CLAUSE 30.—(Penalties for offences sender this Act, and forfeitures.) (Hansard, 13 November 1934)

§ Sir W. DAVISON
I beg to move, in page 27, line 5, to leave out "under any section contained in Part II of this Act," and to insert: of promoting or conducting an unlawful lottery or an unlawful competition. The object of this Amendment is to prevent these enormous penalties being applied to trivial offences. I have pointed out in the various Debates how very undesirable it is to have a large maximum penalty which may be applied to the most trivial offences. For example, it is absurd that there should be the same penalty for someone who is running a large agency in this country for a foreign lottery and someone who commits a small offence in connection with a church bazaar or a club lottery. The object of the Amendment is to keep the smaller penalties for the smaller offences and the larger penalties for the larger offences, the larger offence being the conducting or promoting of an unlawful lottery or an unlawful competition. It is a reasonable proposal, and I hope the Home Secretary will say that he is prepared to accept it.

§ Mr. PIKE
I beg to second the Amendment.

§ The SOLICITOR-GENERAL
I am afraid, for reasons which I shall try to explain, that we cannot accept the Amendment, although I have some sympathy with the considerations which my hon. Friend has put forward. At first blush, one sees a large penalty and one sees a Clause under which an offence may obviously be very trivial, but let me remind the House, in order to illustrate the principle on which these things are to be dealt with, of another branch of law. Take the case of simple 1867 larceny, under which a man can be sent to penal servitude for five years. That is an offence which might cover the stealing of a postage stamp. In these cases discretion is given and has to be given to those before whom offences are tried, as to the amount of the penalty that can be imposed in any particular case. Where one finds that under a particular section a serious offence may be committed, then it is necessary that a serious penalty should be capable of being inflicted. One must trust the courts, whether they are magistrates or judges, not to inflict an improper or undue penalty where the circumstances are not aggravated and where there is no great degree of culpability.
There is no actual offence under the Bill in the exact terms of my hon. Friend's Amendment. Broadly speaking, his Amendment would leave in the heavier ranks of penalties offences under Clause 22, and keep out offences under Clauses 23 and 24. In regard to Clauses 23 and 24 it is clear that an offence may be of a trivial character. It may be that in the organisation of a bona fide bazaar, owing to inadvertence, tickets may have been sold off the premises. If you are not going to trust the courts, to be able to distinguish between a trivial and a technical offence on the one hand and an aggravated case of deliberate contravention of the law on the other, then we must have a new system. That is one of the most important duties that is imposed upon them. We feel, and that is why we cannot accept the Amendment, that offences may come before the courts under Clauses 23 and 24 where, quite clearly, a heavy penalty ought to be enforced. Take, for example, the case of a professional lottery promoter seeking deliberately to organise under the cloak of a bazaar a lottery, which is clearly illegal, and out of which he is going to make personal profit. He might make considerable personal profit which under the Act could not be forfeited. It would be absurd in that sort of case if the magistrate had not power to impose a substantial penalty.

§ Sir W. DAVISON
He could put on a fine of £50.

§ The SOLICITOR-GENERAL
He might easily have made £50. Take 1868 Clause 24, which covers a lottery got up by an association. There is a possibility of an abuse of that Clause being deliberately adopted in order to conceal an intended contravention of the Act, under which a man might have pocketed profit to a considerable amount. It was because we have in mind these particular abuses by attempts to use Clauses 23 and 24 for that purpose for offences which should be seriously dealt with that we are unable to accept the hon. Member's Amendment, which would put these offences into the Clause under which the penalties are less. There is a further Clause, Clause 26, which deals with newspaper competitions. Clearly, having regard to the circulations of our big newspapers, if there should be—we hope there will not be—a deliberate attempt to contravene the terms of that Clause, a fine of £100 would be a very minor matter to the newspaper. For these reasons we were unable, after considering it very carefully, to accept my hon. Friend's Amendment, and I hope that he may see his way not to press it.

