CLAUSE 28.—(Penalties for offences under this Act and forfeitures). (Hansard, 7 November 1934)

§ Mr. CHURCHILL
This is a serious position for the House of Commons to take up. No doubt it has bound itself to take this position by all that has gone before. We are, as we have been told throughout the day, creating new offences, making new criminals, furnishing new candidates for our penal establishments. We have passed with a gesture another Clause which must be read in connection with 1170 this one, giving the right of intrusion into the dwelling-house on a new set pretexts. All these steps are being taken one after another; the House of Commons would not dream in its collective capacity of offering any resistance to the will of the Government. Now we have to pass Clause 28, which contains very heavy penalties. For a first offence there is a severe fine and imprisonment—the prison taint is to be inflicted for a first offence on summary conviction, and there. is to be a fine not exceeding £100. In the case of a second or any subsequent conviction the imprisonment may be for a term not exceeding three months and under Sub-section (2) the fine rises to £500 and the imprisonment goes up to one year—one year's imprisonment for those guilty people who break this law by participating in a national Derby sweepstake, who mingle with such a wicked affair.
It is quite all right in the case of football; it is quite safe in the case of the little lotteries and so forth. That is perfectly all right. There is not the slightest moral foundation for these invasions that are being made on liberty—I do not mean the liberty to gamble, but the liberty to live, to walk freely in the street, the liberty of your fellow-man. It is nothing but a deal. On these grounds I think the House ought to consider, with very much more gravity than it has, a Clause like this. One of the greatest difficulties which they have to face in the United States is the enormous volume of legislation, which is poured out like a mill by all the legislatures every year. We are getting into the same sort of mood here. The Government have only to put up a Bill, get it on to the lines of the House, turn their machinery on it, and it goes through. I believe that the penalties which are inflicted in this Clause set the stamp upon the Bill; they show the gravity, the bite that there is in it; and when we take the whole situation as presented to us to-day—the first time that this part of the Bill has really been brought under the dissection of the House of Commons—we cannot but feel that an injury is being done to our national life without the slightest warrant of moral justification.

§ Sir W. DAVISON
I desire to associate myself with what has been said by the 1171 right hon. Gentleman the Member for Epping (Mr. Churchill). These are what have been described as savage penalties. The Government are introducing this Bill, as we are told, to stop betting and gambling, but, as I said in my speech last night, they swallow the camel of football pools and street betting, which the Royal Commission said were the main causes of the demoralisation of the people and the ruination of homes; and the Royal Commission, although not recommending it, put in a special rider to say that the least objectionable form of betting and gambling was a lottery under State protection. The Government pass over the question of street betting and football pools; they do not even refer to it in the Bill. There was a Clause in the Bill, but in another place, when the Bill was introduced, the Noble Lord who introduced it never mentioned the matter at all, and indicated that the Government did not propose to include it in the Bill.
The Royal Commission said there were fewer objections to a national sweepstake than to any other form of betting and gambling because there were no private interests to be conciliated and, if they found it was not desirable, they could discontinue it at once. We have these savage penalties. Again and again we see in the Press cases of the most brutal cruelty to animals and human beings punished by a sentence of one or two months in prison or a paltry fine, but a person who takes a ticket in a lottery twice may be fined £750 and imprisoned for a year. It is bringing the criminal law into disrepute. Some people deprecate this new offence but at the most, if you met at dinner a person who had been guilty of it, you would say, "You naughty boy," and that would be the extent of the condemnation that would be visited upon him. It is only a sample of the wrong-headedness of the Government. It will cost them their life, because people will not put up with such a prostitution of justice. It is a very remarkable thing that the Socialists and the Samuelite Liberals are supporting the Government. [Interruption.] I am glad there are some who are not. Both in the Committee and here the Opposition have supported the Government because they know they are supporting them on the downward track that leads to their dissolution and death. 1172 The Government have flouted the opinion of their own supporters in imposing these penalties for a thing which the main body supporting the Government say is a proper thing to be done. It is making popular government a farce and the criminal law an absurdity and, if the House passes this Clause, God help the country!

