HC Deb 29 March 1938 vol 333 cc1935-62

Order for Second Reading read.

9.6 p.m.

The Solicitor-General for Scotland (Mr. James Reid)

I beg to move, "That the Bill be now read a Second time."

The purpose of the Measure is to make a number of small Amendments to the criminal law of Scotland. We have two sorts of criminal procedure, a solemn procedure applicable to the more serious crimes, which come before a jury, and the summary procedure, under which cases are tried without a jury, either before a sheriff, burgh magistrates or justices of the peace. In the vast number of cases tried by the summary procedure the penalty is a fine, frequently with the alternative of imprisonment, although a number of cases are awarded imprisonment without the alternatice. Those two procedures are based upon Statutes which have stood for a considerable period. The summary procedure is based upon a Statute passed in 1908. Speaking generally, I may say that these Statutes have worked extremely well and that there is no suggestion in the Bill of altering the main lines of either kind of procedure, but it is inevitable, in the course of time, that certain Amendments become necessary, however good a system may be. They become necessary in this case for two reasons, one, the changing circumstances of modern life requiring some different procedure to deal with them, or because of certain points which were overlooked when the Acts were passed and have subsequently come out, showing that Amendment was required.

After those few preliminary remarks I would pass to consider very shortly the Clauses of the Bill. I am afraid that some of them are not altogether self-explanatory, at least to hon. Members who are not lawyers, and I will try to give an indication of the purpose and the effect of each Clause. The first four Clauses deal with one matter, the method by which fines are to be recovered. There are three methods by which it has been sought and is sought to avoid that people who have been fined should be sent to prison in default of payment. First of all, and this is a method of long standing, it is the practice in most cases where time is asked for to allow time for payment. I shall explain in a moment that Amendment is being made there to extend that practice somewhat beyond its present ambit. Secondly, there is the question of payment of fines by instalments. That has been the law in England for a considerable time, but there is no statutory warrant for the practice in Scotland. In many areas it has been done unofficially by the co-operation of the police, and I think that where it has been done it has worked well. It is highly desirable that the matter should be put on a regular footing, and that is one of the purposes of the Bill.

Thirdly, there is the possibility of review of the sentence before a man is put in prison. There is already statutory provision for that in the Act of 1908. Clause 1 deals with the matter of payment by instalments and gives a general power in all cases to allow payment by instalments, either at the time when the fine is imposed or at any later time, if the accused comes to the court and asks for that indulgence. There are certain consequential provisions into which I need not enter. We cannot estimate what effect these Clauses will have in lessening the number of those who are sentenced, but we expect that the effect will be not inconsiderable.

Mr. Buchanan

Would the hon. and learned Gentleman say what he means by reviewing the sentence?

The Solicitor-General for Scotland

There is provision, I think it is in Section 54 of the Act of 1908, whereby before a man is sent to prison he is entitled to have his case reconsidered by the court, if the court see fit, and the court are entitled to remit his sentence or any part of it. I am told that is done not infrequently. The power seems sufficiently widespread for it not to be in need of extension. Passing to Clause 2 there has been, and of course there still is in motoring offences, a great development of persons who reside in one sheriffdom being fined in another. It is highly convenient that after the fine is imposed in those circumstances the case should be transferred to the court near the man's home, so that, if he desires to come up and ask for an indulgence, time for paying or otherwise, he can go to the nearest court and not to the court near where the offence was committed. That position is being regularised by Clause 2.

Mr. Westwood

I presume that that does not mean that the second court will have rights of revision over a sentence imposed in the first court?

The Solicitor-General for Scotland

Yes, it does, and the hon. Gentleman will see that for that reason there is a provision that where a sentence has been imposed by one sheriff the transfer must be to another sheriff, so that burgh magistrates will not have to review a sheriff's decision. One sheriff is entitled to review the decision of another. This change will put a good deal of extra work upon officials, but we think that it is worth while incurring the additional working expense in order to bring about the object which these four Clauses are aimed to achieve.

Clause 3 extends the existing principle of supervision. At present the courts have power to put juveniles under supervision, and in England the power of supervision has been extended to adults. We think it proper that the courts in Scotland also should be given the power, if they see fit, to put adults under supervision in cases where they require time to pay their fines, in order that the intervening time may not be wasted. Clause 4 deals with the matter of allowing time to pay. At present the law is that, in the absence of special causes, anybody who resides at a fixed abode within the sheriffdom in which he is tried is entitled to time to pay, but if he resides outside the sheriffdom he is not entitled to time, although in most sheriffdoms he gets it in most cases. We think it right, look- ing again to the change of modern habits and the ease of communication, that he should have the same facilities if his abode is outside the sheriffdom as he has at present if it is inside. The words are "fixed abode," and I take it that it is not necessary that he should be actually on the valuation roll as a tenant.

Mr. Cassells

Is it not a fact that that is the actual test applied by sheriffs?

The Solicitor-General for Scotland

It is very much easier to check whether the man's fixed abode is where he says it is if you find an entry in a public document, but I do not think there is any obstacle to the man establishing otherwise to the satisfaction of the sheriff that in fact he has a fixed abode in a certain place.

The other Clauses of the Bill deal with miscellaneous matters. Clause 5 is in order to prevent unnecessary attendance at court. It has always been a fixed principle of Scottish law that nothing can be done in a criminal court in the absence of the accused. In the case of the solemn procedure that is a very valuable safeguard, but in the case of summary procedure it entails unnecessary attendance, because there is no reason why the accused should attend the court if his solicitor is there to plead "Not guilty" on his behalf or to make some legal submission, and if the trial is not to be fixed until a subsequent date. The purpose of the Clause is to avoid the attendance of the accused at the preliminary statement of the case. In many cases this practice operates to-day, but we think it right somewhat to extend and to regularise it.

