HC Deb 02 March 1956 vol 549 cc1639-50

Order for Second Reading read.

11.5 a.m.

Mr. E. H. C. Leather (Somerset, North)

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

By an extraordinary turn of fate and outrageous good luck, I find myself for the third time in one Session moving or seconding a Motion for the Second Reading of a Private Member's Bill. This outrageous fortune makes me feel a little humble in the presence of the House. However, I shall not detain the House very long, because the Bill is, I hope, non-contentious. I am grateful for the support of hon. Members on both sides of the House, and especially for that of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), formerly Attorney-General, and for that of the hon. Member for Salford, West (Mr. Royle), who is the President of the Magistrates' Association.

Mr. Charles Royle (Salford, West)

Vice-president.

Mr. Leather

I beg the hon. Member's pardon; but I am glad to promote him, anyway.

It is a short, simple Bill, containing one principle, namely, that any person who is bound over by a local bench should have the right of appeal to quarter sessions for a second hearing of the case. That is in subsection (1) of what is, practically speaking, a one-Clause Bill. Subsection (2) of that Clause is consequential on subsection (1) and deals with points of law about which the legal advisers of the Home Office were good enough to advise me. I would express my thanks to my hon. Friend the Joint Under-Secretary of State for the Home Department and his legal advisers for the help which they have given me.

My interest in this matter arose from an unfortunate case in my own constituency some two years ago. A young lady was tried by the local bench and bound over. In the eyes of the law that constituted no conviction, and, therefore, there was nothing to appeal against. However, in a case such as that, in these days when we have a national Press and wide publicity and lurid stories in the Sunday newspapers, there is no doubt whatever that binding over constitutes a conviction in the eyes of many of the general public, however mistaken they may be in so thinking. In the case to which I have referred, the young lady felt that her entire reputation and position in life were besmirched. Because of this ancient law she was denied any opportunity to clear her name.

Mr. H. Hynd (Accrington)

Is it possible for a person to be bound over without that person's consent? I understood that the person's consent must be given before he can be bound over.

Mr. Leather

I think that may be, but surely the implication of that is that the only way to get out of being bound over is to ask to be convicted. I think that is the only way out of that difficulty, and I cannot imagine anybody's doing it. If the bench is not prepared to give a person a clean bill of health, the only way that person can object to being bound over or to refuse to be bound over is to plead guilty. That is a ridiculous situation. However, I do not think that that technicality affects the matter at issue.

Many magistrates, and certainly the magistrates in the case to which I have referred, have long tended to think that here is an anachronism in the law, one that has long required to be put right. I am grateful that over a period of months I have been able to persuade my hon. Friend and his advisers that that is so.

All the Bill does is to allow the individual concerned to appeal to quarter sessions, and the right to the hope that his name and reputation may be cleared. It is not my place, nor, indeed, am I competent, to express any opinion on the merits of the case which arose in my constituency, or of any other case, but I do know from a good deal of personal experience that magistrates think this law should be amended, and I know that the megistrates In that case in my consituency felt as unhappy about the situation as the unfortunate young woman concerned did, and as I did. I hope that these few words of mine will be enough to commend the Bill to the House. I hope that it may prove uncontentious, and I hope that it will be given a speedy passage to the Statute Book.

11.9 a.m.

Mr. Charles Royle (Salford, West)

I beg to second the Motion.

It gives me very great pleasure to second the Motion, and I congratulate the hon. Member for Somerset, North (Mr. Leather) on having seen fit to bring this Bill before the House. It would be an understatement to say that the righting of a wrong of 1361 is overdue. At all events, during recent centuries this reform has become overdue, and it is a good thing that it should now be made.

My hon. Friend the Member for Accrington (Mr. H. Hynd) interrupted the hon. Member for Somerset, North on the matter of consent to being bound over. That is perfectly true. A magistrate, in binding anyone over, has to ask the defendant if he consents. I suppose the defendant, in those circumstances, could say that he refused to be bound over, and the alternative would be for the magistrate to impose a fine or, if the offence was serious enough, a period of imprisonment.

The difficulty is that so many defendants at that moment think that they are getting away with something quite well. They think that the binding over is not too bad and they agree to be bound over. Then, on second thoughts, they think that it is a stigma on their character and that it would be a good idea to appeal to quarter sessions. They then find that because they have consented to be bound over they cannot go to quarter sessions. I believe that that is a wrong which needs to be put right.

One of the great thrills of the Bill has been to turn up the details in the Library of the Justices of the Peace Act, 1361. I found what we are concerned about this morning in part of that Act, in the lovely language of those days. It is: …to take of all them that be not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other duly to punish… You will be surprised, Mr. Speaker, that hon. and learned Members of your profession in the House have not a clue what "mainprise" means. I went to the Library and found that according to the dictionary: Mainprise is when a man is arrested by capias, then the judge may deliver his body to certain men for to keep and to bring him before him on a certain day and these shall be called 'mainpernors'. Hon. and learned Members had no idea what "mainpernors" meant either. I was able as a lay magistrate to bring the education of hon. and learned Members up to date in these matters and I feel now that I am one of the authorities in the House on the 1361 Act.

