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Serious Crime Bill [HL]

Volume 691: debated on Wednesday 25 April 2007

Consideration of amendments on Report resumed.

Clause 44 [Supplemental provisions]:

51: Clause 44, page 28, line 1, at end insert—

“(5A) The Secretary of State may by order amend Schedule 3.”

The noble Lord said: My Lords, this group of amendments relates to Schedule 3, which, as noble Lords will remember from our discussion in Committee, contains a list of offences which are statutory forms of incitement or other inchoate offences. The effect of Clause 44(4) of the Bill and inclusion in Schedule 3 is that the offences are disregarded for the purposes of Clauses 40 and 41. It will not be an offence to encourage or assist the offences in Schedule 3 unless a person intends his action to assist or encourage the commission of those offences. This is to ensure that liability for inchoate offences does not extend too far. It follows the scheme of the Law Commission’s draft.

We predicted that Amendments Nos. 52 to 58 would be necessary in Committee. They add offences to Schedule 3 in addition to the original list composed by the Law Commission. The approach we have taken in adding these offences is consistent with the approach taken by the commission in that they are statutory forms of incitement or statutory forms of assistance or encouragement. These offences include, for example, Sections 19 and 20 of the Misuse of Drugs Act 1971. Section 19 is an offence of inciting any other offence under the Act. Section 20 is assisting or inducing commission outside the United Kingdom of an offence punishable under corresponding law. These are statutory forms of incitement and assistance, and we believe that encouraging or assisting other persons to commit these offences should only be an offence itself where a person intended the other to commit that offence. Therefore we believe they should be added to Schedule 3.

The final two amendments, Amendments Nos. 51 and 126, would add an order-making power subject to the affirmative resolution procedure to enable changes to be made to Schedule 3. We have already identified some offences which we believe should be added to the schedule, but it is possible that there will be more. For example, as a result of our trawl we have found some statutory offences of incitement in local government legislation that we think ought to be added to Schedule 3. We are endeavouring to complete this exercise during the passage of the Bill, but are not yet confident that we have a complete list. It is therefore a wise precaution to take a power to amend Schedule 3 subject to the affirmative resolution procedure. The basic purpose of the schedule is to limit rather than to extend liability, and I hope noble Lords will agree that it is sensible to have a power to keep the list under review.

As this is an order-making power, the Delegated Powers and Regulatory Reform Committee has considered the effects of Amendments Nos. 51 and 126. It reported this morning and has drawn the attention of the House to the fact that the power could be used to remove a provision from Schedule 3 as well as add to it. That is correct. At this stage we do not have in mind any offences that we want to remove from the schedule, but it is conceivable that in the future there might be concerns about restricting liability for offences in the schedule. In that case, we would want to avoid the need to pass further primary legislation to extend liability to those who believe that that offence would be committed. The order-making power is subject to the affirmative resolution procedure, so any attempt by the Government to remove an offence from Schedule 3 would need to be agreed by Parliament, and that in our view is sufficient.

In view of my explanation, which I hope has been clear for noble Lords, I beg to move.

My Lords, I thank the noble Lord, Lord Bassam, for introducing these amendments and explaining them to a packed House at twenty to nine on 25 April. I emphasise the date because as the noble Lord made clear, the Government only put down these amendments to the Bill on Monday, 23 April, and it was only yesterday, on 24 April, that a letter from the Minister was sent to my noble friend explaining what the amendments are about. At the same time, the Delegated Powers and Regulatory Reform Committee has managed to have a look at these powers, and I am grateful to the noble Lord for referring to that. I should like to quote from the committee’s 8th report, and in doing so to extend my thanks to the members for their extraordinary assiduity in managing to look at these amendments within such a short timescale. I hope that in future the Government, and particularly the Home Office, can manage to give us slightly longer.

Before I quote from the report, I ought to say that while we will not oppose these amendments now, in the light of what I am about to read from the 8th report, we think it would be more appropriate if the Government withdrew them now and possibly brought them back at Third Reading. If they are not prepared to do that, we certainly wish to reserve our right to come back to them at that stage. Quite frankly, amendments of this sort put down on a Monday, seen by the Delegated Powers and Regulatory Reform Committee on a Tuesday and sent with a covering letter to us, which are then debated on a Wednesday evening are not quite satisfactory. However, if the Government wish to go ahead at this stage, we will not oppose them. But they might think seriously about withdrawing the amendments at this stage in the light of what the Delegated Powers and Regulatory Reform Committee has had to say. Paragraph 4 of the 8th report states that:

“While acknowledging that the power”—

the power the Government grant themselves in Amendment No. 51—

“could be used to remove offences as well, the Home Office does not explain why the Secretary of State should have the power, after the enactment of the bill, to impose by order criminal liability for conduct which Parliament has decided should not be an offence. The Committee is particularly concerned that the subsequent removal of an offence listed in Schedule 3 could, by virtue of Clause 53, expose a person to criminal penalties far in excess of those which normally apply to offences created by subordinate legislation. For example, the power to create new offences by order under the Legislative and Regulatory Reform Act 2006 is limited to offences carrying a maximum penalty of not more than two years’ imprisonment”.