Clause 6 is not, I am afraid, very intelligible on the face of it, but it arises in this way: If you have a motor accident, there may well arise out of that accident two charges, the one of a serious offence which must be tried before a jury, and the other a trifling offence that would not be tried before a jury. Under our old law it would not be possible to try these charges together as alternatives, but in 1934 power was taken to try as alternative charges a serious and a less serious charge both arising under the Statute. But a number of the less serious charges which may be made against motorists do not arise directly under the Statute, but under regulations made by the Minister in pursuance of statutory powers. There has been some doubt whether the powers given in 1934 apply to the latter class of cases, and it is to remove that doubt and to enable all cases of alternative charges under motor legislation to be taken before the same court that this Clause is brought in.

Clause 7 deals with a point which I think one must frankly say was overlooked in the course of drafting certain recent Acts. It deals with Borstal. The original intention was that Borstal should be open for boys over 16 years of age, but the age limit was defined with reference to the question of offences for which imprisonment could be awarded. The House will be aware that recent legislation has prevented the imprisonment of boys under the age of 17, and it was not noticed that the effect of that was that, except in a limited class of cases, boys between the ages of 16 and 17 could not be sent to Borstal. We think it right that the original age of 16 should be retained for Borstal, and, with that in view, this Clause has been introduced. Clause 8 deals with a very minor matter. It relates to procurators fiscal, who are, as hon. Members will be aware, officials who act under the direction of my right hon. and learned Friend the Lord Advocate. As a general rule they have depute fiscals, and they are entitled to direct whether they or their depute shall take cases. There is, however, a technical difficulty with regard to fatal accidents inquiries, which we are removing by this Clause.

Clause 9 is for the purpose of clearing up a situation created by a recent decision in Edinburgh. As a general rule it is in the power of the Lord Advocate to direct that a person accused of almost any offence except murder shall be tried either by the High Court or by the sheriff with a jury. Cases are directed to be taken before a sheriff and jury where it is obvious that from the circumstances of the case a heavy penalty could not be imposed, but there are certain statutes which are so worded as to make it essential that the case should be taken to the High Court, however trivial the circumstances may be, and recently there have been a number of cases, where obviously the imprisonment to be awarded would not be more than, say, a month, which have had to be taken to the High Court, with all the trouble thereby involved. We think it right to put those cases on the same basis as common' law cases, whereby it is in the discretion of the Lord Advocate to decide before which Court the accused shall be taken.

Clause 10 makes another alteration in our somewhat rigid old procedure. Under the old procedure, not only is it necessary for an accused person to be present, but the accused cannot, even though he wishes, make any admissions which are damaging to himself. Of course, he may make admissions in cross-examination, but, if he does not choose to go into the witness-box, no admissions can be made on his behalf. We think that that is somewhat of a disadvantage to the accused, because it happens not infrequently that, where a mass of documents has to be proved, or where the facts are all admitted and the sole question is whether there was any criminal intent, a great deal of time is taken up in proving things which are not in the least necessary. In 1933 it was enacted that an accused person, acting on legal advice, was entitled to admit documents, but was not entitled to admit facts. We think that that is an unnecessary restriction, and that the same power to make admissions should be given with regard to facts as exists with regard to documents. No admission is taken from the accused unless he is legally represented.

Mr. Foot

Supposing an admission had ben made in the way contemplated by this Clause, would it be open to the defence at a later stage of the proceedings to withdraw it and require strict proof of the fact or document if it was thought necessary?

The Solicitor-General for Scotland

I should hardly think so. I think it would be somewhat difficult to withdraw it, but I will certainly consider whether that is the true interpretation of the Clause, [Interruption.] Undoubtedly, if the accused offers a plea of guilty before he is called upon to plead formally, he may withdraw that at any time. Clause 11 deals with a somewhat curious matter. There are a number of recent enactments, from the Deceased Wife's Sister Act and downwards, which narrow the prohibited degrees of marriage. The purpose of this Clause is to provide that, where there are two people to whom the prohibited degrees would not in any circumstances attach, there can be no crime of incest involved as between them.

That is at least a sketch of the provisions of the Clauses of the Bill. They are miscellaneous. They have been adopted to deal with some specific omissions and things that appear to require amendment, and I commend them all to the House as being desirable amendments of the law of Scotland.

9.29 p.m.

Mr. Pethick-Lawrence

With regard to the first part of the Bill, which I imagine is the most important, and which makes the most significant changes in the law, I should like to know how far the law as it will be if the Bill becomes an Act will be assimilated to the English practice. As I understand it, the English practice to-day is that a man is allowed to pay by instalments and if, after paying certain instalments, he refuses or is unable to complete them, he comes before the court again and, unless the court has grounds for remitting the remainder of the fine, he is sent to prison and it remains with the magistrate to allot the particular term of imprisonment. It is true that the magistrate usually apportions it somewhat on the lines as directed here. What I understand in the Bill is that the term must be as near as possible in the proportion to the unpaid part of the fine. Does this conform in that respect precisely to the present English practice, or does it take out of the hands of the court the precise decision as to the amount of imprisonment to be inflicted?

I should further like to know whether in the first four Clauses the change that is being made is to the advantage of the defendant, or whether in any particular his position may be worsened by these proposals. My experience of summary courts is not quite so favourable as that of the hon. and learned Gentleman. I am not saying anything against those who administer justice in them, but in view of the fact that the judge and the jury are the same person, that the time for dealing with the case is often exceedingly short, that the case is one of a great number which come up consecutively, and that, with human limitations, the person dispensing justice is inclined to imagine (n + 1) th case is precisely on all fours with the nth case which has just preceded it, it happens not infrequently that full justice is not done. Therefore, I am not at all ready to give the general eulogy to summary jurisdiction that we have heard from the Government spokesman. At the same time, we all recognise that summary jurisdiction has come to stay, but it must be our object to alleviate some of the difficulties and to give the defendant every chance when he comes before a court of summary jurisdiction. On the assumption that these provisions in the Bill are all in that direction, I certainly would not desire to prevent their passage, but I should like an assurance that they are to that effect, and that in all respects the person is really getting a better chance after these provisions are carried than before.

