§ Order for Second Reading read.
§ Mr. Speaker
Before I call the Secretary of State for the Home Department to open the debate, may I remind the House that there is a long list of would-be speakers? Despite the extra time, which has been somewhat eroded since 3.30 p.m., I shall not be able to call all those hon. Gentlemen who really have the right to take part in the debate, unless hon. and right hon. Gentlemen are reasonably brief in their speeches.
§ 4.5 p.m.
§ The Secretary of State for the Home Department (Mr. Roy Jenkins)
I beg to move, That the Bill be now read a Second time.
This is a long and complex Bill of 72 Clauses and five Schedules. Nevertheless, I hope to be able to commend it to the House in a speech which will not be unduly long or even, I trust, unusually opaque. Against a general reception which has been friendly and even generous, the Bill has attracted some criticism —apart from substantial reservations on individual points—for being too compendious and for dealing at the same time with a great number of somewhat unrelated issues.
At one level of argument I would admit this. This is the first major piece of general legislation on criminal justice for nearly 20 years and it is natural in the circumstances that there should be a good number of miscellaneous tidying-up provisions which the Government are anxious to work in. Equally, at least one problem, that of the criminal use of shot-guns, which would not normally or ideally be dealt with in criminal justice legislation, became urgent while the Bill was in preparation and I thought it better to act upon it quickly in this Bill rather than to purchase perfect legislative neatness at the price of dangerous delay.
Having said that, I would say very firmly indeed that, for all this, the main provisions of the Bill are infused with a common and, I think, clearly discernible purpose. Building in some case with inherited bricks, particularly those left by my immediate predecessor, now 53 my noble Friend Lord Stow Hill, but in most cases with newly fashioned bricks, my object has been to construct a Bill which would be consistently liberal and rational in its approach to the difficult and emotional questions of crime and punishment, while at the same time being directly relevant in all its approaches to the most menacing crime situation with which this country has recently been confronted.
In seeking to achieve this twin purpose, I have tried to follow three main strands of policy. The first has been that of streamlining our criminal court procedure so as to enable all those concerned with law enforcement, and, certainly not least, the police, to operate within a less time-wasting framework. The second has been to give us a criminal law which is less concerned with observing the traditional rules of a stately but archaic minuet and more concerned with arriving at the truth, both for the guilty and the innocent. The third has been so to modernise our penal system that it could better perform its triple rôle of deterrence, rehabilitation and effective custody.
I will deal first with the streamlining of court work. Here the most important provision relates to committal proceedings, dealt with in Clauses 1 to 4. In 1965 there were nearly 30,000 such proceedings before magistrates preliminary to criminal trials on indictment. At these committal proceedings all the prosecution witnesses gave evidence orally to enable justices to decide whether the case should go for trial. In nearly 29,000 of these cases the justices did so decide and the full procedure, time-consuming for all concerned, had to be gone through twice, except where there were initial pleas of guilty.
I considered very carefully whether it would be possible to sweep away committal proceedings completely, but then I became convinced that, although it had its attractions, it would not be right. No one ought to be put on trial at assizes or quarter sessions and perhaps spend about six weeks in custody awaiting trial, without some preliminary judicial investigation.
In certain cases, too, it is a real advantage to the defence, and in some others to the prosecution, to have the evidence sifted at this stage. Furthermore a decision has to be taken as to whether 54 bail should be granted. For all these reasons we cannot, I believe, get rid of committal proceedings entirely, but we can, and I think should, greatly restrict their rôle.
What I propose in the Bill is that the prosecution will give the accused, in advance, copies of the statements of those of their witnesses whom they do not wish to call to give evidence orally. The defendant will have an absolute right to demand the appearance of all or any of these witnesses. But if he does not require a witness to be called, then that witness will not appear and his statement will be used as evidence at the committal proceedings, which will otherwise take the ordinary form. If all the prosecution evidence is in the form of written statements and the defendant is prepared to accept them as evidence, then, if he does not intend to give or to call evidence himself orally or to argue that the evidence is insufficient for committal to trial, he may be committed for trial in proceedings lasting a few minutes without the justices considering the statements.
