HC Deb 19 February 1960 vol 617 cc1573-606

Order for Second Reading read.

11.6 a.m.

Mr. William Small (Glasgow, Scotstoun)

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

It is, I am informed, an ordeal for an experienced hon. Member to present and pilot through the House a Private Member's Bill. It is, therefore, a double ordeal for a new hon. Member who has this honour and responsibility. This is a rather technical Bill which makes some minor but important adjustments to the law of Scotland. It is, therefore, necessary for me to consult my notes rather closely, and in doing so I ask for the understanding of the House.

In 1958, the hon. Member for Chesterfield (Sir G. Benson), who is a member of the Home Secretary's Advisory Council on the Treatment of Offenders, was successful in promoting a Private Member's Bill carrying out one of the recommendations of that Council in its Report on short-term sentences of imprisonment. That Bill became the First Offenders Act, 1958.

The effect of that Act is to require a court of summary jurisdiction in England and Wales, before it passes a sentence of imprisonment on a first offender, to satisfy itself by due inquiry that there is no other method of dealing with the person. Although it is perhaps too early to assess the effects of that Act, I am sure that it will be a valuable safeguard against the imposition of unnecessary sentences of imprisonment.

That Act applies only to England and Wales. The Bill now before the House has as its main purpose the extension of similar provisions to Scotland. This is not a case of the Scots slavishly following the English. I am satisfied that a case for the Bill can be made out on purely Scottish considerations. I am strengthened in that view by the recommendations of the Scottish Advisory Council on the Treatment of Offenders, of which my hon. Friend the Member for Dunbartonshire, West (Mr. Steele) is a member.

Since I announced my intention to introduce a Bill on the subject of first offenders, the Secretary of State for Scotland has received from the Scottish Advisory Council a Report on the subject of short terms of imprisonment. There has not been time for that Report to be printed, but, because of its bearing on the Bill, the Secretary of State for Scotland has placed copies of it in the Library. It would be out of place for me to comment on the Report generally, but when it is published it will give us plenty of material for thought. At this stage I must deal only with those aspects of the Report which have a bearing on the Bill.

The most important parts of the Report are the paragraphs in which the Council makes its considered assessment of the value and effects of short terms of imprisonment. The Council has undoubtedly gone to great trouble to assess fully the effect of short sentences of imprisonment and their value in preventing further offences.

With your permission, Mr. Speaker, I should like to read paragraph 28, in which the Council sums up its conclusions. It says: After carefully weighing the value and effects of the short sentence we find ourselves in agreement with the English Advisory Council's view that it has 'a definite and necessary place in our criminal law.' But we are convinced that it is too widely used in present practice. For some offences, such for instance as child neglect, it can seldom be justifiable, particularly if grave consequences would ensue for the family. And for some offenders, notably those under 21 or who have not previously been found guilty of an offence, we think that short-term imprisonment should only be ordered in the last resort, since in all probability the effects on the offender will be harmful rather than beneficial. I was glad to see that one of the Council's practical recommendations was that there should be a first offenders Measure for Scotland. Having reached the conclusion that short terms of imprisonment are too widely used in present Scottish practice, it was only necessary that the Council should regard first offenders—those persons who, in the past, had not committed any serious offence against the criminal law—as being a class of persons who should be singled out for special consideration.

The Council obtained statistics, which it has published in the Appendix to its Report, showing that, in 1958 1,086 persons who had no previous convictions of any kind were sentenced by the Scottish courts to short sentences of imprisonment. I do not wish to criticise the courts. I am sure that all hon. Members will agree that they carry out a most difficult task both justly and well. Nor do I say that first offenders must never be sentenced to imprisonment. Clearly, there are cases where imprisonment, even for a short term, is the most appropriate method.

However, taking the figure of 1,086, together with the considered opinion of the Council that short sentences of imprisonment are too widely used in present practice, I am sure that there is a case for saying that some of the sentences of imprisonment on first offenders could have been avoided. As its Title indicates, the purpose of this Bill is to Restrict the imprisonment of first offenders in Scotland. The Bill first prefers to Section 18 of the Criminal Justice (Scotland) Act, 1949, which provides that no court shall impose imprisonment on a person under 21 years of age unless the court is of opinion that no other method of dealing with him is appropriate, and it requires the court to obtain, from a probation officer or otherwise, and to consider information about the person's circumstances before it determines whether imprisonment is appropriate. It provides, too, that a summary court, other than the sheriff or stipendiary magistrate's court, if it decides to impose imprisonment on a person under 21, shall state the reason for the decision that no other method of dealing with the offender is appropriate.

Clause 1 (1) states that A court of summary jurisdiction shall not impose imprisonment on a first offender of or over the age of twenty-one … that is an extension—unless it is of the opinion that no other method of dealing with the person is appropriate. It will be seen that that provision, like that in the First Offenders Act, 1958, is limited to summary courts, but it may be that such a provision will one day be appropriate to High Court, sheriff court and jury cases. This is experimental.

That subsection, and subsection (2), provide that the provisions of Section 18 of the Criminal Justice (Scotland) Act, 1949, relating to inquiries by the court and to the recording of reasons by the court, other than a sheriff court or a stipendiary magistrate's court, shall apply in the case of first offenders.

Subsection (3) defines a first offender. The definition follows that in the English Act, by disregarding previous convictions for offences not punishable with imprisonment and offences committed before the age of 17. I think that the reasoning behind the definition is clear. It would be unreasonable to exclude an accused person from the safeguards of the Bill because of a conviction for a petty offence, or because of an offence committed before reaching maturity.

With subsection (4), we come to a point of difficulty. The difficulty arises from the principle of Scottish criminal law that only previous convictions for cognate offences—that is, offences of a nature similar to the offence of which the person before the court has been convicted—may be brought to the notice of the court before it decides on sentence.

I shall not comment on the merits of this principle, which is one of the many examples of the provisions of Scottish criminal law designed to ensure that the position of the person before the court is not prejudiced. It will be seen, however, that the provisions of the Bill necessitate a minor breach of this principle. I would not say that a first offender was a person against whom no previous convictions for offences punishable with imprisonment had been libelled, because that would mean that a court might find itself dealing with a person with a long criminal record as a first offender. But if we accept the definition of a first offender, contained in subsection (3), we have to establish machinery by which the court can be made aware of convictions for non-cognate offences, which are not, in the normal course, brought to the attention of the court.

Subsection (4) does this. It entitles the prosecutor, should a person who has previous convictions of offences of a non-cognate nature claim treatment as a first offender, to bring such offences to the notice of the court. Provision has to be made to enable the convicted person to challenge the previous convictions adduced by the prosecutor, and for this purpose subsections (2) and (3) of Section 31 of the Summary Jurisdiction (Scotland) Act, 1954—which deal with procedures for proving, and challenging, previous convictions—would apply.

