CLAUSE 23.—(Amendment of Sections 47, 48 and 49 of principal Act.) (Hansard, 1 October 1941)

§ Mr. Douglas
I beg to move, in page 16, line 25, to leave out Subsection (1).
This Clause does something which is obnoxious to the spirit of English law, that is, to place upon a person the obligation of proving that he is innocent of a criminal offence before placing the onus of proof upon the prosecutor. I think it is a great pity that such a Clause should be inserted in a Bill, above all in a Bill of this character. The legal profession themselves admit that it is a very exceptional circumstance. Under the law of our country people are not required to prove their innocence before an endeavour has been made to prove their guilt. It is a practice which obtains in certain cases, but they are very exceptional ones, and I do not think Parliament has ever liked that principle or had any desire to extend it. Although in this case it may be for 680 the convenience of solicitors that such a high-handed practice should be adopted, I hope the Committee will not agree to it, and that those in the Committee who are responsible for the promotion of the Bill will see the wisdom of not pressing this proposal.

§ Mr. Garro Jones (Aberdeen, North)
I took occasion on the Second Reading of this Bill to draw the attention of the learned Attorney-General to this novel principle and to ask him to be good enough to look into it on grounds of equity, and I now support what has been said by my hon. Friend on grounds of common sense. It will be utterly impossible for any person who prepares any of these legal documents to prove to any court what his expectations were. This Sub-section is really only stultifying the language of the Act and the other common sense provisions in it. The Bill will be no worse, indeed will be greatly improved, if this provision is left out. It has given rise to a good deal of alarm among people who are in the habit of preparing legal documents—estate agents, chartered accountants and people of no professional qualifications at all. The restriction upon them still remains, and if they do receive a fee or reward for preparing these legal documents then they can be proceeded against under the Act as it stands without this Sub-section. I hope this obnoxious Sub-section can be left out.

§ Mr. Goldie
I am sure my hon. Friend the Member for North Aberdeen (Mr. Garro Jones) will forgive me if I take a totally different point of view. I am a barrister, but in the Division in which I practise I do not think I am likely ever to receive a fee or reward for preparing any instrument relating to real or personal estate. Surely the whole essence of this business is to prevent the drawing of legal documents by people who are not lawyers. As I see it, the offence consists in drawing a legal document when you are not entitled or qualified so to do. Then what happens? If you draw a legal document you are not liable to any penalty if you can show that you have not done it in the expectation of any fee, gain, or reward. The throwing of the onus of proof upon a defendant is something which is absolutely anathema to any practising lawyer and must be strictly discouraged, but here all that we are saying is, "By doing what 681 you have done you have committed an offence, and the way out is to show that you were acting in an amateur way and will not get any fee." I fail to see that such a provision is a case of throwing the onus of proof upon a defendant.

§ Mr. Garro Jones
My hon. and learned Friend is really begging the question. The whole point is upon whom the onus of proof should be cast, and it is a principle of English law, without any exception so far as I am aware—except in the criminal law—that the onus of proving guilt should rest upon the prosecutor. In this case the onus of proof is shifted, but only for the benefit of solicitors, to protect the profession of solicitors; and it seems to me that to make this exception in favour of solicitors will raise a great many charges of partiality. If one of the persons to whom I have referred, a chartered accountant or estate agent, prepares a legal document for fee or reward he can be sued under this Act without this Subsection, and a penalty can be imposed.

§ Major Milner
Will the hon. Member say how one is going to prove that a fee or reward was received?

§ Mr. Goldie
It could be done by an inspection of the books.

§ Mr. Garro Jones
Whatever difficulties there may be in proving that a fee or reward was received or is to be given it is certain that there will be many more difficulties in proving that a fee or reward was not received. But that is not all that the poor defendant has to prove. He has to prove that he is not even expected to receive a fee or reward. On the Second Reading I quoted one of the oldest tags, one which we learned in our earliest years, namely, that the thoughts of man are not triable, for the Devil himself could not know the thoughts of man; but here we are insisting that the poor defendant shall be compelled to prove what his thoughts were.

§ The Attorney-General
Any provision which even appears to shift the onus of proof should, of course, receive very careful scrutiny in this Committee, and after the speech of my hon. Friend the Member for North Aberdeen (Mr. Garro Jones) on Second Reading I carefully looked into this question. He was then, I think, under a misapprehension. He referred, for example, to wills, but this provision does not apply in such a case.

§ Mr. Garro Jones
I only gave wills as an example, but what I had in mind was any form of legal document—documents about the formation of a company or a lease from week to week or from year to year. The example is beside the point.

§ The Attorney-General
I think it was the clear intention of Parliament when it passed the Solicitors Act not to protect solicitors but to protect the public, and it has therefore been provided that certain classes of instruments affecting real or personal estate, or legal proceedings, or land registry transfers and charges, or documents with regard to probate, should be prepared by those who are technically qualified to do so. If they make a mistake they can then be sued for negligence.

§ Mr. Garro Jones
My right hon. and learned Friend said that they could be sued for negligence if they made mistakes, but you cannot defend this provision on that ground, because some branches of the legal profession cannot be sued.

§ The Attorney-General
People in every branch of the legal profession arc qualified by long training and experience in the drawing-up of these documents in proper form. I am clear about it in my own mind that Parliament never intended that estate agents, and professional persons other than persons legally qualified, should make it part of their business to draw up these documents and say, "We do not charge for drawing up the documents." There was the case of an estate agent who put up a sign outside his office which said, "Land registry. Forms drawn up without fee." He had to attract people into his office, and although there was no fee on the account for drawing up the forms, he was making this work part of his general business. I am sure that Parliament intended to stop that sort of thing.
The Law Society want to protect the public by making clear the intention of Parliament. There is no doubt difficulty in establishing whether any fee has been taken by a land agent or a surveyor, but it is contrary to every intention of Parliament for these people to make this work a subsidiary part of their business. Where a man does the work in the hope of increasing his clientèle, the Law Society has made out a good case.