HC Deb 12 April 1961 vol 638 cc400-8
Mr. MacColl

I beg to move, in page 27, line 13, at the end to insert: In the case of any person in respect of whom there is in existence at the date of his release, a probation order made under section three of the Criminal Justice Act, 1948, the probation officer shall be specified in the notice given under the foregoing paragraph. This Amendment arises out of a discussion which we had on a comparable Amendment upstairs in Committee. The short point is, I think, quite a straightforward one, and I do not think that there is really very much disagreement about it.

The Schedule provides for supervision of persons coming out of detention centres and that the supervision may be exercised by various people or associations. The words used are: … such society or person as may be specified in a notice to be given to him by the Prison Commissioners…. The difficulty which we considered might arise was where a boy was already on probation at the time when he was sent to a detention centre. We feel that when such a boy comes out of detention it is obviously desirable that the supervision should be exercised by the probation officer who was supervising him under the probation order. In other words, there should not be two different supervising officers engaged with the same person.

I understood from the discussion upstairs that, in practice, it was the intention that this should be done, but there is nothing in the Schedule to indicate that at all. There is no means of being sure that the Prison Commissioners will, in fact, designate the probation officer in that case. Therefore, the Amendment seeks to provide that in the case of any person in respect of whom there is in existence at the date of his release a probation order, the probation officer shall be specified in the notice to which I have already referred. That would make it quite clear that there would not be parallel supervision by two supervising officers.

As I say, I do not think that there is any difference of opinion in principle on this matter, but only the question of establishing with clarity what will be the practice.

The Attorney-General

The hon. Member for Widnes (Mr. MacColl) raised this point in Committee, and I well remember the discussion that we then had. He was concerned to see that there was no danger or the possibility of dual responsibility of supervision. I said that I would consider whether any Amendment was necessary. I understand that my hon. Friend the Joint Under-Secretary of State has already informed the hon. Gentleman that in our view it is not. I do not think that it is really necessary to legislate in order to make express provision for this when it is obvious common sense to secure that there shall be one person only responsible for supervising when a person is under supervision and is at the same time on probation.

I could go into the administrative detail as to the manner in which that will be secured, but doubt whether the hon. Gentleman would really want me to do that. It is the intention to see that there is not confusion of the kind that he fears, and power is given by the Bill, through the appointment of the society, to ensure that the appropriate steps are taken to avoid that duality of responsibility in an individual case which would be stupid and embarrassing.

Mr. MacColl

I find it an extraordinarily startling doctrine that the right hon. and learned Gentleman has produced at this late hour, that what is obvious and common sense is necessarily done administratively. However, apparently he is satisfied that all the loopholes are stopped. He mentioned that I had had a letter from his hon. and learned Friend. I very much appreciate the hon. and learned Gentleman's courtesy in writing to me, but I thought it desirable that an authoritative statement should be made on this matter in the House so that it would be quite clear what the position was. I am a little surprised that it is not necessary or desirable to have an Amendment. However, I am quite satisfied to accept the Attorney-General's view on that, and I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. MacColl

I beg to move, in page 27, line 14, to leave out from the beginning to "and" in line 19 and to insert: Any person who being under supervision under paragraph 1 of this Schedule fails to comply with any requirement for the time being specified in the notice given to him under that paragraph, may be sent to a detention centre by order of a magistrates' court".

Mr. Deputy-Speaker

I think it might be convenient to discuss at the same time the next Amendment, in line 24, leave out from "later" to end of line 32 and insert: Provided that a person shall not be sent to a detention centre under this paragraph mote than once by virtue of the same order under section four of this Act. 3. Subject to the following provisions of this Schedule, the Magistrates' Courts Act, 1952, and any other enactment relating to summary proceedings, shall apply in relation to proceedings for an order under paragraph 2 above as they apply in relation to proceedings in respect of a summary offence, and references in those enactments to an offence, trial, conviction or sentence shall be construed accordingly. 4. Proceedings for an order under paragraph 2 above may be brought in a magistrates' court having jurisdiction in the area in which the person under supervision resides; but no summons or warrant shall be issued for the purposes of such proceedings under section one of the Magistrates' Courts Act, 1952, except upon information laid by or on behalf of the Prison Commissioners. 5. A warrant issued under the said section one for the purposes of proceedings for an order under the said paragraph 2 may, if the person laying the information so requests, bear an endorsement requiring any constable charged with its execution to communicate with the Prison Commissioners before arresting the person under supervision if the constable finds that that person is earning an honest livelihood or that there are other circumstances which ought to be brought to the notice of the Commissioners. 6. If, on the hearing of any such proceedings, the court is satisfied that the person under supervision has failed to comply with any of the requirements of his supervision but is of opinion, having regard to all the circumstances of the case, that it is unnecessary or inexpedient to send him hack to a detention centre, the court may make no order in the case.