The breach of principle to which I have referred has caused me some concern. I was, therefore, glad to see that the Report of the Scottish Advisory Council on the Treatment of Offenders accepted the breach as being justified. In this connection, I should like to quote from paragraph 34 of the Council's Report. It reads: We are satisfied, however, that the rule regarding cognate offences should not be allowed to stand in the way of the desideratum that a court should inform itself fully about a first offender's personality and circumstances when it has under consideration the drastic penalty of imprisonment. Already an accused person's criminal history emerges in court when a probation officer has been required to provide a background report or when a report is submitted on his suitability for borstal training or corrective training. It is strictly relevant to the question whether the offender should be given a short term of imprisonment that he has previously been found guilty of an offence for which he could have been punished by imprisonment, whatever the nature of that offence may have been. I believe that this Bill will make a worth-while, though modest, contribution to criminal justice in Scotland. I feel that its provisions will command general acceptance, and it is, therefore, with some confidence that I ask the House to give it a Second Reading.

11.20 a.m.

Sir Thomas Moore (Ayr)

I am sure we all congratulate the hon. Member for Glasgow, Scotstoun (Mr. Small) on the very clear and detailed analysis he has given of his Bill. At the same time, I think it might, perhaps, have been wiser to submit with the Bill an Explanatory Memorandum. That would have saved the hon. Gentleman a great deal of trouble, and also saved us a lot of trouble in looking up the various relevant Acts which form the basis of his Bill.

I imagine that the House will agree with me when I say that there are three phases in the life of a first offender. The first is the home, where he is subject to the control of his parents. The second is when he is at school and subject to the discipline of his masters. The third is when he reaches the age which is dealt with in the Bill and becomes subject to the ordinary common law.

I imagine, also, that all of us here today and probably others elsewhere have at some time or another been first offenders, at any rate in regard to the first two categories which I have mentioned. I imagine, too, that the attitude of all reasonable, intelligent people towards the problems of life after the age of 17 and in the future is, to some extent, guided, controlled and directed by their experience both at home and at school.

There are, of course, many who are swayed by extraneous factors, emotion, theory and sentiment, but I should like to describe briefly, and I hope the House will bear with me for a minute or two, my experience as a first offender. I should like also to state the consequences of that first offence and the effect that those consequences had.

When I was about 10 years old the jam had just been made for the season and we were all warned not to touch it until it had, what is called, "set". At that time I was very partial to black currants, whether fresh or in jam, so I fell. I demolished most of a pot of jam before I felt that I had had enough. The crime was discovered and we were questioned. We were quite a big family. I suppose that if I had confessed straight away I should probably have been denied jam for a week or a month or so, but I did not. I lied. I denied my offence.

It was in the summer and I was wearing a white shirt which, I admit, had lost some of its pristine freshness, but it was still fresh enough to disclose some traces of the blackcurrant jam. The consequences were fairly obvious. My father was an upright and kindly man, but one with, in my opinion at that time, an exaggerated regard for truth. He gave me twelve of the best with the cane which was always kept at hand for that purpose. Oddly enough, one never sees canes about nowadays. It seems a pity. The caning was applied to that part of one's anatomy where it hurts but does not harm, and from that day I gave up lying—in a big way, I mean.

The second time was at school. Smoking was forbidden at my school in term time. Unfortunately, I had got into the habit of smoking at home, and so one afternoon I was smoking a cigarette in a place which we called the "bogs" in the hope that the prevailing odour of the place would dispel the aroma of the cigarette. It did not, however, do so in the nostrils of a passing master who was entering the place for a more legitimate purpose. So I was caught again, and once more I got twelve strokes of the cane, this time from the headmaster, and on this occasion with considerably greater strength. I never smoked at school again. These are the consequences and the effects of the treatment of the first offender in those two stages.

Now we come to the age group with which the Bill deals. I suppose that sentences to be served in detention centres, remand homes, Borstal institutions and the like may have an effect—it may be good or it may be bad—in changing the behaviour of an adolescent who, through weakness, accident or design, has embarked upon a course of law breaking. But, for myself, I agree with the hon. Member for Scotstoun; I am strongly opposed to imprisonment of any kind for first offenders, or, indeed, for any young offenders until other methods, already proved efficacious at home and at school, have been tried.

As the hon. Member for Scotstoun has quoted from the Scottish Advisory Council's Report for 1958, perhaps I also may be permitted to refer to it. I was shocked to read the figure of first offenders. Of the 11,184 who were sent to prison in Scotland for six months or less, as the hon. Gentleman said, 1,086 of them were actually first offenders. I do not think that there can be any excuse for that. We are merely cluttering up the prisons which are already cluttered up too much.

I was even more shocked at an incident which was brought to my notice not very long ago and about which I wrote to the Secretary of State for Scotland. A youth was sentenced for an indefinite term to Borstal, and, of course, there was no room for him at the institution. Believe it or not, that youth was actually sent to Barlinnie Prison, and for two months he was associated intimately with hardened, cynical and depraved criminals. What hope had that youth of emerging undefiled or unscathed? Therefore, I strongly hold the view, which I have frequently expressed in the House, that, with one exception which I will mention in a minute, all first offenders should be warned, fined or put on probation.

The one exception, of course, as the House will probably appreciate, is that of crimes of violence against the person, or in this case, I think, even against animals. I believe that for these offences the young law breaker should receive summary corporal punishment on the premises of the court. I admit that that would seem to infringe a basic principle of our common law, the right of appeal, but I believe that it would be well worth while to take that risk rather than incur the six weeks' or two months' delay which is inevitable if the right of appeal is accorded.

I imagine that the sponsors of the Bill, including the hon. Member for Scotstoun who introduced it, will not agree with me, but I suggest that my proposals are worth a trial and might well prevent even more serious offences from taking place later. They would also solve the present almost insoluble problem of prison space, which I have just mentioned. They would have one more effect, a very important effect. They would remove the permanent taint of being branded as a criminal with a police record.

I think that is one of the most serious effects of sending young people to prison. Their home life and every possible job is influenced by the prison record. Every young woman to whom a first offender may pay attention and hope ultimately to make his wife is influenced. The family is influenced as well. To my mind it is a degrading thing that a young person, who has perhaps stolen some fruit or broken an electric light bulb in a railway carriage or committed some similar offence, should be dealt with in that way. Such offences should be removed altogether from the category for which a sentence of imprisonment is imposed.

There is another benefit which would follow from my proposals. It is that they would prevent, or at any rate lessen, the risk of a youth being permanently defiled in body and mind by mixing with the sophisticated and probably depraved criminals whom he would be bound to meet and mix with in prison. I support the Bill, with the reservation that corporal punishment would be a better solution still.

11.30 a.m.

Mr. E. G. Willis (Edinburgh, East)

On behalf of my hon. Friends, I congratulate my hon. Friend the Member for Glasgow, Scotstoun (Mr. Small) on the manner in which he has introduced the Bill. He was exceptionally lucky in securing a place in the Ballot at his first attempt. I have never yet been so successful. He was equally lucky in securing a position which enabled him to bring in his Bill sufficiently early in the day to enable it to be discussed adequately. I am sure that the Bill will commend itself to hon. Members on both sides of the House.