I am sure that the House will agree that the time has come to put right this snag in the law. When a magistrate finds somebody guilty and sentences him to a period of imprisonment or imposes a fine the defendant has a right to go to a higher court to appeal against that penalty, but if the magistrate regards the case as not too serious and decides to bind the defendant over, the defendant has no appeal of any kind and the stigma must stay with him all his life. In these circumstances, I feel confident that the House will give the Bill a Second Reading.

11.12 a.m.

Mr. H. Hynd (Accrington)

I do not want to stand between the House and approval of the Bill for more than a moment or two, nor would I wish to take away any briefs from lawyers who might want to take an appeal to a higher court. But it would be a pity if it went out from the House that the only alternative people have in a magistrates' court to accepting the offer to be bound over is to be fined or to go to prison. That would be a mistake. Magistrates do not deal with things in that way, at least in the court in which I have the honour to officiate. This is a misconception on the part of the public like the one that if a defendant pleads guilty he gets off with a smaller fine, which, I assure the House, does not apply in my experience.

Sir Leslie Plummer (Deptford)

My hon. Friend says that it is a popular fallacy that there is no alternative before a magistrate to accepting being bound over or being fined. I do not know about its being a fallacy, but in 1926, after the general strike, I was arrested on a charge of which I was absolutely innocent. I was tried by the stipendiary magistrate in Birmingham, Lord Ilkeston, and was asked if I would accept the offer of being bound over. I said, "No," and he fined me £10. There was no fallacy about that.

Mr. Hynd

The House of Commons is often referred to as the High Court of the country, but I do not think that my hon. Friend should use this High Court to appeal in that long standing case.

The most common case in which people are bound over, certainly in London is one arising from a squabble between neighbours. Sometimes people living in the same house, upstairs and downstairs, quarrel about what may be a trivial matter. One party may be more guilty than the other and the magistrates sometimes say that to avoid further ill-feeling and to try to smooth things over they will offer both parties the opportunity of being bound over to settle the matter. That is quite a common practice today and the alternative, certainly for one of the two parties, is not to be fined or go to prison.

Mr. Ede (South Shields)

Does my hon. Friend mean to say that, in his knowledge. a person against whom no charge is before the court is sometimes bound over?

Mr. Hynd

Yes, because that person feels that there is nothing against him and no reason why he should not be bound over since he thinks that it is very unlikely that he will break the peace for 12 months or whatever the period of binding over may be. However, having perhaps met a legal friend in his club who points out the probable consequences of being bound over he might wish to do something about it, and that is where I think the Bill might be useful.

11.14 a.m.

The Joint Under-Secretary of State for the Home Department (Mr. W. F. Deedes)

My rôle is a pleasant one and will not take very long. It is to say that the Government raise no objection to the Bill and have been glad to offer my hon. Friend the Member for Somerset, North (Mr. Leather) some technical assistance, which he has been good enough to acknowledge.

I can go some way to meet the point made by the hon. Member for Accrington (Mr. H. Hynd). It is desirable that the right of appeal should also be given where the requirement is not one of good behaviour but of keeping the peace. The distinction between the two is a technical one, but the justices' powers to make the second type of order does not derive from the 1361 Act but from common law.

The difficulty is that the Long Title of the Bill makes it impossible to provide in it the right of appeal against an order made by justices under their common law powers. It may be that at a later stage we can effect some alteration which will make the inclusion of that second category possible. If it were to prove possible we should be glad to do anything we could to assist. I think that that makes clear the point which the hon. Member for Accrington had in mind. Otherwise, it remains only for me to congratulate my hon. Friend the Member for Somerset, North on his good fortune in the Ballot and the good use he has made of it.

11.19 a.m.

Mr. G. R. Mitchison (Kettering)

I feel sure that all my hon. and right hon. Friends support the Bill, as I do, but I think that it is advisable to say a word or two more about it and about the certain amount of trouble that has been caused by this ancient statute. To support that, my hon. Friend the Member for Salford, West (Mr. Royle) read out part of the 1361 Act and embarked upon a very interesting excursion into "mainprise." There is an even more interesting point about it. The Act reads: to take of all them that be [not] of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other— this presumably means "the others"— duly to punish, So that if this were the right reading of it would appear that those who were of good fame—that is to say, the others —were the ones who were to be punished. This somewhat ridiculous conclusion becomes even more puzzling when we discover that in the authentic Statute Roll, as I think it is called, the word "not" is not there. Consequently it is extremely doubtful whether the people who are to be bound over are those who are of good fame or those who are not of good fame.

