HC Deb 23 July 1963 vol 681 cc1371-81
Mr. Ross

I beg to move, in page 10, line 2, after "made", to insert: after the passing of this Act". We now come to what I regard as one of the continuing blemishes of the Bill. My hon. Friend the Member for Glasgow, Scotstoun (Mr. Small) is one of the few Members of the House who, within about a year of arriving in this place, got a favourable place in the Ballot and had a Private Member's Bill accepted by the House. That Bill extended to first offenders in Scotland a considerable degree of protection in respect of prison sentences.

The Clause withdraws the benefit of that Act that absolute discharge and probation were not to be treated as convictions. In Committee upstairs, we tried to persuade the Government to change their minds about this, but we failed. We recognise the failure and the limitation that on Report we cannot go over exactly the same ground. The purpose of the Amendment is that the change which the Government now propose should start with the passing of the Bill and that the benefit which the House openly and knowingly conferred upon people who were dealt with by the courts, and whose offence was such that they were given an absolute discharge or put on probation, whereby they would be treated as first offenders, should be continued for those people who have been so treated up to the present and that the disadvantage which the Government propose should fall upon first offenders should start from the passing of the Bill and should not apply to orders made by the courts from the passing of the 1960 Act until the present time.

I regret this Clause probably more than any other in the Bill. It indicates a rather mean cleansing of the 1960Act and the wiping out of an anomaly by removing a benefit, whereas we could have been generous and worked it the other way, which would have had our support. To do it in the way that the Government propose is bad and we can only hope that the House will mitigate the evil that will be done by limiting it to orders which are made after the passing of the Bill, when courts will know exactly the implications of what they are doing.

Lady Tweedsmuir

The effect of this Amendment would be to limit the effect of the change in the law which we made in Committee about orders for absolute discharge or probation made by Scottish summary courts.

As I understand it, the suggestion is that in respect of past orders for absolute discharge or probation we are amending the law and affecting those orders retrospectively.

If this effect were part of the sentence I would agree with this suggestion. For instance, Clause 14 applies compulsory after-care to prisoners undergoing sentence and qualifying the sentence, but it limits the liability to persons sentenced following the commencement of the provisions. I think it would be wrong, if the court did pass a sentence of imprisonment, radically to alter the nature of that sentence.

The case here is different, because while it is true in one sense that the persons who in the past were placed on probation or given an absolute discharge by Scottish summary courts would be affected by an amendment of the law, it would not be a change in the nature of the sentence itself. Could it be suggested that it was a consideration in the mind of the court in making such an order that the next time the offender committed an offence he would be treated as a first offender? In fact, the First Offenders Act does not concern itself with the nature of past sentences but contains a definition of a type of person who is to be treated as a first offender for the purposes of that Act, and naturally enough, bearing in mind the Title of the Act, it is governed by previous offences.

The trouble was that there was a drafting error in the 1960 Act, and for present purposes—the question whether or not the offender now standing convicted before the court is a first offender—an unjustified distinction is drawn, not by the nature of the sentence but by the type of court concerned. The defect could be remedied only by saying that the Act applies to all persons dealt with by absolute discharge by Scottish summary courts as it applies to such persons dealt with by other courts, and this can be achieved only if Clause 17 applies to both past and future orders. Therefore, I must advise the House not to accept the Amendment.

Mr. Willis

This is most unsatisfactory. As my hon. Friend the Member for Kilmarnock (Mr. Ross) has said, it is this Clause which, apart from the original Clause 32 of the Bill, attracted more attention, probably, than any other Clause. It called for more adverse comment on the part of interested bodies than any other Clause, with the exception of the original Clause 32, which the Government dropped.

We tried in Standing Committee to get the Government to accept our ideas about this, and this Amendment simply seeks to undo some of the damage the Government are doing. According to the hon. Lady, this is a merely technical matter. There had been an error made in the First Offenders (Scotland) Act, 1960, and it was sought to rectify that technical error.

But that affects quite a number of people who have been before the courts and been discharged or put on probation, and it applies no matter what their ages are, or anything else. It means that for the purposes of the Act of 1960 these things are to be treated as convictions. I think that is a bad thing. All we seek to do by this Amendment is to limit the effects of that to the cases following after the passing of this Bill.