This is, in effect, committal by consent and is dealt with in Clause 1. We thought it right in the interests of the defendant to limit this to cases in which the defendant is legally represented so that there is no danger of his so acting without knowledge of the consequences of his action. If these proposals are put into effect, I hope that only a small proportion of witnesses would have to give evidence at the committal stage and that we should produce a substantially time-saving but equally just judicial system. The saving of the time of police witnesses would be considerable.
I have also had to consider what should be the rule about the reporting of committal proceedings in the new circumstances. The Tucker Committee, which reported as long ago as 1958, recommended that there should be a ban somewhat similar to that which has applied for 40 years to the reporting of evidence in divorce cases. It is easy to understand some of the reasons for this. In sensational cases, such as the Moors Murder, the public are served up with the revolting details twice over. In other cases the defence might believe, and believe reasonably, that they were being harmed by the difficulty, after a well-publicised preliminary hearing, of finding 55 an unprejudiced jury. In other cases, substantial damage might be done to a man's reputation by the publication of an uncontested prosecution case and not substantially corrected by the less interesting news six weeks or so later of his acquittal.
To balance these considerations there is the natural repugnance of most of us to court proceedings not being fully publicised. The new rules in relation to committal proceedings will create a new situation. In many such proceedings there will be no evidence to report. For the remainder, I think that the fairest arrangement is that the defence should always be given the right to opt for publicity, but that if they do not do so there should be a restriction on reports of more than the bare details of committal proceedings until the trial has been completed. In this way I think that the main purpose of the Tucker recommendations can be achieved without any unreasonable restrictions on the rights of Press or public.
I should add that in Clause 5 we are restricting the rights of examining magistrates to sit in camera. In the past this has been an absolute discretion with the magistrates, although not one very widely used. In the future the magistrates will have to be positively convinced that another enactment, such as the Official Secrets Act, requires them to do so, or that the ends of justice make this necessary, and they should be prepared to give their reasons for this or otherwise always to sit in open court.
Another time-saving provision is contained in Clauses 13 and 14. Here it is provided that magistrates' courts may try minor offences in the absence of the accused on proof that the summons was delivered or sent to his address but without proof of its acknowledgement. Apart from avoiding a great deal of tiresome police work associated with the constant attempts to serve a summons on a minor but elusive offender, this will avoid the objectionable position in which, perhaps, owing to a misunderstanding, a frustrating process culminates in the arrest of a minor offender for whom no question of a sentence of imprisonment could arise.
The necessary safeguards are, first, that no custodial sentence may be passed in 56 the absence of the accused; secondly, that no disqualification may be ordered without the proceedings being adjourned and the defendant notified of the reasons for the adjournment; and thirdly, that a person dealt with in his absence, even when neither of these considerations applies, can declare that he was ignorant of the proceedings and demand their annulment and a fresh trial before a differently constituted court.
Clauses 7 and 8 are also time-saving. Clause 7 allows facts to be proved by written statement rather than oral evidence where neither side objects. Clause 8 allows the formal admission rather than the laborious proof of facts which are not in dispute between the two sides. By this variety of means, I am convinced we shall get rid of some of the most irritating and obvious time-wasting in our legal processes.
One most important result will be that our under-manned and overstrained police forces will be able to devote more time to their real job of preventing crime and, where they cannot do this, to catching criminals. But detection is a largely nugatory pursuit unless it leads to the conviction of the guilty.
§ Mr. Norman St. John-Stevas (Chelmsford)
Before the right hon. Gentleman leaves this point about the committal proceedings, may I remind him that he paid tribute to his predecessor, Lord Stow Hill, for some of the bricks which he had left behind him and which have been used in this edifice? Does he not also feel that tribute should be paid to my hon. Friend the Member for Runcorn (Mr. Carlisle) for his pioneer work in putting forward suggestions for streamlining the committal proceedings in his pamphlet, "A Case for Trial"?