§ Mr. H. WILLIAMS
I am afraid that on this occasion I am not satisfied with the Solicitor-General's explanation. He said that we have to trust the courts. If he puts that forward as his doctrine, why have two separate classes of penalties? Obviously, we do not trust the courts entirely. We give the courts certain general orders. We give them certain limits within which they may impose penalties. In Clause 30 we prescribe two scales of penalties. Therefore there is no point in the Solicitor-General saying "Why not trust the courts?" He is not trusting them. He said that in respect of certain offences they must not go beyond the provisions of Clause 30 (2). My hon. Friend in his Amendment is proposing that we should increase the class of offences to be dealt with under Subsection (2). What is the use of telling us that we must trust the courts? There is no argument of any merit whatever in that remark. If there was only one Sub-section there might be some merit in the argument.
The Solicitor-General tells us seriously that the offences under Clause 24, which deals with private lotteries, will in general be trivial, but they are to be dealt with under Sub-section (1), where the penalties are heavy. On the other 1869 hand, if I read the Bill aright, under Clause 4, which restricts the number of dog races in a day and prescribes how many meetings you may have in a day, a contravention, which obviously would be very serious, is to be treated as a minor offence. That is perfectly absurd. Can the Solicitor-General give us the slightest reason why we should treat as a minor offence something which runs right through the Clause proposed by the hon. Member for Balham (Sir A. Butt), which was regarded as very important, to prevent there being continuous racing all day long. The penalty there is comparatively light. The possible penalty which may fall on someone promoting an ordinary club sweep, however, may be a heavy one.
This is an instruction to the court, to the judge. He will say, "Parliament has told me that there are two scales of penalties and, therefore, any offence dealt with under Sub-section (1), that is an offence under Clauses 1, 2, 3 and 11 are to be dealt with in one way, but offences under Part 2 must be punished more severely than an offence under other Clauses of the Bill. You are giving to the court a broad hint that the man who is running a club lottery is to be regarded as a more serious offender than the man who is running too many dog races in the day. I hope the Solicitor-General will be allowed to address the House again and give us some arguments which are really worth while. He seems to have caught the Home Secretary's disease, that is to get up and say something which nobody can understand and consider it an argument which should be valid.

§ Sir BASIL PETO
I hope we shall get an answer to the serious point raised by the hon. Member for South Croydon (Mr. H. Williams), and that we shall he told whether it is by mere inadvertence that Clause 4 is not included in the list of Clauses incurring the more serious penalties. That is one of the most serious Clauses in the Bill and offences under it should incur severe penalties.

§ The SOLICITOR-GENERAL
I do not wish to be discourteous to the House and perhaps they will allow me to speak again. Clause 4 was moved as a new Clause in the Committee stage, and it may be that by inadvertence it has not been 1870 included along with Clauses 1, 2 and 3. That probably is the explanation. With regard to the point made by the hon. Member for South Croydon (Mr. H. Williams), what I meant was that within limits you must trust the courts, but if under any particular Clause of the Bill you are satisfied that grave and aggravated offences may be committed, it is proper to give the court power to impose higher penalties, although the offence may be of a comparatively trivial character.

§ Sir B. PETO
May I ask whether there are any means now by which we can rectify the error which has apparently crept in by inadvertence?

The UNDER-SECRETARY of STATE for the HOME DEPARTMENT (Captain Crookshank)
My right hon. Friend the Home Secretary is not in the House at the present moment, but I am quite willing, if you, Mr. Deputy-Speaker, are prepared to accept it, to move a manuscript Amendment.

§ Mr. H. WILLIAMS
That cannot be done now as we have passed that point.

Captain CROOKSHANK
It may be that the procedure of the other House is sufficiently elastic to enable it to deal with the matter as a consequential Amendment, which was overlooked in Committee.

§ Mr. T. WILLIAMS
I think if the Under-Secretary can give an undertaking of that kind the hon. Member for South Croydon (Mr. H. Williams) would be satisfied. No Amendment has been made consequential on passing the new Clause moved by the hon. Member for Balham and Tooting (Sir A. Butt), and if the procedure of the other place will permit of the Amendment being made then the major point of the hon. Member for South Croydon will be met.

§ Mr. DEPUTY-SPEAKER (Sir Dennis Herbert)
I am not quite clear as to the nature of the desired alteration, but I think it may be it is one which can be dealt with as a printer's correction, and, if that be the case, no difficulty arises. We cannot amend the Bill now in respect of any part of the Bill which has been already dealt with on Report, but I hope 1871 I am right in thinking that it can be dealt with as a printer's correction in the printing of the Bill.