Why should we affect cases which have come before the courts during the past 14 years? There must be quite a large number of cases. This applies to people who have been given an absolute discharge or probation under Section 1 or Section 2 of the 1949 Act—in other words, people who for 14 years have been subject to the provisions of those Sections. If they now come before the courts they will, instead of being treated as not having been convicted, now be treated as having been convicted for the purposes of the 1960 Act. Therefore, this affects a large number of people. I should have thought that the hon. Lady could at least have accepted our Amendment and left the position relating to these individuals alone.

I do not know that any great damage was being done. What great harm was being done by the provisions? This is, in effect, retrospective legislation. It is applying to these people something it was never intended to apply. The hon. Lady should have left the position as it was and accepted our Amendment. That would have been a much happier solution and would have given a great deal of satisfaction to many people who have expressed very deep concern about the effect of the Clause.

Mr. Millan

As I see it, if the Amendment is not accepted, Clause 17 will be retrospective legislation. I am not absolutely clear whether it will be retrospective to the First Offenders (Scotland) Act, 1960, or as my hon. Friend the Member for Edinburgh, East (Mr. Willis) thinks, to 1949. My view would be that it would be retrospective only to 1960, but I may be wrong.

I found what the noble Lady said completely unintelligible. She read her brief on the Amendment with great rapidity and not in a very convincing manner. This was the only Clause where we got the same treatment from her in Standing Committee. I know that it is an extremely complicated Clause although it consists of only five lines and that it is very difficult to explain it in non-technical laguage, but in Committee the noble Lady definitely tried to baffle us by reading a long unintelligible brief relating to the 1949 Act and all sorts of other Acts, and has done the same tonight.

If I understand the Clause correctly, a person who has had an absolute discharge will be treated as a first offender. I should have thought that prima facie that was an absurd situation, because an absolute discharge ought to mean what it says; it ought to be a clearance of the record so far as the offence is concerned. Important safeguards are involved for persons over the age of 21 who are first offenders. There is, for example, the necessity for the sheriff, before he can pass sentence, to call for a probation officer's report. If an absolute discharge is treated as a conviction, a person coming before a sheriff who has had only one offence proved against him before that occasion and has had an absolute discharge in respect of that offence will not be treated as a first offender and will not have the protection afforded to first offenders that the sheriff must call for a probation officer's report before sentencing them. This is absolutely wrong in principle, as we argued in Committee.

9.30 p.m.

But, even if the hon. Lady does not accept that, it seems equally absolutely wrong in principle to try to remedy in this retrospective way what the Government consider to be a defect. The Government have set their faces in many other instances against retrospective legislation. For example, in the Finance Act each year, where there is discovered to be a defect by which people can avoid taxation, the House nevertheless considers it reprehensible if the Government introduce retrospective legislation, and the Government do so only where some individuals have done something which is almost criminal in their use of the loop hole.

That kind of consideration does not apply here. Even if there were a defect in the 1960 Act—and some of us do not accept that there was—all that has happened is that certain individuals have had a certain individual protection given to them. It is reprehensible that the Government should attempt to introduce this retrospective Clause. It is a very serious matter that she has not given a much more convincing reply to the Amendment.

I agree that this is an extremely technical matter, but I do not get the impression that the hon. Lady really comprehended our point of view or was really convinced of her argument. I hope that even now she will reconsider the Government's attitude and say that this reasonable and minor Amendment should be accepted.

Mr. Thomas Fraser (Hamilton)

I hope that the hon. Lady will have another look at this Clause, which seems a monstrous proposal. There has been a little confusion in the House as to whether the orders covered by this Clause are those made in the last three years, since the passage of the First Offenders (Scotland) Act, 1960, or those made since the 1949 Act. I believe it to be the latter, so that a person who was granted an absolute discharge even as far back as 1950 will now have that counted as a conviction.

The hon. Lady says that this is in the interests of justice. Is it just to amend the law so that a person granted an absolute discharge in 1950 can have that treated as a conviction when he comes before a court in 1964? That, however, is what the hon. Lady is suggesting.

It is a great pity that the Clause is in the Bill at all. I would have liked the opportunity to vote against its inclusion, but as it seems that we are not able to take it out, at least the House can do one decent thing and accept the Amendment to ensure that a person who has had an order made against him granting him an absolute discharge in respect of an offence for which he was prosecuted in the past—

Mr. Willis

And of which he might have been innocent.

