LAW CHARGES AND COURTS OF LAW, SCOTLAND. (Hansard, 28 June 1932)

§ Mr. N. MACLEAN
I beg to move to reduce the Vote by £100.
I move this formally, in order that the Vote may be discussed.

§ Mr. BUCHANAN
I have been in the House a good number of years, and this is one of the few occasions on which I ever remember the Lord Advocate's department coming under the scrutiny of the Committee. The first point that I want to raise on this Vote is, comparatively speaking, a very minor point. We have now passed through this House a Bill in connection with hire purchase in Scotland, and it has gone to another place, but in the meantime I would ask the Lord Advocate and the Solicitor-General for Scotland if they cannot see, by administrative action, that nobody is imprisoned under the old Act. At the week-end I came across two cases of people who approached me in this matter, neither of whom would have been imprisoned, I believe, under the new Bill. In one case the woman was prepared to tell where the goods wore, and I believe that under the new Measure an adjustment would have been made. I therefore hope the Lord Advocate will see that administratively the position may be eased before the new Measure comes into force.
The second point that I want to raise is also, comparatively speaking, a minor point, and it has to do with the procedure in the Glasgow Sheriff Court. For good or ill, a number of children are charged at the Sheriff Court. A great many are taken before the ordinary City courts, but a number of children are sometimes prosecuted before the Sheriff. I had occasion a considerable time ago to act in the capacity, not of defending, but of taking some children before the Sheriff. I have no complaints about the Sheriff's conduct, but I merely want to raise a minor point that I feel could be adjusted. The week before I had appeared in the same court, and at that court there were High Court cases being tried, including people charged with murder. I thought 1759 it rather ghastly that children of tender years, round about 10 and 11, should be charged in the same court, before the same Sheriff, who was in the same clothes. I thought it bad from another aspect, that you were making these children what we call in the West of Scotland—if I may use a phrase that the Lord Advocate may know and that certain of my hon. Friends here know—gallous, having been in the same court as somebody on a capital charge. It would have been much hotter if they had been taken into the Sheriff's private room and charged there, with the Sheriff not attired in his Sheriff's garb,, but in his everyday dress.
May I turn to another small question, which I have raised many times, in regard to the procedure at the Glasgow Sheriff Small Debt Court? I am sorry that the Under-Secretary of State for Scotland is not now in the House. I know he is coming back, but I want to pay him the compliment of having attempted, along with the Solicitor-General for Scotland, to meet me in regard to this matter of the small debt court. They have now made some arrangements to try and spread the time over. The Lord Advocate held his present office under the Labour Government, and he knows that the procedure at the rent court ought to be that the sheriff should determine every case. There is nobody who, in the courts of this country, ought to be allowed to take the sheriff's place in that court. It is true that since this question was first raised the procedure has been eased, and the sheriff in most cases still exercises his functions, but a large number of people are now being sued in the small debt court.
It would be out of order to argue the rights and wrongs of Unemployment Benefit and the means test, but nobody will deny that there is extreme poverty, and people under these conditions must be treated with a certain amount of sympathy. People are being sued for rent, and, while legally they may be in arrear, in actual fact they are not in arrear, because they are being sued for fore-handed rent, sometimes as much as a quarter in advance. There is a case in the Bridgeton Division of a man who has been 28 years in one house and has never been in arrears; now he is being 1760 faced with a fore-handed demand of £7 12s. Many people in present circumstances cannot pay a sum like that at once, and they would like to pay it week by week. This man, however, is being taken to the court and mulcted in expenses, and all that would be saved if he were allowed to pay week by week. I would ask the Lord Advocate, the Solicitor-General and the Under-Secretary to consider calling a meeting of Glasgow house factors to see if they can in terrible times like these get them not to insist on fore-handed rent. I know that they cannot compel the house factors, but I am sure that if the factors gave their word to do it, it would be carried out in the main.
Hon. Members can remember the system of fortnightly and monthly wages in Glasgow. That was abolished in order to ease the position for the poor people. I am sure that one sheriff at least would be glad, for his own sake and for the sake of the administration of his court, to be relieved of enforcing orders for the payment of fore-handed rent. Part of this Vote is for the upkeep of the sheriff courts. There is talk of economy, and if we could do away with the evil of forehanded rent it would result in a great economy and saving of time in the administration of the sheriff courts. The three Ministers will soon be free from the House for the Recess, and I urge them to spend a part of their time in having a conference with the Glasgow sheriff and the house factors to see what can be done in this matter. I am certain that the better type of house factor would not be unapproachable if the powers that be make the approach.
I turn from that to another question, which most particularly affects the Lord Advocate, "The silk trial" as it is commonly called. I am not going to enter into the rights or wrongs of a judgment given by His Majesty's judges; the question I wish to raise concerns the methods of the Lord Advocate's Department—I do not know if that is the best word to use, and I will say the way in which the subject has been tackled. More than 12 months ago all Glasgow and, indeed, the whole of Scotland, was startled to read in the daily papers that 12 or more very prominent Glasgow business men had been arrested and charged with having done certain wrongful things in connection 1761 with the formation of companies in the West of Scotland. Everybody, without regard to the angle of politics, was interested in what was going to happen. For a time the arrested men were refused bail. The Lord Advocate and his Department set a very stiff upper lip against the granting of bail. After the lapse of a certain time bail in considerable sums was granted to each one of the arrested men.
Let the House note that considerable sums were insisted upon as bail, because when we came to criticise the lower bail on which the men were allowed out later it was said, "The real deterrent against a man is not the sum of money on. which, he has been released on bail, but the fact that the police and the authorities will know where to lay their hands on him at any particular time." We say that the sums demanded as bail were either too high at the beginning or too low later. It seems to me that the Lord Advocate, in fixing bail, as it was his prerogative to do, fixed bail at sums that were far too low in the second instance, because by that time the men had been sentenced, and if there was any inducement for them to go, surely it would be greater after sentence had been passed than before. While the judge fixes bail in cases of dispute the Lord Advocate and his Department, without the judge, can fix bail mutually with defendants.