In paragraph 5, the committee goes on to draw the attention of the House to the implications of the power conferred by the proposed new subsection (5A) in so far as it enables the Secretary of State to remove an offence from Schedule 3. It ends by saying—and I think this should always be emphasised—

“the House may wish to invite the Government to reconsider the scope of the new power”.

We will want to look at this in greater detail, and with a slightly longer timescale. I hope the Government might consider that as well. As I made quite clear, if they wish to press ahead with this, we reserve our right to come back to it at Third Reading.

My Lords, I support what has just been said about the report of the Delegated Powers Committee. My concern is that when the noble Lord, Lord Bassam, gave us the information from this report, he must have missed out a vital sentence. At the end of the conclusion, the committee says that,

“the House may wish to invite the Government to reconsider the scope of the new power”.

There is something very serious in relation to Clause 51, and there are implications with regard to Clause 44. My advice is precisely the same as that of the noble Lord, Lord Henley: the Government should take this back, look at it and come back at Third Reading or before so that we know what they have in mind, on the basis of which we can decide whether we want to take any further action. For now, it would not be right to discuss further the contents of this report or the Government’s response. I see that, although the Government produced a supplementary memorandum, which was considered by the committee, there is no further development other than the recommendations contained in paragraph 5.

My Lords, I support everything that my noble friend has said. I take this first opportunity to defend my family name, which the noble Lord, Lord Henley, referred to in the previous debate. I suspect that he was thinking of the case of Stephen William George Collins, reported in 1972, when a young man, who had stripped naked, was at a bedroom window and was beckoned in by a young lady who believed him to be her boyfriend. Over what happened then I draw a veil. I note from the judgment of the much lamented Lord Edmund-Davies—this because the noble Lord, Lord Henley, referred to socks—that he said about the young man that, having seen the girl in bed,

“he descended the ladder and stripped off all his clothes, with the exception of his socks, because apparently he took the view that if the girl’s mother entered the bedroom it would be easier to effect a rapid escape if he had his socks on than if he was in his bare feet”.

The judgment went on:

“That is a matter about which we are not called on to express any view, and would in any event find ourselves unable to express one”.

Clearly the memory of the noble Lord, Lord Henley, of his legal training is very good, but, like me, he cannot remember the name of any case.

My Lords, I have some advice to give on this particular case. It is of such import to our debates that it clearly should be considered fully and properly by the Delegated Powers and Regulatory Reform Committee, which, while it produces excellent reports, would find its proceedings enlivened more than somewhat if it were to consider this case’s implications.

Anyway, I ought to deal with what is front of me. I have listened carefully to what the noble Lord, Lord Henley, has said, and he makes a fair point; amendments were tabled late. It is also fair to say that the Delegated Powers and Regulatory Reform Committee did a first-rate job in considering the implications of those amendments, given the timeframe in which it had to work and the constraints that it would have worked under. In fairness to your Lordships, it would be right for me to commit to taking away Amendments Nos. 51 and 126 and not pressing them this evening, so that proper and full consideration can be given. We can then consider those matters at Third Reading—I am advised that we will be able to do so, and I am happy to do that. That said, we should move the other amendments in this group. However, the noble Lord made a good case. I am willing to be as helpful as I can to the House—it is only proper that I should be—and that will enable us to agree and disagree more amicably on these matters in a way that is of service to all.

My Lords, before the Minister sits down, perhaps I may thank the noble Lord, Lord Thomas, for clearing his family name and for correcting me on R v Collins 1972. I had not even realised that it was a House of Lords case, but, as he put it, it is one of the very few cases that I can remember—sadly, I could not remember its correct name. I thank also the Minister for agreeing not to press ahead with Amendments Nos. 51 and 126, but to go ahead with the others. On that basis, I am perfectly satisfied. It is a reasonable way forward and it will probably make life easier for all of us in due course.

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 3 [Listed offences]:

52: Schedule 3, page 55, line 30, at end insert—

“1A An offence under section 21 of that Act (attempting to choke etc. in order to commit or assist in the committing of any indictable offence) so far as it may be committed with the intention of enabling any other person to commit, or assisting any other person in the commission of, an indictable offence.

1B An offence under section 22 of that Act (using chloroform etc. to commit or assist in the committing of any indictable offence) so far as it may be committed with the intention of enabling any other person to commit, or assisting any other person in the commission of, an indictable offence.

1C But references in paragraphs 1A and 1B to any other person do not include reference to the person whose act is capable of encouraging or assisting the commission of the offence under section 21 or, as the case may be, section 22 of that Act.”

53: Schedule 3, page 56, line 7, at end insert—

“Misuse of Drugs Act 1971 (c. 38)An offence under section 19 of the Misuse of Drugs Act 1971 (inciting any other offence under that Act).

An offence under section 20 of that Act (assisting or inducing commission outside United Kingdom of offence punishable under corresponding law).”

54: Schedule 3, page 56, line 7, at end insert—

“Immigration Act 1971 (c. 77)An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to a member State).

An offence under section 25B of that Act (assisting entry to the United Kingdom in breach of deportation or exclusion order).”

55: Schedule 3, page 56, line 23, at end insert—

“Criminal Justice Act 1993 (c. 36)An offence under section 52(2)(a) of the Criminal Justice Act 1993 (encouraging insider dealing).”