§ Mr. Jenkins
I certainly read with great interest the pamphlet which was produced by the hon. Member for Runcorn (Mr. Carlisle) in association, I think, with a former Member of the House, Mr. Edward Gardner, and I am happy to pay tribute to the work which he did. The hon. Member will agree that if I am too free with my tributes my speech will be longer than it need otherwise be.
Following my previous point about detection being largely a nugatory pursuit 57 unless it leads to the conviction of the guilty, my second main set of proposals are concerned with making less haphazard but not less just the processes of conviction. The most important and no doubt the most controversial provisions, which are put forward in Clause 10, relate to majority verdicts. The principle of unanimity is, of course, a very old one in English law, although, as Lord Devlin pointed out, it arose more out of accident than out of design.
It was also a necessary principle according to the rules and assumptions of what one might call traditional English criminal law practice. The basis of this, it appears to me, speaking very much as a layman, was that one conducted trials more as a lawyers' game than in pursuit of the truth. But if at the end of the day the defendant lost, he was subject to the most horrifying penalties, often quite disproportionate to the offence: the death penalty for petty larceny, for example.
It was, therefore, acceptable that the rules should be somewhat "rigged" in his favour. One deterred, or attempted to deter, not by the mere certainty of conviction for the guilty, but by the enormity of the punishment. We have, I am glad to say, moved well away from the latter approach, and it follows that, in the present state of the crime wave, we can feel less equanimity about the acquittal of the guilty.
How do majority verdicts bear on this? I have said already that I think that their effect will be qualitative rather than quantitative. They are not likely to result in different verdicts in many cases, but these few cases may well be crucial from the point of view of law enforcement and the breaking-up of big criminal conspiracies. At present, about 35 to 40 per cent. of cases which go to juries result in acquittal. The Home Office Research Unit's estimate for 1965 was 37 per cent. In about 3.5 per cent. to 4 per cent. of the cases which go to juries there is jury disagreement—disagreement, that is to say, which cannot be resolved by the ordinary process of argument and persuasion within the jury room.
In the Central Criminal Court, which deals with about 5 per cent. of all trials on indictment, this rate amounted in 1965 to 49 cases of jury disagreement—
§ Mr. Jenkins
I was merely endeavouring to give the House some indication of the extent of jury disagreement. My hon. Friend is perhaps better-informed about this than are some other hon. Members—
§ Mr. Hale
I do not want to say anything of a personal nature, but there are some courts which have had a very large number of successful appeals. There is one court in London which is known, colloquially, as the "potting shed". The right hon. Gentleman gave me the whole figure of the number of disagreements in assize cases. So far as I remember, that figure was very small: I can get it from the Library in two minutes, if necessary.
§ Mr. Jenkins
I am trying to give the House some indication of what the proportion of disagreements were in cases as a whole. The best estimate which we can make of this is that it amounts to between 3.5 per cent. and 4 per cent. of cases—
§ Mr. Jenkins
I hope that my hon. Friend will allow me to continue.
This is in all courts. I have been trying to give some indication of what this means in arithmetical terms in a particular court—an important one—because I was going on to give a breakdown of those 49 cases. This rate of disagreement, which is about the same as in courts generally—a little higher, perhaps —amounted in 1965 to 49 cases.
In 25 of those cases, a second trial resulted in agreement and conviction; in 14, in agreement and acquittal; and in nine in a second disagreement and no further proceedings. To make the total correct, one case did not go to a second trial. The split, therefore, was about 50–50. Is that not a reasonable outcome, it may be asked, even if the disagreements were by no means all honest ones? I do not think so, and for two reasons.
