HC Deb 03 July 1958 vol 590 cc1699-707

Lords Amendment: After the Amendment last inserted, insert new Clause C:

  1. (1) Where, for the purpose of enforcing a maintenance order, a magistrates' court has exercised its power under subsection (2) of section sixty-five of the Magistrates' Courts Act, 1952, or this section to postpone the issue of a warrant of commitment and under the terms of the postponement the warrant falls to be issued, then—
    1. (a) the warrant shall not be issued except in pursuance of subsection (2) or paragraph (a) of subsection (3) of this section; and
    2. (b) the clerk of the court shall give notice to the defendant stating that if the defendant considers there are grounds for not issuing the warrant he may make an application to the court in the prescribed manner requesting that the warrant shall not be issued and stating those grounds.
  2. (2) If no such application is received by the clerk of the court within the prescribed period, any justice of the peace acting for the same petty sessions area as the court may issue the warrant of commitment at any time after the expiration of that period; and if such an application is so received any such justice may, after considering the statements contained in the application—
    1. (a) if he is of opinion that the application should be further considered, refer it to the court;
    2. (b) if he is not of that opinion, issue the warrant forthwith;
and when an application is referred to the court under this subsection, the clerk of the court shall give to the defendant and the person in whose favour the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court

(3) On considering an application referred to it under the last foregoing subsection the court shall, unless in pursuance of subsection (6) of this section it remits the whole of the sum in respect of which the warrant could otherwise be issued, either—

  1. (a) issue the warrant; or
  2. (b) further postpone the issue thereof until such time and on such conditions, if any, as the court thinks just; or
    3. 1700
  3. (c) if in consequence of any change in the circumstances of the defendant the court considers it appropriate so to to do, order that the warrant shall not be issued in any event.

(4) A defendant who is for the time being imprisoned or otherwise detained under a warrant of commitment issued by a magistrates' court for the purpose of enforcing a maintenance order, and who is not detained otherwise than for the enforcement of such an order, may make an application to the court in the prescribed manner requesting that the warrant shall be cancelled and stating the grounds of the application; and thereupon any justice of the peace acting for the same petty sessions area as the court may, after considering the statements contained in the application—

  1. (a) if he is of opinion that the application should be further considered, refer it to the court;
  2. (b) if he is not of that opinion, refuse the application;
and when an application is referred to the court under this subsection, the clerk of the court shall give to the person in charge of the prison or other place in which the defendant is detained and the person in whose favour the the maintenance order in question was made notice of the time and place appointed for the consideration of the application by the court.

(5) On considering an application referred to it under the last foregoing subsection, the court shall, unless in pursuance of the next following subsection it remits the whole of the sum in respect of which the warrant was issued or such part thereof as remains to be paid, either—

  1. (a) refuse the application; or
  2. (b) if the court is satisfied that the defendant is unable to pay, or to make any payment or further payment towards, the sum aforesaid and if it is of opinion that in all the circumstances of the case the defendant ought not to continue to be detained under the warrant, order that the warrant shall cease to have effect when the person in charge of the prison or other place aforesaid is informed of the making of the order;
and where the court makes an order under paragraph (b) of this subsection, it may if it thinks fit also—

  1. (i) fix a term of imprisonment in respect of the sum aforesaid or such part thereof as remains to be paid, being a term not exceeding so much of the term of the previous warrant as, after taking into account any reduction thereof by virtue of the next following subsection, remained to be served at the date of the order; and
  2. (ii) postpone the issue of a warrant for the commitment of the defendant for that term until such time and on such conditions, if any, as the court thinks just.

(6) On considering an application under this section in respect of a warrant or a postponed warrant, the court may, if the maintenance order in question is an affiliation order or an order enforceable as an affiliation order, remit the whole or any part of the sum due under the order; and where the court remits the sum or part of the sum in respect of which the warrant was issued or the postponed warrant could have been issued, section sixty-seven of the Magistrates' Courts Act, 1952 (which provides that on payment of the sum for which imprisonment has been ordered by a magistrates' court the order shall cease to have effect and that on payment of part of that sum the period of detention shall be reduced proportionately) shall apply as if payment of that sum or part had been made as therein mentioned.

(7) Where notice of the time and place appointed for the consideration of an application is required by this section to be given to the defendant or the person in whose favour the maintenance order in question was made and the defendant or, as the case may be, that person does not appear at that time and place, the court may proceed with the consideration of the application in his absence.

(8) A notice required by this section to be given by the clerk of a magistrates' court to any person shall be deemed to be given to that person if it is sent by registered post addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person.

Read a Second time.

Mr. Lee

I beg to move, as an Amendment to the Lords Amendment, in subsection (2), line 7, to leave out from "received" to the end of line 14 and to insert: the clerk of the court shall refer it to the court".

Mr. Deputy-Speaker

I understand that it is the intention that this and the other Amendments in the name of the hon. Member for Rossendale (Mr. Anthony Greenwood) shall be discussed together.