56: Schedule 3, page 56, line 23, at end insert—

“Reserve Forces Act 1996 (c. 14)An offence under section 101 of the Reserve Forces Act 1996 (inducing a person to desert or absent himself).”

57: Schedule 3, page 56, line 31, at end insert—

“Prison Act 1952 (c. 52)An offence under section 39(1) of the Prison Act 1952 (assisting a prisoner to escape).”

58: Schedule 3, page 57, line 27, at end insert—

“Prison Act (Northern Ireland) 1953 (c. 18)An offence under section 29(a) of the Prison Act (Northern Ireland) 1953 (rescuing or assisting a person sentenced to imprisonment for life, or in lawful custody for an offence carrying that sentence, to escape or attempt to escape) so far as it consists in assisting a person.

An offence under section 30(a) of that Act (rescuing or assisting a person sentenced to imprisonment for a term less than life, or in lawful custody for an offence carrying such a sentence, to escape or attempt to escape) so far as it consists in assisting a person.”

On Question, amendments agreed to.

Clause 45 [Defence of acting to prevent commission of offence etc.]:

59: Clause 45, leave out Clause 45

The noble Baroness said: My Lords, government Amendments Nos. 59 to 62 make changes to the defences available to offences contained in this part. Part 2 currently contains two defences. These were recommended by the Law Commission. The first is in Clause 45 and would apply where a person claims to have acted to prevent an offence or to prevent or limit harm. He must also show that it was reasonable to have acted in that way. The second defence is in Clause 46 and would apply where a person claims that his act was reasonable in the circumstances as he knew or believed them to be.

Currently, the defence of crime prevention, or prevention or limitation of harm, is a defence to all the offences in Part 2; the reasonableness defence is a defence only to the offences committed with belief. We have looked at the defences closely and believe that it would be simpler to provide one defence to all the offences in the Bill. We therefore propose that it should be a defence to all the offences in Part 2 if the defendant can show that his act was reasonable in the circumstances. That might be because he acted to prevent a crime or to limit harm, but it might be for another reason. For example, a person might commit an act capable of encouraging or assisting an offence to expose wrongdoing or for any other reason. I hope that that explanation will find favour with the House and I beg to move.

My Lords, we have one amendment in this group, Amendment No. 63, to which we will come in due course. It is another probing amendment. We are grateful to the Minister for her letter of 24 April, which explained how the defences would work. I am a little concerned about how it might affect, for example, whistleblowers or a police sting operation, but the Minister will no doubt touch on that when she responds.

Our Amendment No. 63, which would leave out Clause 46, is a probing amendment. In Committee, we questioned whether the defence in Clause 46 would cover the whistleblower—for example, a civil servant who encourages a journalist to publish confidential information. I suggest that the disclosure could quite reasonably be made on the grounds of conscience or a perceived threat to public safety. The Minister stated in her earlier, undated letter that were such a person as a civil servant—let us call them C—to be prosecuted under the so-called belief offences, C could argue to the jury that what he did was reasonable. I do not see therefore why in such a case the prosecution would, seeing the possibility of a defence under the offences in Clauses 40 and 41, prosecute under any other offence than Clause 39. Therefore the reasonable defence, where it is expected, could be used unmeritoriously and would simply be sidestepped. I would be grateful to the Minister for a response to that point.

My Lords, I can confirm what I set out in the letter as being the correct position. We believe that it would be better to provide one defence to all the offences included in Part 2. Amendments Nos. 59 to 61 would remove the crime prevention or prevention or limitation of harm defence in Clause 45 and extend the application of the defence of reasonableness in Clause 46 to all the offences under Part 2. That makes it a great deal clearer.

We also believe that it would be sensible, given this proposed extension, to put in the Bill some factors that the court could consider when determining whether an act was reasonable. That is the effect of Amendment No. 62. This is a non-exhaustive list consisting of the purpose for which a person claims to have been acting, any authority by which a person claims to have been acting and the seriousness of the offence that he believed or intended would be committed. For these reasons, we resist Amendment No. 63. As we discussed in relation to previous amendments, the reasonableness defence was proposed by the Law Commission as a limit on the potential liability for the belief offences. I believe that it is necessary in that regard to proceed as we now propose.

I remember that, when this amendment was discussed in Committee, the noble Baroness, Lady Anelay, queried whether the reasonableness defence would cover a whistleblower—a point that has been repeated by the noble Lord, Lord Henley—and gave the example of a civil servant who encourages a journalist. In my letter, I sought to respond to that, following that conversation. As the noble Lord said, I explained that a whistleblower could seek to rely on this defence, but whether the jury accepts that argument is another matter; it is a matter for the jury to judge whether it is reasonable. Both the Home Office and the Law Commission recognised that unmeritorious defendants will seek to rely on this defence. We believe that government Amendment No. 62, which gives examples of factors that can be considered in determining reasonableness, will help to guard against this, and so I hope that noble Lords will support it.