Mr. Fraser

I do not want to go into this too deeply, but I understand that there are plenty of occasions on which a person charged has been advised that if he pleads guilty, he will be granted an absolute discharge. If a person has been prevailed upon to plead guilty, notwithstanding that he might have been able to defend himself and get a "not guilty" verdict, preferring not to go to any trouble and not to incur expense—and I understand that there are many such people—it would be an absolute disgrace if we were now to provide that such an order made between 1949 and 1963 would be counted as a conviction against him, so that he could not have the benefit of what we all regard as the beneficial legislation of 1960.

Any hon. Member who has taken the trouble to listen to our brief discussion would agree that to accept the Amendment would be the humane thing to do. We shall not let off any thugs or hardened criminals by making this little Amendment. We are saying merely that those people who have never had a conviction, except an order granting an absolute discharge, or who have been put on probation, should be treated as first offenders if they come before a court again. Surely that is not asking the House to go too far.

I hope that the noble Lady will think

again and will accept, the Amendment as reasonable and sensible and as one which those who try to make the administration of justice a little more humane would welcome and applaud. They would not wish the House at this time to legislate retrospectively as the Clause proposes. Anyone hearing our discussion would find it difficult to go into the Lobby against the Amendment. I plead with the noble Lady not to require any of us to go into either Division Lobby to vote for or against the Amendment. Let her do the decent thing and let the House of Commons unanimously decide not to make: this legislation retrospective. The only way to do that is to accept the Amendment.

Question put, That those words be there inserted in the Bill: —

The House divided: Ayes 143, Noes 181.