§ Mr. RHYS DAVIES
For once in the 13 years that I have been in the House I am inclined to agree with the hon. Member and with the right hon. Gentleman the Member for Epping (Mr. Churchill). When the hon. Member who spoke last taunts us with not criticising the Government sufficiently, I would remind him that a stranger thing has happened in these Debates. When we have agreed with him on one or two occasions and forced a Division, he has spoken very eloquently against the Government but has failed to accompany us into the Lobby. The same thing is true of the right hon. Gentleman the Member for Epping. I should like the right hon. Gentleman to be more persistent. If he really feels as strongly as he has indicated in his speech, he ought to take the matter to a Division and see how much support he can get.
There are some of us on this side of the Committee who want to appeal to the Home Secretary to see whether he cannot modify some of these very drastic penalties. I have no hesitation in believing that there will probably be very serious breaches of the law in connection with dog racing and betting and all the rest of it. I am one who believes that too drastic, severe and savage penalties do not give the law the respect to which it is entitled. There seems to be no chance of putting a first offender on probation. The hon. Gentleman opposite is apparently inclined to think that there is room for probation under this Clause, but there is nothing stated here to that effect. What rather offends my feelings about the Clause is that, first of all, there is a fine, and then there is a fine and imprisonment, or a fine or imprisonment on summary conviction. We find later on in the Clause that a person can be sent to prison without the option of a fine. We have pleaded on more than one occasion that in Bills of this kind the Government should not inflict these very heavy penal- 1173 ties, and I should be happy indeed to hear the right hon. Gentleman say that he is prepared to reconsider some of the provisions in the Clause now under discussion.

§ Sir J. GILMOUR
The Clause deals, in the first place, let me emphasise, with maximum figures. The courts must decide as to the gravity of the offence, but we have felt it right to make it clear to the country that the offences committed under the Bill will be offences of considerable gravity. But it is perfectly clear that these are maximum penalties, and that in most of the cases they will not in fact be imposed. At any rate, it will be for the courts to decide. With regard to the question of probation about which I was asked, I will say, "Yes, it is possible for probation to be exercised." We are dealing with a problem in which very large figures will be concerned in some of these cases.

§ Mr. CHURCHILL
Large figures of money?

§ Sir J. GILMOUR
Yes, large figures of money, and it is right that the House should make no mistake in putting the maximum at a high figure in order that this kind of case can, if the court wishes, on the evidence before it, be dealt with adequately. On the contrary, we all know that where the courts have the right of exercising their jurisdiction, they do not in the majority of cases, and certainly in the earlier cases, impose the maximum penalties, and, as I have said, they can also give probation.

§ Mr. GROVES
I should not like it to be thought that because of our attitude towards this Clause we wish it to be left so that there are no penalties for wrongdoers. The Committee for a considerable time has been discussing lotteries in the sense of a huge public lottery, which would be a novel thing for this country. I should like to impress upon the Home Secretary, seeing that some of the new Clauses that we have suggested will not be within the scope of the Bill, and therefore not in order, that he should consider that the penalties proposed in this Clause will apply to all people who are operating what are legally called "lotteries." Once this Bill becomes law it will mean that any one of us who has 1174 been engaged directly in a fun fair, as many hon. Members opposite must have been engaged from time to time, will have been engaged in practices which will be a contravention of the law if this Bill passes. [HON. MEMBERS: "No."] I will give cases. Are hon. Members aware that under the Act of 1853, which the Home Secretary does not propose to repeal, they are liable if they engage in the simple pursuit of cocoanut shies, and that many men who are occupied in these simple pursuits in this industry find themselves within the purview of the police, and have been taken before the magistrates and fined sums exceeding £50 and up to £100? [HON. MEMBERS: "No."] I can give instances.

§ Sir J. PYBUS
Can the hon. Member produce one instance of people who have been fined £50 for running a coconut shy?

§ Mr. GROVES
I did not say that I had the information with me at the moment, but I do know that I have been calling attention to it for some years, and that people connected with such an innocent amusement have been taken before the local magistrate and fined for contravening the Act of Parliament. Further, it is true to say that these ordinary men and women in the amusements at fairs are within the law of the land. The Home Secretary is proposing to increase the fines on men and women engaged in this industry and increase the hardships of these people. It is all very well for my hon. Friend to treat it lightly.