We believe that juries will see through unmeritorious arguments. Indeed, in the example given, the fact that a civil servant is bound by the Official Secrets Act would no doubt be borne in mind by the jury when determining whether he had acted reasonably. Nevertheless, it could be that a jury, considering all the facts, would accept this defence. Of course, the defence would not exempt the civil servant from liability under the Official Secrets Act.

I hope that that has explained why we have made these changes. Our debates have been very helpful in that regard. We were worried whether people would take adventitious advantage of the reasonableness defence, but we think that this will be a simpler and easier way and agree with the general import of what was said in that regard. I thank all those who participated in the debates, because it has enabled us to make some quite productive changes. I hope that, on that basis, your Lordships will accept government Amendments Nos. 59 to 62.

On Question, amendment agreed to.

Clause 46 [Defence of acting reasonably]:

60: Clause 46, page 28, line 13, leave out “section 40 or 41” and insert “this Part”

61: Clause 46, page 28, line 16, leave out “section 40 or 41” and insert “this Part”

62: Clause 46, page 28, line 20, at end insert—

“(3) Factors to be considered in determining whether it was reasonable for a person to act as he did include—

(a) the seriousness of the anticipated offence (or, in the case of an offence under section 41, the offences specified in the indictment);(b) any purpose for which he claims to have been acting;(c) any authority by which he claims to have been acting.”

On Question, amendments agreed to.

[Amendment No. 63 not moved.]

Clause 48 [Jurisdiction]:

64: Clause 48, page 29, line 6, leave out “charge or”

On Question, amendment agreed to.

Schedule 4 [Extra-territoriality]:

65: Schedule 4, page 59, line 35, leave out “charge or”

On Question, amendment agreed to.

Clause 50 [Mode of Trial]:

66: Clause 50, page 29, line 23, leave out subsection (2)

The noble Lord said: My Lords, this is the last of my probing amendments to Part 2. It was tabled as Amendment No. 102 in Committee to elicit a response from the Government as to whether, with a portfolio of offences to be considered under Clause 41, if one or all those offences would otherwise be subject to summary trial they would still nevertheless be triable on indictment. Again, the Minister’s letter was most helpful. She illustrated in her response that under the provisions of Clause 41 the defendant would be subject to punishment based on the most serious offence out of a possible, say, three, that he believed could have been committed. She went on to say that if he believed that every offence would be committed, he would then be subject to trial under three separate offences of encouraging or assisting under Clause 40.

Two questions remain. First, were the court to decide that a defendant under Clause 41 would be more appropriately tried under Clause 40, what would the process for converting the prosecution be? Secondly, I was disappointed that the Minister failed to answer my question in Committee whether a portfolio of offences that are otherwise summary offences would be subject under Clause 41 to trial by indictment. I appreciate that Clause 41 could be expediently deployed but seek further clarification from the Minister on those two points. I beg to move.

My Lords, I am grateful to the noble Lord for indicating that he is content with my letter. Once again—I look to noble Lords opposite for assistance—I am very conscious that the full content of my letter has not been read into the record. I wonder how we should best do this. I am very happy to read into the record as rapidly as I can the basis of the arguments that we put forward in the letter because that might help clarify the position. On the other hand, I do not want to weary the House. I am very much in your Lordships’ hands.

My Lords, the noble Baroness may remember the offer that she made some months ago to give either a short or a long answer on the whole question of intercept. On this occasion we prefer the short answer, but she might deposit the letter in the Library, if necessary.

My Lords, the noble Lord, Lord Henley, asked whether, if the court thought that a defendant would be better tried under Clause 40, the prosecution would need to apply to change the indictment. Our view is that whether—I am trying to shorten my response. One of the problems with trying to shorten it is that you end up thinking about making it longer. I shall start again. In Committee, the noble Lord, Lord Henley, asked whether, if all the offences D believed would be committed would be triable only summarily, it would be better to try the Clause 41 offence summarily also. I explained that this offence is aimed at those who assist in the commission of serious crimes although it is correct that it is not limited to such offenders. In addition, we do not believe that this offence will be easy to prove. Nevertheless, its inclusion is important to prevent D avoiding liability under Clause 40 by saying that he did not believe that the offence chosen by the prosecution would be committed, but that he believed that another offence, or one of many offences, would be committed. Due to the complex nature of this offence, we do not expect that it will be used in relation to summary offences only. I hope that that has helped to clarify the position.

I shall place in the Library a full copy of the letter that I wrote to noble Lords opposite in the hope that it will better clarify the position. However, if further elucidation appears to be necessary at Third Reading, I shall be very happy to provide it in the interim. The prosecution, of course, would need to apply to change the indictment. However, the noble Lord opposite will know that.

My Lords, I thank the noble Baroness. If there are any further doubts, we might ask her to give the long answer at Third Reading, but I do not anticipate that that will be the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 51 [Persons who may be perpetrators or encouragers etc.]:

67: Clause 51, page 29, line 35, leave out “charge or”

On Question, amendment agreed to.

Clause 52 [Alternative verdicts]:

68: Clause 52, page 29, line 37, leave out subsection (1) and insert—

“(1) If in proceedings on indictment for an offence under section 39 or 40 a person is not found guilty of that offence by reference to the specified offence, he may be found guilty of that offence by reference to an alternative offence.”