My hon. Friend deals mainly with the criminal aspects of this proposed legislation and the hon. Member for Ayr (Sir T. Moore) brought the House back to the human aspects. It is in its human aspects that this Bill is important and in that respect it is not quite such a modest Bill as my hon. Friend the Member for Scotstoun may think. It contains great possibilities. It is likely to have an effect on the moulding of the lives of people, and in my view that is exceedingly important, much more important than a number of other things which we undertake in this House. Anyone who can take action which will help to mould and make better people's lives is doing a valuable job, even though the legislation involved may appear to be detailed and unimportant.

The important thing is to give the first offender a chance. It is possible that quite an ordinary person, with the usual mixture of good and bad, may commit an offence, appear before a court and find himself sentenced to a term of imprisonment. No one can tell what the effect of that punishment may have on such a person. It is a great ordeal. We all know how a boy may enter the Services at 18 and return home at the age of 20 quite a different boy.

Anyone who knows the conditions of our prisons today and the manner in which they are grossly overcrowded—we dealt with this subject recently when we discussed conditions in Barlinnie Prison—knows the effect which is likely to follow from a term of imprisonment and the change it may bring about in a young person. The provisions of this Bill would make it possible to avoid that. In fact, we are saying to the courts, "You should not do this in the case of a first offender. You should punish him in some other way." I think that that is desirable.

The figure given by the Advisory Committee, 1,086 first offenders sent to prison in 1958, is astonishing. Far be it from me to criticise the courts, but it seems to me that possibly not too much thought is given to the way in which first offenders are treated by the courts. If that be so, it would seem desirable that we should assist them to treat first offenders in the manner which we consider best.

The provisions of the Bill would contribute also to preventing the overcrowding of our prisons. If we could reduce by half the number of first offenders referred to by the Advisory Committee we should be doing something to relieve the pressure on prison accommodation and to ease the difficult job of prison warders. Therefore, from the humane and the practical point of view, the Bill is a thoroughly good Measure.

It is true, as was said by my hon. Friend, that it would breach a principle of Scottish law. But I do not think that is a serious breach and it is not of a character likely to cause any danger. It would be necessary to make that breach if the Bill is to work, but I do not think we should have too many headaches about it. If the breach went further, of course, we should have to consider it seriously.

I do not wish to detain the House further, in view of the fact that there is another important debate to follow, but I thought it right that we on this side of the House should extend our congratulations to my hon. Friend on his good fortune in securing this opportunity to introduce his Bill and on the manner in which he took advantage of the opportunity.

11.37 a.m.

Commander C. E. M. Donaldson (Roxburgh, Selkirk and Peebles)

I do not always agree with the hon. Member for Edinburgh, East (Mr. Willis), but I do this morning, particularly in relation to his observations about the hon. Member for Glasgow, Scotstoun (Mr. Small). Hon. Members on this side of the House will recall our companionship and friendship with the predecessor of the hon. Member for Scotstoun. Glasgow has been described as "no mean city." and I submit that the hon. Member for Scotstoun has already proved himself to be no mean Member of Parliament. He described this Bill as a modest Measure but the modesty was not so much in the Bill as in the personality of the hon. Gentleman. I believe this to be a Bill which all will welcome.

When we are discussing legislation which applies to Scotland, we often say, if there has been similar legislation in respect of England—the hon. Member for Edinburgh, East has intervened in this way on many occasions—that again Scotland is following at the tail of the bulldog of England, or words to that effect. There are differences in Scottish law compared with the law south of the Border and we have often had discussions about them. In the case, however, I do not think that there will be any atmosphere of controversy. I was among those hon. Members who were present when the hon. Member for Chesterfield (Sir G. Benson) introduced his Measure in 1958. He introduced that Bill in the light of his many years of experience of prison matters, and particularly his understanding of, and regard for, first offenders. Many of us who did not take part in that debate were impressed by the sincerity with which he spoke and with the knowledge he commanded. The hon. Member who has introduced this Bill may have had similar experience, but he is newer to us in the House. However that may be, he introduced the Bill well.

The hon. Member for Edinburgh, East said that the Bill might be moving from the normal course of the application of law in Scotland. It is my belief that the courts of Scotland must apply the law as it is. In my opinion, the Advisory Committee has proved that there is a weakness in the law of Scotland in relation to first offenders, particularly young first offenders. It would not hurt us to change the law so that those who apply it should apply it in accordance with the conscience of the people.

In the centuries which have elapsed since our democratic system was first evolved, the laws of the country, especially those relating to confinement of the individual, have progressed with the increased education of people. Those of us who sit in this House are prone in the main to speak in the sense that we represent the conscience of the people of the nation. Whereas we may disagree in detail—as some will disagree with my hon. Friend the Member for Ayr (Sir T. Moore), in some of the things he said about corporal punishment, which is not included in this Bill—in the main we still express the feeling and the conscience of the people.

The conscience of the people about this Bill surely must be expressed in the question, is it right that first offenders who are dealt with in the manner described in such large numbers in Scotland should be subjected to all the things which affect their minds and physical well-being, and probably their future life?

That is the point with which the Bill deals. If passed, as passed I believe it will be, the Bill will apply to those over 21. It will afford that protection for the offending individual that is already afforded in Scotland under Scottish law to first offenders under 21. I believe that is a good thing. I agree also about the size of the numbers which have been adduced by the Advisory Committee in its Report Speaking second or third in a debate such as this on a rather brief Bill, one is inhibited by facts and figures, but those of us who have done some research in order to make an individual and intelligent contribution to the debate were shocked at the figures which have been given. We would have used them ourselves.

They have been sufficiently deployed to make it clear that there is something wrong, which the conscience of the people of Scotland would wish to see rectified. Of course, the people of Scotland, as in all civilised communities, would wish that there were not these first offenders at all, but sometimes young people become first offenders because of some spirit of adventure. They may live in the more gloomy parts of large cities in Scotland. Access to other forms of fun and games is perhaps not so easy for them as it is for those who live in countryside and in small burghs. They are naturally inclined to go with other young people and they get into trouble. That is where the danger begins: it is a form of leadership.

From my early youth I have been associated in various ways with youth training and young people, in the Scouts and particularly in the Navy. According to Admiralty instructions, I have had to deal with young people in a summary way and, in a certain degree, have had to sentence young people. One learns that that degree is probably as important as anything else, but, with the limited knowledge that it now gets, how can a court assess the character of an individual who comes before it as a first offender? If the court be inhibited from taking another course by the nature of the law, it tends to impose a penalty on the individual which may do great damage to that person. The Report of the Advisory Committee said: We thought it generally significant that proportionately fewer fines are imposed in Scotland than in England and Wales; that there is more imprisonment without the option of a fine in Scotland than in England and Wales—5 per cent. of all sentences as against 3.5 per cent. in England and Wales; that more sentences of imprisonment passed in Scotland than in England and Wales are short sentences—about 90 per cent. of all sentences of imprisonment in Scotland are for six months or less as against under 70 per cent. in England and Wales; that probation is less used in Scotland than in England and Wales—in 3 per cent. of cases as against 4 per cent. and that more fines result in imprisonment in Scotland than in England and Wales—about 4 per cent. as against under 1 per cent. That last part of the quotation is significant and should perhaps be related to the higher incidence of unemployment in certain parts of Scotland. In those parts where unemployment is highest, crime is likely to be proportionately dense.