Division No. 173.] AYES [9.40 p.m.
Abse, Leo Griffiths, W. (Exchange) Pentland, Norman
Ainsley, William Grimond, Rt. Hon. J. Popplewell, Ernest
Allen, Scholefield (Crewe) Hale, Leslie (Oldham, W.) Price, J. T. (Westhoughton)
Awbery, Stan (Bristol, Central) Hamilton, William (West Fife) Probert, Arthur
Bacon, Miss Alice Harper, Joseph Pursey, Cmdr. Harry
Baird, John Hayman, F. H. Randall, Harry
Barnett, Guy Herbison, Miss Margaret Redhead, E. C.
Bence, Cyril Hill, J. (Midlothian) Rees, Merlyn (Leeds, S.)
Bennett, J. (Glasgow, Bridgeton) Hilton, A. V. Reynolds, G W.
Benson, Sir George Holman, Percy Rhodes, H.
Blackburn, F. Holt, Arthur Roberts, Albert (Normanton)
Blyton, William Hoy, James H. Roberts, Goronwy (Caernarvon)
Boardman, H. Hughes, Cledwyn (Anglesey) Robertson, John (Paisley)
Bowden, Rt. Hn. H. W. (Leics, S.W.) Hughes, Hector (Aberdeen, N.) Ross, William
Brockway, A. Fenner Hunter, A. E. Short, Edward
Broughton, Dr. A. D. D. Hynd, H. (Accrington) Silkin, John
Brown, Rt. Hon. George (Belper) Irvine, A. J. (Edge Hill) Slater, Mrs. Harriet (Stoke, N.)
Brown, Thomas (Ince) Janner, Sir Barnett Slater, Joseph (Sedgefield)
Carmichael, Neil Jeger, George Small, William
Chapman, Donald Johnson, Carol (Lewisham, S.) Smith, Ellis (Stoke, S.)
Cliffe, Michael Jones, Dan (Burnley) Sorensen, R. W.
Craddock, George (Bradford, S.) Jones, J. Idwal (Wrexham) Soskice, Rt. Hon. Sir Frank
Crossman, R. H. S. Jones, T. W. (Merioneth) Spriggs, Leslie
Cullen, Mrs. Alice Kelley, Richard Steele, Thomas
Dalyell, Tam Ledger, Ron Stewart, Michael (Fulham)
Davies, C. Elfed (Rhondda, E.) Lee, Frederick (Newton) Stones, William
Davies, Harold (Leek) Lee, Miss Jennie (Cannock) Swingler, Stephen
Davies, Ifor (Gower) Lubbock, Eric Symonds, J. B.
Davies, s.o. (Merthyr) McBride, N. Taverne, D.
Deer, George McKay, John (Wallsend) Taylor, Bernard (Mansfield)
Dempsey, James McLeavy, Frank Thompson, Dr. Alan (Dunfermline)
Diamond, John MacPherson, Malcolm (Stirling) Thomson, G. M. (Dundee, E.)
Donnelly, Desmond Mallalieu, E. L. (Brigg) Wade, Donald
Duffy, A. E. p. (Colne Valley) Manuel, Archie Wainwright, Edwin
Ede, Rt. Hon. C. Mapp, Charles Weitzman, David
Edwards, Rt. Hon. Ness (Caerphilly) Mason, Roy Wells, William (Walsall, N.)
Edwards, Walter (Stepney) Mendelson, J. J. Whitlock, William
Fernyhough, E. Millan, Bruce Wilkins, W. A.
Finch, Harold Morris, John Williams, D. J. (Neath)
Fletcher, Eric Mulley, Frederick Williams, W. R. (Openshaw)
Forman, J, C. Noel-Baker, Francis (Swindon) Williams, W. T. (Warrington)
Fraser, Thomas (Hamilton) Noel-Baker,Rt.Hn.Philip(Derby,S.) Willis, E. G (Edinburgh, E.)
Galpern, Sir Myer Oliver, G. H. Winterbottom, R. E.
George,LadyMeganLloyd(Crmrthn) O'Malley, B. K. Woof, Robert
Gourlay, Harry Oram, A. E. Yates, Victor (Ladywood)
Greenwood, Anthony Pargiter, G. A.
Grey, Charles Parker, John TELLERS FOR THE AYES:
Griffiths, David (Rother Valley) Pavitt, Laurence Mr. Lawson and
Griffiths, Rt. Hon. James (Llanelly) Pearson, Arthur (Pontypridd) Mr. Charles A. Howell.
Aitken, W. T. Glyn, Sir Richard (Dorset, N.) Morrison, John
Ashton, Sir Hubert Cower, Raymond Mott-Radclyffe, Sir Charles
Awdry, Daniel (Chippenham) Grant-Ferris, R. Nicholls, Sir Harmar
Barter, John Green, Alan Nugent, Rt. Hon. Sir Richard
Batsford, Brian Gresham Cooke, R. Oakshott, Sir Hendrie
Bennett, F. M, (Torquay) Hall, John (Wycombe) Osborne, Sir Cyril (Louth)
Berkeley, Humphry Hamilton, Michael (Wellingborough) Page, Graham (Crosby)
Bidgood, John C. Harris, Reader (Heston) Page, John (Harrow, West)
Biffen, John Harrison, Col. Sir Harwood (Eye) Pannell, Norman (Kirkdale)
Biggs-Davison, John Harvey, John (Walthamstow, E.) Partridge, E.
Bishop, F. P. Harvie, Anderson, Miss Pearson, Frank (Clitheroe)
Black, Sir Cyril Heald, Rt. Hon. Sir Lionel Peyton, John
Bossom, Clive Hendry, Forbes Pickthorn, Sir Kenneth
Bourne-Arton, A. Hiley, Joseph Pilkington, Sir Richard
Box, Donald Hill, Mrs. Eveline (Wythenshawe) Pitman, Sir James
Boyle, Rt. Hon. Sir Edward Hill, J. E. B. (S. Norfolk) Pitt, Dame Edith
Braine, Bernard Hirst, Geoffrey Powell, Rt. Hon. J. Enoch
Brooke, Rt. Hon. Henry Hocking, Philip N. Proudfoot, Wilfred
Brown, Alan (Tottenham) Holland, Philip Pym, Francis
Bryan, Paul Hopkins, Alan Quennell, Miss J. M.
Buck, Antony Hornby, R. P. Redmayne, Rt. Hon. Martin
Bullard, Denys Hornsby-Smith, Rt. Hon. Dame P. Ridsdale, Julian
Campbell, Gordon (Moray & Nairn) Howard, John (Southampton, Test) Roberts, Sir Peter (Heeley)
Gary, Sir Robert Hughes Hallett, Vice-Admiral John Robinson, Rt. Hn. Sir R. (B'pool.S.)
Chataway, Christopher Hughes-Young, Michael Ropner, Col. Sir Leonard
Chicheater-Clark, R. Hutchison, Michael Clark Russell, Ronald
Clark, Henry (Antrim, N.) Iremongsr, T. L. Scott-Hopkins, James
Clark, William (Nottingham, S.) Irvine, Bryant Godman (Rye) Shaw, M.
Cleaver, Leonard Jenkins, Robert (Dulwich) Shepherd, William
Cole, Norman Johnson, Dr. Donald (Carlisle) Stanley, Hon. Richard
Cooke, Robert Johnson, Eric (Blackley) Stevens, Geoffrey
Cordeaux, Lt.-Col. J. K. Kanerry, Sir Donald Storey, Sir Samuel
Cordle, John Kerans, Cdr. J. S. Studholme, Sir Henry
Corfield, F. V. Kerr, Sir Hamilton Summers, Sir Spencer
Coulson, Michael Kimball, Marcus Tapsell, Peter
Courtney, Cdr. Anthony Kirk, Peter Taylor, Sir Charles (Eastbourne)
Craddock, Sir Beresford Lambton, Viscount Taylor, Edwin (Bolton, E.)
Crawley, Aldan Langford-Holt, Sir John Taylor, Frank (M'ch'st'r, Moss Side)
Crosthwaite-Eyre, Col. Sir Oliver Leavey, J. A. Teeling, Sir William
Curran, Charles Legge-Bourke, Sir Harry Temple, John M.
Currie, G. B. H. Linstead, Sir Hugh Thompson, Sir Kenneth (Walton)
Dalkeith, Earl of Litchfield, Capt. John Touche, Rt. Hon. Sir Gordon
Deedes, Rt. Hon. W. F. Lucas, Sir Jocelyn Turner, Colin
Digby, Simon Wingfield Lucas-Tooth, Sir Hugh Turton, Rt, Hon. R. H.
Donaldson, Cmdr. C. E. M. Mac Arthur, Ian Tweedsmuir, Lady
Doughty, Charles McLaren, Martin Vaughan-Morgan, Rt. Hon. Sir John
Drayson, G. B. McLaughlin, Mrs. Patricia Vosper, Rt. Hon. Dennis
Duncan, Sir James Maclay, Rt. Hon. John Walder, David
Eden, Sir John McMaster, Stanley R. Walker, Peter
Elliot, Capt. Walter (Carshalton) MacPherson,Rt.Hn.Niall(Dumfries) Wall, Patrick
Errington, Sir Eric Maddan, Martin Ward, Dame Irene
Farr, John Maginnis, John E. Wells, John (Maidstone)
Fell, Anthony Markham, Major Sir Frank Williams, Dudley (Exeter)
Finlay, Graeme Marten, Neil Wills, Sir Gerald (Bridgwater)
Fisher, Nigel Matthews, Gordon (Meriden) Wilson, Geoffrey (Truro)
Fletcher-Cooke, Charles Mawby, Ray Wise, A. R.
Fraser-Ian (Plymouth, Sutton) Maxwell-Hyslop, R. J. Woodhouse, C. M.
Gammans, Lady Maydon, Lt.-Cmdr. S. L. C. Woodnutt, Mark
Gardner, Edward Mills, Stratton
Gilmour, Sir John (East Fife) Miscampbell, Norman TELLERS FOR THE NOES:
Glover, Sir Douglas More, Jasper (Ludlow) Mr. Feel and Mr. Hugh Rees.
Morgan, William