§ Sir W. DAVISON
I object to the Bill being altered unless my Amendment is inserted. I think these words should be inserted. It is ridiculous to put in enormous penalties and then trust magistrates and judges to put on the right penalty. If you make these crimes you should fix the penalties. The House of Commons should fix adequate penalties for offences and not put in a fine of £700 for an offence which may be only trivial.

§ Mr. DEPUTY-SPEAKER
The hon. Member is now making a second speech. If it is a question of what I have described as a printer's correction; then it is a matter for the authorities of the House. As regards the hon. Member's Amendment that is a matter upon which he has to persuade the House to pass it.

§ Mr. H. WILLIAMS
Would it be in order for me to move the Adjournment of the Debate for a few minutes to enable the appropriate consultations to take place to see whether we can rescue ourselves from the dilemma in which we are now plunged? If that Motion is in order and hon. Members on the Front Bench would like an opportunity of consulting the Home Secretary, I shall be willing to oblige, and to give reasons for some minutes why the Debate should be adjourned, in order to give them the opportunity.

§ Mr. DEPUTY-SPEAKER
I do not see that there is any reason for such a Motion.

§ Mr. PETHERICK
I beg to move, in page 27, line 8, to leave out "one hundred" and to insert "twenty."

§ Mr. DEPUTY-SPEAKER
I would suggest that on this Amendment of the hon. Member for Penryn and Falmouth (Mr. Petherick) it should be open to the House to discuss generally the question of penalties dealt with by a number of Amendments on the Order Paper. It will be understood that those Amendments 1872 will not be called except for the purpose of making any necessary alterations.

§ Mr. PETHERICK
The second Amendment in my name deals with the question whether a person convicted of an offence under the Bill shall be sentenced to four months instead of three months. That is a slightly differing point. Shall I be in order in discussing that question?

§ Mr. DEPUTY-SPEAKER
I think it will be for the convenience of the House to discuss generally the question of penalties, and the hon. Member on this Amendment can discuss the whole question of penalties including the point which is specifically raised in his next Amendment.

§ Mr. PETHERICK
The group of Amendments standing in my name and that of other hon. Members explain themselves. They are intended to reduce the extremely heavy, the unnecessarily heavy penalties under certain Clauses of the Bill. In moving these Amendments, I have been careful to avoid cases which will be dealt with by indictment. It may seem to my hon. Friend the Solicitor-General a little illogical that I am dealing in this group of Amendments only with cases which will be dealt with by summary jurisdiction courts. The reason is that if I had dealt also with indictment cases I should have been moving to reduce penalties for various serious offences. It is quite possible that some rich companies might be guilty of such offences and, of course, it is no good fining them a very small sum. I have, therefore, devoted my attention in these Amendments to the comparatively minor cases which will be dealt with by courts of summary jurisdiction. The penalty reductions which I am suggesting for the minor cases make a divergence greater betwen the penalties in those cases and those which will be suffered by people who are convicted upon indictment.
I am not particularly wedded to any given sum, but I have made certain suggestions which I hope the Solicitor-General will carefully consider. There are quite minor offences which, I understand, do come under Clause 30, Sub-section (1, a). One of them is quite a small one, such as the case of a bookmaker whose licence is out of date, or a person who had a ticket in the Irish sweep. As the Bill stands, on summary conviction for a 1873 first offence a man may be fined £100, and for a second offence he may be sentenced to three months imprisonment. I ask the House to compare these penalties with those under the Bill which we recently discussed, the Incitement to Disaffection Bill. Under that Bill for the first offence a man could be fined £20 and/or be sentenced to four months imprisonment, and for a second offence be fined £20 and receive four months imprisonment and so on, unless he is dealt with on indictment subsequently. If the House will compare the offence under the Incitement to Disaffection Bill, in which a man is convicted of seducing His Majesty's Forces from their duty to the Crown, and the offence envisaged by this Bill, and will then compare the penalties, I think the House will conclude that the penalties under this Bill are unreasonably and ridiculously high. Then the heinousness of the offence is not comparable, in the opinion of the majority of Members.
There is one other point which is dealt with in the Second Amendment in my name. That Amendment, if accepted, would render the person who was convicted under Sub-section (1, a) of a second offence to a term of imprisonment not exceeding three months. I want to make it four months. The reason is not that I wanted to make the penalty higher, for on the contrary I wanted to make it lower; but I do want to give the person accused of a minor offence the benefit of jury. We have had various opinions as to the gravity of the offence of betting or gambling. Some of us think it is a very grave offence. Others think it is a minor offence, and still others do not think it is an offence at all. They think the vice of gambling is not nearly so serious as the vice of intolerance. These people may be magistrates on a bench and they may take an unduly serious view of a case before them. It is, therefore, my intention in my second Amendment to make it possible for a person charged with an offence under this Clause to claim the benefit of jury. I do not think that that is an unreasonable contention.
The rest of the Amendments relate to Sub-section (2, a). There again I am not dealing in any way with the more serious offences which will be dealt with by indictment. I am dealing with very minor offences indeed. The House will 1874 see that a person guilty of such an offence may be fined £50 and may he sent to prison for two months, and for a second offence may be fined £100. I wish to reduce those penalties also to reasonable proportions. One possible minor offence which may come under this Sub-section is that of a bookmaker on a dog-racing track. There may be a rush of people to bet, and a boy may run up to him and put on 2s. at the last moment. Under the Bill anyone who is apparently under the age of 18 must not bet. But that bookmaker would be guilty of an offence for which he could be fined £50 on first conviction. I have no doubt that the Under-Secretary will say that of course these are maximum penalties. So was the penalty of hanging for sheep stealing 100 years ago. It is quite easy to say that. Magistrates might take unduly harsh views and inflict these penalties. Therefore, I ask the Under-Secretary to meet the rather grave anxiety of many Members who do not oppose this Bill out of factiousness, or because they have any interest in any section, such as greyhound racing, but are alarmed at the Bill's effect on the ordinary man in the street. I hope he will consider the matter, and if possible reduce penalties which many of us think are far too high.