§ The LORD ADVOCATE (Mr. Craigie Aitchison)
That is entirely inaccurate. The hon. Member is confusing two things.

§ Mr. BUCHANAN
I was coming to that point. I know you are going to tell me that, there is a difference in the case of appeal—that on appeal only the courts can then fix bail; but in other cases, as the Lord Advocate is well aware, bail is fixed in negotiation between the officers serving under him and the defendants' counsel. I have fixed bail in dozens of cases every day in the week when negotiating with the Procurator-Fiscal.

§ The LORD ADVOCATE
Prior to trial.

§ Mr. BUCHANAN
Yes, prior to trial; but this is what I am coming to. I am not criticising the judges—I do not say that I would not like to, but I should be out of order—but I criticise the Lord Advocate's Department because they acquiesced in the fixing of the bail. The 1762 judges, in the fixing of bail, are guided entirely by the Lord Advocate. While in effect the judge lays down the sum, the judge will not grant bail unless the Crown authorities acquiesce in a reasonable sum, and also give a reasonable guarantee as to the man being got at in reasonable time by the authorities. My charge against the: Lord Advocate is that, while in fact a sum was laid down by the judge, he, who had insisted on huge sums in the origin, only insisted upon getting, after the sentence, a minor and meagre amount. It is not my right or my duty here to contest the judge's ultimate decision, but I say that if these men had been poor men, who had been engaged in a riot in a street, and had been appealing, the Lord Advocate, going to the Appeal Court or the judiciary court in Edinburgh, would have insisted on much larger sums being forthcoming. Nobody in the West of Scotland can gainsay that for the Lord Advocate to say in the pre-trial days that huge sums should be forthcoming for payment and, on the later days, after years have expired, to allow it to go uncontested as a miserable sum, were two contradictory courses that ordinary men and women would find difficult to reconcile.
I turn from that to the other aspect. Twelve persons., as I said, were arrested and, after a long time, the total costs to the Crown of this trial—and I know, because I used to go about the sheriff court, and it was only with great difficulty that I could see anyone at the sheriff court. Every time you went near it—it was Mr. Adrian and then Mr. Godfrey Hamilton—every time you knocked, you put your two hands on—

§ Mr. MACQUISTEN
May I rise to a point of Order I understand that these cases are under appeal just now.

