Mr.
Grieve: I listened carefully to the hon. Gentleman.
Although I understand what he is doing with the first amendment, I am
not sure that I agree with him. I wait with interest to hear what the
Solicitor-General will have to say, because it seems to me that the
nature of the obtaining of a service requires a “dishonest
act” to obtain it. Using that expression rather than the word
“dishonestly” might well be a correct piece of drafting
and does not in any way imply that dishonesty does not have to be
proved. I shall wait to hear what the Solicitor-General has to say.
As
regards the second amendment, again I shall wait with interest to hear
what the Solicitor-General has to say, but as the service is the thing
being obtained it strikes me that if someone is perching out of their
window watching a cricket match that they are not paying for, they are
not obtaining a service, which is the entry into the ground to watch
the cricket or football match.
Mr.
Heath: That is precisely the point. Is the service entry
to the ground or watching the match, event, spectacle or whatever? I am
not sure that we are as clear cut in that distinction as we would like
to be.
Mr.
Grieve: And the hon. Gentleman was right to raise it.
Applying some common sense to subsection (2), I think that the service
must be the right to enter a particular area in order to watch the
game. If in fact one can watch the game from somewhere where one does
not have to pay for the service, that is tough on the service provider.
I certainly do not think that the Government intend to criminalise
people who look off their balconies, nor do I think that that the
subsection does so. His argument is ingenious, but I do not think that
it would carry much weight with the court.
Jeremy
Wright (Rugby and Kenilworth) (Con): Does my hon. Friend
agree that there might be another potential difficulty that perhaps the
hon. Member for Somerton and Frome has not considered? One of the
issues that the Government considered in relation to clause 11 was the
problem of those who watch television through cable or other
connections that are supplied through fraudulent means. The difficulty
with the clause, if it were to be drafted as the hon. Gentleman wishes,
would be that those who watch sporting performances on television might
be caught by his redrafted clause. I am sure that he would not want
that.
Mr.
Grieve: My hon. Friend raises an interesting
point—perhaps another conundrum for the Solicitor-General to
answer—and it seems to me that his argument has some
force. I shall wait
to hear from the Solicitor-General, but on both matters I think that
the hon. Member for Somerton and Frome, with whom I often agree, is for
once probably worrying about nothing.
The
Solicitor-General: I shall begin with amendment No. 13,
and reassure those who want to watch the rugby from Great Pulteney
street that they should be able to continue to do so. Not only that,
the crowds who sometimes watch the cricket from windows and rooftops
around the Oval are not intended to be caught by the
clause. The
test is the one in the Ghosh case in 1982 that I mentioned earlier. It
is a two-stage test that is well known. The first part is whether the
defendant’s behaviour would be regarded as dishonest by the
ordinary standards of reasonable and honest people. If it would, the
second part is whether the defendant was aware that his conduct was
dishonest and would be regarded as such by reasonable and honest
people. When we apply those tests, we can distinguish the sorts of
circumstances that hon. Members are concerned about.
I reassure those who watch a
game by luck and opportunity that they should not be in a position
where reasonable and honest people would regard them as acting
dishonestly. That test enables reassurance to be given in the
particular circumstances that concern hon. Members with regard to
amendment No.
13. Amendment No. 12
would alter clause 11(1)(a), which requires that for the offence to be
made out a “dishonest act” is required. The hon. Member
for Beaconsfield has set out my case very well. Just to assist him in
that, I shall quote the Law Commission’s 2002 report, which
stated: “It
should not be possible to commit the offence by omission alone. This
offence would not, for example, be committed by a person who innocently
happened to be on a boat and, despite hearing an announcement that
anyone who had not paid for the next trip should disembark, remained on
the boat and thus received a free ride”.
The Government agree with the
view that there should be an act and that it should be explicit that
there is an act. We do not want to criminalise the obtaining of
services by omission, as that risks leaving citizens too much at the
mercy of unscrupulous service providers, who provide unrequested
services, for example through the internet or by telephone.