The noble Lord said: My Lords, Amendments Nos. 68 to 72 make changes to Clause 52, which sets out the offences in relation to which a person may be found guilty as an alternative where he or she has been prosecuted for an offence under Clauses 39, 40 or 41. The Law Commission’s draft Bill did not make provision for alternative verdicts, but the Government believe that it is important that the same principles should apply where someone is on trial for assisting or encouraging an offence as if he were on trial for the substantive offence.

The policy intent under the current Clause 52, and under Amendments Nos. 68 to 72, is to parallel the general rules in relation to alternative verdicts, most of which are set out in Section 6 of the Criminal Law Act 1967, in relation to a trial for the offences encouraged or assisted. The amendments are designed to clarify Clause 52 and to ensure that it replicates as closely as possible the rules on alternative verdicts in trials for the substantive offence.

So, for example, on a charge of assisting and encouraging murder, the jury could instead return a verdict of assisting and encouraging manslaughter, grievous bodily harm with intent or infanticide. Or, for example, D gives P a baseball bat. The prosecution charges D with an offence under Clause 40, alleging that D believed that P would use the bat to commit grievous bodily harm against V. The jury decides that it does not accept that D believed that grievous bodily harm would be committed. However, it is satisfied that he believed that actual bodily harm would be committed. Just as it would be possible on a charge of GBH to find an accused guilty of ABH instead, it would be possible for a jury to convict, as an alternative to the offence of encouraging or assisting GBH, on the offence of encouraging or assisting ABH.

Amendment No. 70 also sets out what should happen in relation to guilty pleas. This replicates the position taken in Section 6(1)(b) of the Criminal Law Act 1967. The position is that a person may plead guilty to assisting or encouraging a lesser offence, which would lead to an alternative verdict on a trial for the offence with which he was charged. For example, D is charged with encouraging or assisting P to rob X. D denies this, but says that he believed that P was planning to steal something from X and, therefore, is prepared to plead guilty to assisting theft. It would be a matter for the prosecution as to whether or not it accepted that plea or insisted on a trial for assisting robbery.

Amendments Nos. 71 and 72 make consequential additions to Clause 52(5), which preserves the operation of the general rules in relation to alternative verdicts under Section 6 of the Criminal Law Act 1967. I hope that noble Lords will accept these amendments of clarification. I beg to move.

On Question, amendment agreed to.

69: Clause 52, page 30, line 1, leave out “in relation to any of the specified offences”

70: Clause 52, page 30, line 6, leave out subsection (4) and insert—

“(4) For the purposes of this section, an offence is an alternative offence if—

(a) it is an offence of which, on a trial on indictment for the specified offence, an accused may be found guilty; or(b) it is an indictable offence, or one to which section 40 of the Criminal Justice Act 1988 (c. 33) applies (power to include count for common assault etc. in indictment), and the condition in subsection (4A) is satisfied.(4A) The condition is that the allegations in the indictment charging the person with the offence under this Part amount to or include (expressly or by implication) an allegation of that offence by reference to it.

(4B) Subsection (4)(b) does not apply if the specified offence, or any of the specified offences, is murder or treason.

(4C) In the application of subsection (4A) to proceedings for an offence under section 39, the allegations in the indictment are to be taken to include an allegation of that offence by reference to the offence of attempting to commit the specified offence.

(4D) Section 44(4) applies to an offence which is an alternative offence in relation to a specified offence as it applies to that specified offence.

(4E) In this section—

(a) in relation to a person charged with an offence under section 39 or 40, “the specified offence” means the offence specified in the indictment as the one alleged to be the anticipated offence,(b) in relation to a person charged with an offence under section 41, “specified offence” means an offence specified in the indictment (within the meaning of subsection (4) of that section), and related expressions are to be read accordingly.(4F) A person arraigned on an indictment for an offence under this Part may plead guilty to an offence of which he could be found guilty under this section on that indictment.

(4G) This section applies to an indictment containing more than one count as if each count were a separate indictment.”

71: Clause 52, page 30, line 11, leave out “6(3)” and insert “6(1)(b) and (3)”

72: Clause 52, page 30, line 12, leave out “6(2)” and insert “6(1)(b) and (2)”

On Question, amendments agreed to.

Clause 53 [Penalties]:

73: Clause 53, page 30, line 24, leave out “life imprisonment” and insert “imprisonment for life”

The noble Baroness said: My Lords, Amendment No. 73 makes a very minor, but important, drafting change to Clause 53(5), which sets out the penalty that will be available where D is convicted of an offence under Clause 41 in relation to murder. The policy is that a person who has encouraged or assisted murder should be subject to a maximum sentence of life imprisonment. That was recommended by the Law Commission and is included in the current draft of the Bill. However, counsel has advised that the correct wording for such a penalty is the phrase “imprisonment for life”. That is consistent with the phrase used earlier in the Bill at Clause 53(2) and attracts the various modifications applicable to those who are under the age at which such a sentence could be imposed. I hope that noble Lords will accept the amendment. I beg to move.

On Question, amendment agreed to.

74: After Clause 54, insert the following new Clause—

“Amendments relating to service law

Schedule (Amendments relating to service law) (which amends enactments relating to service law) has effect.”

