to the word "misleading" is that it is far too vague. It is quite dangerously vague when we are creating a criminal offence. Here I shall not be quarrelling with the argument of either the Minister or of the hon. Member for West Wolverhampton, because they both wish to hit those who put up something designed to deter.

"Designed" imports that degree of guilty intention which is a general requirement of the criminal law, and a desirable requirement of the criminal law. I do not want, with so much work ahead of the Committee, to delay the Committee, but I would warn the Committee of the great dangers of creating criminal offences without observing certain well-known rules that have been recognised as desirable and that must be satisfied, if a criminal offence is to be created without doing a great deal of harm.

I believe that my two Amendments taken together will greatly improve the Clause, but, if the right hon. Gentleman says that he can think of some better words, no pride will prevent me from considering them in a proper way. I believe that the creation of these very serious penalties, coupled with an extremely vague definition of the offence, is making such an addition to the criminal law as is contrary to all the principles that should rightly be observed.

I agree with the hon. and learned Gentleman that one must be extremely careful in introducing new offences into the law. We want to be quite certain, first, that there is a mischief which it is necessary to deal with, and, secondly, that the remedy is clear, and that an offender knows quite definitely with what he is going to be charged. I submit that both of these conditions are met in the Clause as drawn. There is definitely a mischief with which we want to deal. I think that the Amendments would deal with only a part of the mischief, and not with the whole of it. It is true that it would deal with people who make false statements knowing them to be false. It would not deal with another kind of mischief which is equally serious from the point of view of the persons who are going to use these new facilities. Therefore, my objection to the Amendment is that it deals only with a part of the evil.

I do not think that the Clause is vague at all. To make a false statement is one thing. To make a misleading statement is a perfectly definite thing. After all, it is a question of fact, which has to be settled in some court, whether a statement is misleading or otherwise. Let me give the hon. and learned Gentleman an example of a misleading statement which may, in fact, be true. Such a statement would be to say that a particular path led, for the sake of the argument, to Horsham, whereas, in fact, it went the other way: of course one should get to Horsham eventually, as one could from any spot in the British Isles, by walking long enough. That would be a misleading statement.

8.15 p.m.

I do not know. In an extreme case it would be false, but in a less extreme case it would be a misleading statement; but it is not sufficient to invoke the criminal law. It has not only to be a misleading statement; it has to be a misleading statement of a particular kind—"likely to deter the public." If it is "designed to deter the public" one has to establish in each case what is in the mind of the person who puts up the notice. If it is "likely" to do so, it is a question of judgment whether a certain notice will probably have a certain effect or not. To have to prove affirmatively what is the purpose of a notice is going to be an extremely difficult thing, though one may make a pretty good guess.

I think it is necessary to have "false" and "misleading" and "likely to deter" rather than "designed to deter." I say quite frankly that I am sure the hon. and learned Gentleman will not die in the last ditch about it. Nor would I, really, if I could find something equally satisfactory to deal with both kinds of mischief that would meet the hon. and learned Gentleman's wishes. I am quite prepared to think about it again and to see whether I can do something better, but I do not want to whittle this down. I want to make that quite clear. It is because I think that the effect of the hon. and learned Gentleman's Amendment—though not deliberately the effect—is likely to whittle down the Clause, even if it is not designed to whittle it down, that I cannot accept it.

I should like to put one or two points to the right hon. Gentleman. I do not think that there is very much between us in what we wish to achieve, and I hope it is common to both sides of the Committee that we want justice. I do not pretend to have looked up all the precedents on this subject, but I should be surprised if the right hon. Gentleman will find a precedent for "misleading" used quite so vaguely as "misleading" is used here, to make a serious criminal offence of this kind. As regards "designed," of course, there is a purpose, and purpose has to be proved. But purpose has to be proved, as the right hon. Gentleman well knows, with the very great assistance of the criminal law of England with its famous presumption that men are presumed to intend the natural and probable consequences of their actions.

Of course, if the notice were such that it would almost certainly deceive and deter the court would have no difficulty whatever in deciding that it was designed to deter. Let me give an example that has been put to me. What I am anxious to prevent—and what, I think, hon. Gentlemen opposite will also be anxious to prevent—is frightening people from putting up innocent and possibly even desirable notices. There is one that happens to have been brought to my attention, and I give it as an example to the right hon. Gentleman, because I know he wishes to think further about this. That notice said that land near a footpath was private land and that certain flowers had been planted on it, and it, therefore, called for care. It is quite obvious under my form of words that a notice of that sort would be completely innocent, but under the form of words at present in this subsection it would be impossible to say that it might not mislead or deter some fool from thinking that he could use the footpath. Those are the reasons why I beg the right hon. Gentleman to consider these words again. As I say, my two Amendments may not be perfect, though I believe that their adoption would greatly improve the proposed new Clause; but that the Clause is defective as it stands I have no doubt at all.

We are probably all at one in the object which we desire to achieve, but whilst the right hon. Gentleman has made out, not a strong case, but a case, for keeping the word "misleading" in his proposed new Clause, I am not at all satisfied that the words "likely to deter the public" are any better, and I believe them to be very much worse, than the wording proposed by my hon. and learned Friend—"designed to deter the public." My hon. and learned Friend's words do carry with them at any rate the guilty intent which is fundamental to any conviction in our criminal courts. Moreover, the words "likely to deter the public" would, in my opinion, be almost impossible to construe. If one puts up a notice "Beware of the bull" it may deter many people, but it may not deter others. Some people are frightened of crossing a field in which there are cows, and a notice saying "Beware of the cows" might deter some members of the public from crossing the field. I am quite sure that the hon. Lady the Member for Blackburn (Mrs. Castle) is no more frightened of bulls than she is of Ministers, and she as a member of the public would not be deterred by such a notice.

Let us consider another example. On many of our open spaces and commons there are small poisonous adders. Whether or not a member of the public will be deterred from using a footpath beside which there is a notice saying "Beware of the snakes" depends entirely upon what sort of footwear that person happens to have on at the moment. Therefore, I do say that it will be extremely difficult for people to do justice to the public, on the one hand, by putting up notices warning of possible dangers, and, on the other of steering clear of the provisions of this proposed new Clause which makes it an offence to put up anything which is likely to deter the public from using a footpath. I ask the right hon. Gentleman at any rate to look at the second Amendment again before this Bill finally becomes law.

I am quite willing to accept that suggestion, and I will look at the second Amendment again.

I should like to draw the Minister's attention to the objection that is raised to the use of the word "likely." The hon. and learned Member for the Combined English Universities (Mr. H. Strauss) seemed to object very strongly to the use of that word, yet we find that in other forms of charges the courts have found no difficulty in determining what is "likely." Very often people have been charged with "conduct likely to cause a breach of the peace," and the courts have found no difficulty in those cases. I see no reason why they should have any difficulty here in determining what is likely to deter people from using footpaths.

While, with every respect for my right hon. Friend, I think it is the combination of "likely" and "misleading" which is most objectionable, I will accept the Minister's undertaking to look at the whole of this again to see if he cannot improve the wording of this new Clause, because I do not think there is much between us in intention. Having regard to his undertaking, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause added to the Bill.