§ Mr. BUCHANAN
I knew this point was coming. I will tell the Committee about it.

§ Mr. MACQUISTEN
Is it in order to discuss a case which is in the hands of the judges, and before it is finished?

§ The CHAIRMAN (Sir Dennis Herbert)
I think the hon. Member for Gorbals (Mr. Buchanan) will realise that I feel a—

§ Mr. BUCHANAN
I am not taking advantage: of you.

§ The CHAIRMAN
I think the hon. Member will realise that when the case is actually before the court—

§ Mr. MAXTON
It is not before the court.

§ The CHAIRMAN
—or is about to come before the court, it is most inadvisable to raise any question in regard to the case.

§ Mr. MACQUISTEN
The judges are considering it just now; the appeal has been heard.

§ Mr. BUCHANAN
May I put the facts? I was not going into the question of the rights or wrongs of the case, what I am going into is what I have a right to go into—the costs of the trial. Secondly, I was dealing not with the two men that are now in the case, but with the 10 men that are away, and I am entitled to discuss that. That is all that I am going to discuss, if the hon. Member for Argyllshire (Mr. Macquisten) had had the good manners to wait. We have been very decent with him, but he has tried to be very indecent to us, and he says hard things to us. What I am saying is that these 10 men are away, and there is no question of a single thing being before the courts about them. The trial is finished for them. I am dealing with the 10 men. The two I have left out of account. As you say, it may be that I would be out of order if I dealt with them. I have no wish to take advantage of anybody who is not up in Scots law. The point is that 12 men were arrested, and the Lord Advocate's Department, and practically the whole Sheriff Court Department of Glasgow, were engaged on that matter. Then, for some mysterious reason, the charges against four of these men were dropped. Eight were taken to the High Court, and by process there in certain cases the charges were withdrawn while the trial was on.

§ The LORD ADVOCATE
I do not want to interrupt the hon. Member, but he has made a statement which is nothing but a gross exaggeration. These men were indicted upon three separate charges, and, as regards two of them, one of those charges was withdrawn, but the indictment stood exactly as it was as regards the others.

§ Mr. MAXTON
One was discharged during the course of the trial.

§ The LORD ADVOCATE
One was discharged owing to illness. Is the hon. Member going to suggest that we should bring an ill man to trial?

§ Mr. BUCHANAN
That is one of the points of my charge against the Lord Advocate. He is not going to put me into the false position of saying that you must prosecute an ill man, but this was a rich ill man, and I know that day in and day out in the Glasgow courts ill men and ill women are prosecuted, and no consideration is shown to them, even in the case of far smaller crimes than this. I do not say that an ill person should be prosecuted, but I could give case after case where men and women who were far from well—even women on the point of childbirth—have been prosecuted, and nothing like the same consideration has been shown to them. The Lord Advocate showed consideration for these men. Indeed, one of them, I understand, was extremely ill before the trial, and the charge against him was dropped on the ground of ill-health. I ask the Lord Advocate, in view of what he has done in the case of these comparatively well-off people, to issue instructions that in cases of illness every one of his subordinates should do the same in every court throughout the country in the case of lesser charges and of very much poorer people.
With regard to the ultimate trial, only two of these 12 men were ultimately convicted. It seems to me that the theory of the law of Scotland in these matters is that, before the Crown engage in large-scale public expenditure, they should see that their case is so well constructed that a conviction is reasonably possible. In view of the fact that in so many of these cases the charges were withdrawn before the Crown case was presented to the court, that even after its presentation the charges were partly dropped in certain cases, that in a number of other cases the men were discharged, and that even those found guilty were found guilty of minor offences, either the Lord Advocate's Department has been guilty of undertaking a case which they could not prosecute properly, or they were guilty of prosecuting certain charges which they found themselves not properly equipped to prosecute when they were gone into.
1765 On the question of the judges I make no comment, but there is great feeling in Scotland with regard to the Lord Advocate's Department, and I desire to express as best I can the feeling of ordinary people on this matter. These 12 men were arrested, and 10 of them were found to be not guilty. It is felt that, because these were rich men, the Lord Advocate's Department was not showing the same zeal, the same integrity, and the same push as it would have shown if they had been minor citizens guilty of lesser crimes. They feel that men and women every day are arrested and charged and the Lord Advocate's Department prosecutes them with a skill and ingenuity which they do not show in the case of rich men. The proof of that is that, out of 12 men who were arrested, two were found guilty of minor charges while 10 were discharged by the judge or the charges were withdrawn entirely. The Department to that extent stands indicted and the Lord Advocate must make a defence of his conduct.