The noble Baroness said: My Lords, it seems that we are taking turns. Amendments Nos. 74, 76, 79, 80, 135 and 138 concern the Armed Forces and the impact that Part 2 will have on the law that governs them. Members of the Armed Forces, as well as being subject to the criminal law of England and Wales wherever in the world they happen to be, are also subject to service disciplinary offences, which are peculiar to those serving in the Armed Forces. Some of the more serious disciplinary offences—for example, assisting an enemy—are punishable with a maximum sentence of life imprisonment, and some disciplinary offences also apply to certain civilians, such as family members of service personnel and contractors.

The Law Commission’s report did not consider the position of the Armed Forces. The Ministry of Defence wishes Armed Forces legislation to remain consistent with the criminal law. It is a service discipline offence to incite service personnel, or a civilian subject to service discipline, to commit a service disciplinary offence, such as looting. The policy intention of the amendments is to replace references to incitement in Armed Forces and service discipline legislation with the offences in Part 2.

Amendments Nos. 74 and 76 insert a schedule of enactments that affect the Armed Forces, and the principal amendment is to the Armed Forces Act 2006, which received Royal Assent on 8 November last year but has yet to be implemented. The amendments affect Sections 40 and 46 of the 2006 Act. As drafted, Section 40 makes it an offence to incite service personnel, or civilians subject to service discipline, to commit a service disciplinary offence. The amendment of Section 40 will apply the three new statutory offences in place of incitement to service disciplinary offences. Section 46 provides that members of the Armed Forces, and civilians subject to service discipline, commit a criminal offence if they incite another to do an act that would be a criminal offence if done in England and Wales, but the act itself need not be in England and Wales. The amendment of Section 46 will apply the three new statutory offences to criminal conduct committed outside England and Wales where members of the Armed Forces, and civilians subject to service discipline, encourage or assist the commission of the offence.

Amendments Nos. 79, 80, 135 and 138 are consequential on those amendments. I hope that your Lordships will accept this group as necessary and important. I beg to move.

On Question, amendment agreed to.

Clause 56 [Consequential amendments: Part 2]:

[Amendment No. 75 not moved.]

76: Before Schedule 5, insert the following new Schedule—

“Amendments relating to service lawCriminal Justice Act 1982 (c. 48)1 In section 32 of the Criminal Justice Act 1982 (early release of prisoners), in subsection (2A) for “incitement” substitute “encouragement and assistance”.

Sexual Offences (Amendment) Act 1992 (c. 34)2 In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), in subsection (1A) for “incitement” substitute “encouragement and assistance”.

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 In section 114 of the Powers of Criminal Courts (Sentencing) Act 2000 (offences under service law), in subsection (3) for “incitement” substitute “encouragement and assistance”.

Sexual Offences Act 2003 (c. 42)4 (1) The Sexual Offences Act 2003 is amended as follows.

(2) In paragraph 93A of Schedule 3 (sexual offences for purposes of Part 2), in sub-paragraph (3) for “incitement” substitute “encouragement and assistance”.

(3) In paragraph 172A of Schedule 5 (other offences for purposes of Part 2), in sub-paragraph (2) for “incitement” substitute “encouragement and assistance”.

Criminal Justice Act 2003 (c. 44)5 In section 233 of the Criminal Justice Act 2003 (offences under service law), in subsection (2) for “incitement” substitute “encouragement and assistance”.

Gambling Act 2005 (c. 19)6 In Part 1 of Schedule 7 to the Gambling Act 2005 (relevant offences), in paragraph 22A for “incitement” substitute “encouragement and assistance”.

Armed Forces Act 2006 (c. 52)7 The Armed Forces Act 2006 is amended as follows.

8 In section 39 (attempts), in subsection (4)(b) for “inciting another person to commit” substitute “encouraging or assisting the commission of”.

9 For section 40 (incitement) substitute—

“40 Encouraging and assisting

(1) A person subject to service law commits an offence if he encourages or assists the commission of a service offence (other than an offence under section 42).

(2) A civilian subject to service discipline commits an offence if he encourages or assists the commission of an offence mentioned in section 39(4).

(3) Reference in this section to encouraging or assisting the commission of an offence is to the doing of an act that would have constituted an offence under Part 2 of the Serious Crime Act 2007 if the offence encouraged or assisted had been an offence under the law of England and Wales.

(4) In determining whether an act would have constituted an offence under that Part, section 44(4) of that Act has effect as if for “offences under this Part and listed offences” it read “offences under sections 39 and 40 of the Armed Forces Act 2006”.

(5) Any requirement in that Part to specify matters in an indictment applies for the purposes of this section as it applies for the purposes of that Part, but with references to the indictment being read as references to the charge sheet.

(6) A person guilty of an offence under this section is liable to the same punishment as he would be liable to if guilty of—

(a) the service offence encouraged or assisted; or(b) if convicted of the offence under this section by reference to more than one such service offence, any one of those service offences.”10 Accordingly, in the heading immediately before section 39 for “incitement” substitute “encouragement and assistance”.

11 For section 46 (inciting criminal conduct) substitute—

“46 Encouraging or assisting criminal conduct

(1) Subsection (2) applies if a person subject to service law, or a civilian subject to service discipline, encourages or assists the doing of an act (or one or more of a number of acts) that, if done in England or Wales, would be punishable by the law of England and Wales.