§ Mr. PIKE
I beg to second the Amendment.
In my opinion, this Amendment and the two which follow it are extremely reasonable. I would impress upon the Solicitor-General and the Under-Secretary that they are particularly worthy of consideration because we are entering here into a new realm of legislation dealing with betting evils, nut only in respect of dog race-tracks but in respect of sweepstakes and lotteries. The responsibility which the Bill, for instance, places upon a bookmaker not to bet with any person under 18 years of age is a great one. A bookmaker may, easily be taken advantage of by the misrepresentations of youths under the age of 18. A fine of £50 on a bookmaker who has accepted a bet from a youth under 18, when the youth himself has made the bet wilfully, knowing that he is under age, seems too severe a penalty.
I suggest that in the first stages of the operation of this Bill, while its pro- 1875 visions are becoming known to the public, it would be better to make the penalties cautionary rather than penal. Would it not be better in the case of illegal bets by juveniles to regard that offence as one which could be dealt with by probationary treatment? I do not suggest that the Government should do away with the larger penalties, although I think they could be put into different categories. I think the Government would get a greater response from the sporting public and those engaged in the organisation of sweepstakes and lotteries if they did not, in the first instance, inflict these maximum punishments. I am not satisfied with the hon. and learned Gentleman's recent suggestion that we ought to leave these matters to the courts. It would be much better that some lead should be given from the House, and I suggest that the acceptance of these Amendments would facilitate the progress of the Bill and its subsequent acceptance by the public.

§ The SOLICITOR-GENERAL
This Amendment has been moved and seconded with great moderation and temperateness, but there are one or two considerations which I should like to put before the Mover and Seconder. The hon. Member for Penryn and Falmouth (Mr. Petherick) referred to the Incitement to Disaffection Bill. In regard to all these different Bills, the House has made up its mind after study of them that there should be certain differences in the penalties imposed. In some Bills imprisonment can be imposed for a first offence. In this Bill imprisonment cannot be imposed for a first offence. Therefore, it is not right to take as an analogy a Bill in which for a first offence imprisonment can be imposed. Then I would earnestly ask hon. Members who have in their minds any idea that magistrates impose maximum penalties to dismiss that idea altogether.
The fixing of a maximum penalty is not in the slightest degree a pointer to a court as to the penalty to be imposed in a particular case. In fact the process is really the reverse. The court would say that the maximum penalty was only intended to apply to the most palpable and deliberate case that Parliament thought could possibly be committed 1876 under the particular Measure in question. Taking the general experience of the courts of our country I think it will be found that there is a real desire on their part to be lenient to anything which has no real moral culpability attached to it. The hon. Member who moved the Amendment made two points. First he raised the question of the amount of the fines and he wanted the £100 fine reduced to £20. As I have pointed out earlier a court may under this Bill find itself dealing with corporations or individuals who have made substantial profits out of the offences charged against them.