Mr. MACQISTEN
If I may refer, first of all, to what the hon. Member has said about tenants being taken to the Small Debt Court for non-payment of rent, surely, if a man signs a contract and undertakes to pay rent—

§ Mr. BUCHANAN
That may be legally right but, when bad times come and a man is working only three days a week, the house factors might take a different view. We may be entitled to certain sums from foreign countries but we recognise changed circumstances and do not always insist upon them.

§ Mr. MACLEAN
May I mention one thing that my hon. Friend has omitted? It often happens that, where the proprietor of a house has changed his factor, a new factor comes in with a fresh book on which is printed, what may not have been the custom before, rent "payable in advance." The tenant does not read it and a few months afterwards falls into arrears and finds he is hold to have entered into a new contract that he did not know about.

§ Mr. MACQUISTEN
I am very glad to hear the explanation. It seems to me very like the Chancellor of the Exchequer extracting three quarters of the Income Tax in advance, as he did last January. I am surprised to hear that such a thing 1766 can happen as that a man who has paid his rent faithfully and well for 28 years should be haled into the Small Debt Court. I feel sure that the vast majority of factors; would not act in such a way. They should exercise the greatest possible indulgence in such cases. Perhaps this Debate will serve a useful purpose, because they will take it from the hon. Member, and also, I hope, from me, that an old tenant who has loyally paid his rent should not be brought to the court. The expenses in the Small Debt Court in Glasgow are, perhaps, the smallest of any court; within the Empire. It is a wonderful court and I have spent many days in it. The expenses amount to shillings where they are guineas in other courts. But, when they have good tenants who have been paying their rent, it is ill advised and bad business to drag them to the court. It may be that they get the judgment and think that they need not do anything. All the same they are putting an expense of several shillings upon the people's rent which is taking them all their time to pay. I hope that they will take to heart the discussion which has taken place in this Committee, and that they will exercise their right in this matter with great delicacy towards respectable tenants, as are the majority of the people.
The next question which the hon. Gentleman the Member for Gorbals (Mr. Buchanan) raised was that of bail in the silk case. He seemed to think that the first bail had been fixed at a very high figure because the Lord Advocate's Department felt that it was a particularly bad case and a bad crime, and that the accused must in some way be punished by fixing high bail and that the bail should be so high that there was no possibility of their bolting. The main purpose of bail is to make sure that the accused will turn up at the trial. There is no other purpose. All but murder cases are bailable because when a man's neck is at stake, no amount of money will prevent him from trying to get it out of jeopardy. But in this particular case the men turned up at the first trial, and at the appeal, and whether there was any bail or not is purely irrelevant and of no importance. Whether the first bail or the second bail was 10 pence or £1,000 the question is, Did it affect its purpose? The real complaint ought to be on the part of the accused, for they can say, "By our pre- 1767 sence here no bail was needed, no matter how small the bail might have been." You should get rid of the idea that bail is a punitive thing. Sometimes it involves cases of sexual offences and the like, but in a case of this kind you were dealing with 12 respectable citizens. There is no question of the poor and the rich about it. For they are all poor enough now.

§ Mr. BUCHANAN
I have met some of them since.