I am not quite clear as to the precise effect of Clause 7. I quite understand that the intention is to enable the child to be sent to a Borstal institution if he or she has attained the age of 16, but I am not quite clear what is the state of the law at present. Can they be sent to any other institution, or must they be put on probation, or what precisely is the position? Because although Borstal institutions have a great deal to recommend them, I think that they are perhaps not quite as perfect as some people suppose. If it be true that a child at present is not sent to an institution at all, but given careful guidance under probation, I am not necessarily favourable to the alteration of the law which is being made; but if that be not the case, I should like to know what the position is. On Clause 10, there is only one comment I have to make. I would like to ask, can any reference be made by the prosecution, if this provision is carried into the law, on the refusal of the defendant to make an admission? It is not stated in this Clause that that could not be done and I should like the Solicitor-General for Scotland to satisfy himself and the House that no such statement could be made. I should like him, before we pass this Measure, to be able to satisfy us on that.

9.37 p.m.

Mr. Erskine Hill

I do not propose to keep the House for long, but I want to say that this is a most valuable addition to the law of Scotland. I propose to direct myself, first, to those clauses which deal with High Court procedure. I am of opinion that by far the most valuable of those is Clause 10. Anyone who has had experience of Scottish High Court proce- dure will realise the great disadvantage of the Crown having to prove every small item. It is a disadvantage not only from the point of view of the court, but from that of the accused, because very often in a High Court case, particularly a murder case, you have 200 or 300 articles of all sorts which all have to be proved. The result is delay, which causes expense to the accused and the extra anxieties of another day's trial and, in murder cases, as far as the jury are concerned, that means, of course, that they are locked up another day, away from their families, and with all the inconveniences of enforced absence from home.

The rules which necessitated this provision of the Scottish law were founded on real justice in the old days, when there were all sorts of possibilities of the evidence being tampered with. But nowadays that is not so. In a murder case, you may have some fragment of cloth or some hair having to be sent from Aberdeen, where the murder was committed, to the Professor of Medical Jurisprudence in Edinburgh University. The hair or fragment of cloth is handed to a policeman, who takes it to the Professor of Medical Jurisprudence. All that has to be proved in court, from the moment the Procurator-Fiscal at Aberdeen puts into the hands of the policeman the hair or fragment of cloth until it is eventually handed back to him every step is sworn to by witnesses. I have had several experiences of being besought by the defence to let go this necessity of proving those absolutely unnecessary details, and I have had to reply that it is my duty to go on and prove everything, because it is the law of Scotland. This is a very important Clause, and it will make for the expedition of justice, the saving of expense for the accused and the saving of a great deal of unnecessary time in the trial of important causes.

With regard to Clause 9, a great many offences, particularly coinage offences, are tried before the High Court, and the sentence is one of one or two months. It means a great loss of time to the High Court. As regards payment of fines, the right hon. Gentleman the Member for East Edinburgh (Mr. Pethick-Lawrence) asked whether the new Clauses represented an advance on the present law. I think they do indeed. But I think they may be open to the criticism that the English Bill goes further, and there may be some anxiety expressed that this Bill should go further, too. While I am largely in sympathy with that view, I think the system in Scotland, where the sheriffs are already overburdened, makes it difficult to concede that too much more should be put upon them. The sheriffs, who have so much to do already, ought not to be still more overburdened.

Mr. Buchanan

Is that the only reason?

Mr. Erskine Hill

I am not giving the only reason; I am expressing a difficulty.

Mr. Buchanan

Therefore, the people in Scotland should suffer more—all because there are not enough sheriffs.

Mr. Erskine Hill

The hon. Member has put much more into my words than I said. If it were in order, I would suggest that there should be more sheriffs appointed perhaps in Scotland. All I say is that I express what is a very real difficulty at the present moment, that the sheriffs should not be still more overburdened. I have expressed my sympathy for a wide discretion, and I repeat that as generous a view as possible should be taken on the payment of fines. This Bill deserves the commendation of the House.

9.43 p.m.

Mr. Buchanan

I rise to say a word or two about this Bill, because, for some considerable time, I have plied the Secretary of State for Scotland with questions as to when he would introduce a Bill similar to that introduced in 1935 for England. This Bill can be criticised, not for what it contains but for a great deal of what is left out. Now we are dealing with the law of criminal procedure, the Scottish Office and the Law Officers ought to have undertaken a much wider measure of reform. I am not going to say that my view will be shared in all parts of the House, but I think that in certain parts of criminal procedure some reform is overdue, particularly in regard to very petty offences. In Scotland I do not think anybody could complain about the trial of the most serious crimes of all. In the case of a crime like murder, the trial is fair, impartial and a credit to all concerned; but in the case of petty crimes, like drunkenness on a Saturday night or a brawl between two or three people in the street, when the case comes before the magistrate I am not sure that the procedure is anything like so creditable.

When a person is charged with murder the court is a civilian court. Everybody is a civilian, including the judge and the prosecutor. But when a man is charged with an offence like getting drunk on a Saturday night, it is a different sort of court. He is tried for this terrible offence. He goes into a Glasgow police court, where the evidence is almost entirely police evidence. It is bound to be so, as a civilian does not really care to give evidence. The prosecutor is the police superintendent, dressed in police uniform, with his Sam Browne belt. When you go into court it is almost like going into the atmosphere of a court-martial instead of that of a civil court. Why should uniform be worn in a civil court? No uniform should be worn in such a court. The police are responsible for the evidence, and the chief of police is the prosecutor. The time has come when, in cases where the police in the main are giving the evidence, the chief of police should not be the prosecutor.

