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Mr. Tim Smith: At about the same time as my hon. Friend the Member for Ryedale (Mr. Greenway) was Detective Constable Greenway operating out of Savile Row police station, I was a young law student studying what Oxford university pompously calls jurisprudence, and I have a vestigial memory of some of the basics of criminal law. One of the things that we learned was that normally the criminal offence consists of two parts: a guilty act and a guilty mind. My hon. Friend has made the point that this is an absolute offence: there is no mens rea. It means, in effect, that the burden of proof shifts from the prosecution to the defence. That is why the defences in the clause and in section 139 of the Criminal Justice Act 1988 are so important.
If all that one has to prove is that someone was carrying an offensive weapon, it is not reasonable that the only penalty that could be imposed on such a person is a prison sentence. At present if someone is convicted of an offence under section 139 of the 1988 Act, the court cannot impose a prison sentence; only a fine can be imposed. Clause 3 of the Bill increases the penalties.
I support what my hon. Friend the Member for Sutton and Cheam (Lady Olga Maitland) is doing. She is saying that Parliament believes that the position is now sufficiently serious that in certain circumstances the courts should have available to them the possible imposition of a prison sentence, but the Bill makes it clear that, until it becomes an Act of Parliament and is brought into effect, the only penalty that can be imposed is a fine.
My hon. Friend the Member for Beckenham (Mr. Merchant) wants us somehow to distinguish school premises from public places generally. I understand why he says that. We all know of the recent horrific cases on school premises and of criminal offences close to school premises involving school teachers. We all share his deep concern about that, but we cannot therefore conclude that in the case of school premises the possibility of a fine should be ruled out altogether.
In those circumstances, taking into account the fact that only a prison sentence is available, not only juries, but perhaps magistrates might be reluctant to convict in certain circumstances. I agree with my hon. Friend the Member for Ryedale that it would be wrong to remove from the courts the discretion to decide what should be the appropriate penalty in any case.
Mr. Bill Walker:
I welcome the opportunity to speak on this subject. Earlier, I mentioned the wearing of the skean-dhu. I was reminded by the hon. Member for
I was to be joined at the United States Democratic convention in San Francisco by my wife and daughters. Before they boarded the aircraft at Heathrow airport, they were advised by the chap who was looking after them that Bill had been arrested in San Francisco because he was wearing a knife. The Democrats got themselves in an awful mess. Eventually, I met the head of the secret service, who was in charge of security. Being a sensible fellow, he said to me, "You and I had better come to an agreement and an understanding. You can come in the morning wearing your knife. They'll tannoy for me and I'll come. You will hand over your skean-dhu to me publicly so that everyone can see and then we'll go off for a cup of coffee and I will give you it back."
My arrest hit the headlines in the United Kingdom. I followed that with a visit to the Republican convention--this is important because this is where discretion comes in. The Republicans were determined that I was not going to be arrested at their convention, so they advised everyone at the convention that this chap wearing the kilt and the knife in his stocking was to be treated with kid gloves--British Member of Parliament and all that. Unfortunately, they forgot to tell the Dallas police. In Dallas, people can wear as many guns as they like, but they are not allowed to wear knives in public and I was arrested by the Dallas police on my way into the convention centre. They called up on their radio telephone and said, "We've got this guy," and all the rest of it. Eventually, it got through to the head of the police. He came on the radio to the car and said, "Look. We had better handle this with great care. This guy is a British Member of Parliament." So they photographed me dressed in my finery with my knife in my stocking and dropped the arrest charges. This is the discretion part. They realised that, although it contravened the law in that part of Texas, they had someone wearing his national dress. They took a photograph of me and distributed it to every policeman in Dallas to make sure that I was not arrested again. It is that sort of discretion that the courts need as innocent individuals could otherwise be caught by the Bill.
Mr. Michael:
Is the hon. Gentleman sure that his photograph was distributed for the purpose he suggested? It is more usual for photographs of individuals to be distributed widely within a police force for a rather different purpose.
Mr. Walker:
It might have been because I am such a good looking fellow and the police thought that all the ladies of Dallas should know that I was visiting--like pop stars and other people of substance. It probably had nothing to do with the fact that I was wearing my kilt, with a skean-dhu in my stocking. The hon. Gentleman's intervention was interesting. So far as I am aware, no one has ever found any reason, other than the wearing of my skean-dhu, to distribute my photograph. If he has evidence to the contrary, I would be delighted to hear of it. We could then discuss what a suitable penalty would be.