That introduces a little picturesque confusion into the matter, and this was considered in an interesting case called Lansbury v. Riley in 1914. Mr. George Lansbury was a respected and warmly liked Member of this House and he was also liked and respected outside. It is interesting to see what happened. The appellant, Mr. George Lansbury, was a supporter, though not a member, of the Women's Social and Political Union, This was an organisation having for its object the securing of votes for women by means including that called militantcy. In St. Stephen's Hall one of the rowels on the spur of Falkland's statue has been torn off in connection with militantcy. We now have lady Members of the House, and we are proud and glad to have them. Possibly if there had not been a little militantcy their arrival might have been delayed, and I am afraid that whenever I take visitors round to that part of the Palace I always point out to them that agitation has its advantages. This misuse of the word "agitator" with a pejorative implication has always troubled me a great deal. After all, we all ought to be agitators because that is one of the reasons why we are here.

To return to Mr. George Lansbury, there are some picturesque details from 28th January to April 18th, 1913. Some 592 cases of damage to property of "the kinds above mentioned"—that is, destruction, effacement of letters, breaking plate-glass windows, damage to grass on golf links and destruction of buildings by fire and explosives had been reported to the Metropolitan Police. What Mr. George Lansbury had done was that on two occasions—once at Caxton Hall and on another occasion at the Bow Baths, Bow—he made speeches at meetings of the Union in which he advocated militantcy and urged women to continue to break the law.

Whatever the merits or demerits of the case may have been at the time, or may appear to be now, I do not think that Mr. George Lansbury was charged with any specific offence or threatened with anything but a binding over. And that I believe, has been the practical trouble about this Act, that it results in people who are not charged with any specific offence, against whom nothing has really been proved, being bound over. I hope that the learned Solicitor-General will correct me if I am wrong, but I think that this is the position, namely, that we can bring up somebody under these very general words, we can bind them over, and there is no appeal. Two recent cases have decided quite definitely since this case that there is no appeal.

The reason why there is not an appeal is that there is not a conviction, it is simply a binding over. This is really all wrong. I do not want to go into the practice of the courts in this matter but there have been cases in some of the London police courts where some of us, at any rate, think that the powers under this Act, which put the person concerned in a difficult position, have been used where there ought to have been proper proceedings and the matter tried out properly, instead of using these ancient powers. I agree entirely with the Joint Parliamentary Secretary that it is only dealing with half the matter to try to deal with the Statute instead of, at the same time, dealing with the very similar powers under the common law. I earnestly hope that this will be done and that there will be no procedural difficulty, if it can possibly be avoided, in dealing with the whole matter at once.

It is even more interesting to find out for what purpose this Act was originally produced. It was produced for a curious reason. There were a number of returned soldiers who had been engaged in the French War, called "pillers and robbers," mentioned in the Act. They were going about the country armed, and it was to deal with them that the justices of the peace, who were then newly created, were given these powers. So it is a case of where something that was brought in for a particular purpose—as, for instance, the laws about gaming and wagering were brought in to encourage the practice of archery in order to prevent people wasting their time by gaming and wagering—where a Bill brought in long, long ago for a quite different purpose, has been used, and I think one may say rather misused, subsequently.

Mr. Leather

Like income tax.

Mr. Mitchison

That we shall be discussing later on, I think. Perhaps that raises other rather broad questions. I cannot help feeling that it is exceedingly advisable to get this matter straight and to give people the right of appeal.

If I may revert for a moment to the case of Mr. George Lansbury, I suggest that in the interests of justice in this country, and in the interests of fairness to the person concerned—in this case, Mr. George Lansbury—what ought to have been done, if he committed any offence, was to charge him with it and have it tried and proved. That is what is so profoundly unsatisfactory about ancient legislation, and indeed, some ancient Common Law powers of this kind. To have them without appeal, as they have been for so long, is one of the minor scandals of our judicial system. It is extraordinary that 595 years after this Act was put through Parliament we should now be providing a right of appeal which ought to have been there all along, and which ought to have been open even to the "pillers and robbers", the soldiers who had come back from France and were causing trouble up and down the country, some of whom might have had a word to say about the social conditions that had driven them into that pass.

11.30 a.m.

Mr. Ede (South Shields)

I find one or two difficulties about the Bill in addition to the one that has already been dealt with. In particular, I cannot quite understand Clause 1 (2, a).

I sit on an appeals committee of quarter sessions. Normally the appeals which come before us are against the magistrates who made the original conviction, against which an appeal is made. Counsel appear on their behalf, and the case is a rehearing. The prosecution again opens, and then the defence replies, if necessary, although the defence is really the appellant.