I turn from that to the main reform in the Bill, which deals with the payment of fines by instalments. I listened with a great deal of attention to what was said by the hon. and learned Gentleman the Member for North Edinburgh (Mr. Erskine Hill). He and the hon. Member for Dumbartonshire (Mr. Cassells) have had much more experience in the courts than I have. But I am not without experience, although I have never been before the sheriff for an offence. What is the difference between the English Act and the Scottish Bill? The English Measure also allows payment of fines by instalments, but it goes a great deal further. If non-payment of a fine is due to reasons over which a defendant has no control, say, because of unemployment or the illness of his wife, or because his business has "gone smash," the court need not persist in the fine.

It is well that we should be clear about the present procedure. I speak about Glasgow, which I know well. The procurators fiscal are much more easy of approach in order to get a fine delayed than is the case in magistrates' courts. The right hon. Gentleman the Member for East Edinburgh (Mr. Pethick-Lawrence) was a little confused in regard to summary courts in England and summary courts in Scotland. In the summary courts in Scotland cases are tried by the sheriff and not by lay magistrates. You can go to the procurator fiscal or to one of his able assistants and say that, So-and-So, who has been fined £5, and has been given three months in which to pay, cannot pay the fine by the end of that time, but that he might be able to do so if a further three months were granted. He asks for reasons and will say whether they are good, bad or indifferent. It may be said that the defendant had been out of work and had only started again a week or so ago, and the assistant might say that that was a good reason and that he would recommend the sheriff to extend the period of the fine. The man does not necessarily appear before the sheriff. But if you go to a magistrates' court the magistrates' assistant usually says that he must have the man before him before the time for payment could be extended. Perhaps the poor chap might be at work, and it would be a great hardship upon him if he had to come.

When this Bill is passed, we shall have to watch that certain magistrates—and I speak particularly with regard to some of the lay magistrates—do not make it an excuse for sending men to prison. I am rather afraid that some may say that a defendant is outside their jurisdiction or district and that they cannot deal with the fine in the way they used to do, and that, therefore, they must make sure of it by sending the man to prison. There ought to be payment of fines by instalments. What happens in Glasgow is that sometimes a man goes to prison in default of paying a fine of £1, and perhaps after a few days some one turns up and hands over 10s. and the man is let out after about three days instead of having to serve for six days, although I understand that this sort of thing has not the legality of law. Payment of fines by instalments under the English Measure, I believe, was introduced partly to benefit the poorer section of the community. A fine of £5 imposed upon me would be nothing like as heavy upon me as a fine of 10s. would be upon, say, an unemployed constituent of mine. I think that I could pay the £5 very easily. I plead with the Solicitor-General for Scotland that, with regard to the payment of fines, there ought to be provision for some amendment so that the law in Scotland is not harsher than the law in England.

I want to come for a moment or two to a Clause about which I am slightly suspicious, and that is the Clause for the extension of supervision. We have had the practice of the supervision of boys in Scotland, and I cannot say that I have always thought it a great success. It all depends very much on how these matters are worked. I had a case only this week of a boy breaking into a place in a residential quarter near Glasgow. Of course, he should not have done it, and I suppose that at his age the difference between us was that I did a thing and was not caught, and he was caught. The boy stays at Griffnock, in my division, about seven miles away from where he works, but the police called at his place of employment, and he was sacked. It does not do any good to anyone to see a boy unemployed as well as punished. What right have the police or the authorities to do such a thing? I would like to have seen power in the Bill to the effect that wherever the police have reasonable knowledge of a defendant's address, they should not call at the place where he is employed.

We have already had supervision by the probation officer, and a great deal turns on who the officer is and what type of mind he has. If he is a decent, kindly man, there is not much in it. I think it might in some cases be argued that it helps, but in other cases it can be terribly hard on a defendant. I am thinking about the adult person who is under supervision. In a district like mine, where there are tenement dwellings, what happens? In Glasgow, with its packed community and where everybody knows everybody else's business, you cannot hide these things. You are living on the top of one another, and up comes this officer to supervise a man who has been fined for an offence away, say, in Dundee. Nobody knows anything about it, and a good job too. The man is put under supervision, and up comes the officer. Nearly everybody in the district knows he is the supervisor, and he knocks at the door to see how the man is behaving. It means that you advertise throughout the district that the man is a criminal. People do not know that it was up in Dundee, following the Rangers or the Celtics, and that it was something which, if they knew about it, would make them think him a hero rather than a criminal for having done it. They only see the man who looks after the bad people coming to the door, and this probation business is open to terrible abuse.

I have seen it regarding boys. I have not thought it helped to see the probation officer in Glasgow marching up to a house to see how a boy was getting on, and everybody knew what he was there for. I have seen it happen that poor people have shifted out of the district, because the court has let a boy out on probation on condition that his parents go away to another surrounding. As a result they shift, and then the probation officer comes to visit the boy, and everyone in the new place at once knows that young Johnny is a criminal. If that sort of thing is to be extended, I do not think it is altogether a good thing, and I am not sure that in the main this supervision does all that it ought to do. To me, supervision was always meant to apply to cases that were really criminal, but where a fine is imposed to-day, people do not look upon it as a criminal offence requiring supervision. Why, for instance, should a man who has overloaded his lorry and been fined £2 payable by instalments, be supervised? Is it to be a case of one law for one set of people and another law for another set?

There is another matter, namely, the question of High Court indictments, on which I do not want to be dogmatic, but I was not quite so convinced as was the hon. and learned Gentleman on this question. I was not impressed by his explanation, and while I am not prepared to say that I will oppose this in Committee, at least I shall be somewhat suspicious until I get stronger reasons given to me than I have heard so far.