Reference has been made to the overcrowding of goals. Let us look at that point from another Scottish aspect. I understand that the average cost of keeping a man in prison is about £1 per day, but it is considerably higher for a short-term prisoner. These short sentences of imprisonment are, therefore, a considerable burden on public funds. I do not believe that those of us who are considering this Bill and those of the thinking public who will observe what we have said, will be so much concerned with the financial aspect, but it is a fact of life.

The hon. Member for Edinburgh, East and my hon. Friend the Member for Ayr referred to overcrowding. Both said that when first offenders are in prison associated with hardened and vicious people they are prone to become affected and infected by the thoughts and manner of life of hardened criminals. I suppose the fact is that some of these hardened and rather despicable characters are there in that hardened and despicable atmosphere in prison only because, as first offenders, they served sentences of six months or less for something which they felt was unfair to them and which society had imposed upon them.

The Advisory Committee went further in its Report and made the following points. The serving of short sentences in many cases makes it more rather than less likely that a first offender will give in to further criminal impulses. The immediate impact of prison tends to rob a man or woman—especially a young man or woman—of self-respect. One of the great elements for good in human life is one's own self-respect. If that be lost early in life, it is unlikely to be reconstituted in one's being and may therefore lead from a minor crime to crime of a serious character throughout life. It is further said that a sentence carries with it the loss of personal identity. That is true, for in a prison one ceases to be an individual, except in one's heart and thinking. Combined with loss of self-respect, that must have a devastating effect on young minds.

Many other points were made, but I suppose most of us present have read the Report. We welcome the Bill and support the hon. Member in his able introduction of it. When the Bill reaches its Committee stage, if it needs extra polish—though I doubt that it will need very much—I hope we shall continue there as much in harmony with the purpose of the Bill as we have been in this debate which was so ably opened by the hon. Member this morning.

11.50 a.m.

Mr. Douglas Johnston (Paisley)

May I, very shortly, add my words to the general congratulations which have been so properly offered to my hon. Friend the Member for Glasgow, Scotstoun (Mr. Small)? He has accomplished a difficult task well.

The purpose of the Bill is to make certain that those who have the difficult task of assessing the proper sentence to be passed on a person, of whatever age, will require to give reasons for their sitting in a court of summary jurisdiction. We already have extensive legislation to deal with young persons, but the Bill applies the provisions which require consideration of sentences of imprisonment on young persons to be applied to persons more than 21 years of age.

Congratulations should also be offered to the Secretary of State for bringing forward at this stage the Report of the Scottish Advisory Council on the Treatment of Offenders, to which so much reference has been made in the debate. I hope that when that Report is published as a White Paper, as I presume it will be, it will be compulsory reading for all magistrates in Scotland.

The Report contains a great deal of valuable information and a great many very valuable comments. The most valuable is in the statistics, part of which have already been quoted by the hon. Member for Ayr (Sir T. Moore), who pointed out that 11,000 persons are imprisoned each year with sentences of less than six months and that of those rather more than 1,000 are first offenders.

I agree with the hon. Member for Ayr that the brand of prison is a bad thing with which to start life and that many persons are contaminated in prison. I agree with the hon. and gallant Member for Roxburgh, Selkirk and Peebles (Commander Donaldson) that in many cases imprisonment means loss of self-respect and that a person who is sentenced, perhaps to a short term of imprisonment, has great difficulty in getting back into society.

For those reasons, imprisonment should be avoided in all but the most difficult cases, and I hope that the effect of the Bill will be to reduce the prison population in Scotland and do so by requiring magistrates and others to think most seriously and to give adequate reasons before sentencing a first offender to imprisonment.

It is suggested that Clause 1 (4) is to some extent a breach of the common law rules relating to previous offences in Scotland. It is a breach, but, to my way of thinking, a very sensible breach. This is a rule which was founded as a protection to persons accused and found guilty of crimes. It came about in this way. In sentencing a person who was convicted of a previous offence, it was possible to refer to that previous offence as an aggravating circumstance only if that previous offence was a cognate offence, if it was of a somewhat similar character.

That was done as a protection to convicted persons, because, in the days when that came into being, most penalties were fixed penalties. The penalty was fixed on the offence and judges had little or no discretion. It dated from the time when the punishment fitted the crime.

Over the years, and by a series of Statutes, we have tried to get away from the concept of trying to make the punishment fit the crime and we now try to make the punishment fit the criminal. The theory of cognate offences should be considered in the near future and the Government might bring in a Bill, if examination showed it to be necessary, to abolish that theory and to substitute an attempt to make the punishment fit the criminal in all cases.

For those reasons I have great pleasure in supporting this most admirable and useful Bill.

11.56 a.m.

Mr. Gordon Campbell (Moray and Nairn)

I, too, support the principle of the Bill and I join hon. Members who have congratulated the hon. Member for Glasgow, Scotstoun (Mr. Small) on using his good fortune in the Ballot to introduce a Measure which, we feel, is likely to be beneficial in Scotland. The hon. Member himself explained the object of the Bill most admirably. In joining in the congratulations, I can, as a new Member also myself, comprehend something of the task which he must have had in preparing the Bill and the ordeal, to which he referred, in presenting it. He has acquitted himself very well and I am sure other new hon. Members will feel an envy for the way he has done so.

The principle of the Bill has received independent endorsement from the recent report of the Scottish Advisory Council on the Treatment of Offenders, which has been mentioned several times. That shows that, as a result of a great deal of study and investigation, the Council has concluded that more restraint in the imprisonment of first offenders would help to reduce the total number of offences. In other words, this is something which should help to prevent crime.

The chances are that many first offenders will not commit offences again, particularly if they are treated in the right way. It is with that in view and not motivated by any vague and general feelings of leniency towards crime that I approach this subject. What are the advantages which are likely to accrue to the community as a whole from a Measure on these lines? First, there is the hope that we shall avoid the risk of first offenders losing their self-respect and feeling themselves to be criminals when they find themselves in prison for the first time. I believe that the psychological effect of that is very great. What the hon. Member for Edinburgh, East (Mr. Willis) said about the human aspects of the problem was very important.

Secondly, I presume that it is hoped to avoid the risk that the first offender will find himself associating with hardened criminals in prison. It is very difficult to separate different kinds of prisoner in prison and a first offender may leave prison with very low moral standards and with an anti-social and irresponsible attitude to life. He may leave prison feeling that he will try to get what he can out of life by dishonest means, and he may emerge as a "spiv" with an anti-social outlook.