What happens in these circumstances? Most of the orders are made in the circumstances described by my hon. Friend the Member for Accrington (Mr. H. Hynd). Two ladies may, for instance, have a dispute about which is the right way to do their washing. I once heard a case like that at petty sessions. I believe it was the first occasion that I was on the bench. One lady accused the other of letting the street down because she did her washing on Wednesdays and everybody else did their's on Mondays. I am now talking about something that happened 34 years ago, when social circumstances were rather different from what they are today.

Mr. Mitchison

Perhaps I might point out to my right hon. Friend that matters can be even worse than that. I once went down the Strand and was alarmed by a newspaper placard which referred to the "total collapse" of Surrey—a whole county, not a street.

Mr. Ede

I have no doubt that Surrey took its revenge in the return match.

Two ladies may get to words and, in the end, there is either a threat of a blow or it is alleged that a blow was actually struck. In the case to which I referred it was alleged that one lady spat at the other. Towards the end of the proceedings this lady was asked "Did you spit, or did you not?" She replied "I went to spit, but the spit would not come."

What is to happen when there is an appeal and one of the women is the respondent? Is the case really to be reheard? After all, this will take the case from a local magistrates' court to the place where quarter sessions meet, which may be a very long way off. Tempers cool down in cases of this sort, although the people were very angry on the day when the dispute took place. There will already have been one hearing when the matter has been gone through. It might very well be that substantial injustice would be done if no respondent appeared.

I hope the Solicitor-General or the Joint Under-Secretary will be able to help me in this matter. What guarantee is there that the case will be properly heard if there is an appeal? The calendar that one has in front of one at the appeals committee always cites the appeal as against not the original prosecutor but the justices. I should like to be assured that these matters will be properly litigated when they come before the appeals committee. In fact, the appeals committee cannot very well do its duty if that is not the case. On occasions the appellants do not appear. However, this is a case where, apparently, a duty is placed on a respondent in a roundabout sort of way in the phraseology of the Bill.

Apart from that, I thoroughly support the general principle of the Bill. In disputes between neighbours considerable injustice may be done where an order is made which is open to question. I am very glad that the second kind of case is to be brought within the Bill, because it is sometimes an easy way out for a magistrates' court. When it has heard both ladies give their views about the matter, it may come to the conclusion that it is six of one and half a dozen of the other, and the case is not so bad that it can inflict a fine on one but she is the person who has put the magistrate to the trouble of hearing the case. These cases can be almost interminable when neither party is represented and one hears from both parties the whole history of the conversation and events which have led up to it.

Therefore, I hope that the amendment which has been suggested will be made and the long title will be altered. I hope also that care will be taken to ensure that the case is properly litigated before the appeals committee, so that in removing one injustice we do not inflict another, and that the appeals committee may be assured that an injustice was committed when the original order was made.

11.37 a.m.

The Solicitor-General (Sir Harry Hylton-Foster)

I very much enjoyed the description by the right hon. Member for South Shields (Mr. Ede) of cases of this kind, of which he has had so much judicial experience. He is on to a good point here. It is a matter that we shall have to examine in Committee.

Trying to help my hon. Friend, I would point out that we were faced with this difficulty. One must have an opposite party in the appeal. Under this kind of provision one may, for instance, get the odd case where the two parties are brought before the court, one of them being the prosecutor alleging some approaching threat, and when the court has examined the case it finds that it is the prosecutor who ought to be bound over and not the other party. One then gets an absurd position—it is not very satisfactory, but it is necessary to make the system work in some of these cases—that under the Bill the respondent in the appeal will be the defendant in the original proceedings, the one who went there on complaint but turned out to be innocent, the opposite party being bound over.

I think the difficulty in the mind of the right hon. Gentleman about being sure that in the circumstances quarter sessions has a true hearing of the facts as they originally appeared would in the last extremity be met—nevertheless, we will look at the matter again—by the fact that the justices, although not made parties to the appeal, which might involve them in costs, have a right to appear by counsel on the appeal before quarter sessions. Therefore, in a case where one of the ladies had calmed down a bit and was not prepared to go to the place where quarter sessions was being held, the original justices would be able by counsel to ensure that quarter sessions had the full material before it. I believe that is the practical answer.

Mr. Mitchison

In the case of Mr. George Lansbury's troubles the proceedings appear to have been brought by a police inspector. I suppose that, theoretically, it would be possible to bind over a police inspector.

The Solicitor-General

Theoretically it would. With regard to the case put by the hon. and learned Member for Kettering (Mr. Mitchison), under the Bill the police inspector would be the respondent to the appeal, and the difficulty in the mind of the right hon. Gentleman would not arise because the forensic skill of the police and those associated with them would equip quarter sessions with the facts.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee, pursuant to Standing Order No. 38 (Committal of Bills).