On the main part of the Bill, I do not propose to divide against it, and I only hope the Solicitor-General will meet us in Committee with an open mind. Many of the things that I have spoken about cannot be tackled in this Bill because they may be outside its scope, but I hope the Solicitor-General and also the Secretary of State for Scotland will pay some regard to these magistrates' courts in Glasgow, which need some inquiry. Crime is decreasing in our city. The figures recently published show a rapid decrease in crime, and that is due to many factors. We discussed one of the factors earlier to-day, namely, the question of housing. If the right hon. Gentleman can solve that prob- lem of housing our community, he will do more than all the precious measures for fining or gaoling or birching will ever do to solve the problem of crime. Let him split up the slums. That is the way to attack crime, and for my part I say to him that he should look at this Bill in Committee with an open mind, and remember that a great mass of these cases of people who cannot pay fines are cases of poor folk who have not had the advantages of education, of knowledge, and of the brighter things of life. Do not let us make punishment our object, but let us have the humane object of doing all that we can to keep men outside prison, because, with all my experience of meeting criminals, I must say that I have rarely seen prison make a bad man good, and I have often thought it made a bad man worse.

10.3 p.m.

Mr. Maxwell Fyfe

It is with great diffidence that I venture to intrude into a system of law in which I am not trained, but there are points which I consider of very general importance to which I should like to draw the attention of the House. I should like first to follow the hon. Member for Gorbals (Mr. Buchanan), in what he said regarding prosecutions by police superintendents in uniform and the additional power which prosecuting in that way gives, not only in putting forward their own case, but in making it difficult for a defendant who is unrepresented to put forward his case. I would suggest to the hon. Member for his consideration a halfway house which has proved not unacceptable in the southern part of this island, and that is where you are dealing with the large class of trivial offences where it is not desired to go to the expense of employing solicitors. In such cases it has been found that police officers, trained as a staff of prosecutors, who appear in plain clothes and deal with prosecutions only for that period of their duty, get their idea of presenting them fairly and justly, and this tends to mitigate the undoubted evil which the hon. Member has put forward. I would suggest that the consideration of that plan might form a halfway house between the two points of view with which the hon. Member has dealt. I support entirely his plea for the abatement of fines where it is proved that persons cannot pay the fines through unemployment or any cause of that sort. Everyone who has to im- pose penalties makes a real distinction between the case which requires imprisonment and the case which requires a fine. Once it has been decided that a case falls within the category of those which are deserving of fines only, it is wrong that that case should go back into the category of cases deserving imprisonment, merely because of lack of means on the part of the defendant. I am sure the Solicitor-General for Scotland will give full weight to that point.

There is an additional point which I, again with diffidence, would put before the House. One finds that in big districts there is a practical difficulty in the way of a defendant who has been fined coming to the court-house to pay the fine during the hours when the office for that purpose is open. An effort has been made in certain districts in England to arrange that a defendant should be allowed to pay the fine at the local police station. There is often a real difficulty in the way of a man making a journey of several miles by train or bus to pay a fine. It might be possible to consider some provision of that kind in connection with this Bill, or even to make a rule of practice by which such a system could be introduced.

On the question of strict proof, which has been dealt with by my hon. and learned Friend the Member for North Edinburgh (Mr. Erskine Hill) I confess that this provision has been disquieting to those of us who have had to deal with these problems in other places. When one is examining evidence before a prosecution is launched, one is at present bound to examine that evidence closely and scrutinise every link in the chain in order to see whether it will stand the pull of examination in open court. I may be old-fashioned in this matter, but I think it an excellent thing that prosecutions should be forced to stand that procedure. It prevents anything like slovenliness in the presentation of a prosecution. I attach the greatest weight to any point raised by my hon. and learned Friend, and I have myself had experience of cases in which one has had to spend perhaps two days, calling evidence of facts which were admitted, thereby occasioning expense to the defendants. But I submit that that happens only in a very small proportion of cases. In most cases the other consideration of the prosecution being compelled to present a case which is absolutely watertight and does not fail in any small particular, is one of the greatest importance in the administration of criminal justice.

I can see an additional difficulty to that raised by the right hon. Gentleman the Member for East Edinburgh (Mr. Pethick-Lawrence). He raised the question of comment by the prosecution being barred. But can you stop that? Once this becomes law and becomes generally known, is it not going to be a case of suggesting, "Well, members of the jury, we have to go into all these matters. It is necessary to do so"—the implication being that, if the defendant were only reasonable, it would not be necessary to do so. The result is prejudice against the defendant. I am sure my hon. and learned Friends the Solicitor-General for Scotland and the hon. and learned Member for North Edinburgh would be the last to wish to prejudice a defendant, but if you are driven to place alternatives before the defendant, the adoption of one of which is bound to cause prejudice against him, then I submit you are coming to a position which is extremely undesirable in dealing with criminal cases. I repeat my apology for intruding in the affairs of Scotland, but, as hon. Members know, I have an interest by blood in Scotland and I am interested in the administration of justice. I hope the Solicitor-General for Scotland will give consideration to these points.

10.11 p.m.

Mr. Cassells

While generally agreeing with what has been said as to the effect of this Bill, I wish to pass a comment on the speech of the hon. and learned Member who has just resumed his seat, particularly in regard to Clause 10, Sub-sections (1) and (2). As I understand the purport of that Clause, it places a discretion on the accused or the person representing the accused, as to the admission of certain facts or documents. From personal experience, I am satisfied that the profession in Scotland will welcome this innovation. Last year I had a case in the sheriff court in Stirling. It was an indictment for embezzlement and it lasted six days. The whole of the first two days were occupied by proof of matters which were never at any time in dispute. I, personally, welcome this provision as far as assisting procedure is concerned.