§ Sir J. PYBUS
I do not treat lightly the assertion that a person has been fined £50 for running a coconut shy. I have asked for an instance, but he does not give it.

The CHAIRMAN
I have been trying to follow the hon. Member to see whether he is out of order. I cannot see how the penalties under the Act of 1853 come under this Clause.

§ Mr. GROVES
The Clause says: A person guilty of an offence under section one, section two, section three, or under section ten, or under any section contained in Part II

The CHAIRMAN
"Of this Act."

§ Mr. GROVES
Surely Clause 24 has something to do with it.

The CHAIRMAN
It is nothing to do with the Act of 1853.

§ Mr. GROVES
Clause 24 (I, b) states: any other competition success in which does not depend to a substantial degree upon the exercise of skill. As the Home Secretary knows, for years now he has had applications from this industry for some help in a definition on this point. Chief constables have written to the Home Office asking for guidance on the application of the present law. I am certain that the Chief Constable of Southport has written for guidance in the application of the present law.

The CHAIRMAN
It is quite obvious, as the hon. Member knows, that people asking for guidance on the present law can have nothing to do with that which we are discussing which is not yet the law.

§ Mr. GROVES
Are we not trying to prevent it from becoming law?

The CHAIRMAN
If further remarks are addressed to the question whether this should become law, then I think the hon. Member will be in Order.

§ Sir J. GILMOUR
This has nothing to do with showmen tourers. It does not affect them adversely or operate in their favour.

§ Mr. GROVES
The burden of my speech is that for years—and this is not irrelevant—we, who have been entertained in our thousands, and the hundreds engaged in running these shows, have never been able to determine what is the element of skill in running a fair. I am trying to urge on the Home Office that they have no right to increase penalties in this connection in this Bill. I do not think they desire to do so. If it is not the intention of the Home Secretary to impose additional hardships on the people I have indicated, I am perfectly satisfied. If it is an addition to the hardship of showmen in this country, then I must oppose the Clause as unjust and unwarranted. If the showmen will continue to operate as before and not be harshly treated, while the degree of vigilance is not undue, I shall be perfectly satisfied to withdraw my opposition.

§ Sir J. GILMOUR
All I can say is that the Clause does not affect the interests which the hon. Member has mentioned in any way at all.

§ Mr. BUCHANAN
The more I see of this Bill the more I feel that I ought to oppose it. In regard to this Clause the Home Secretary has said that they are maximum penalties. There is another angle from which I want to approach the Clause. What happens now; what happens in Scotland? You go to one court which does not think that betting is a bad offence and a fine of £2 is imposed, but within a few miles you may go to another court and be fined £20 for exactly the same offence. The maximum is £100 and inside that the fine may be anything from £1 to £100. In some parts of the country magistrates are not going to take the same view of an offence as other magistrates may take, and what will occur is that certain benches will do As they are now doing, will impose comparatively small fines while other courts will impose either the maximum or something approaching the maximum. I do not think, when we are dealing with a voluntary bench of magistrates who are not trained lawyers, that we should allow them full play between £1 and £100. At a place like Epsom you would never dream of a magistrates taking the same view of a betting offence as say the magistrates in the Pollock Division of Glasgow. The maximum penalty is far too high.
The other point is this. In betting, as in life, what happens is that the rich who have facilities can generally get round the law, but in the case of the poor it is not so much a fine as imprisonment, and to allow a poor person to go to prison for two months for having done something in connection with a lottery or greyhound racing is a disgrace. Take motoring offences. If a man wants to kill his wife he need not give her poison. He has only to buy a motor car and kill her in that way, and all he will get at the most is a comparatively short sentence. No one will think him a criminal. Everyone will think it was an accident.
Let us be frank about betting. Nearly everyone in some form or other touches it, and people do not look upon it as a crime. As a matter of fact, what is going to happen here is what happened in regard to Sunday closing. It is going to make crime popular. The punishment for offences is far too heavy. In mines legislation people can break the law and nothing like this is done to them. 1177 The whole approach here is wrong. The penalties are shocking. When we try to stop a man from committing one wrong he sets about inventing another. We must take care that in our punishment of men, in forcing them into prison, we are not making them a great deal worse than they are. I have never known a prison to make a man better. Prison makes a good man bad and a bad man worse. I view with a great deal of alarm these penalty proposals.

