§ 10.45 p.m.
§ Mr. Ross
I beg to move, in page 18, line 35 after "person" to insert:other than a first offender within the meaning of the First Offenders (Scotland) Act 1960".Clause 30 makes a very radical alteration in the law in relation to the libelling of previous convictions. At the moment the limitation is on laying convictions for cognate offences in aggravation of an offence. That is being wiped out and it will be open to the court, in considering sentence, to be given by the procurator fiscal a list of what he thinks are relevant previous convictions.
1399 I suggest that this should not apply in relation to a person who is a first offender. The Clause dealing with first offenders has been amended, so that a person who has been convicted but whose conviction has taken place 10 years ago is to be treated as a first offender. I wonder whether we could not give such a benefit in this case as well. If we are to say that a man can have the slate wiped clean after 10 years, so long as he has not meantime been before the courts, surely we can make the appropriate change here as well.
§ Lady Tweedsmuir
I must advise the House not to accept the Amendment because it would prevent, as the hon. Member said, previous convictions being laid where the offender was a first offender under the terms of the 1960 Act. But cognate previous convictions can at present be laid against first offenders. I have heard no criticism of this procedure, but the Amendment would prevent it and limit the information which could be given to the court merely as a result of the fact that the convicted person was, under the terms of the Act, a first offender.
I do not really see any particular merit in that limitation in such a case. The purpose of the First Offenders Act is not to be soft to first offenders or to treat them lightly but to ensure that the court does not make undue use of imprisonment and that, before imposing imprisonment, it is fully informed of the offender's background and circumstances.
Under the Amendment, if the court is considering imprisonment, it will have full information about the offender's previous convictions because it will have the probation officer's report, but in the great majority of cases it will not be considering imprisonment and it will be deprived of information which may well be of value to it in deciding what is the best treatment. Therefore, I hope that on consideration the hon. Member will withdraw the Amendment.
§ Amendment, by leave, withdrawn.1400
§ Mr. Ross
I beg to move, in page 18, line 39, at the end to insert:(3) Where there is laid before the court any previous conviction which but for the passing of this section would have been precluded, there shall accompany the laying of any such conviction a report from the probation officer on the person concerned and regard shall be had to it.I am sorry that the hon. Member for Fife, East (Sir J. Gilmour) is not in his place—he has not been here all day—because he raised this matter in Committee. He was concerned that if we were to get all the information about the person convicted to help the court to select the appropriate sentence, the court should have a report from the probation officer as well as all the previous convictions, the idea being that the court should know about possible good things as well as bad. To fulfil the purpose of the Clause, it is essential to have that information. Having been convinced by the hon. Member that this provision was desirable, I drafted an Amendment, and as he has not put one forward himself, I now advance mine.
I hope that the hon. Lady has been seized of the concern expressed on both sides of the Committee and will appreciate that the Amendment more or less meets the case. No harm will be done to the Clause—in fact, it will be strengthened—by the availability to the court of additional information which may fill some of the gaps and prevent action which would not be in the interests of the individual, justice or the community. If the Government really mean what they say about this radical change, that they want not further to penalise the convicted person but to get the appropriate treatment for him, the court wants all the information it can get, not just previous convictions, but how the man has behaved and lived and reacted since his last conviction.
§ Sir J. Duncan
If the offence occurred eight or nine years ago, would it not be rather difficult to get this information from the probation officer?
§ Mr. Ross
The probation officer would know that it was eight or nine years ago. What is the purpose of libelling the previous conviction if the fact that it occurred nine years ago is meaning less? That is the essence of the hon. Member's intervention. That is what related to the previous Amendment, and 1401 I accepted the argument put forward on that. But the probation officer could that it occurred nine years ago is meaning look into a man's antecedents. That is the very argument that was put forward in Committee. I was convinced that the hon. Member for Fife, East had a point. I am sorry that he has not persistence as well as persuasion. It is no good arguing about these things in Committee; one has to be prepared to use the Parliamentary processes to get one's way. In spite of the defection of the hon. Member, I hope that the hon. Lady has more sense of duty and responsibility. Here she sees something that would strengthen the purpose of the original Clause 30 and would probably make many of us feel much happier about the change being made in Scottish law.
Many Scottish people are concerned about this change. Some feel that we are merely following the English procedure and they are not entirely convinced that it is to our advantage, after all these years, to make this change. It would be evidence of the bona fides of the Government—evidence that they are doing this for the best purposes—if they were prepared to accept the Amendment, thereby being prepared to take into account not only previous convictions but a full report from the probation officer in relation to the person convicted.
§ Sir J. Duncan
I am not sure what the hon. Member's argument is. I was not a Member of the Committee. The probation officer's report is on the person concerned, in respect of a conviction which may have taken place eight or nine years ago. That is what I do not understand.
§ Mr. Ross
What has happened is that up to the present there could not be libelled against any person convicted, prior to his sentence, any previous convictions other than those which are in aggravation of that offence—in other words, cognate offences.
