§ 3.58 p.m.
§ Report stage resumed.
§ Amendment moved—
§
Page 54, line 19, column 4, at end insert—
("or
(c) for any purpose for which it is so unsuitable as to cause or to be likely to cause danger;
£400 in the case of an offence of carrying on a goods vehicle a load which, by reason of its insecurity or position, is likely to cause danger.")—(Lord Janner.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 60, line 12, column 4, leave out ("£200") and insert ("3 months or £200 or both").—(Lord Janner.)
§ BARONESS MACLEOD OF BORVEMy Lords, I should like to support this particular Amendment, No. 40, rather than either No. 41 or No. 42. From what the noble and learned Lord on the Woolsack and my noble friend the Minister have said, it is generally recognised that magistrates do not imprison offenders for any offence unless from their experience there is no alternative. Also, I hope it is recognised that the vast numbers of motoring offences which are dealt with in the magistrates' courts make the members of the bench more experienced than, with the greatest respect, some learned judges in higher courts. The Amendment which I wish to speak to, No. 40, deals with reckless and dangerous driving generally, driving or attempting to drive when unfit through drink or drugs, and driving or attempting to drive with blood alcohol above a prescribed limit. My noble friend, the Minister, gave us some figures during the Second Reading speech which I believe prove that the power of imprisonment is necessary for the magistrates' courts.
§ THE LORD CHANCELLORMy Lords, I think we may be in a bit of a muddle and it may be my fault. Amendment No. 40 is about driving uninsured. I think the noble Baroness is speaking on No. 41 at the moment, because she is 560 talking about alcohol, and I am wondering where we have got to.
§ BARONESS PHILLIPSMy Lords, the noble and learned Lord has called No. 40, but if it would assist the House I beg to withdraw it.
On Question, Amendment by leave, withdrawn.
§ 4.2 p.m.
§ BARONESS PHILLIPSMy Lords, I beg to move Amendment No. 41.
§
Amendment moved—
Page 64, line 20, at end insert ("or 4 months or both".").—(Baroness Phillips.)
§ BARONESS MACLEOD OF BORVEMy Lords, I am sorry. I am most grateful to the noble and learned Lord. As I was saying, my noble friend the Minister said that there were 8,439 findings of guilt for dangerous and reckless driving, of which only 113 offenders received immediate prison sentences and 131 received prison sentences which were suspended. In my submission, those figures surely show not only the tolerance of magistrates but also that there are people in our society whose conduct warrants imprisonment. The Minister said, in my view quite rightly, that imprisonment is not likely to improve a person's driving, but if that person has received a two or three months prison sentence which had been suspended for two or three years, that person is not likely to offend again within that period. I am quite certain that a suspended prison sentence is the best form of deterrent.
The Minister hinted that he might consider a non-custodial sentence. With the greatest respect, I suggest that a defendant who has perhaps three findings of guilt, one for careless driving, another for care less driving and a third for driving in a manner dangerous, is not going to be deterred from driving badly again by having to paint a senior citizen's sitting-room. May I take the hypothetical case of Mr. X, who has been found guilty of dangerous and reckless driving. Because of his past record, the magistrates think that a two months prison sentence suspended for two years is the best way to deal with him. If the Government do not allow this Amendment, he can only be fined and disqualified from driving. He could not go to a detention centre or an attendance centre. But if the magistrates feel that a suspended sentence is 561 correct, they will send him to the Crown Court for trial, where the learned judge will probably give him exactly the same sentence, two months imprisonment suspended for two years, thus wasting everybody's time and certainly the Crown Court's time.
There are two other aspects to which I should like to draw your Lordships' attention. The first is that I think it should still be a person's right to be judged by a judge and jury if he so wishes. This would vanish if the Government's proposals are accepted. The second point is that, as my noble friend said, the case can go on indictment to the Crown Court but only the instructing solicitor for the prosecution can decide that without the magistrates having heard the case or the defendant having the right of choice. When we realise that magistrates can send an offender to prison for such comparatively trivial offences as keeping an unlicensed pet shop, three months; drunk and disorderly, one month; breach of regulations as to labelling pre-packaged food, three months; allowing a child or young person to beg, such as on Guy Fawkes' night, three months; and unlicensed peddling, one month, it would, I suggest, be seen to be weak if the magistrates' courts were no longer able to imprison for the far more serious offences that we are discussing to-day. The magistrates in this country, through our Association, would not be asking for these Amendments to this Bill without very careful consideration indeed. As one of those magistrates, I support these Amendments.