9.45 p.m.

Lady Tweedsmuir

I beg to move, in page 10, line 5, at the end to insert: (2) For the purpose of determining whether a person is a first offender within the meaning of that Act, a previous conviction shall be disregarded after the expiration of a period of ten years from the date of that conviction, being a period exclusive of any period spent by him in custody under sentence in respect of the conviction. The purpose of the Amendment and the consequential Amendment to Schedule 5 is to amend the First

Offenders (Scotland) Act, 1960. The Amendment, although somewhat different in form, carries out a proposal made by the hon. Member for Glasgow, Craigton (Mr. Millan) in Committee. The First Offenders (Scotland) Act, which was introduced by the hon. Member for Glasgow, Scotstoun (Mr. Small) fulfilled a recommendation of S.A.C.T.O. to provide certain safeguards against the undue use of imprisonment by summary courts. I need not go into the Act again, because we have discussed it at some length in Committee.

The proposal was made in Committee that even if the offender had committed an offence punishable with imprisonment after the age of 17, if more than 10 years had elapsed since that conviction or since his release from custody following the sentence imposed upon him, the first offender's safeguards should also be applied to him. Although the Government were, for a number of reasons, unable to accept the Amendment at the time, I did undertake that I would consider what could be done and see whether there were any snags and if not I would put down another Amendment. This Amendment is the result and I hope that it will meet the point put forward by the hon. Member for Craigton.

Mr. Millan

May I once again thank the noble Lady for introducing this Amendment. During the Committee stage she promised that the Government would consider putting down an Amendment which would have the same effect as an Amendment which I moved at that time. I think that this represents a real step forward and on an occasion when we have little for which to be thankful to the Government it gives me particular pleasure to thank the noble Lady for introducing the Amendment.

Amendment agreed to