Lady Olga Maitland:
The remarks of my hon. Friends in response to the amendment moved by my hon. Friend the Member for Beckenham (Mr. Merchant) have been of
I understand that in 1994 fines were imposed on almost three quarters of offenders sentenced in magistrates courts, covering a very wide range of offences and involving about 1 million people. Six months' imprisonment and/or a £5,000 fine are the normal maximum penalties for trial in a magistrates court. The courts must have the power to deal with the whole range of serious incidents that may occur under the proposed offence of carrying an offensive weapon or knife on school premises. Some examples of that offence will be so serious that gaol must be the penalty--there is no doubt about that. That will be especially true where it is clear that the defendant went out intending to stab a victim viciously, not caring whether it caused injury or death.
Nevertheless, there will be offences where there are strong mitigating factors, such as those described by my hon. Friends, which must be regarded as being at the lowest level of seriousness. Indeed, there could be considerable misunderstandings. In those circumstances, it would be wrong to imprison the offender as such a penalty would be quite disproportionate. Without the power to impose a fine, magistrates would often feel obliged to impose very short terms of imprisonment, which could be far less effective than a fine for some offenders, as a fine would hit their pockets very hard. Many of them could not give a hoot about spending a few days in gaol. However, if they do not have very much money and what they do have is regularly docked so that they no longer have beer money, they might think twice.
Mr. Tim Smith:
Does my hon. Friend know whether there are any precedents for what is being proposed in the amendment? Are there any criminal offences for which magistrates can only send people to prison and cannot fine them?
Lady Olga Maitland:
I am not aware of any. I understand that it is not the practice of this country to shackle magistrates or justices in that way.
The amendments are somewhat spurious. It should be remembered that there is a power to override gaol sentences under section 31(1) of the Criminal Law Act 1977. That gives Crown courts the power to impose fines, of any amount, regardless of any restrictions imposed in specific pieces of legislation. It is also important to remember that providing for a fine in legislation can actually increase the severity of the penalties available. A long gaol sentence together with a fine is obviously more severe than just a prison sentence. Furthermore, it is arguably the case that a large fine may be taken more seriously by the offender than a short prison sentence, depending on the circumstances of the case. I therefore support my hon. Friends' call for the amendment to be withdrawn.
Mr. Kirkhope:
I agree with the arguments deployed by my hon. Friend the Member for Sutton and Cheam and others of my hon. Friends, in particular my hon. Friends the Members for Ryedale and for Beaconsfield. We all want strong measures to be taken against knife carriers, but to remove the option to impose a fine or to impose a
Mr. Merchant:
I hope that I have at least given the House an opportunity to examine, in a little more detail, the nature of the punishment that should fit the crime. My hon. Friend the Member for Ryedale felt that it would be inappropriate to have only a prison sentence. Perhaps I take a tougher line on crime than he does. I strongly believe that prison is a tough deterrent--in most cases, the ultimate deterrent--and I am not entirely convinced by the argument that a fine, however unwelcome, can be a tougher way of dealing with offenders.
My hon. Friend the Member for Beaconsfield (Mr. Smith) referred to mens rea. Given the clarity of the offence and the wide knowledge of the existence of this legislation when enacted, as I hope it will be shortly, people--especially youngsters--will know full well that they are committing an offence if they carry a weapon as described. Therefore, it could quite easily be said that if someone is carrying such a weapon, he has a guilty mind as well as carrying out a guilty act. I doubt whether there will be many instances of someone saying, "I had no idea and no intention of breaking the law by carrying this weapon." Hon. Members should remember that we are talking about the carrying of the weapon; we are not referring to any intention that it may be used, which in itself would constitute a separate offence.
I feel strongly that the carrying of knives on school premises is a very serious matter. It happens a great deal more in some areas than hon. Members may be aware. It is therefore incumbent upon us to take a tough line so that we can avoid some of the disasters that have occurred and might occur again.
I make no apology for moving my amendment or for wanting a debate to draw attention to the risks posed by people carrying knives. The House needs to ensure that tough action is taken against such offences. Having said that, I accept that I am once again cast in the role of a minority. Having drawn attention to my point, and its having had a good debate, I hope that at least some of my motives for introducing it will be taken on board.
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