That is now being wiped out, and all previous convictions may be libelled. There is no mandatory provision that all shall be libelled; they may be. That is what we were told in Committee by the hon. Lady. She said that the procurator fiscal will decide which ones are relevant. The argument was that when a person 1402 has been convicted but not yet sentenced, in order to get a proper treatment account should be taken of the whole criminal history of the individual. What I am saying is that to that should be added the social history and background, and all that has taken place; since his last conviction to balance the whole thing and get a proper picture. There may be matters which could be made available to the court by the investigations of the probation officer, and put in the report he would now be required to lay, that would assist the court in deciding what was the appropriate sentence.
That is what the Amendment provides. The probation officer's report is not related to the man's last conviction but to the man himself and to his life. It may include his last conviction, but it will be much more likely to state why the man has behaved as he has since his last conviction. In other words, we say that if we want to get a picture which will enable us to create the right sentencing policy it must be a complete picture, and not a picture of all that is bad. There may be some good. There may be something in a man's recent life that could affect the court in its determination what sentence should be awarded—and if there is, the court should know about it.
I am very glad that the hon. Member for Fife, East has come into the Chamber. I have been battling for him and his ideas, trying hard to persuade the hon. Member for South Angus exactly what he meant and what I have tried to put into words in the Amendment. I hope that when the Under-Secretary is explaining why she thinks it is good, the hon. Member will also look at the Bill and at this Amendment. If she turns it down, I hope that he will come to our support and rescue.
§ 11.0 p.m.
§ Lady Tweedsmuir
I am glad that when the hon. Member for Kilmarnock (Mr. Ross) moved this Amendment he made reference to the point made in Committee by my hon. Friend the Member for Fife, East (Sir J. Gilmour). My hon. Friend was concerned that under Clause 30 only adverse facts about the accused would come before the court, but I said to him at the time that it is always open to an offender to have included in his plea in mitigation anything he thinks is favourable to himself.
1403 I do not think this Amendment is practicable, and I shall try to explain why. The effect would be that before a non-cognate conviction could be laid before the court it would be necessary for the probation service to be informed of the intention, for the probation officer to prepare a social inquiry report and for that report to be laid before the court. At present the probation service provides reports to the courts in 20,000 to 30,000 cases a year. The number is steadily rising. The Government are glad to see that, apart from cases where a probation report is obligatory, the courts are making steadily increasing use of the probation service to get information to help them to decide how to dispose of cases.
None the less, the number of cases in which a probation officer's report is called for is still a comparatively small proportion of the 180,000 or so cases prosecuted each year in Scotland. There are a large number of cases, such as the all too frequent ones of illegal parking or minor road traffic offences, where calling for a probation officer's report would seldom, if ever, be justified. Among these cases—the great majority—in which no probation officer's report is obtained, there would be many in which the offender has previous convictions of a non-cognate nature. The Criminal Statistics do not show how many, since the figures do not distinguish between cognate and non-cognate convictions. Among those cases there will be a substantial number in which the existence of non-cognate convictions would be information of which the court should not be deprived.
Even if this arose in only 15 per cent. of the 150,000 odd cases in which no report is at present obtained, the effect would be more or less to double the work of the probation service in providing reports. There is no reason to suppose that when and if the necessary expansion of the service can be made the provision of reports of this kind, perhaps in comparatively straightforward road traffic cases, would be the best use of the service's manpower. For this reason, I suggest that the hon. Member might consider withdrawing the Amendment.
§ Mr. Willis
This is a very interesting situation. Once again the chairman of the Tory Party in Scotland is turning down the vice-chairman. We have a 1404 widening of the breach in the Tory Party. I am sure that hon. Members opposite must be seriously concerned about the situation of the party in Scotland.
§ Mr. Willis
We have all treated the Bill as a non-political, non-party Bill, and hon. Members opposite have insisted on treating it as a party Measure. That is why I am rather surprised at this open display of disunity. We were trying to assist the hon. Member for Fife, East (Sir J. Gilmour). We thought that as a result of his lack of experience in the House he might not know how to put down an Amendment to the Bill, and judging by the activities of hon. Members opposite apparently many of them do not know how to do so. This is an elementary lesson in Parliamentary practice. Hon. Members opposite should be expressing some appreciation to my hon. Friend the Member for Kilmarnock (Mr. Ross) for so generously placing at their disposal his valuable services in that respect.
The hon. Lady has placed some practical difficulties before the House, but I suggest that the Amendment nevertheless has some value. What is disappointing is that she has not tried to devise a means whereby what the hon. Member for Fife, East wanted and what my hon. Friend the Member for Kilmarnock is supporting could be incorporated in the Bill without leading to the complications which she suggested.
An interesting feature of the figures with which the hon. Lady provides us is the extent to which crime continues to grow under the Tories. This, too, should make members of the Tory Party think. I am only offering a few remarks and a few thoughts—
§ Mr. Deputy-Speaker
Order. I am reluctant to interrupt the hon. Member, but I hope that he will keep his remarks and his thoughts as close as may be to the Amendment under discussion.