§ Mr. MACQUISTEN
Perhaps they had a little of their former state clinging about them. As a matter of fact, the civil liability of those men was so great that the hon. Member for Gorbals can take it from me that none of them answered to the description of rich. There is nothing more complicated than one of these extraordinary company cases. People may think that they have a right to a real investigation, examination and scrutiny, but it is an extremely difficult thing to keep right. I should be surprised to learn that there has been a case like the silk case since the City of Glasgow Bank case 60 years ago. There has not been a case like it. Mark you, it came before a judge and a jury. No counsel, no Lord Advocate can guarantee, no matter how careful he is and what investigations he makes, and how skilful he is, what would happen to a case tried by judge and jury.
I remember once giving evidence against a prominent Scottish city. I was asked what happened when the city lost a case. I said, "The town clerk went back to the magistrates' court, and said, 'Oh, the Court of Session is wrong again.'" Then the magistrates proceeded to take counsel one with another, and decided that they should appoint the judges and dismiss them, and there would be no more bad law and unsatisfactory decisions against their city. It often happens that you may have the best possible advice, and that you may be represented by the most brilliant counsel, and yet the court may decide against you, and all that you can say is that you do not believe in the judgment of the court I remember well the case between the late Lord Leverhulme and the late Lord Northcliffe. Lord Leverhulme consulted some of the most eminent counsel, and they all turned down his case until, finally, it was submitted to the late Lord 1768 Birkenhead, who wrote an opinion in three lines, saying: The slander was of the grossest kind and the damages would be enormous. I believe that it cost the defendants something like £750,000 to get all the cases settled.

§ Mr. MAXTON
The cases are not analogous.

§ Mr. MACQUISTEN
These were cases of civil slander. This was a criminal case. The question is: Can anyone put a finger on any of the legal steps taken by the Crown in this case and say that an error in practice, in conduct or in law was made? You cannot do anything of the kind. I followed the case in the Scottish newspapers, and I thought that it was being conducted, as far as I could see, with very great skill on both sides. It will never do to have the conduct of our Law Officers, who are men of eminence in Scotland and in England, brought up and criticised because the decision is different from that which some people consider is right. The question is, was there a prima facie case? After the most careful examination the Lord Advocate's Department came to the conclusion that there was a prima facie case and that it was their duty to go on with it. The people who are responsible ultimately for the decision are the court, the judges and the jury. It would be a most regrettable precedent if when cases of this kind come up the Law Officers should be subject to criticism by those who have not sat day by day in the case and who do not know the case as well as the solicitor and counsel. Otherwise, it would be impossible to carry a Crown prosecution, because the Crown would always say: "Unless we are absolutely sure of a conviction we cannot prosecute." If they are absolutely sure, the accused would probably plead guilty. When I was a practising counsel and got a clear case I said, "There is no fight in this case," and as a rule there was not. It is only when there is a doubt that you realise that you are likely to have a contest. That was the position in this case. It was a difficult case of extraordinary complication and, speaking with a great deal of feeling, I repudiate the reflection cast upon the Lord Advocate's Department.

§ The LORD ADVOCATE
I will endeavour to deal with the points that were 1769 raised by the hon. Member for Gorbals (Mr. Buchanan) and particularly with one point he made that was so unsound that the word "unsound" is too mild an epithet to use in regard to it. In case I should be pressed for time let me deal with the unsound matter first. I regret more than I can say that the hon. Member for Gorbals, with the approval, apparently, of some of his colleagues—

§ Mr. MAXTON
All of them.

The LORD-ADVOCATE
That makes it worse. With the approval of all of his colleagues, the hon. Member has raised a question relating to a matter which at the present time is under the consideration of His Majesty's Judges. The hon. Member shakes his head at that. That simply demonstrates his complete and abyssmal ignorance of the whole matter. In the very short time at my disposal I will tell the Committee what the position is. It is perfectly true that over a year ago, acting on my responsibility—and I assume responsibility, and I ask neither the hon. Member for Gorbals nor the hon. Member for Bridgeton (Mr. Maxton) to share it—I had a number of business men of the City of Glasgow put under arrest. I do not follow the argument that that shows a discrimination in favour of the rich against the poor, but, following on that arrest, the most careful and exhaustive inquiry was made, in which the Crown had the advantage of the advice of the most eminent accountants of the City of Glasgow. Following on that,, I indicted on my responsibility—and I accept responsibility—11 men upon charges of a very serious kind. Of those 11 men, one man had to drop out on a medical certificate which made it quite impossible for that particular man to go to trial. Of the 10 who were left it was necessary to drop out two others in order to keep the trial within manageable dimensions. It was a matter of the very greatest difficulty to bring even eight men to trial, and we were compelled by practical considerations to limit, as we did limit, the number, and we ultimately brought eight men to trial. In the course of the trial one man fell ill. What would the hon. Member for Gorbals have done in those circumstances?