§ LORD GARDINERMy Lords, I venture to support what the noble Baroness, Lady Macleod of Borve, has said. I strongly support the right honourable gentleman the Home Secretary in his view that people ought not to be sent to prison unless they are a danger to the community. I am of the opinion that, on the whole, too many people are sent to prison rather than too few. Therefore, I welcome the removal of the magistrates' powers of sending people to prison for minor traffic offences. I am concerned solely with the first Amendment, driving uninsured, and this Amendment, drunken driving. I am bound to say that I do not regard such people as not being a danger to the community. It is on this 562 question that a great deal of the difference of opinion has arisen. The noble Viscount, at the Second Reading of the Bill, said that if we cannot do this in the field of motoring cases, where can we do it? This is obviously to suggest that all motoring cases are relatively trivial offences. They are offences which the noble and learned Lord the Lord Chancellor a few minutes ago referred to as relatively minor cases.
VISCOUNT COLVILLE OF CULROSSMy Lords, this is a misapprehension that I must dispel. I may have put it badly, but I was intending to say that where you are dealing with very short terms of imprisonment imposed by the magistrates, this seemed to me to be a good area in which to start. I agree that where there is a very bad case which is taken on indictment to the Crown Court, it is absolutely correct that there should be a term of imprisonment and, if necessary, quite a long one.
§ LORD GARDINERMy Lords, I agree with what is proposed so far as minor and trivial, and indeed most, motoring cases are concerned. What we are concerned with here is drunken driving. Nobody has answered one of the questions put in the letter to The Tines of November 23 from the Chairman of the Magistrates' Association and the President of the Justices' Clerks' Society, when they said:
We have repeatedly asked, without any answer, what magistrates' courts could do with the occasional road traffic offender who has heavy unpaid fines and no job or prospect of paying, but who may now be fined up to £400 instead of up to £100!It is a real and practical question for them. In relation to nearly all motoring offences, I think that the proper answer is that this is not a case for imprisonment in any case; it is just too bad and there it is. But I cannot think that that should apply to drunken driving, The noble and learned Lord the Lord Chancellor said that this has nothing to do with the James Committee.
§ THE LORD CHANCELLORMy Lords, the noble and learned Lord has got it entirely wrong. The noble Baroness, Lady Birk, was talking about the previous Amendment when I said that. The previous Amendment had only to do with a plainly summary offence which could not, in any circumstances, come 563 before the Crown Court. I told her because it was true, and she accepted it because it was true, that that had nothing to do with the James Committee.
§ LORD GARDINERMy Lords, I am obliged; it was my misapprehension. I thought that the noble and learned Lord was talking about the James Committee in general. So far as the right to trial by jury is being removed, this is the very essence of what the James Committee was considering. I do not know that I necessarily agree with the Magistrates' Association and the Justices' Clerks' Society when they say:
The James Committee on the redistribution of criminal business between the Crown Court and the magistrates' courts is concerned with important issues, and our organisations consider it inappropriate and wrong that this attempt should be made to forestall its conclusions.I am not prepared to say I think that in all cases it is necessarily wrong to change the law merely because it forms part of the remit of a Committee which is sitting. But this is the view which has been very much pressed by the present Government, particularly in this field.The House will remember that in the Criminal Justice Act the Government—.and we applauded them for it—introduced a provision, which is now part of our law, that no criminal, however bad his record, however awful his offence, is to be sent to prison for the first time unless he has an opportunity of being represented. When I pointed out why we welcomed that provision it obviously remained quite inconsistent that thousands of people a year should be sent to prison for the first time, untried, unconvicted, because they had been refused bail.
The noble Viscount made no logical attempt, and naturally could not, to meet that argument, except that he said, "Oh, but the Home Office has appointed a Working Party on that, and once you have appointed any sort of a committee nothing ought to be done to change the law until it has reported". The House may remember that that is the working party of Home Office people which, although the effect of refusing bail to a woman with small children is quite different from that of a man, has typically, no women upon it. We were told that nothing can be done in this field until 564 this working party has reported. We have seen in the current statistics how many people now are sent to prison straight away, untried, unconvicted—some of them of course completely innocent—without being represented at all and where we still have no legal aid surveillance. All that was done in the sacred name that once you have appointed some sort of committee—it need not be a Royal Commission; it need not be a committee of the status of the James Committee, but merely a departmental committee—you cannot possibly change the law until it has reported. If that is right, and if that is the Government's view, then I think it cannot be right that in this field they should be seeking to jump the gun in relation to the James Committee.