Mr. MacColl

That would be helpful to the discussion, Mr. Deputy-Speaker.

This is another example, and not by any means the only one in the Bill, of some of the confusion and difficulty that has arisen as we have proceeded with the Bill in the Standing Committee and in the House. When the Bill was originally presented to the House it contained a provision for after-care of people released from prison, a provision which provided for the establishment of recall boards. It also provided for the aftercare of persons released from detention centres. I do not think there was much to choose between the two schemes, which were in the First Schedule and the original Third Schedule, but, if anything, that in the First Schedule was the better of the two.

However, in the course of the proceedings on the Bill the Government produced a new Third Schedule which abandoned the idea—in response to a good deal of criticism both on Second Reading and in Committee—of the recall boards, and established the principle for after-care of prisoners that the sanction behind the after-care should be recall to prison by the courts and not by an administrative board called a recall board.

Parliamentary procedure being what it is, at the time when we were considering the First Schedule we could not be sure what the precise form of the Third Schedule would be. Therefore, there was not, I thought, a very good case for asking for the First Schedule to be amended to be in line with the Third Schedule until we knew what the Third Schedule was going to be. Once the Third Schedule had been finalised, it became possible, as it is now, to have another look at the First Schedule to see whether it could not also be brought a little closer to what I now think is on the whole a very good Third Schedule. I most warmly welcome, as I think everybody who has any knowledge of these questions does, the introduction of the idea of after-care for persons released from detention centres. That is an excellent part of the Bill with which I would have no quarrel at all.

11.30 p.m.

The only question at issue is the form that should be adopted as a sanction for people who do not carry out the requirements of the supervision. It is beyond argument that if we are to have effective supervision we have to have some sanction. I would not quarrel with the view that the sanction ought to be recall to a detention centre, as outlined in the First Schedule. The only question of substance that arises is, by whom is this discretion to recall to be exercised?

The purpose of our Amendment is more or less to lift the idea of the principle of the Third Schedule, which applies to people released from prison, and to apply it to those released from detention centres. It seems tidy and consistent to do so, and I therefore hope that it will be acceptable to the Government. Virtually, we propose that anybody who does not fulfil the requirements of his supervision should be sent to a detention centre by order of a magistrates' court, and that the Magistrates' Courts Act shall also apply to those proceedings. This means that there would be a full right of appeal. That is the point to which the hon. Member for Carlton (Sir K. Pickthorn) attached great importance both on Second Reading and in Committee, and many other hon. Members wished to see a right of appeal.

In the Third Schedule there is a right of appeal because the proceedings for return to prison are now regarded as being proceedings under the Magistrates' Courts Act, with the normal right of appeal to the appeal committee of quarter sessions, for which that Act provides. Therefore, I cannot see why, if we do it for the prisoner, we should not also apply the process of an order by a magistrates' court, subject to the right of appeal to the appeal committee to those released from detention centres.

I do not want to labour this by going into an exhaustive account of what the words mean, but the two main points are that the decision should not be taken by the Prison Commissioners—who, to some extent, must be regarded as a little biased—but should be taken, on application, by a magistrates' court, and that it should be subject to the right of appeal if there is any dispute—an appeal which goes not only to the legal correctness of the call but also to the substance of whether or not it is the best way of dealing with the matter.

The magistrates' court would not be bound to make an order. It would have a discretion to consider the circumstances and decide accordingly. I am in my most amenable mood and think that the Third Schedule is, as a whole, excellent, and that the Government have done a good job in working out this procedure, for which our thanks must be given. But I do want to see it applied also to the First Schedule, because what is sauce for the somewhat elderly goose of the prisoner released from prison should be sauce for the young gander who comes from the detention centre.