One is bound to pay due regard to the point made by the last speaker from this point of view. As the law now stands, full opportunity is not given to the accused person in the sense of advising him to the full extent of the prosecution's case. On two occasions I have raised this question with the Lord Advocate. I have suggested that in summary procedure in Scotland, the accused person should be fully advised as to the witnesses whom the prosecution intend to adduce. So far nothing useful has eventuated. I assume that this Bill intends to give benefits to accused persons and if so one of the elements which it ought to contain, is the right to afford the accused full inside information about the case which he has to meet. The Solicitor-General for Scotland referred to the fact that this Bill applies not only to summary procedure, but also to solemn procedure. When one is dealing with a charge on indictment, the accused person is advised in the indictment as to the names and addresses of the witnesses who are to be adduced. I suggest with confidence and respect to the Solicitor-General that if that should apply to a case where solemn procedure follows, there is no reason why a similar concession should not be afforded to the accused on summary complaint.

The right hon. Member for East Edinburgh (Mr. Pethick-Lawrence) raised the question whether it would be competent for the prosecution to refer to the fact that an accused person had not made certain admissions, and the junior Member for Dundee (Mr. Foot) raised the point whether it would be competent for an accused person, after having made admissions, to withdraw them. With the law of Scotland as it stands—I do not know one single thing about the law of England in this connection—I am satisfied that if the prosecution made a single suggestion to the jury that the accused had an opportunity to make admissions and did not do so, that fact would be sufficient of itself to quash the conviction. As the law of Scotland presently stands, if an accused person does not avail himself of the opportunity to go into the witness-box and speak on his own behalf, and that happens repeatedly, it is no part of the duty of the prosecution to lay stress upon that fact. There have been cases in Scotland where the prosecutor has referred to that fact, and on appeal the appeal has been sustained. Therefore, so far as that point is concerned it has a complete answer.

I should like to refer to the point raised by the hon. Member for Gorbals (Mr. Buchanan). In Sub-section I (1) there is afforded for the first time to convicted persons in Scotland the right to pay fines by instalment, but we find from the statement made by the hon. Member for Gorbals that the position in England is infinitely better than the position in Scotland. On the point raised by the right hon. Member for East Edinburgh there is quite clearly in this Sub-section no discretionary power afforded to the magistrate or the sheriff in the first instance. The Sub-section is quite specific. It says: Where a court of summary jurisdiction imposes a fine on a person convicted of an offence, the court may, either at the same or at any subsequent time, order payment of the fine by instalments of such amounts, and at such times, as it may think fit, and where any instalment is not paid by the time so ordered, the accused shall it is compulsory be liable to imprisonment for such period as bears to the period appropriate to the total amount of the fine the same proportion, as nearly as may be," etc. Why should it be that in Scotland the position should in any respect be different from that which applies in England, and particularly so from the further point raised by the hon. Member for Gorbals when he referred, quite properly, to Clause 3 (1). We must take these two Sub-sections together. Clause 3 (1) says: Where a court of summary jurisdiction imposes a fine on a person convicted of an offence, and allows time for payment, the court may, either at the time when the fine is imposed or at any subsequent time, order the accused to be placed under such supervision as the court may from time to time appoint. Therefore, in Scotland, instead of placing the accused in a more comfortable position, we are going to put him in a more difficult position. Not only is the presiding judge to be entitled to impose a monetary penalty, but he is to be entitled to apply a period of supervision. In these circumstances it is a most proper demand we make that an accused person in Scotland shall be treated in the same way as he is in England, and I hope that good will result from the demand we put forward.

I want to ask one or two questions with regard to the effect of Clause 3, Sub-section (1), dealing with the period of supervision. I view this Clause with the gravest suspicion. It means that months after a fine has been imposed it shall be within the discretion of the magistrate or sheriff to order that the accused person shall again be brought within the discretion of the court; and charged with what? There is no charge in this Clause. I assume that what is intended is that an accused person who has not been behaving as well as he might but not sufficiently badly to justify a specific complaint being made against him in a court of law, is to be compulsorily brought back again before the sheriff. Who is to supervise? What is to be the period of time within which an accused person may be brought back? What is the supervision to be? Is an accused person to be called upon to find caution? Is he to be called upon to sign a bond? If he fails to act up to the terms of the supervision order is it to be held as being contempt of court and is he to be committed to prison? These are points on which the House is entitled to specific information.

As a member of the profession I warmly welcome Clause 5, Sub-sections (1) and (2). We have repeatedly found in Scotland an accused person, charged with quite a trivial offence, being compelled, on a plea of guilty, to appear before the court, and I welcome this Clause because I am satisfied that in many of these cases men have lost their jobs by being compelled to absent themselves from their employment in order to go to the court which has jurisdiction over the offence. Further, I know of cases where the accused person has come to the court himself, he has been compelled to come owing to the nature of the offence, and has tendered his plea of "not guilty." He has thereupon been informed by the judge that the case would be suspended for two or three days when evidence would be taken. Repeatedly justice has been defeated in many of these cases because the accused person, who may have a perfect answer to the charge, says that rather than waste any more time about it he would plead guilty. I welcome the definite advantages contained in Clause 5 in so far as these points are concerned, but I earnestly hope that the Solicitor-General for Scotland will pay attention to the criticisms that have been made with regard to the points on which the Bill fails, and that between now and the next stage he will make an effort to meet those criticisms.

10.26 p.m.