While the dishonesty requirement
should provide protection from prosecution for the innocent, we also
wish to avoid a situation in which unscrupulous service providers might
feel able to pressurise anyone who had obtained services that they had
not requested. Indeed the formulation of clause 11 may discourage those
service providers from making unwanted services available in the first
place. In our consultations in 2004, clause 11 was widely welcomed and
no problems were raised on this aspect of it. I hope that, given those
reassurances, the hon. Gentleman will feel able to withdraw the
amendment.
Mr.
Heath: I am most grateful to the Solicitor-General. That
was what I hoped to hear, and it will be of great reassurance to the
hon. Member for Broxbourne (Mr. Walker), who raised the issue of
watching sporting events on Second Reading. I am sure that he will be
satisfied with the response, and on the basis of what the
Solicitor-General has said, which is entirely what I expected him to
say, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Mr.
Grieve: I beg to move amendment No. 6, in clause 11, page
5, line 7, leave out ‘5’ and insert
‘10’. The
amendment simply deals with the penalty for the offence. I am mindful
of the fact that the existing penalty for the offence under the Theft
Act is five years’ imprisonment and that that has been
translated as a maximum into this new offence. My reason for tabling
the amendment was simply to discuss whether, in the light of current
circumstances, we might consider raising the maximum limit. We know
that the obtaining of services by deception or dishonestly, as the new
offence will be described, can run to many hundreds of thousands of
pounds in some cases. Admittedly, it may sometimes be that the service
provider is foolish, but there have been instances when the fraud has
been of considerable scope. Some operate a system over time that
deceives large numbers of people in a number of ways, and as a result
they receive a multiplicity of services and can live a life of ease and
luxury—until they are caught—but it is those who supply
the services who are the losers, because those who received them are
often unable to
pay.
5
pm The question
arises in my mind whether five years’ imprisonment in such
circumstances will always be sufficient. That is particularly so given
that we are living in an era when the perpetration of fraud of various
sorts is so much more sophisticated. One could put another figure on
it—perhaps seven years—but I ask the Committee to
consider that, because five years is what appeared in the Theft Act
1968, it does not necessarily have to remain at five years.
As I reread the Theft Act prior
to the Committee stage, I realised how deliciously dated certain
aspects of it seem. Indeed, we touched on that when talking about going
equipped to cheat; and obtaining of services by deception has the
slight ring of a person coming along and, in rather a small way,
obtaining some service and being unable to pay for it. The classic
example is of a person going into a restaurant, ordering a meal and
then being unable to pay for it—and never having had the
intention of doing so. We are not dealing with such problems here. In
financial terms, they will often be substantial offences. Against that, I am mindful that
it may not be the only chargeable offence. In certain circumstances,
especially if a great deal of money is involved, other fraud may be
involved that could lead to a charge under clause 2. However, I would
like the Solicitor-General to consider why we should make that
distinction in such circumstances, and whether it is time to raise the
maximum penalty. In the vast majority of cases, a penalty of more than
five years imprisonment may not be required, but it would be a pity if
prosecutors found themselves facing the fact that the easy and sensible
offence to charge attracted a penalty that they considered insufficient
to meet the gravity of the case.
Jeremy
Wright: I welcome you, Mr. Jones, to the Chair. I too
should declare an interest—perhaps I should have done so earlier
today—as a non-practising barrister, but not in such an
illustrious capacity as my hon. Friend the Member for Torridge and West
Devon (Mr. Cox). I
support the amendment. The Solicitor-General knows that I raised the
matter on Second Reading, and it is worth the Committee considering it.
As my hon. Friend the Member for Beaconsfield said, it would equalise
the position between the fraudulent obtaining of services and the
fraudulent obtaining of property or money. When we as legislators
consider maximum sentences, we should consider two things. The first is
the level of criminality and the second is the value of what has been
obtained. It seems
perfectly conceivable that the level of ingenuity used by the criminal
to fraudulently obtain the provision of services may be just as
intricate and well developed as that needed to obtain property or
money. I therefore see no logical reason for drawing a distinction in
the maximum sentences.