§ Mr. ISAAC FOOT
I think most of the Committee would deplore anything like a heavy penalty upon an individual citizen who has taken a lottery ticket. I should be strongly opposed to such a penalty. There may be cases where someone is out for gain, acting with continued contumacy and anxious to flout the law for financial benefit, and in such cases it should be made known that it is not worth while to commit the offence. There is all the difference between such a man and the individual to whom the hon. Member for Gorbals (Mr. Buchanan) referred, who would probably be dealt with very leniently under the Probation of Offenders Act. There is all the difference between that individual and someone organising or conspiring to set aside what is the decision of Parliament, and doing it for financial advantage. It is important that in some cases the penalties should be large enough to convince such men that to commit the offence is not worth their while.
Having said that, I hope that the Home Secretary between now and the Report stage will look at the Amendments. It seems to me that the penalties are so hard that they will tend to bring the Measure into disrepute. If a risk is to be run I would rather the risk was run with a lower penalty than with a higher one. If these penalties are retained, those who are out to discredit the Bill will fasten upon this Clause and direct their criticism towards it. When a big social experiment is being made, mainly on the recommendations of a Royal Commission, I do not think it is the mind of the country to impose heavy penalties upon any individual citizen. While retaining a substantial penalty, particularly for the second offence and for those who are animated by the temptation to exploit their fellow-citizens for financial 1178 gain, I hope the Government will before the Report stage consider what is I think the mind of most Members of the Committee, namely, that the penalties should be reduced in all these other cases so that the Measure may receive general approval throughout the country and may not be criticised upon what is after all a secondary ground.

§ Major MILNER
I wish to try to clear up what appears to be a misconception. I understood the right hon. Gentleman to say in reply to my hon. Friend the Member for Stratford (Mr. Groves) that Clause 28 had no relation to competitions on small fair grounds and things of that sort. Clause 28 sets out certain very serious punishments for offences under various Clauses and in particular those contained in Part II. Now Clauses 21 and 24, both of which in my submission deal with these small fair ground competitions are included in Part II, and Clause 28 inflicts these very serious punishments on persons guilty of offences under those Clauses. I submit to the Committee that these punishments are too severe. Years ago I used to defend members of the Showmen's Guild—

§ The DEPUTY-CHAIRMAN
I must remind the hon. Member that those offences are connected with gaming, which is not touched by this Bill one way or the other and is outside the scope of the Bill.

§ Major MILNER
With respect may I say that many of those offences have been held by the courts to be lotteries and I understand that the Bill does deal with lotteries. I submit that Clause 28 has relation to those offences. In that case these punishments are too high and I respectfully urge the right hon. Gentleman to reconsider the matter with a view to bringing them more into conformity with the very trivial nature of the offences in question. I would remind him that these offences often arise in connection with the traditional games carried on at these small fair grounds throughout the country.

§ Sir BASIL PETO
I wish to draw the attention of the right hon. Gentleman the Member for Epping (Mr. Churchill) and the hon. Member for South Kensington (Sir W. Davison) to the fact that the 1179 very first words of this Clause show that it applies to offences under Clauses 1, 2, 3 and 10 as well as Part II. Therefore, the penalties as maximum penalties must be of such a nature as will be in proportion to the enormously lucrative results of a flouting of the law on the part of the proprietors of greyhound racing tracks who will make enormous sums of money by exercising the rights conferred upon them by this Bill.

§ Sir W. DAVISON
It ought to be divided.

§ Sir B. PETO
Possibly, but I am bound to point out to the hon. Member and also to the hon. Member for Gorbals (Mr. Buchanan) and others who have spoken that they were all dealing with trivial offences committed by individuals under Part II. I cannot go as far as the hon. Member for Bodmin (Mr. Isaac Foot), because he made an appeal to the Home Secretary to reconsider these penalties. The only appeal that I would make to my right hon. Friend would be to consider whether it is possible to put into one Clause, without an Division at all, penalties that would possibly be appropriate to the trivial offences with which most of the speakers in this Debate have been concerned, and the very grave offences for which these penalties are certainly appropriate.