Mr. Goldie

It may truly be said that only an ignorant Sassenach would interfere in Scottish affairs, where angels fear to tread. My only excuse for interfering is that I happen to be of Scottish descent, and that there are one or two anomalies in the Bill to which I think the attention of hon. Members ought to be drawn. I will pass immediately to Clause 7, which frankly I fail to understand. Under one of the sections of the Prevention of Crime Act, no person under the age of 17 years shall be deemed to be convicted of an offence for which he is likely to be sentenced to imprisonment. That cannot apply to Borstal treatment, because the minimum age for Borstal is 17, in England. It must mean the giving of some power to the courts to commit to approved schools. With the greatest respect, I would like to warn the Solicitor-General for Scotland of a provision of which very few Members of the House may know in the Children's Act, in which power is given not to an assize court or to the quarter sessions, or whatever may be their equivalent in Scotland, but to the local police court, to commit a young person to Borstal for a period of two years, as distinct from three years, which is the period recommended by the Court of Criminal Appeal for a child who has absconded from an approved school. The law in Scotland in that respect may be more fortunate or more unfortunate, but in England there is no power to commit a person under the age of 17 to Borstal. If this Clause is an attempt to get children into Borstal, on the desirability of which I express no opinion, I would warn the Solicitor-General to have regard for a section of the Children's Act which makes it possible for a police court to send children there.

With regard to Clause 10 of the Bill, I listened to the most humane speech of the hon. Member for Gorbals (Mr. Buchanan). As a member of the English Bar, I would like to utter a word of warning to my hon. and learned Friends who are members of the Scottish Bar, I say to them, "Look out what you do under that Clause." It should be left absolutely to the Crown to prove its case, and to prove it to the hilt. In a civil court it is always possible to admit facts, but in a criminal court there is nothing which it is more dangerous to do, from the point of view of the interests of one's client, than to admit anything. I would like to tell the House of one experience I had as a young man in the civil court which I have never forgotten. I was acting for a man who had been sued on a promissory note by a moneylender. As a young barrister having almost his first case, I sat up all night working out a marvellous cross-examination of the moneylender. The next morning, I went to the county court, and I was asked, "You admit the note, do you not?" Being young I said, "Yes," and I heard the words, "Then it is for my learned friend to begin"; and the whole of my cross-examination was rendered useless, for the moneylender did not go into the witness-box as a result of my youthful admission. Realise what this means In any trial on indictment it shall not be necessary for the prosecutor or the accused to lead proof of any fact which is admitted by the other party. I have recently been concerned in a case in which a man's life depended on a question of distance from one point to another. It is very easy, not knowing what is going to be said by the prosecution, to make an admission that the distance from point A to point B was a mile when it was, in fact, a mile and a-half. You are laying up untold trouble for those who have to defend criminals in Scotland if you try and make the criminal procedure there analogous to the civil procedure. The criminal law of Scotland is a subject on which I have no expert knowledge, but I venture to suggest to those who know more about these matters than I do that it would be much better to leave the law as it is in England. If you admit facts in a civil court no real harm is done, but do not imperil the safety of clients by any admission in a criminal case the results of which nobody can foresee.

10.32 p.m.

Mr. Foot

I want to support the plea that has been made by the two hon. and learned Gentlemen opposite. A certain number of comparisons have been made between the systems of criminal law in Scotland and in England. Even in the English criminal law, where you have a trial on indictment at the assizes, it is not completely necessary to prove every formal matter. There is a system under which certain formal depositions may be read at the assizes if the person giving the depositions has given evidence on oath before the justices. When, as sometimes happens in a manslaughter case, you have the plan of a road, it is not necessary, if a witness has proved it before the justices, that he should be present at the assizes unless his attendance is required. Instead of that his depositions may be read by the clerk of assize. This is a very convenient arrangement; it saves expense and obviates the attendance of the witness at the trial. Where there is an arrangement of that kind in the English courts it is open to the defence, if they think fit, to require the attendance of the witness at the assizes, or wherever the trial may be.

The only difficulty, which I intimated in my interruption of the hon. and learned Gentleman the Solicitor-General for Scotland, which I see about Clause 10 is that, as it is drafted, it might not be possible for the defence to say that they want the witness to be present if an admission has been made. I assume that in the operation of this Clause the admission might be made by the accused person or on his behalf before the trial actually took place, but, as the hon. and learned Gentleman the Member for Warrington (Mr. Goldie) has said, it constantly happens that considerations crop up in criminal proceedings which have not been foreseen and the evidence of some witness to prove what has seemed a small point suddenly becomes a matter of great importance. It would be unfortunate if, as a result of the way in which this Clause is drafted, it could then be said for the defence, "You have made the admission and you have to stand by it." I hope that the hon. and learned Gentleman the Solicitor-General for Scotland will seriously consider the form of this Clause before we go into Committee.

10.35 p.m.

Mr. R. Gibson

I have not much to say in this Debate, but I feel that the effect of this Bill will be to bring the law very much into conformity with the practice. As to Clause II, I cannot recall any prosecutions of the nature referred to there. With regard to Clause 10, we have had the benefit of a considerable volume of advice from South of the Border. Our system of criminal law in Scotland is quite different from that South of the Border. It is a little difficult for a Scotsman to follow what has been said by the hon. Member for Dundee (Mr. Foot) with regard to evidence being given twice in a criminal prosecution. We do not have such procedure in Scotland. There is the further difference that in Scotland the Lord Advocate is in charge of the administration of the criminal law, whereas in England I understand that prosecutions are of a private nature—at least they can be of a private nature in misdemeanours and lesser offences; but that is not the case in Scotland.

Mr. Goldie

In indictable offences, save in most exceptional cases, the prosecution is always a public one. In small cases in the police courts there may be private prosecutions.

Mr. Gibson

In regard to High Court procedure, at present we have to prove everything in the Scottish Courts, and there is a great deal in what the hon. and learned Member for North Edinburgh (Mr. Erskine Hill) said. A great part of the day may be spent in providing the most formal proof of certain things, and so far as one can see the necessity for that might be dispensed with if the defence were willing to give admissions. Of course there is nothing to compel the defence to admit anything at all. I think some qualification must be put upon what the hon. Member for Dumbartonshire (Mr. Cassells) said about there being a difficulty in the way of the prosecution making any reference to a failure to give admission. When he was speaking about a prosecutor not being allowed to refer in court to the fact that the accused had failed to give evidence, that is a matter of express statutory enactment, and to bring that point in here I think it would be necessary to amend Clause 10 so as to make it impossible for the prosecution to make any comment at all on any admission which is given by the defence. I do not wish to say anything with regard to summary procedure, except that there is a little difficulty in my mind about the words "at any subsequent time" in Subsection (1) of Clause 3. I take it that what is meant is any subsequent time during the period when part of the fine is unpaid. I think the wording might be altered to make that quite clear. The Bill in general should prove of very great advantage in practice.