Thirdly, there is the undoubted stigma which attaches to someone who has been in prison. While a first offender is in prison, his family, his wife and children, may feel utterly ashamed that he is there. That may upset his home. When he returns he feels that he is a marked man. He may have difficulty in getting a job. If he has a special skill, of course, he may have no difficulty in finding employment, but there is no doubt that it is difficult for somebody who has been in prison to take up work again.

In a way, that is right. A future employer ought to know something of the background of his employee. There is no doubt that some employers would choose someone who had not been in prison, and it is difficult for someone who has just come out of prison to find work. There are societies which are voluntarily doing work to try to help prisoners by rehabilitating them in life, and I feel that that work should be commended, for it is helpful to the community, but let us try to keep the numbers of such people as low as we can.

Fourthly, several hon. Gentlemen have mentioned that the prisons are very full, and this is another reason why we should try not to add to the numbers there any more than we need. It simply brings more pressure upon the prison staffs and more expense to the general public. These four points seem to me important ones in favour of the principle of the Bill.

Arising out of the last one, the full prisons, I note that the incidence of crime in Scotland has increased in recent years. It has not increased, I see, as much as in England and Wales. I hope that this does not mean we are more canny, north of the Border, in avoiding detection, but it is a serious matter that crime is increasing, and I think that there must be no misapprehension outside the House that in the Bill there is any question of condoning offences or of generally reducing sentences.

The wording of the Bill does make that clear. The restraint on the imprisonment of first offenders is to be only if the court is of the opinion that there is no other method which is appropriate. There will, of course, be cases of such gravity or of so special a character that the courts must be given full discretion to commit a first offender to prison, when that is clearly fitting.

A single offence does not make a criminal, and we should work on the principle that in many cases a lapse will not recur, particularly if our system helps in this desired direction. But, if we find the same person coming up with a second or third offence, that offender must, of course, face the full rigour of a prison sentence, if that is the appropriate sentence.

The Advisory Council has also recommended wider use of probation in Scotland in place of the short prison sentence. No doubt the expansion of the probation system must be gradual, because it depends upon the supply of trained probation officers, but I believe that such an expansion could go hand in hand with the results of this Bill.

Then there is another question which I should like to mention briefly, and that is that of the suspended sentence. It has been suggested—and it has been practised—that a sentence upon a first offender be postponed for a period of grace, and if the offender does not commit another offence during that period then the sentence is mitigated or perhaps removed. I presume that this was not in the mind of the hon. Gentleman the Member for Scotstoun in drafting this Bill.

I note that the Advisory Council, on the whole, did not favour it, though it recognised that in certain cases it might be salutary, because a certain kind of offender may be influenced very much by the fact that a sentence is hanging over him. As a general rule, however, I believe that the principle should be that the punishment should follow quickly upon the offence, and, therefore, I would agree with the Advisory Council that suspended sentence should not be the general rule, and I prefer the general lines of the proposals in the Bill.

If the Bill can carry out the purposes of which I have spoken, then I think that it will make a useful improvement in the law to meet the conditions and requirements of the present day.

12.5 p.m.

Mr. Charles Doughty (Surrey, East)

It would ill become me in any way to disagree with this Bill, since Scotland is only following England and Wales in this matter, and were I to do so I might be completely misinterpreted as saying that in some way Scotland should be treated differently from England and Wales. I do not think so in any way at all.

Next, I should like to congratulate the hon. Member for Glasgow, Scotstoun (Mr. Small) upon introducing the Bill and upon his luck in the Ballot, a luck which has never befallen me, and also upon the manner in which he did it. If one is to get a Private Member's Bill through the House, sometimes a difficult operation, sometimes an easy one, one must be careful in the manner one does it, careful not to offend anyone, if possible. The manner in which the hon. Member introduced his Bill is one which should be a model to other Members who have the same task with other Bills.

Having said that, and having said that I support the Bill, that I agree with the general principle of it, I must point out that it does not necessarily follow that I agree with everything that has been said by every hon. Member in this debate. To begin with—and I repeat that I support the Bill—I still say that I do not think that the Bill will get anybody very far, and I say so for two reasons.

There has been a lot said by hon. Members on both sides of the House about first offenders, people who commit trivial offences because they are led astray by the drabness of their surroundings, and so find themselves in prison. I think that whatever part of the House that talk comes from it is mere rhetoric.

First offenders who are sent to prison are—I was going to say, in every case—certainly in nearly every case people who ought to be there. We need to see what offenders who are young are like nowadays. I advise hon. Members to read the excellent Report, "Disturbances at the Carlton Approved School", an approved school being for quite young people. That Report says with commendable frankness that one of the difficulties of approved schools nowadays arises from the greater amount of lawlessness, the less respect for authority, the greater roughness, toughness and violence of the people who go there. Let us keep that type of person in mind, not the type of person who commits a childish offence which the courts are quite able to deal with without drastic penalties.

Secondly, I do not agree with Members who think that the thousand persons—approximately—of all ages sent to prison in Scotland is a shocking figure. Hon. Members know what the population of Scotland is. Let them work out what proportion of the population that number of prisoners represents.

Mr. Willis

There was an inquiry into it and it was thought that the proportion was rather high.

Mr. Doughty

Hon. Members are entitled to their views, as I am to mine as well.

I am not suggesting for one moment that the whole population of Scotland is criminal. In any population there is a proportion of criminals, and in looking at the proportion which that number of convicted persons in Scotland bears to the population of Scotland I am not shocked by the figure.

Nobody here has said a word in favour of those who sit in the courts of summary jurisdiction who will be affected by the Bill. I shall, therefore, be the first Member to do so. I wish to speak in favour of them. I am quite certain that in those courts they take their responsibilities very seriously, if I may say so, and that they consider their responsibilities and duties very carefully in every case, whether it be a case of obstruction with a motor car, or a case which must be sent for trial.

The suggestion which has been hinted at in the course of this discussion that they send people to prison as first offenders rather indiscriminately is one which is entirely wrong, and I am quite certain that they know quite clearly in their own minds the reasons why they should do so and before they do so. Incidentally, if they are wrong, the offender has ample right of appeal and ample time in Scotland. [HON. MEMBERS: "No."] Not in Scotland? In that case, if the hon. Member will insert a provision into his Bill to give powers of appeal, I would support him even more. If they do not have that right of appeal, I think it time that they did have it.

Mr. D. Johnston

They have certain powers of appeal. A convicted person has a certain right of appeal in Scotland, I think I am right in saying, in courts of summary jurisdiction, but they are extremely limited.

Mr. Doughty

I do not want to enter into a discussion of the law of appeal in Scotland, but perhaps may be allowed to suggest that another private Member might well bring in a Bill to extend that right.

That being so, the only effect of the Bill will be that, instead of saying to themselves in their private room, "We think that this offender ought to go to prison, for these reasons," they will come out into the open and say it on the bench. That is the only effect which the Bill will have. Does the hon. Member want that? Why not? There is too much talk about other penalties to be imposed, and the suggestion, in particular, of the imposition of fines. There are ample powers for that, and it is so in the vast majority of cases, but even where magistrates think that a fine is inappropriate to the circumstances of a case, by reason of the serious nature of the offence, they do not fine. In any case, there are criticisms of the fining system, because a fine affects different people differently.