§ Mr. Willis
I am grateful to you, Mr. Deputy-Speaker. I appreciate that I was tending to get rather wide of the Amendment but these thoughts arise out of it and out of the hon. Lady's reply. One of the reasons offered for the rejection of the Amendment was the work 1405 involved, and I simply point out that this increasing work in the criminal courts is arising under the Tory Government. I shall certainly draw the attention of many of my friends to this aspect of the Government.
We appreciate the difficulties but we are concerned that the hon. Lady and her advisers have not tried to devise a method by which the justifiable aim of the subsection could have been achieved, and to that extent once again, I am sorry to say, the hon. Lady has let me down. I thought rather better of her than this. I thought that she would have applied her mind to the problem and would have produced a solution and have made it possible for the person concerned to obtain such a report, not in the larceny type of case but in the type of case in which it would have been of value to the person appearing before the court.
§ Mr. A. R. Wise (Rugby)
I really cannot allow the hon. Member for Edinburgh, East (Mr. Willis) to get away with those remarks. He read us a long lecture on being able to put down Amendments but, since then, he has been complaining bitterly that my hon. Friend the Under-Secretary has not produced an Amendment which would make one of his Amendments make a little sense. Surely to goodness, the hon. Member, with that Parliamentary skill to which he has been referring, could have devised an Amendment that did what he wanted it to do. It is only too bad that he has not—perhaps even worse that he could not. It is only fair to point out that all political wisdom does not exist slightly north of the Border and south of the Highland line.
§ Mr. Hector Hughes
I am afraid that the hon. Member for Rugby (Mr. Wise) has misunderstood not only the Amendment but the Clause. If he understood the Amendment, he would realise that it is designed to give, and does give, balance to the Clause. The general principle applying to offenders, as I am sure the hon. Member will agree, in testing whether an earlier conviction should be used against the offender is whether or not he has purged his former 1406 offence; whether the penalty then inflicted has had a good effect.
The Clause as it stands does not deal with that. The Amendment does. It says:(3) Where there is laid before the court any previous conviction which but for the passing of this section would have been precluded, then shall accompany the laying of any such conviction a report from the probation officer on the person concerned and regard shall be had to it.Who would be in a better position than the probation officer to indicate whether the previous penalty had had its effect—whether it had improved the offender, whether the offender had purged his offence? That is the design, the purpose, the object, and that is what would be the effect, of this Amendment. I am sure that if the hon. Member realised that, he would support the Amendment. I ask the hon. Lady to bear my observations in mind, and accept the Amendment.
§ Mr. Millan
We are now in an extraordinary position because, as my hon. Friend the Member for Kilmarnock (Mr. Ross) has said, the Amendment was put down to cover a point raised originally by the hon. Member for Fife, East (Sir J. Gilmour), yet the hon. Member—who came into the Chamber after the Amendment was moved—does not seem to be taking any initiative in supporting it. Indeed, I have been here during most of our proceedings but have yet to hear one back-bench Conservative contribution on any Amendment. This is meant to be a non-party Bill, and it is extra ordinary that there should be such a complete lack of interest among Scottish Conservative Members. We have had one or two interlopers, including the hon. Member for Rugby (Mr. Wise)—I am not sure that his contribution took us very much further—but we have heard nothing from a Scottish Conservative Member.
The hon. Lady's argument for the laying of non-cognate offences—which, incidentally, some of us object to in principle—was that the court should have the maximum amount of information about an offender. I should have thought that this Amendment was absolutely consonant with that principle. It would increase the amount of evidence that a court would have about an 1407 offender by providing that where a non-cognate offence was libelled there should also be a report from the probation officer.
§ 11.15 p.m.
§ I agree that there may be a practical difficulty in having the report from the probation officer made simultaneously with the libelling of the non-cognate offence, but it seems to me that where the laying of a non-cognate offence will make a difference to the kind of sentence that the court will impose there ought to be a probation report. If this cannot be done at the time of the laying of the previous non-cognate offence it presumably would be open to the court to have the probation report brought forward following that procedure.
§ There is an important principle here and the Government ought to try, if not to accept the Amendment, at least to meet us half way by doing what is open to them in further proceedings on the Bill and making some Amendment which will go some way to meet the point originally made by the hon. Member for Fife, East and now made by my hon. Friend the Member for Kilmarnock.
§ Sir John Gilmour (Fife, East)
I apologise to the hon. Member for Kilmarnock (Mr. Ross) for not being here when he was kindly referring to me. I have come in as an afterthought as a result of someone mentioning that this matter had come up. In Committee I raised this point and my noble Friend the Under-Secretary of State allayed any suspicion that I had at the time as to what it was necessary to do to safeguard the situation. I was worried then as to whether it was possible that only the ill would be recorded before the court and that there would be no opportunity for the person presiding over the court to hear the good as well. If hon. Members will read the debate I think that they will find that my noble Friend allayed my fears and suspicions and that it is not necessary to add to the words of the Clause because there is sufficient safeguard to ensure that the good is heard as well as the bad.
§ Sir J. Gilmour
It was said at that time that it is always open to the defence, 1408 and indeed it does so all the time, to bring in what is good in mitigation of the offence in making its case.
§ Amendment negatived.