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Lord Whitty: According to the Marshalled List, the noble Lord, Lord Dixon-Smith, is to have two goes at this issue. Therefore, I am grateful that he kept the first one short. With regard to clause stand part, I understand that he is to suggest that we delete this whole provision. I can understand the logic of that, and we could have a long argument about what one can do at each age. I believe that the noble Lord, Lord Dixon-Smith, and I have been around that course once or twice when dealing with various pieces of legislation.
However, the proposal to reduce the age limit from 18 to 14 is most illogical. I could understand it if the noble Lord said that we should do nothing because possession is not an offence. But all the indications are that the largest number of people who use such sprays for graffiti are probably aged from 14 to approximately 18. One can possibly argue whether the upper age is 17 or 18 but, if the age limit were reduced to 14, that would exclude a vast number of people who commit the offence. I believe that the noble Baroness, Lady Hamwee, may be familiar with the report last year to the London Assembly on this matter. It showed that a significant proportion of such offences were carried out by people of that age.
One can argue that, should paint be needed to touch up a scooter or whatever, there are other ways of acquiring it through one's parents or other adults. However, if we are to do something in this field, it will be totally illogical to reduce the age limit to 14. If the noble Lord wants to return to that argument when we deal with the next grouping, we can go round the course again. However, we believe it is important that we recognise the problem caused by youngsters who create huge graffiti with aerosol sprays. While I do not necessarily champion all aspects of policing policy in New York, I believe that the noble Lord will know that New York has a similar provision and that it has achieved certain success as a result of it. Therefore, I very much resist this proposition.
Lord Dixon-Smith: I was interested in the Minister's opening remarks when he said that he considered a better way of dealing with this issue would be during debate on the next item on the Marshalled Listthe Question whether clause stand part.
Lord Dixon-Smith: We considered that we should argue that this clause should not stand part of the Bill because new powers in the Criminal Justice Bill will allow police to stop and search those suspected of carrying items to be used for criminal damage, which of course includes graffiti and therefore includes aerosol paint. Thus, we believe that this power is excessive in the light of that one, which would be more effective if it were applied.
I believe that catching young people with aerosol sprays with intent is likely to be far more useful than putting shopkeepers at risk and making them liable. The Minister might argue otherwise but, because the Criminal Justice Bill provides these powers, we considered this provision to be overkill as the Bill is drafted and that it would be better if the clause were not included.
Baroness Hamwee: My noble friend said when the issue of intent was mentioned, "How would one know?". I am sympathetic to the inclusion of a provision in the Bill. I am possibly influenced by the fact that a couple of years ago my honourable friendand friendthe Member for Richmond Park, introduced a Private Members' Bill to prohibit the sale of spray paint to minors.
I apologise for not giving the Minister notice of the two questions that I want to ask him on this subject. They came to my attention just before I came into the Committee. The first concerns the word "sell". I understand that in a similar section in the London Local Authorities Bill, which is currently before Parliament, the term is "supply", which is wider than "sell". It is probably the term that is normally used in consumer protection-type legislation. I suspect it may be difficult for the Minister to respond to this point now, but at least the question is on the record.
My second question concerns the phrase in the defence provisions, "all reasonable steps". Again, I am told that until fairly recently similar legislation referred to "taking all reasonable precautions" and "exercising all due diligence". I believe that that is a term in the Trade Descriptions Act. Case law has now been established on what is meant by "taking reasonable precautions" and "exercising all due diligence". The due diligence leg is believed to be important as it helps to protect shop assistants who have not had much training or support.
I hope that the Minister may be able now or at the next stage of the Bill to respond to those questions. I put the matter that way because if there is an issue about the interpretation of the words, clearly the matter should appear in Hansard rather than just in correspondence. I hope that the Minister may be able to clarify that "all reasonable steps" means setting up a system and checking that it is being observed so that in practice those who are concerned can relate to other similar but not quite the same legislation.
Earl Attlee: I strongly support my noble friend Lord Dixon-Smith. I recognise the need to do something about the problem, but I believe that Clause 56 is totally disproportionate because very few people misuse aerosol paint and if one does not use aerosol paint one can use ordinary paint. Has the Minister considered creating an offence of possessing an aerosol can in a public place without lawful reason or excuse that is similar to the current legislation for possessing an offensive weapon in a public place?
One would normally have a lawful reason or excuse for carrying a tool that is used to maintain a vehicle, but if one went to a football match with a Stanley knife in one's pocket one would be in serious trouble. If a person could prove that he was going to repair a car, he would not have a problem. Also if someone was out late at night with an aerosol can in his pocket, he would have a problem. If he was just about to paint his car with an aerosol can of the same colour as the car he could easily offer a defence. What consideration has the Minister given to creating an offence of carrying an aerosol can in a public place without lawful reason or excuse?
Lord Whitty: I note the division on the Conservative Benches: the noble Lord, Lord Dixon-Smith, wants to reduce the number of offences; the noble Earl, Lord Attlee, wants to increase them. Indeed, in a sense, the noble Earl, Lord Attlee, gave me the answer to the noble Lord, Lord Dixon-Smith, who asked: if there is already an offence of using something for criminal damage, why not just leave it at that, rather than hit the salesman? The answer to that is by reference to knives, for example, to which the noble Earl, Lord Attlee, referred, where there are restrictions on sale as well as on carrying and use.
To try to answer the noble Earl, Lord Attlee, it is not different from the problem of establishing intent, in the sense that if someone is carrying an aerosol, it is reasonable to assume in most cases that he will be using it for a lawful purpose. One would have to witness the offence of creating graffiti before establishing the intent to do so; whereas if someone is carrying an offensive weapon, especially to a football match, the balance of proof would lean very much towards establishing intent to use for criminal purposes. So the issue of lawful purpose and of intent are of more or less the same difficulty. Because of that, the point at which we can legislate beyond what is in earlier legislation is at the point of sale, as it is in relation to the sale of offensive weapons.
I shall have to write to the noble Baroness, Lady Hamwee, about the difference between sale and supply, although it is clear that supply catches a larger number of people. Simply having a range of paints available at a cycle club could lead to a charge to supply. We would not want to include such arrangements. I shall also write to her about "all reasonable steps", although my recollection is that other pieces of legislation still use those terms without great difficulty of interpretation in the courts.
There is a central issue between us: whether we legislate in this field or not. The noble Lord, Lord Dixon-Smith, would prefer not to or, if we must, reduce the age to 14; I prefer to legislate in this field. There is an argument about whether we should go as far as 18; the noble Lord hinted that he might be prepared to consider a compromise there. Without making any undertakings, I shall also consider whether 14 to 18 is precisely the optimum range. It is likely that the Government will return resisting the deletion of the clause, even if we may tweak the precise figures therein. The noble Lord will have to await the outcome of our consideration of that until Report.
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