Again, offenders can be put on probation, but can we put a person on probation when the probation officer has said that he is not a suitable person for probation and will not co-operate with the probation officer? Are we to allow the court to say to the probation officer, "Despite what you say, we shall put the offender in your care"?

My hon. Friend the Member for Moray and Nairn (Mr. G. Campbell) suggested that we could have a suspended sentence, but a probation order is a suspended sentence, because if it is not obeyed the probation officer can bring the offender back to the court, or if a further offence is committed, in certain cases, he automatically comes back to the court and can then be sentenced for the original offence. Therefore, I do not think that suspended sentences would have any effect.

If what the hon. Member for Scotstoun and his supporters require is that those who sit in courts of summary jurisdiction must state their reasons for sending first offenders to prison in open court rather than in the privacy of their own room, then, so far as I am concerned, they are fully entitled to do it. I welcome that part of the Bill and give it my support, but do not let us think that the Bill will go any further than that.

I learned with some interest what is meant by previous convictions in Scotland, but I am still wondering what is a cognate offence. We find, in subsection (4): For the purposes of the last foregoing subsection the prosecutor shall be entitled to inform the court of any relevant previous conviction of the person to be dealt with, I am still not clear what the hon. Gentleman means. I think that probably he means that the court should be informed of any previous convictions. In that case, I suggest that, in Committee, the hon. Member should move an Amendment to leave out the word "relevant," so far as defined in the previous subsection of the Bill, and simply say that the prosecution may inform the court of any previous convictions, so that a person who has a string of convictions for one type of offence, and came before the court for another type of offence, does not have this string of convictions hidden from the court, when it should not be.

1 appreciate the extremely limited extent to which the Bill goes, I thank the hon. Gentleman for introducing it, and promise him my support.

12.14 p.m.

Mr. John Brewis (Galloway)

I should like to say how sorry I am that a previous appointment prevented me from hearing the hon. Member for Glasgow, Scotstoun (Mr. Small) introduce his Bill, but I should like to welcome it very much. I feel, however, that we should be doing a disservice to society by giving the impression that the Bill was in some way a criminals' charter and that a criminal should be allowed, like the dog, to have a first bite before he receives a sentence.

Very many people in this country are perturbed by the incidence of crimes of violence, and feel that offenders should be dealt with more severely, rather than less. Indeed, society has a duty not only to cure and rehabilitate the offenders, but to protect the victim of the first offender as well. I think that retribution and deterrence should be part of the punishment of someone who commits a crime, as well as the rehabilitation of the offender. I am very glad, therefore, that the Bill in fact makes no difference in the penalties which can be awarded to an offender. It merely means that the court has to be of the opinion that no other method of dealing with the person is appropriate before it sends him to prison.

It is interesting to note that of all first offenders who have been sent to prison, approximately 70 to 80 per cent. have not offended again, however they were treated. At the same time, if we were to push this figure up to 90 per cent., it would mean that there would be far fewer victims of second offences, and, therefore, the interests of society would be protected. There has been a tremendous revolution in the last two hundred years in the way in which we have dealt with criminals. For instance, 200 years ago, about 100 crimes were punishable capitally. I think that in Perthshire they still remember the "kindly gallows" at Crieff, which were kindly, not because they let the offender off, but because there was such a long drop that it put the offender out of his misery very quickly.

Again, William Pitt, talking about transportation to America and Australia, said: There is no cheaper wav of getting rid of criminals than transportation. Indeed, in about 1837, two boys in Edinburgh aged 8 and 10 were convicted of petty theft and were condemned to transportation for periods of 7 and 10 years. These methods had one great advantage, and that was that there was no need for any after-care of criminals. They were out of sight and out of mind. The magistrates who gave these sentences were interested only in administering the law from the point of view from which society looked upon crime in those days.

Since then, we have come a long way forward, and today the accent is on humanity and on bringing the criminal, or social misfit, whether a mental case or whatever he may be, back into society. In these days, most offences are dealt with by fines, and fining can indeed be very effective. At the same time, with the lowering in the value of money, fines often seem merely derisory to the offender, because if a magistrate imposes a fine which is suitable to the means of the offender himself, he will probably have lost his job as a result of being convicted and he will be unable to pay the fine, and so will end up in prison. In such a case, fining will not have been of any use.

As to imprisonment, this is a most costly way of dealing with first offenders. For example, it costs about £350 to keep a man in prison for a year. Prisons tend to be overcrowded, and instead of there being a reformative value in sentences of imprisonment, a first offender may get is with a lot of hardened criminals and become contaminated and therefore more likely to commit a second offence. There is very little reformative value in short sentences of imprisonment, which in many cases also cause suffering to the man's family and may well leave a stigma which will attach to him throughout the rest of his life.

Recently a man came to me looking for a job. He was about 35. When he was 18 he worked on the railways, became mixed up with some older men, and was found guilty of pilfering from the railway company. As a result, he was sent to prison at the age of 18. After that he went into the Army and was eventually discharged, his conduct having been exemplary. He worked for many years for one employer to his complete satisfaction. But when he tried to get another job the stigma of imprisonment was brought up against him and he had a very difficult time indeed. I am very glad to be able to say that in the end, through the personal intervention of the Minister of Supply, he got a job at the local Ministry of Supply base in my constituency. That man should never have been sent to prison in the first place.

Compared with imprisonment, probation has many advantages. First, it is cheap; and it costs only about £35 a year to keep a person on probation as opposed to ten times that amount to keep a person in prison. It is not a let-off for an offence, and I think this needs emphasising. After all, a person subject to a probation order is placed under discipline. Conditions as to residence and as to reporting may be put in the probation order. He also has visits from the probation officer to see that he is leading an orderly and disciplined life. What is more, he is being rehabilitated in his own surroundings and environment, almost certainly without losing his job, which happens so often if somebody is sent to prison.

At present over the whole of the country magistrates do not make enough use of probation. Although the figures have increased and now approximately 30 per cent. of juvenile offenders are put on probation, only about 6 per cent, of adult first offenders are put on probation. Even so, this is about three times more than it was ten years ago. One good thing that the Bill will do will be to bring before magistrates the possibility of putting more first offenders on probation.

An interesting fact is that since the Criminal Justice Act, 1948, brought in rather similar provisions to these for juvenile offenders, 60 per cent. fewer juveniles have been sent to prison than was the case before that Act came into force. If this Measure has half the effect in Scotland, it will be a very good thing indeed.

Turning to the Bill itself, I mean no offence when I say that in substance it is the same Bill as was introduced for England two years ago. I note that subsection (4) has been added to Clause 1, which I think deals with what are called in Scotland cognate offences, and I hope that if my right hon. Friend the Solicitor-General for Scotland replies he will say something about this provision.