The second question is the
value of what has been obtained. As my hon. Friend the Member for
Beaconsfield said, other parts of the Bill recognise the fact that the
world has moved on, as has the British economy. For example, it
recognises that it ought to be possible to commit an offence in which a
machine is deceived, although that takes away the concept of deception;
it recognises that today’s economy is different to that of 1968
or 1978. However, it should also recognise that the economy has moved
on, in the sense that it is predominantly a service economy, or at
least more so than ever it was.
We should not
just examine professional and financial services, although they are
valuable and if they are obtained by deception or fraudulently a
service of great value could have been gained. We should also consider
the worlds of sport and entertainment. The hon. Member for Somerton and
Frome talked about what may be obtained by somebody who watches a
sporting performance. How about what may be obtained by someone who
gains the services of a footballer or pop star by some form of fraud?
The value of such services could be very high indeed.
To take topical examples, if a
small football club were fraudulently to obtain the services of David
Beckham or Wayne Rooney, the value of those services—metatarsals
allowing—would be extremely high, higher than if that club had
by some form of fraud managed to obtain Wayne Rooney’s car or
house. When we consider the situation in the modern British economy,
which is substantially a service economy, it would be wrong not to
accept that a criminal with the same degree of ingenuity as one
carrying out another type of fraud, obtaining services of the same
value, also merits a sentence of 10 years’
imprisonment. Of
course, not every example of obtaining services dishonestly would merit
a sentence of 10 years, and it may be that my examples are somewhat
extreme, but surely maximum sentences are designed to cater for extreme
examples. The Committee should consider making sentences equal for
criminal acts of equal
value.
Mr.
Heath: One is rather loth to enter the great debate about
sentencing at the moment, given the extreme views that have been taken
on all sides of the matter by various people in the past few days.
However, we would all like to see a degree of consistency. I have
argued for a long time personally and on behalf of my party that the
basis on which sentences are made should be quite different and that
there should be more openness and honesty about the intention of the
sentencer. That is a commonly held view, and I do not know why it is
not done. Offences
under clauses 1, 2, 3, 4, 7 and 9 carry a ten-year maximum sentence,
whereas the offence under clause 6 and the one that we are currently
considering under clause 11 carry a five-year maximum. The hon. Member
for Rugby and Kenilworth (Jeremy Wright) was right to say that we
should consider carefully the degree of criminality. If one were to
take that to its absolute, one would have to say that there is no
difference in the level of criminality of an offence under clause 6
from the other offences, only in the opportunity to put it into effect.
There is a time difference between going equipped and committing an
offence. A person may never actually commit the offence, which I
presume is why it carries a lower penalty. We are satisfied that the
five-year maximum is appropriate in clause
6. On clause 11, I
hear what the hon. Gentleman says about the value of services
dishonestly obtained, but I have some difficulty in thinking of
circumstances in which the clause would cover high-value services. The
opportunity to ask Mr. Rooney to play for the local football team with
the intent of not paying him at the end of his contract is unlikely and
the idea that he would do so for very long is rather a far-fetched
example and may involve other actionable offences such as breach of
contract or misrepresentation. We need a degree of proportionality on
the matter. I am open to the suggestion that a higher maximum sentence
is required, but I would be much happier with it if I were satisfied
that sentencing policy was in a fit state to accommodate maximum
sentencing at different levels, that judges were given the proper
discretion to do their job effectively and that there was a clarity and
honesty in sentencing that is not there
presently. In
general, some balance is appropriate between this Bill’s
provisions and those dealing with analogous offences
under the Theft Act. To what degree has the Solicitor-General made that
assessment? Is this simply a read-across, or has he formed the view
that the offences set out in clause 11 are consonant with similar
offences under the Theft Act and will carry the same and appropriate
penalties? If that assessment has not been made, it should be made at
the earliest
opportunity. | 