Mr. Lee

That will be convenient, Mr. Deputy-Speaker.

The point about which we are concerned is the provision in subsection (2), which states: If no such application is received by the clerk of the court within the prescribed period, any justice of the peace acting for the same petty sessions area as the court may issue the warrant of commitment at any time after the expiration of that period; We object to such a responsibility being placed upon one of the justices rather than upon the court itself. One can envisage all kinds of circumstances arising. If I wanted a warrant to be issued I think that I could spot the man who would be most likely to agree without too much investigation into whether the warrant should or should not be issued. We fail to see what advantage there can be in including the words about which we complain. We would prefer that the court itself should make the decision, subject to the words in the other part of the new Clause, rather than that the responsibility should devolve upon one member of the bench.

I do not think there are benches of magistrates which are composed of one person sitting to hear cases. It would be very invidious if less than three magistrates were present, although I believe that the law permits two. It would be wrong for a single person to make decisions which, in our submission, should be made by the bench concerned and not merely by one of its members.

Mr. Renton

It will be appreciated that this new Clause gives to magistrates power to discharge a warrant of commitment which they have already made themselves. It therefore follows that somebody is in prison who is likely to make an application to them for a discharge. There are only 25 local prisons in this country. All these men will be in local prisons, and it is by no means certain that a man will be in the local prison for the same petty sessional division as the one to which the application would have to be made.

What we have to do is to provide a safeguard—I will deal in a moment with whether it is too stringent a safeguard or not—against frivolous applications by men in prison, applications which are made partly for the relief of the tedium of prison life or partly in order merely to annoy the wife, to put her to the trouble or expense of going to court.

We also have to remember that whenever an application is made to the court, the prison authorities have to provide an escort, and we certainly do not want the courts or the prison authorities or the wife to be troubled with such applications without some simple safeguard. The safeguard which their Lordships, in their wisdom, decided to insert in the Bill, was that before a man came to the court with his application for a discharge of the commitment order he should make a simple statement in writing which could be considered by a single justice of the peace—without calling the court together—merely to see whether there was a reasonable cause or prima facie case for the man to make an application to the court.

It is rather a late stage in the Bill to challenge the Opposition to produce a better safeguard than that, and I certainly would not like to appear to be doing so. All I can say is that after very careful consideration by high judicial authorities, as well as by the Government and those who advise them, we feel not only that this is a reasonably simple and just safeguard to insert but that there is no other effective one which can be conceived.

8.45 p.m.

Mr. Lee

Is not there also the case of the man who is at liberty where the warrant has been suspended? In that case it would be a question of the justice of the peace making a decision to bring the warrant to bear—in other words, to place him in prison—and not the case of a man making a frivolous attempt to get out of prison.

Mr. Renton

I agree that such a case will arise, but I think that it will be much less frequent. It is surely best that we should make a safeguard which will be of general application. The fact that it will also be a safeguard in the case of a man who is not in prison does not invalidate it. I hope that that answers the hon. Member's point.

Mr. Anthony Greenwood

I am not altogether happy with the explanation of the hon. and learned Member. He said that we must try to devise a method which is of general application. What worries us is that under subsection (2) it is quite possible for anybody who is at present at liberty, but against whom a suspended committal order has been issued, to be sent to prison on the decision of a single justice of the peace.

In my experience magistrates' courts never sit with only one justice unless it is by the consent of the parties, and merely for the purpose of adjourning the case to an agreed time. I should have thought that as the cases covered by the subsection cannot be matters of urgency, it should always be the rule that they are referred to a properly constituted court and decided in open court by a full bench of magistrates, or at least not less than two, and not a single justice of the peace acting on his own in private.

Mr. Ede

I support the view put forward by my hon. Friend. In this kind of matter, where all sorts of small personal issues inevitably arise, and when, on occasion, there may be a suggestion that a certain magistrate knows something about the parties to the case, or that he is more likely to be influenced in favour of the husband or the wife, as the case may be—as has been observed from what is regarded as his general attitude in these cases—I should have thought it was desirable that the application should be heard by at least two magistrates. The clerk can generally collect a couple of magistrates at very short notice if he wants to, and they can meet to consider the application, with the advice of the clerk if there is any difficulty. Generally speaking, the practice for a good many years has been not to put too much responsibility upon a single lay magistrate acting by himself.

Question, That the words proposed to be left out stand part of the Lords Amendment, put and agreed to.

Mr. Renton

I beg to move, That this House doth agree with the Lords in the said Amendment.

This is a Clause which will enable magistrates' courts to discharge an order committing a man to prison for default. It not only meets the substance of a view which was put forward by the Opposition at earlier stages of the Bill, but it implements a recommendation of the Royal Commission on Marriage and Divorce, contained in paragraph 1110.