§ Mr. BUCHANAN
Let the man off.

§ The LORD ADVOCATE
We did not let the man off. We reserved the right 1770 of the Crown to proceed against him at a later date. The hon. Member would have let that man off, but that was not the method I followed. If we had agreed to the interim liberation of a particular man, it meant a postponement—and that would have been a second postponement of the trial—for at least a week. It had already been interrupted for a period of 10 days by the illness of a juror. I suppose in those circumstances the hon. Member for Gorbals would have let them all off.

§ Mr. BUCHANAN
You would have saved spending public money.

§ The LORD ADVOCATE
The hon. Member is much concerned about spending public money. There are the apostles of economy! Let us consider the situation. The cases of seven men went to the verdict of the jury. The last thing I want to say in this House is a single word reflecting upon any man who obtained a verdict from the jury. I am going to say this when my public administration is attacked, that upon the main charge there was not a single verdict of not guilty—not one. That fact alone is ample, and indeed to anyone who knows anything at all about these matters, overwhelming vindication of the course which I followed as Public Prosecutor in bringing these men to trial. Even were it otherwise, the hon. Member for Gorbals and his colleagues must remember that the aim of a prosecution is not to secure conviction.

§ Mr. BUCHANAN
I wish that were so.

§ The LORD ADVOCATE
Perhaps the hon. Member may reflect on it with hope.

§ Mr. BUCHANAN
I have been in a good many criminal courts, and I have never seen the Crown acting in this way. I wish it would.

§ The LORD ADVOCATE
If there is one thing settled in the tradition and practice of the Department of which I have the honour to be the head, it is that the aim of the prosecution in Scotland is not to secure a conviction but to present fairly and impartially a case for the consideration of the jury and that where the jury acquits a man to accept loyally the acquittal without making any reflections upon it. The hon. Member has said that of the men charged, most were acquitted. That should not be a matter for regret but 1771 or congratulation. I should never have mentioned the matter if I did not think that what the hon. Member has said conveyed a reflection which should never have been made.

§ Mr. BUCHANAN
They should never have been charged.

§ The LORD ADVOCATE
I, and my Department are the best judges of that, and as long as I remain at the Deparment I am not going to consult the hon. Member for Gorbals or the hon. Member for Bridgeton.

§ Mr. MAXTON
The right hon. and learned Gentleman must also recollect that whilst he will no doubt carry out the responsibilities of his office we shall carry out the responsibilities of ours and criticise him whenever we feel inclined.

§ The LORD ADVOCATE
I am the last person to resent well informed criticism but the kind of criticism to which I have been subjected to-night has been of the most ignorant, stupid and irresponsible kind. As regards the hon. Member for Bridgeton if he will raise the matter on another occasion I shall be glad to deal with him and his point of view. In regard to the question of bail, the hon. Member for Gorbals does not realise that the moment a man is convicted he is no longer a prisoner of the Crown but a prisoner of the court. An unconvicted man is the prisoner of the Crown, and the Crown has a responsibility to see that he is there for trial. But the moment the verdict of the jury falls the man becomes the prisoner of the court, and the Crown has no responsibility whatever. It is true that the court may ask the Lord Advocate his view on the matter of bail, and I understand that the real essence of the charge of the hon. Member is acquiescence. On that point the issue is simply this. These men were penniless and the issue was either nominal bail or no liberation. I was in favour of nominal bail. I would take the same decision tomorrow. There was no departure from practice or precedent. My time is up, but I will welcome a further opportunity of defending my position in this House.