§ Vice-Admiral TAYLOR
Could not they be dealt with under indictment and not by summary jurisdiction?

§ The SOLICITOR-GENERAL
Even in the case of a minor offence dealt with under summary jurisdiction, the people charged might have made money out of the offence. Of course, in a serious case the proceedings would be by indictment and in the less serious case the summary procedure would be followed, but that does not alter the fact that people committing offences under the Bill might not only be people who have made profits out of the offence itself but might be and very likely would be, people who in the carrying on of the business in respect of which the offence had been committed, were making large sums of money and to whom a fine of £20 would be negligible.

§ Vice-Admiral TAYLOR
Surely, they would he dealt with by indictment?

§ The SOLICITOR - GENERAL
Not necessarily.

§ Vice-Admiral TAYLOR
For a serious offence?

§ The SOLICITOR-GENERAL
A man is not proceeded against by indictment simply because he is rich or because he has made a lot of money out of the business in respect of which the offence arises with which he is charged. A man is proceeded against by indictment if the culpability is great, but the profit made may not be the measure of the culpability. Considerable sums might have been made out of an offence which it would be quite improper to deal with by indictment. But there will, very likely, be cases of people making substantial sums out of a business in respect to which an offence has been committed. We have 1877 considered the matter very carefully and we have felt it right to give power to inflict a substantial fine but not to send a man to prison for a first offence. We believe that that is the solution which Parliament ought to accept.
The hon. Member made a second and distinct point with regard to increasing the three months to four months. Some of what he said in his speech forms the basis of the reason why the Government could not accept that Amendment. The ordinary procedure is that in the case of offences dealt with summarily the maximum is three months' imprisonment. In the case of the Incitement to Disaffection Bill which I may refer to as an example it was made four months because the offence in that case might be one in which there would be very serious implications and in regard to which difficult questions might arise and so forth, and one which it would be desirable to have dealt with by indictment. But that is not the ordinary practice of this House and for this reason. If the three months were increased to four months everybody who was charged, however trivial the offence, however devoid it was of real seriousness or moral culpability, would have the right to claim to go to the assizes, thus involving the time of 12 jurymen and a judge of the High Court. Proceedings will not be taken summarily in the graver cases, but in other cases the justices are given the power to inflict a limited penalty, and the right is not conferred on a man to say that he wishes to be tried by a jury or by a judge, however trivial the charge against him and however inconceivable it may be that any substantial penalty, by way either of fine or imprisonment, will be imposed. For these reasons we have given very careful consideration to this matter, and we cannot accept the Amendment.

§ Mr. TINKER
I agree that the penalties under the first part of the Clause are not too severe, because there may be companies making large sums of money, but my hon. Friend dealt with the second part of the Clause and pointed out that under Clause 15, if a bookmaker is found taking a bet from a person apparently under or known to be under the age of 18, it is an offence, and it seems to me to he rather a heavy penalty to put a fine of £50 as a maximum for 1878 such an offence. It is true that the magistrates have power to lessen the fine, but it puts in their hands an extreme penalty which they can use if they so desire, and I think there ought to be some lowering of that penalty. I think it is excessive, and I would like the learned Solicitor-General to consider that point particularly. I do not know whether he could do anything to-night, but in another place he might get a less penalty inserted for such a crime.

§ Mr. HOLFORD KNIGHT
I was under the impression that the hon. Member who has just sat down was a member of a bench. This is the usual course of creating an offence and putting in the hands of the court a maximum penalty. A simple case such as that mentioned by the hon. Member would be tried by the justices, and if it were only a matter of a bookmaker dealing with a young person, a very light penalty could be imposed. But if it were the case of a young person being dealt with by the agent of a large business or corporation, there is power to impose a heavier penalty. This procedure has worked with very good effect in the past, and I think my hon. Friend may have his apprehensions allayed.