10.40 p.m.

Mr. T. Henderson

I have a question to put to the Solicitor-General for Scotland arising out of something which happened a few days ago. I put a question to the Lord Advocate in regard to a man who was fined in a court and lived 120 miles away. It was a very small fine, and he sent a postal order to pay it, but it was refused. He had to travel the 120 miles in person. I want to know whether such a case as that is dealt with by Clause 2. As I read that Clause, the fine would be paid in the place where the man resides instead of his having to appear in person 120 miles away. I should like the Solicitor-General to answer this question, and to inform me whether it is legal for a court in Scotland to refuse acceptance of a postal order in payment of a fine?

10.42 p.m.

The Solicitor-General for Scotland

The Debate has not proceeded on party lines, and it is therefore easier for me to assure the House that all the suggestions which have been made will be most carefully considered. Many of them may be capable of modification. Probably it will best serve the purpose of hon. Members who have made so many helpful suggestions if I promise that those suggestions will be carefully considered between now and the Committee stage, rather than that I should attempt to reply to them in detail. I am accordingly proposing to deal with them only in a general way.

Hon. Members have suggested that Clause 1 is too wide. We will, of course, look into that suggestion, but our intention was that, except in certain particulars, the Clause should be the same as the Clause in the English Act. I think that that was in fact what was done. I recognise that the supervision proposal has been criticised from several points of view. Frankly, our adoption of supervision for adults is of an experimental character. It has been adopted in England, and no objection has been taken so far. It seemed a suitable method to have in reserve to use in a case where a court thought it desirable. I recognise that there is a possibility of the system being of use in some cases. A question arose relating to Clause 7. So far as I can gather I correctly stated the law of Scotland.

Mr. Pethick-Lawrence

Will the hon. and learned Gentleman be good enough to answer my question as to what precisely happens to these youths between 16 and 17?

The Solicitor-General for Scotland

Since the Children Act raised the age of imprisonment from 16 to 17, I think the only method of dealing with a boy who cannot be sent to Borstal is by sending him to an approved school. In other cases we have Borstal as an alternative, and the ordinary remedy is to put him on probation.

The main Debate has turned on the proposal of Clause 10, and I venture to think there has been some little misapprehension about how that Clause would work out in practice. It is not contemplated that in all cases, or even in the majority of cases, there would be a minute of admission. I could quite appreciate the criticisms of hon. and learned Members if it were contemplated that that method of making admissions would ever become a general one, to be used in the majority of cases. Then there might be some danger that a person who refused to make an admission would suffer from prejudice. But if it is an exceptional procedure, only followed in a comparatively small proportion of cases, I cannot see how there can be any suggestion of prejudice because a person has not seen fit to make any admission. Nor do I see how it is going to make the Crown authorities careless in preparing or presenting their case.

The hon. Member for Dumbartonshire (Mr. Cassells) has mentioned a case that he had in which two days were wasted, and I think the hon. and learned Member for North Edinburgh (Mr. Erskine Hill) had a similar experience. [Interruption.] The hon. Member for Gorbals (Mr. Buchanan) will be well aware that under present conditions the number of cases taken by solemn procedure in Scotland is very large in the course of a year, and if in a dozen or two dozen, or even three dozen cases, this procedure were used in the course of a year, they would form but a very small proportion of the total number of cases taken by solemn procedure. If it were going to save a day or two days even in 10 or 20 cases every year, I think it would be well worth while for the House to pass a Clause which had that effect. We shall, of course, consider the views which have been expressed, but I venture to think, looking at our methods of preparing cases, that the provision would have no ill effect. The Crown prepares its case fully before the indictment is served, and it is not until after the indictment is served that admissions would be made. Therefore, I cannot see how the making of admissions would in any way prejudice the preparation of the case.

The hon. and learned Gentleman the Member for West Derby (Mr. Fyfe) raised a point about postal orders. I do not think that any difficulty in an ordinary case has been met with in using postal orders for payment. The hon. Member who spoke last raised a particular case where, I think, there was some misunderstanding, and the position there was not that a postal order was tendered in payment of a fine which had been already imposed, but it was sent by a man to be used for any fine that might be imposed upon him. You cannot impose hard-and-fast rules on courts that in every circumstances they must proceed in a man's absence, and it may well be that in the case referred to there was some misunderstanding which brought the man to Oban when he need not have come. It is better to risk an occasional misunderstanding than to bring in hard-and-fast rules which might in certain circumstances be extremely embarrassing.

I fully appreciate the weight of the criticisms of the hon. Member for Gorbals (Mr. Buchanan) about methods of prosecution, but I very much doubt whether any magistrate's decisions at Glasgow are really influenced against the accused by the fact that the prosecutor happens to wear uniform and therefore the only real prejudice is that the accused person who is not represented by someone may feel it rather difficult to put forward his case. I should not have thought that Glasgow people were as a general rule so terrorised by a police uniform as to feel much embarrassed, but I appreciate that there is a point for consideration, and I will also bear in mind the suggestion of the hon. Member for West Derby in that connection. My remarks about the undesirability of general rules cover the other questions that the hon. Member put. Accordingly I think I can ask the House to give the Bill a Second Reading on the footing that all the criticisms that have been made will be most carefully considered before the Bill goes to Committee.