I should like also to ask about subsection (3) of Clause 1 which appears to me not to deal with the case of an offender who has been put on probation by a court of summary jurisdiction. After all, if an offender is put on probation on indictment he is convicted. If he is put on probation by a court of summary jurisdiction the court does not proceed to convict. As I understand subsection (3), if such an offender came before the court again, the fact that he had been put on probation would not be brought to the notice of the court, because he would not have been convicted on a previous occasion. I think that if an offender has had the advantage of a probation order already, he should no longer be regarded as a first offender for the purposes of this Bill.

I am very glad to see that paragraph 35 of the Report of the Scottish Advisory Council on the Treatment of Offenders states: … an offence which has resulted in a probation order should be deemed for this purpose to be a 'previous conviction,' although in Scotland no conviction is recorded when an offender is put on probation in a summary court. It seems to us that a person who has reverted to criminal ways after having been tried out on probation ought not to be given the advantage of legislation designed for the needs of first offenders. I wish to bring that to the notice of the Solicitor-General for Scotland and ask him whether such a person would be regarded as a first offender if he had already been put on probation by a court of summary jurisdiction.

I welcome the Bill. I think it is a contribution, albeit a modest one, to the rehabilitation of criminal offenders, and if it helps to fit social misfits into society it will serve a very useful purpose indeed.

12.25 p.m.

Major W. Hicks Beach (Cheltenham)

I should like to begin by apologising to the hon. Member for Glasgow, Scotstoun (Mr. Small) for not being present during the whole of his speech when he moved the Second Reading of this Bill. What I did hear satisfied me that he performed his task extremely ably. However, I wish to apologise because I always like to hear the opening speech in such a debate.

I well remember when the First Offenders Act, 1958, was introduced by the hon. Member for Chesterfield (Sir G. Benson) and I gave my support to that Measure. In fact, if my recollection is correct, I made a short speech in the debate. I did so with some doubt, I must confess, because I felt that we were getting rid of a deterrent against crime. I know that this argument on whether or not a prison sentence is a deterrent has been going on for years and, no doubt, will continue. My personal view is that the possibility of a prison sentence is a deterrent. However, it is a matter which we shall probably never determine to everybody's satisfaction. I welcome this Bill because, as far as I understand it, it follows in the main the terms of the Measure introduced by the hon. Member for Chesterfield.

There are one or two points of detail which I should like my right hon. and learned Friend the Solicitor-General for Scotland to explain. I am not a Scottish lawyer and I do not pretend to understand Scottish law, and there are one or two points relating to the wording and drafting in this Bill which I cannot understand. My hon. Friend the Member for Ayr (Sir T. Moore). in the course of his interesting speech, made a very useful contribution in one respect, although I do not suppose it will receive agreement from all hon. Members. I fully support him in the view that if we are to abolish the deterrent of the threat of imprisonment it would be wise to restore some form—I do not necessarily say it should be the birch or anything like that—of immediate corporal punishment. Whenever one suggests that—and I have suggested it on several occasions—one is always told that that would mean giving up the right of appeal, because it is essential that corporal punishment should be administered straight away and there is usually in Scotland a period of twenty-eight days in which to appeal.

I hope that the authorities will consider this matter very carefully, because there is a great body of opinion in this country that the reason why these young hooligans indulge in the sort of conduct which we all deplore is that it is a form of conceit. I have no hesitation in saying that. I believe that some form of corporal punishment—and I am not advocating the reintroduction of flogging—should be introduced, and it would be a much greater deterrent than the possibility of imprisonment under the law of Scotland before it is amended by the present Bill.

My hon. Friend the Member for Ayr has made a very useful suggestion which I hope will commend itself to both sides of the House. As a practising solicitor in England, and one who had quite a lot to do with criminal work in my younger days, I have no hesitation in saying that short prison sentences are no deterrent at all. In fact, they are a fundamental mistake. They get the first offenders into wrong company. I have always thought that, if a sentence is deserved, it should be a long one. That is my experience from a practical point of view.

Much has been said about the recommendations of the Scottish Advisory Council which I have studied with care. In my opinion the Council is to be congratulated on producing its report in a comparatively short time. I understand that it recommended that the English practice should be followed on this matter. However, I do not want to be controversial so I will not go further into that point.

Occasionally I have to venture into Scotland on business and on one occasion I read in the Scotsman about an officer who is called a magistrate in England and, I believe, a sheriff in Scotland. He was reported as saying openly in court that if any person was convicted of being drunk in charge of a car, he would automatically receive a prison sentence. That shocked me as an Englishman because I believe that every case should be judged on its merits. Therefore, if this Bill prevents sheriffs or magistrates making such statements and taking such an approach, it must to a good Measure.

When, as I hope, this Bill reaches the Statute Book, it will set a valuable precedent. I hope this will encourage Scottish private Members to consider if they cannot make English Law apply to Scotland in other respects. I am thinking particularly of the Variation of Trusts Act, 1958. That Act has proved to be a most useful Measure for England in enabling—

Mr. Speaker

Order. With the best will in the world I cannot relate variation of trusts to first offenders in Scotland.

Major Hicks Beach

I apologise, Sir. The argument I was trying to put was teat I support the Bill because to some extent it will set a good precedent for Bills affecting England to be applied to Scotland. I apologise if I have transgressed the rules of order. Perhaps I may say that I hope those Scottish Members who are lucky enough to draw a place in the Ballot will consider whether they cannot make the Variation of Trusts Act apply to Scotland, since cases of great hardship have arisen because it applies only to England.

Earlier I said that there were one or two points of detail to which I would refer and I do this now with all humbleness. Clause 1 (1) reads: A court of summary jurisdiction shall not impose imprisonment on a first offender of or over the age of twenty-one, unless the court is of the opinion that no other method of dealing with him is appropriate; The word that worries me is "appropriate." Then it states that subsection (2) of Section 18 of the Criminal Justice (Scotland) Act, 1949— … shall apply for the purpose of determining whether any other method of dealing with such a person is appropriate as it applies for the purpose of determining whether any other method of dealing with a person under the age of twenty-one is appropriate. To develop my argument I must refer to Section 18 (2) of the 1949 Act. In my view, this is a drafting point. The wording could be improved. That subsection reads: No court shall impose imprisonment on a person under twenty-one years of age unless the court is of opinion that no other method of dealing with him is appropriate; Then follows the important passage: and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain from a probation officer or otherwise and consider information about his circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition. That is a wide definition which at the time was probably the best that could be produced. I suggest, however, that instead of the words "is appropriate," which from the English point of view are difficult to define, there should be inserted the words "in his or her best interests" which would be easier to interpret. However, I will leave that point to the promoters of the Bill and to my right hon. and learned Friend.

My hon. Friend the Member for Galloway (Mr. Brewis) referred to Clause 1 (4). I have not the slightest idea what this means but I hope that we shall have an explanation from my right hon. and learned Friend. This subsection must refer to some form of Scottish law about which I do not know, and I think we are entitled to a short definition.