LORD JANNERMy Lords, it is getting very late, and I shall not repeat any of the arguments which I tried to persuade your Lordships to accept before. But I feel strongly that in respect of this particular sort of crime there can be no question as to whether the magistrates' court should be entitled to imprison. It is all very well saying that it may carry very heavy penalties, but the magistrates' courts themselves have not inflicted very heavy penalties, and the two or three months' sentence is something which might be very appropriate in some cases. Why on earth do we not accept the fact that we have, I do not know how many thousand magistrates in this country—over 19,000—who on many days of the week are spending time in order to help the country and to deal with cases brought before them? They are dedicated persons who are not going to step wrong, and have not stepped wrong. This fact, I think, with the greatest respect to the noble and learned Lord the Lord Chancellor, is itself the particular argument which should induce your Lordships to accept the idea that a magistrate should be allowed to continue to have this power of imprisonment. Again, remembering the fact that this Bill will now deprive the magistrates of power to make any of the other orders—detention orders, attendance orders, and all the rest—it is absurd because they will have no deterrent to put to the persons who have committed the offences: all they can do is to fine them. The results of some of these deterrent orders, 565 such as detention orders and so on, show that they have proved effective in the hands of the magistrates, because crime has been reduced by that type of deterrent.
Of course, we have not today used an argument which I am sure will be used at a later stage in another place and which has been used before; that is, the argument about depriving a defendant of his right to go to trial by jury if he so wishes. I am not going to go into that again today, but the fact is that that is a very important argument; and in respect of these particular crimes, as the noble Baroness has pointed out, I feel that the magistrates should have the possibility, not only of imposing imprisonment but of using the other remedies that they have in their hands at the present time, because without the power of imprisonment they cannot use them.
§ BARONESS PHILLIPSMy Lords, I shall not weary the House by delaying the debate. I have not spoken in any of these discussions so far, but I feel I must thank the noble Viscount, Lord Colville, for the obvious trouble he has taken in fulfilling a promise that he would look at the question of the non-custodial orders—and that I appreciate. I did not accept his arguments, but that does not relieve me of the necessity to thank him for doing this. In addition to the arguments put so eloquently by noble Lords in various parts of the House, I would rest my case on a belief in the deterrent effect of quick punishment. I think the Crown Courts may very often delay matters so long because of the backlog of business that by the time the case finally comes up the whole incident is taken in a completely different context. I see the noble Baroness making some shrugging movement, so perhaps there is some point she wishes to make. I also feel that we have not had an answer to the question about what we (and by "we" I mean magistrates) are to do with the drunken driver or the dangerous driver who already has an unpaid fine and has no job. I think that during the passage of the Bill I asked for the figure of those fines which were unpaid, because I recollect that on one occasion when I heard both that figure and the number of people who had failed to pay their bond when called 566 upon to do so it was really rather frightening. It seemed to suggest that in some cases this was a purely academic exercise.
My Lords, I am not convinced by the arguments which have been put forward with such eloquence, but I should not like to go down in history as one of the "beat 'em and flog 'em" brigade. The magistrates want these powers, and however it is explained away by Her Majesty's Government, whether in the person of the noble and learned Lord who sits on the Woolsack or in the person of the noble Viscount, I am afraid that it will appear both to the magistrates and to people outside that certain powers have been taken away. I can well recollect, when there had been a change of punishment in the schools, how quickly it got around. I have seen children say to a teacher, "There is nothing you can do to me". I strongly suspect that it will very quickly get around that there has been a change in this case, and that there will be a certain change in approach. My Lords, I am not at all happy about this. I recognise that the arguments which have been deployed are very eloquent, but I still feel that those which have been put forward by the magistrates have not been fully dealt with.