§ Mr. T. WILLIAMS
Much as I want to see gambling of a certain kind dealt with, I think the small man must be borne in mind when penalties are being fixed. One can conceive of the right hon. Gentleman dealing very severely with the promoter of a national lottery or an area lottery in direct contravention, not only of the desire of the right hon. Gentleman, but of the expressed will of this House of Commons. But then, let hon. Members think of the individual at a fair who sells tickets for an aeroplane race, in which small aeroplanes move round, and the lucky person secures a prize worth 2s., it may be, and that will be interpreted as a form of lottery. This Bill repeals no fewer than 10 Lottery Acts and a part of the Gaming Act, and therefore it will be the prime piece of machinery which will not only determine the fines for lotteries, large and small, but the penalties embodied in this Bill 1180 will also be the determining factors in many of the courts of this country. I need hardly tell the Home Secretary or the Attorney-General that with our area magistrates we have some extraordinary decisions. Recently, in my own division, the police entered a club and confiscated some machines, and a very heavy fine was inflicted on the committee of the club for having the machines there. In another area that I know very well the machines were just left there. There was also a case recently, a fair ground case, where they had what is called a "Wheel them in" game, to catch pennies from young persons and others. One rolls a penny round a piece of wood, and if it falls into a square, he may get 2d., or 4d., or 1s., if he is lucky. In one police court the magistrate declared that there was such an element of skill in the game that an offence had not been committed, but close by, in another area, it was decided that it was purely a game of chance, and a fine was inflicted.
I am not concerned with the merits or the demerits of the entertainment provided. I am suggesting that if these maximum fines are in the Bill they may be inflicted on comparatively small people for very small offences. I agree with the hon. Baronet that the penalties for any offence under Clauses 1, 2 and 3 may be very heavy. There we have limited liability companies dealing with these things on a large scale. An infringement of the Bill by a big lottery ought to be dealt with according to the circumstances, but for the small offence which may be committed, particularly in the initial stages of the Bill until the law becomes generally understood, there ought to be such penalties as would not disturb even the conscience of the right hon. Gentleman or of the Attorney-General. I wish that between now and the Report stage the right hon. Gentleman, without making any definite promises, will undertake to review the penalties. If he will do that and try to discriminate between the offence of the big culprit and the potential small misdemeanour, he will meet the wishes of the Committee. If human ingenuity can devise a fine or punishment consistent with the crime—for once it is generally known what is a crime, it will cease—the right hon. Gentleman will meet the needs of every part of the Committee.

§ Sir J. GILMOUR
I confess I am in a difficulty to know how it is possible to meet the kind of point which some hon. Members have put. Not being a lawyer, I can understand the feeling that there should be a differentiation between one kind of offence and another; but it has always been, as I understand it, within the jurisdiction of the courts to judge of that from the circumstances, and it has always been the set custom for Parliament in every Act of Parliament to say, "There are certain classes of offence; some of these offences may be very large and costly, and there may be a great deal of money and roguery in them. Therefore, we must of necessity have a penalty which will have some influence upon that kind of action." That is essential. Equally, it has been the custom, as I understand, to put in the maximum penalty and to leave to the courts, on the evidence which is put before them, how the cases should be dealt with. The courts might not convict for a first offence in a, minor case. They might not even convict on a second offence; and there is power for probation and also power to give a sentence of a very minor character. I understand that if it, were apparent that the courts were giving decisions which were out of conformity with justice, there are different kinds of machinery for appeals by which the decisions can be reviewed.
I am in agreement with the sentiment which has been expressed, but when it comes down to methods of giving practical effect to the feeling other than those we have suggested I know of nothing else that can be proposed. However I am perfectly prepared to consider the question. A number of problems have been put to me, and—I have been quite frank with the Committee—no doubt there are problems which I cannot answer on the spur of the moment. But I have listened to the Debate and I will take the question into consideration with those who are capable of advising me in order to see whether anything can be done; but I repeat that the Committee must understand that there are some practices which really must be checked.