The Attorney-General

I am grateful to the hon. Member for Widnes (Mr. MacColl) for his observations about the Third Schedule. I agree that it is now much improved from what it was when the Bill was first introduced.

The Third Schedule deals with the possibility that a person recalled from supervision under that Schedule will be liable to be imprisoned for a further six months in addition to the sentence passed on him by the court before which he had been tried and at which he had been sentenced for his offence. It is right that the matter should go before a magistrates' court before he has to serve an additional sentence of that period.

The situation under the First Schedule is quite different, and the difference in terms was deliberately made by the Government after very careful consideration. I, too, am in my most amenable and persuasive mood, and I hope that I shall be able to satisfy the hon. Member for Widnes that the arguments in favour of keeping the Schedule as it now stands are overwhelming.

First, for a long time it has been the practice for the Prison Commissioners to recall from licence those who have been released on licence and who have misconducted themselves in one way or another. That recall results in their serving the unexpired portion of their sentence. That is a well-known feature to all of us, and in paragraph 2 of the First Schedule a person who is recalled, after being placed under supervision, to a detention centre is to be liable to be detained in the detention centre until the expiration of a period equivalent to that part of his term which was unexpired on the date of his release from the detention centre…. I pause there and make the point that so far the First Schedule is putting into a Schedule what is common practice for the recall from licence and that there is no possibility of the person so recalled having to serve something in addition to the original sentence of detention which was passed upon him.

The Schedule goes on to provide: … or until the expiration of the period of fourteen days from the date of his being taken into custody under the order, which ever is the later … It is conceivable that a case would arise where he might at most be kept in detention for a period of fourteen days in addition to the original sentence of detention.

Here we run into a practical difficulty. As a lawyer, I naturally like these matters to be brought before a court for adjudication, where that can be done, but we must have regard to the period of 14 days. I would not be in favour of a proposal which would add to that maximum period of 14 days the period during which the person subject to recall to the detention centre would be in custody before coming before the magistrates.

Supposing someone under supervision under this Schedule had disappeared and had then been found and it was desired to bring him back towards the end of the period of his detention, so that there was not much of the unexpired portion of his original sentence remaining, but that at the same time it was in his interests to bring him back and keep him there for a short period and perhaps try to get him on a new track; it is obvious that he could not be allowed out on bail once he had been found and he would therefore have to be kept in custody until he came before the magistrates. In some parts of the country he would come before the magistrates extremely quickly, but in others he would have to wait a week or a fortnight and that involves an enlargement of the period of additional detention of 14 days now prescribed in the Bill. There is that real difficulty. We do not want to extend the period of his detention in one form or another beyond that maximum period of fourteen days prescribed in line 23. There is no way of overcoming that problem and grafting the court procedure on to it.

Under the borstal provisions which have been in existence since 1908 there is machinery very similar to this for young offenders. If one is to draw a line between the kind of categories which come into the First Schedule and the kind of categories which really come into the Third Schedule, it is really this. Is the recall to be substantially a recall to serve the unexpired portion of the sentence, or does it mean, if it is brought about, a substantial addition, or may it mean a substantial addition, to the sentence imposed by the courts?

Under this Schedule it does not mean a substantial addition. We thought a lot about whether we could drop this power to detain the person until the expiration of the period of fourteen days, but we came to the conclusion that it was advisable to have it in the person's own interest otherwise it would not be worthwhile recalling him when there was very little left of the unexpired term on the date of his release.

Suppose that some person had behaved very badly and was released at the end of his time. If he was brought back he would not have to remain in detention for very long, and yet that might be the very person one would want to keep for a little longer period.

I suggest to the House that for those reasons it is desirable to have the power to have these extra fourteen days and that it is right to keep it at that, but if we keep it at that it is not possible to graft on to it the magistrates' court procedure without substantially enlarging that period of detention.

Mr. MacColl

I am not completely convinced, because there is the analogy of a breach of probation. Where there is a breach of probation—and that is on the whole a gentler procedure than the breach of supervision after detention—there has to be a summons to court, and if necessary a warrant and arrest if the probationer does not attend. There is no great injustice done to somebody who disappears, and even if he has to be arrested he can often be released with the warrant backed for bail. If the procedure works fairly well in the case of a breach of probation I do not see why it should not work just as well in the case of a person released from detention.

The right hon. and learned Gentleman has gone to some pains to explain these technical difficulties, and in view of that I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.