(2) Regardless of where that act (or those acts) might be done and of his state of mind with respect to that question, his encouragement or assistance shall be treated for the purposes of section 42(1) as an act that is punishable by the law of England and Wales (so far as it is not such an act in any event).

(3) Reference in this section to encouraging or assisting is to an act that would constitute an offence under Part 2 of the Serious Crime Act 2007 disregarding any provision in that Part about the place where the act (or acts) being encouraged or assisted might be done or the accused’s state of mind with respect to that question.”

12 In section 48 (provision supplementary to sections 43 to 47), in subsection (1)(a) for “incitement” substitute “encouragement or assistance”.

13 In Schedule 2 (list of serious offences)—

(a) in paragraph 11 for “inciting another person to commit” substitute “encouraging or assisting the commission of”;(b) in paragraph 13 for “of incitement to commit” substitute “under Part 2 of the Serious Crime Act 2007 of encouraging or assisting the commission of”.”

On Question, amendment agreed to.

Schedule 5 [Minor and consequential amendments: Part 2]:

77: Schedule 5, page 59, line 39, at end insert—

“ Section 30(4) of the Theft Act 1968 (c. 60) (restriction of proceedings against spouses and civil partners).”

The noble Lord said: My Lords, this is the first of two groups of amendments which make changes to Schedule 5. Schedule 5 relates to Clause 56 and sets out minor and consequential amendments to existing legislation. The first group of amendments relates to Part 1 of Schedule 5. The common-law offence of inciting the commission of another offence is repealed by Clause 54. Part 1 of Schedule 5 lists references in existing legislation to the common-law offence of incitement which are to be read as references to the new offences in Clauses 39, 40 and 41.

As is the case with respect to Schedule 3, the original list of offences in Schedule 5 was composed by the Law Commission. We have had a careful trawl through existing legislation and have gone on to identify further references to common-law incitement which we think it necessary to add to Schedule 5. These are contained in Amendments Nos. 77, 78 and 81 to 88. They include, for example, the reference to common-law incitement in Section 30(4) of the Theft Act 1968 concerning the restriction of proceedings against spouses and civil partners. Section 30(4) of that Act sets out that the consent of the Director of Public Prosecutions is needed for any prosecution against a person for any offence of stealing or doing unlawful damage to property which belongs to that person’s wife, husband or civil partner, or for any attempt, incitement or conspiracy to commit such an offence.

We are not entirely certain that we have the contents of Part 1 exactly right, and our officials are still going through the results of the trawl of legislation to ensure that no other provisions need to be added to Part 1. Perhaps I should invite your Lordships also to offer up any that they think we have missed; that would be very helpful. There is already a power to amend the list in Part 1 of Schedule 5 by order under Clause 56(3). However, as is the case with Schedule 3, we will seek to make any further changes that we identify during the Bill’s proceedings.

I hope that, having heard that technical and clarifying information, noble Lords will feel happy to accept the amendments. I beg to move.

My Lords, I begin by making it clear that I support the amendments. The Minister very properly said that officials are looking to see whether other additions need to be made. In terms of parliamentary procedure, we are at an early stage in the Bill—not many Bills start in this House—so I appreciate that some proper technical amendments may need to be made. However, at this stage do the Government hope to do some more tidying up on this aspect at Third Reading or is it anticipated that that will drift into another place?

My Lords, given that the Bill is a Lords starter, we will try to maximise the tidying-up exercise in this House. That said, as I am sure the noble Baroness will appreciate, some things may well have to be picked up at a later stage, although I am probably about to receive a note that tells me that I am wrong. In fact, I understand that it is unlikely that the major tidying-up will be done at Third Reading. However, if we can do it, we will and, if not, it will have to be done in another place.

On Question, amendment agreed to.

78: Schedule 5, page 60, line 2, at end insert—

“ Section 7(2)(ix) of the Sexual Offences (Amendment) Act 1976 (c. 82) (meaning of “rape offence” in relation to court martial proceedings).”

79: Schedule 5, page 60, line 17, leave out “Section 32(1)(b)” and insert “In section 32(1)”

80: Schedule 5, page 60, line 18, at end insert “—

(a) paragraph (b)(iv) (imprisonment for excluded offence etc);(b) paragraph (c)(iv) (imprisonment for service offence corresponding to excluded offence etc), inserted by paragraph 94(2) of Schedule 16 to the Armed Forces Act 2006 (c. 52).”

81: Schedule 5, page 61, line 1, leave out from beginning to “(cases” and insert “In the Criminal Justice Act 1991 (c. 53)—

( ) section 53(7)”

82: Schedule 5, page 61, line 2, at end insert “;

( ) section 86A(4) (offences in respect of which prisoner custody officers have powers in relation to persons other than prisoners).”

83: Schedule 5, page 61, line 4, leave out “section 2(1)(g)” and insert “subsections (1)(g) and (3)(k) of section 2”

84: Schedule 5, page 61, line 8, at end insert—

“ Section 9A(4) of the Criminal Justice and Public Order Act 1994 (c. 33) (offences in respect of which custody officers at contracted out secure training centres have powers in relation to persons other than those detained in the centre).”