§ Mr. CHURCHILL
I do not think there is very much difference between the Committee and the Home Secretary. We 1182 have had a discussion which was rather stormy at times, and there have been passages and interchanges, but it seems that towards the close we have got to a close measure of agreement on this point, and I was delighted to hear my right hon. Friend say that he shared the sentiment which had been so generally expressed in the Committee that although in the case of the promoters of illegal action there should be a financial penalty—and not only a financial penalty—sufficient to prove an effective deterrent, that nevertheless we should not bring scores of thousands of humble people, our fellow countrymen, into a position where we say to them: "Ah, you have done something which lays you open to a penalty of six months imprisonment"—or something of that sort. I thought the proposal made by my hon. Friend the Member for Barnstaple (Sir B. Peto), which was taken up so handily, if I may say so, by the hon. Member speaking from the Opposition Front Bench, and put forward in a very soothing fashion, had brought us to a point where some definite step forward might be taken. Therefore, I hope that my right hon. Friend will not shrink from the labour involved between now and the Report stage in dividing the penalties into two categories. It is not a difficult thing to do, with the staff and plant of a Government Department at his disposal, and with the aid, readily forthcoming, of the most accomplished Law Officers. There could be no difficulty in assigning the severe penalties to certain Clauses of the Bill and to have inserted elsewhere penalties for the smaller offenders. I take it from what; the right hon. Gentleman has said that he is contemplating some such procedure. The Noble Lady need not look at me in that manner.

Viscountess ASTOR
We are all agreed. We can go home.

§ Mr. CHURCHILL
The Noble Lady has all day long been engaged in pious works, and she ought not to weary in well doing.

Viscountess ASTOR
There is a disadvantage in being a, teetotaller.

§ Mr. CHURCHILL
I hope the Noble Lady is not going to delay the proceedings. It would be a great pity if, at the moment when we are in a more genial 1183 atmosphere, she should be the one to strike a jarring note. I hope the Home Secretary will seriously take into consideration the suggestion that the severe penalties should be reserved for those who commit large scale offences.

§ Mr. GROVES
In his reply, the Home Secretary failed to touch upon the point I made, as to the smaller fry. If he will meet one or two Members of the House who will put the point of view which I have endeavoured to put, that will satisfy me. If the Bill is passed in its present form, the smaller fairgrounds are dead. I feel that the Home Secretary and his advisers do not intend that, and I hope that he will reconsider the point before the Report stage.

§ Mr. C. WILLIAMS
I would like to ask the Home Secretary a question on the part with which we have not yet dealt, Sub-section (3). In the interests of purity, it is essential that we should know what happens to the tainted money which is taken away either in the form of a prize or by sale of tickets. Obviously the Government cannot take it. They are not allowed to touch tainted money in any circumstances. Quite as obviously the police cannot take it; they cannot be corrupted. It is equally essential that we should protect the local authorities from taking it. There only remain the charitable organisations and the churches, or something of that sort, to take it. Who is going to have this tainted money? Perhaps the Government have not thought of this point. It would be very wrong if the Committee were to allow this tainted money, as we are always told it is, to flow into the national exchequer. I hope the Government will tell us exactly where the money is going to.

§ Sir W. DAVISON
The Committee have the greatest cause to complain of the carelessness with which the Bill has been drafted in Clause after Clause. The Home Secretary has been two years at the Home Office yet he tells us that from his experience there he thought it was a customary part of the criminal law to lump all sorts of crimes together and put the highest penalty that would apply to all of them. That is just as if a Bill was 1184 passed to impose an enormous penalty on, say, manslaughter, stealing chickens and shove-penny, that penalty being £1,000. It is playing fast and loose to propose a penalty of £750, which might be suitable for a person who runs a syndicate or a dog track contrary to Act of Parliament, for a person who, on two occasions sells a lottery ticket is monstrous. If the Law Officers of the Crown cannot provide proper phraseology, the sooner we get new Law Officers the better. The Home Secretary has said that he will look into this before the Report stage; I suggest the Clause ought never to have been presented to the Committee.

§ Mr. C. WILLIAMS
May I have an answer to my question

§ Sir J. GILMOUR
So far as I understand it, all forfeitures go to the Crown.