My right hon. Friend the Home Secretary gave an undertaking that he would consider the arguments again if an Amendment were moved in the House of Lords, which was done. It is interesting to note that the Amendment moved by Lord Silkin was based upon a somewhat different type of case from that put forward by the Opposition here. The noble Lord was concerned more with the warrant the issue of which had been postponed—that is to say, where the man was still at liberty—while the Opposition here were more concerned with the case of the man actually in prison. At any rate, it will be a matter of satisfaction for hon. Members to know that both types of case are now covered.

Various procedural ramifications have been found necessary in the proposed new Clause, which is a very long one. It would not be to the advantage of the House if I were to start explaining in detail the significance of every subsection of the proposed new Clause, but I will, with permission, endeavour to do so if explanation is required on any particular point.

Mr. Lee

In the main, we are grateful for the proposed new Clause, many of the issues in which my hon. Friends and I argued in Committee and on Report. The Joint Under-Secretary referred to the fact that the House gave a majority view that the Government were wrong in resisting the arguments which we adduced. We notice that when the Bill went to another place arguments were adduced in Committee which deplored the fact that at that stage of the Bill the Government had not produced this Clause, but on Report there the Clause appeared, and we are grateful for it.

There is, however, in subsection (8) a principle to which we take considerable exception. The subsection reads: (8) A notice required by this section to be given by the clerk of a magistrates' court to any person shall be deemed to be given to that person if it is sent by registered post addressed to him at his last known address, notwithstanding that the notice is returned as undelivered or is for any other reason not received by that person. On tries to take a balanced view of this matter. I know there are people who deliberately change their addresses and resort to all sorts of subterfuges, such as refusing to accept a registered letter if they are pretty certain what it is. I accept that there is a need for control of this situation, but on the other hand there is far too great licence here.

It could be that the type of person we have in mind may be living in a lodging house in which many other people are living. He may never really have the opportunity to receive the letter which may go back to tthe court. There are cases of that type in which great injustice could be done. If we take it for granted that because a letter has been registered, therefore automatically it must have been received, and that the fact the letter returns to the court unopened and undelivered presupposes that the man himself has refused to accept it or, despite the fact that he is still living at a certain address, he refuses to answer the door, it is asking a lot of this House to give powers of this type to the courts.

The hon. and learned Gentleman may say that the type of people with whom we are dealing would take all sorts of advantage unless some sanction of this type were given. I concede that there is a point in that, but surely we do not base our justice on that. If there were only three cases in a hundred in which an injustice was done because of this very strong wording, to condemn a man in this way without real proof that he has deliberately avoided receiving a registered letter is not in the best traditions of our justice. Therefore, we on this side of the House are somewhat troubled about the matter.

The hon. and learned Gentleman is entitled to say that we cannot suggest any form of words as a substitute. I am very certain that if we did so at this stage he would not accept them anyway. That is the sort of difficulty which confronts us in reviewing Lords Amendments with which we do not wholly agree. At this stage of the discussion of Amendments arising from a Measure the House is in a very difficult position in that we accept and welcome almost everything in this new Clause and certainly do not want to divide against it for obvious reasons, yet, within it, we find this provision to which we take the greatest exception.

I can only ask the hon. and learned Gentleman if in some way the courts can be made aware that it would not be in the spirit in which this House has discussed the new Clause C if they were not to make the most detailed inquiry into every specific case before coming to the conclusion that a returned unopened registered letter meant that the man concerned had deliberately avoided the matter and sought to thwart the intentions of the court. With the exception of subsection (8), we on this side of the House welcome the new Clause.

Mr. Renton

If I have the leave of the House to reply to the hon. Member for Newton (Mr. Lee), I wish to say that I am very sorry he is so upset, because the position is not quite so bad as he thinks. I would ask him to remember that what we are doing in this new Clause is in the cause of freedom. We are improving the position of the defaulter. It may appear on the face of it that the new Clause is a little harsh, but, on the whole, it is in favour of liberty because it prevents the automatic issue of a warrant irrespective of changes of circumstances. But it is necessary to combine with that improvement of the defaulter's position a safeguard to ensure that enforcement cannot be frustrated by a man who deliberately changes his address or, as the hon. Gentleman himself said, avoids receiving the notice.

9.0 p.m.

There has been some experience of this problem within existing law in the service of summonses under the Road Traffic Act, 1930. This explicit statement in the new Clause that a notice shall be deemed to be given … notwithstanding that the notice is returned as undelivered is necessary having regard to the cases decided under the Road Traffic Act. It might interest the House to know that the culminating case was Beer v. Davies, reported in The Times on 29th April this year, in which it was held that a notice of intention to prosecute required under Section 21 of the Road Traffic Act, which had been sent by registered post and returned, had not been served because it was not delivered.

I am sure that the hon. Gentleman will understand that the law might be frustrated if we do not bear in mind what was held by the courts in that case and enact accordingly. Again, having had the matter considered by high judicial authority, the conclusion we have cone to is that we should have those words "deemed to be given" put in. We feel that there will be no injustice and that, in the circumstances in which we are passing the legislation, it is the right and just thing to do.

Question put and agreed to.