§ THE LORD CHANCELLORMy Lords, I know it is getting late but may I endeavour to clarify the issues here? First of all, let us look at the situation which will obtain if the Amendment is not passed and the situation which will obtain if the Amendment is passed. We are dealing with a variety of offences for which, broadly speaking, the penalty on conviction is, as the Bill stands, obligatory disqualification for more or less time, but probably 12 months. That is the first point to make, that the man, if convicted, loses his licence. If he is tried summarily, if the Bill is passed, he gets a greatly increased maximum fine and, I hope, a greatly increased actual fine. If he is tried on indictment, in addition to those possibilities he can be sent to prison, if the Bill is passed, for 12 months for the breathalyser offence, as it is inaccurately called, and I think for two years for the drunken driving offence. The difference that is made by the Bill to the existing law is simply that 567 if a man is tried summarily the magistrates have not the option to imprison for four months, and the Amendment proposes that the status quo should be restored.
What will the effect of that be? It will be, of course, that the right of trial by jury is maintained and the matter will go automatically to the Crown Court, if the defendant so elects. I seriously ask those who pretend that we are going soft on these offences to reflect on what I have just said. There will, I believe, be a greatly increased number of convictions and there will therefore, by reason of what we are proposing to do, be a large number of dangerous drivers properly taken off the road, some of whom will remain on the road if the Amendment is accepted. That is the first thing I want to say.
What does the Amendment propose to do? It proposes to give the right to magistrates on summary trial to imprison for four months. Why four months and not three? Simply in order to give trial by jury. What could be more fantastic than this? I maintain, and I should have thought that the first person to agree with me would be the noble and learned Lord sitting now below the Gangway, that the right course for Parliament, if it wanted to impose a penalty, would be to impose a penalty which the crime deserves. But to impose a higher penalty solely for the purpose of giving rise to trial by jury is to impose a penalty for some other purpose than punishment. It must be a fantastic piece of Gilbertian, Alice in Wonderland logic to try to introduce this into our criminal law; and to do it when we were abolishing it in an unusual fit of logicality is really for the noble and learned Lord to stand on his head. But now he says that we must not act because of the James Committee. I spend my time during the Committee stages of various Bills begging him from the Government Front Bench not to jump the gun of his own Law Commission, but he says that the James Commission is to be a sacrosanct organ which will preserve the status quo in its present Gilbertian form. It will preserve trial by jury to enable magistrates to impose a sentence which they would not otherwise impose except for the purpose of giving trial by jury to those who will not want to go before a jury.
568 That is the situation in which we are now, according to the logic of the noble and learned Lord. But let me clear the way about the James Committee. Before Lord Justice James was appointed to that Committee I made absolutely sure that he knew exactly what was proposed by the Government in relation to road traffic offences. I may not, of course, say what passed between us, but I think that I can legitimately say that if I had thought that as a result of anything that passed between us there would be the smallest embarrassment to Lord Justice James in what we are now proposing to do, I would have been the first to ask my noble friend to desist from what he was about. But, my Lords, that is not so, and it is not so for a very simple reason, apart from any other. Perhaps I may give a practical reason. I know of practically nobody connected with the administration of the law in relation to the breathalyser offence who really thinks that the case ought to go before a jury at all. There is a lot of mumbo-jumbo which juries are some-times asked to waste their time listening to, but the basic offence is a question of measurement only. If magistrates cannot try a simple question of measurement without a man going to trial by jury, well, my Lords, I am a Dutchman. The fact is that nobody who has any familiarity with the breathalyser offence, apart from those who have a vested interest in defending defendants for that purpose, seriously believes that the time of the Crown Court ought to be taken up with it at all, except if a serious penalty of imprisonment is likely to be imposed. In that case the prosecution ought to ensure that it goes there: and that of course is what we are proposing.
But the other, and basically logical, reason why Lord Justice James cannot be embarrassed is this. Lord Justice James is asked to decide, among other things, as a matter of principle, what cases ought to be tried by jury and what ought not. This is simply removing a maximum penalty, which has the side effect of removing the possibility in this case. If you want to give trial by jury, well, give trial by jury, but do not impose a ridiculous sentence in order to give trial by jury by a side wind.
My Lords, I only want to add this. The answer to the noble Baroness, who asked what we are to do with a man who has 569 not paid his fines and comes before the court again, is simply to send him to the Crown Court to get a proper sentence. But I beg the noble Baroness not to come to the House of Lords and say that three months is a suitable penalty for this offence. A lot of them need prison. They need up to 12 months; they need up to two years; but three months, two months or one month is ridiculous for the purpose, and magistrates do not have the power to give a suitable sentence. Send suitable cases to the Crown Court to be tried on indictment, and let them get a proper prison sentence if they deserve it, but do not fiddle about with tiny sentences