85: Schedule 5, page 61, line 29, at end insert—

“ Paragraph 8 of the Schedule to the Sexual Offences (Protected Material) Act 1997 (c. 39) (sexual offences for the purposes of that Act).”

86: Schedule 5, page 62, line 1, leave out “61(5)(b)” and insert “62(1)(b)”

87: Schedule 5, page 62, line 12, leave out paragraph (e)

88: Schedule 5, page 62, line 29, at end insert—

“ Section 76(3)(p) of the Serious Organised Crime and Police Act 2005 (c. 15) (offences giving rise to financial reporting order).”

On Question, amendments agreed to.

89: Schedule 5, page 62, line 31, at end insert—

“Misuse of Drugs Act 1971 (c. 38)41A In section 19 of the Misuse of Drugs Act 1971 for “such an offence” substitute “an offence under any other provision of this Act”.”

The noble Baroness said: My Lords, I am sure that the House will be pleased to know that this is our last group of amendments. In moving Amendment No. 89, I shall speak also to Amendments Nos. 90 to 93, 130 to 132 and 137. They are minor and consequential amendments to Part 2 of Schedule 5, which contains minor amendments to existing legislation consequential on the abolition by Clause 54 of the Bill of the common-law offence of incitement to commit another offence. The amendments make further changes to existing legislation for the same reason.

Amendment No. 89 makes a minor amendment to Section 19 of the Misuse of Drugs Act 1971 to clarify the meaning of “such an offence” in that provision. The amendment replaces “such an offence” with,

“an offence under any other provision of this Act”—

that is, the Misuse of Drugs Act—and does not change the law. This amendment will simply help to clarify what is meant by Section 19 of that Act, and it follows the interpretation of this section by the courts.

Amendment No. 90, coupled with Amendment No. 130, repeals certain sections of the Magistrates’ Courts Act 1980 in relation to penalties and mode of trial for summary and either-way offences. Section 32(1)(b) of that Act provides that on summary conviction for inciting an offence that would be triable either way, a person cannot be liable to a penalty greater than he would be liable to on summary conviction. Under the mode of trial provisions set out in Clause 50, it will not be possible to try someone summarily for assisting and encouraging an offence which is triable either way, so this subsection needs to be repealed. Section 45 of the Act provides that inciting a summary offence should be triable summarily. Paragraph 35 of Schedule 1 provides that the offence of inciting an either-way offence should be triable either way. Those provisions are repealed, as the mode of trial for the new offences will follow Clause 50.

Amendments Nos. 92 and 132 are technical measures to repeal references in the Public Order Act 1986 to Section 45 of the Magistrates’ Courts Act 1980. Amendment No. 91, coupled with Amendment No. 131, repeals Article 60(1) of the Magistrates’ Courts (Northern Ireland) Order 1981. These make similar amendments to those to the Magistrates’ Courts Act in respect of Northern Ireland, as the Magistrates’ Courts Act applies only to England and Wales.

Amendment No. 93 ensures that the reference to incitement in paragraph 10 of Schedule 2 to the Proceeds of Crime Act 2002—incitement to commit a criminal lifestyle offence—is to be read only as a reference to the offence under Clause 39; that is, intentionally assisting or encouraging an offence. That is because the consequences of being found guilty of a “lifestyle” offence under POCA are very significant; for example, a confiscation order is applicable. We therefore think it is appropriate only where a person has intentionally encouraged one of those offences.

I hope that it will give noble Lords considerable pleasure when I beg to move this amendment, confident as I am that, thereafter, we will all be able to go home.

On Question, amendment agreed to.

90: Schedule 5, page 62, line 34, at end insert—

“Magistrates’ Courts Act 1980 (c. 43)(1) The Magistrates’ Courts Act 1980 is amended as follows.

(2) In section 32(1) (penalties for offences triable either way as a result of Schedule 1 to that Act) omit paragraph (b).

(3) Omit section 45.

(4) In Schedule 1 (offences triable either way) omit paragraph 35.”

91: Schedule 5, page 62, line 34, at end insert—

“Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))Omit Article 60(1) of the Magistrates’ Courts (Northern Ireland) Order 1981.”

92: Schedule 5, page 62, line 38, at end insert—

“Public Order Act 1986 (c. 64)(1) The Public Order Act 1986 is amended as follows.

(2) In each of the provisions mentioned in sub-paragraph (3) omit the words from “notwithstanding” to the end.

(3) The provisions are—

(a) section 12(10);(b) section 13(13);(c) section 14(10);(d) section 14B(7).”

93: Schedule 5, page 63, line 15, at end insert—

“Proceeds of Crime Act 2002 (c. 29)After sub-paragraph (1) in each of paragraph 10 of Schedule 2 to the Proceeds of Crime Act 2002 and paragraph 10 of Schedule 5 to that Act (inchoate offences which are lifestyle offences) insert the following sub-paragraph—

“(1A) An offence under section 39 of the Serious Crime Act 2007 of doing an act capable of encouraging or assisting the commission of an offence specified in this Schedule.””

On Question, amendments agreed to.

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.