I apologise for intervening in a Scottish debate, a thing which I do not recall doing before, but I have done so because in principle I support the intention of the Bill. I hope very much that it will work, because everyone here wants to further the cause of getting first offenders back on the right road. We have to discover the best way to do this and I sincerely believe that the Bill is a step forward in that direction.

12.37 p.m.

The Solicitor-General for Scotland (Mr. William Grant)

I intervene at this stage to do two things: first, to say that the Government, like every hon. Member who has spoken today, welcome the Bill; secondly, again like almost every hon. Member who has spoken today, to congratulate the hon. Member for Glasgow, Scotstoun (Mr. Small), not only on his good fortune in securing a high place in the Ballot in his first Session, but also for the good use he has made of it in bringing forward the Bill and on the way that he presented it to the House.

I will try to deal with the various points which have been raised by hon. Members in the course of the debate. As the hon. Member for Scotstoun pointed out, the Bill implements one of the recommendations of the Scottish Advisory Council on the Treatment of Offenders in its recent Report on short terms of imprisonment. As hon. Members know, a copy of that Report was placed in the Library, by a happy coincidence, in time for this debate and my right hon. Friend the Secretary of State for Scotland will be publishing the Report at an early date. Indeed, it is a happy coincidence not only that the Report has been laid in the Library this week, but that it should come out so strongly in favour of the principle embodied in the Bill.

Here, I wish to pay a tribute to the Council, in particular to the Committee which prepared the Report, for its extremely good work. As the hon. and learned Gentleman the Member for Paisley (Mr. D. Johnston) pointed out, it might well be, if not compulsory, at any rate prescribed reading for those of us who have to deal with criminal matters.

It has been pointed out that the Bill will assimilate the law of Scotland to that which has applied in England since the first Offenders Act, 1958. I know that when I make such a statement as that, and say that it is a good thing, I lay myself open to attack, because I was attacked on that point only two days ago at this Box. However, I am glad that hon. Members on both sides of the House take the view that by following England in this respect we are, on this occasion, doing the right thing.

There is no doubt that while we must see that punishment provided by the law continues to be an effective deterrent, there are very good reasons for doing what we can to secure a reduction in the number of short sentences of imprisonment, particularly those which are being served by first offenders. As the Advisory Council Report points out, 92 per cent. of the prisoners received into Scottish prisons during 1958 were serving sentences of six months or less, that is to say, short sentence offenders, and rather over one-tenth of that total were people against whom no previous convictions had been recorded.

From a severely practical point of view, the number of short sentence prisoners is a major factor in the present pressure on prison accommodation. I think that the hon. Gentleman the Member for Edinburgh, East (Mr. Willis) pointed that out early in the debate. Apart from that, it leads to the increased risk, which was also mentioned today, of the contamination of a first offender who has been sent to gaol by the more hardened prisoners who are there.

It is even more important that when a prisoner has not yet embarked upon a career of crime the efforts of the law should be directed towards seeing that, if possible, he does not do so. From this point of view, it is certainly right that every expedient other than imprisonment should be explored, particularly in view of the risk of contamination to which I have referred.

The hon. Gentleman the Member for Scotstoun was good enough to consult my right hon. and learned Friend the Lord Advocate and also my hon. Friend the Joint Under-Secretary at the Scottish Office about the Bill. As he appreciates, the exercise here is not quite so straightforward in Scotland as it is in England. That is largely because of our old friend the cognate offences. I should like to say a word about that, because I think that that doctrine has puzzled not only hon. Members representing English constituencies, but also hon. Members representing Scottish constituencies who are laymen rather than lawyers.

The position in Scotland, broadly, is that offences are divided into three main classes, those involving dishonesty, those involving violence, and those involving lewd and indecent conduct. If a man is charged with an offence coming under one of those categories, it is only previous convictions in that particular category which may be libelled and brought to the notice of the court and be considered as an aggravation of the offence when the court is passing sentence. Apart from that, there is the provision that a previous conviction under a Statute or an Order may be libelled as an aggravation in any subsequent charge for the same kind of offence, or any analogous offence.

We are tied at the moment to the cognate offences. The result is that a person may, on the face of it, seem to the court to be a first offender whereas, as the hon. Member for Scotstoun pointed out, he has a string of previous convictions, possibly sentences of imprisonment for offences of a different character. It would be clearly wrong, in those circumstances, to treat the person as a first offender when, indeed, he might well have been imprisoned several times before.

That is where the difficulty of the machinery arises, and that is really the reason for subsection (4). As regards the breach of the general principle, which is inevitable if we are to make this a workable and reasonable Measure, it has been breached already under the 1949 Act with regard to young offenders under 21. The same thing applies when there is a probation report. Quite a lot of past history comes to light that would not be relevant or competent had the court merely been passing sentence at the end of the trial on the information available in the court.

I think that hon. Members on both sides of the House have agreed that this breach of the principle is right and that probably, at the end of the day, it would help rather than hinder the prisoner in the dock. To make this work we had to provide some machinery and that machinery is in Clause 1 (4). The object of that subsection is to enable the prosecutor to inform the court of any relevant previous conviction, and "relevant", of course, means an offence punishable by imprisonment, whether it is a cognate offence or not.

The cognate offence would, in fact, be before the court, because it would be libelled on the complaint and it would be there for the court to see when it came to pass sentence. To get in the non-cognate one, we must have this machinery under subsection (4), so that if a man claims to be a first offender when, in fact, he is not, the procurator fiscal may bring to the notice of the court and prove, if need be, that there were other previous convictions, even though they were not cognate.

On the question raised by the hon. Member for Galloway (Mr. Brewis) as to the position of a person who had been put on probation without a conviction being recorded, the position is, as he thought, that such a person is not treated as a previous offender. That is to say, he has the advantage of the legislation, even although the court has found that he had committed a previous offence and was put on probation. Similarly, if the court found that he had committed an offence, and had given him an absolute discharge, he would be treated as a first offender, assuming, of course, that was the only earlier blot on his copy book.

The position is different in regard to probation after a charge has been made on indictment, because, in that case, the court must convict. The probation follows on conviction and the conviction is there, as it were, as a bar to the offender claiming that he is a first offender under the Bill.

I think that there were one or two drafting points raised by the hon. Member for Cheltenham (Major Hicks Beach) about the word "appropriate." It is the same as in the English Act and, no doubt, we shall consider in Committee whether it is the appropriate word.

In reply to my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), I would point out that the Bill does not impose on all summary courts the duty of giving reasons, but merely on the courts other than the sheriff court and the stipendiary magistrate's court. That is to say, in the magistrates' courts or burgh courts where there are lay magistrates, they must give their reasons if they impose imprisonment, but that does not apply to the sheriff substitute or the stipendiary magistrates because they are sitting regularly and have legal training and are much more accustomed and experienced in dealing with this sort of matter.

I again congratulate the hon. Member for Scotstoun upon introducing the Bill, and I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Committee of the whole House.—[Mr. Small.]

Committee upon Friday next.