59 First—a reason of lesser importance—the consumption of time for the police and others involved in a second trial is very substantial. Second, and much more important—
§ Mr. Jenkins
The hon. Member will notice that I am saying that I do not attach great importance to that, though I cannot be entirely indifferent to the great wastage of time involved, at a time when there are the present burdens upon the police force.
Second, and much more important, these cases are not a true cross-section of the total. They are often the big criminal conspiracy cases, affecting the real "backroom men" of crime, and men who perhaps do not commit acts of robbery or violence themselves, but—what may be still more vicious—organise others to do it for them. They are the men who are the most difficult to get into the dock, but whose conviction would be vital to break up the serious crime networks in London and other big cities.
The disagreements undoubtedly occur in certain cases, not because the cases are borderline—quite the reverse—but because one or two jurors have been persuaded, by bribery or intimidation, to hold out against the evidence—
§ Mr. Jenkins
I wish that my hon. Friend would allow me to develop the argument. I will try to deal with all the points which naturally arise, but I think that it is better to deal with them in what appears to me to be the logical order.
The perverse juror—the man with a grudge against the police or the judicial system—we ought perhaps to take in our stride, but to allow criminal interference with juries, which is very difficult to prove except where it fails, to enable big criminals to frustrate the process of justice, is to fight crime with our hands tied behind our backs and invite a frustrated police force to be less and less anxious to go for the really big men.
60 Let me briefly give an example of what has been going on. In January of this year, five men were accused of conspiring to break into a bank. At the trial, one of the accused exercised his right of peremptory challenge by objecting to six of the jurors. On the two following days, two among the jurors who replaced those six were seen to be approached by associates of the accused. This was brought to the attention of the judge, who took a sufficiently serious view to discharge the jury.
The trial had to start again a week later. This time, 15 jurors were challenged by the various accused men and had to be replaced. A few days later, the trial proceeding, one of the replacement jurors was seen talking to a man whose record was well known to the police. The police received information that he had been made a proposition and was considering it. The judge discharged him.
On the same evening, another juror was offered £600 to bring in a verdict in favour of the accused, but he went straight to the police. Ten days later, the case still proceeding, yet another juror was offered a bribe of £100. He again reported the matter to the police and, through them, to the judge. We do not know what incidents were not reported. It is in the nature of this case that we only know where the attempts failed—we do not know what incidents were not reported.
However, what we do know is the result of the case. Four of the five men were acquitted, and the one who was not acquitted was the bank messenger, the tool, and not one of the organisers, of the alleged conspiracy. If it was not a conspiracy, it is difficult to see how even that one man could have been found guilty.
I could give a number of other examples, but I do not proposed to do so at this stage, though I could do so later—
§ Mr. Emlyn Hooson (Montgomery)
Are prosecutions pending against the men who approached the jurors? Are any such cases known outside the London area?
§ Mr. Jenkins
Yes, some are known outside the London area, though the practice is considerably more prevalent 61 in London than outside. Where prosecutions can be made, they are made, but, as I told the House a little earlier, it is not, by its very nature, an easy matter to deal with by the criminal law, though the police do everything they can—
§ Mr. Quintin Hogg (St. Marylebone)
Can the right hon. Gentleman help me? He cited a particular case. Was this the case which I recollect, in which the Court of Criminal Appeal, on the appeal of the fifth man, stated it as their conviction that the four who got off had succeeded in a subsequent attempt?
§ Mr. Jenkins
I have a great deal to say, and I should like to get on.
I could give a number of other examples, and I should be willing to do so later, but I do not wish to weary the House at this stage. I am convinced, however, that all we have seen so far is the tip of a very nasty iceberg. Let me give one other fact to illustrate that this is not an illusory problem.
The House knows how short the Metropolitan Police are of men at the present time, yet in these big cases, going on for days and days, they consider it essential to provide constant observation of all jurors in and out of court. In one case no fewer thatn 72 officers, mostly detectives, working in shifts, were employed on this task, and this task alone, over a period of many days—no fewer than 72 officers. This is a very serious fact indeed, and I do not think the House would believe that the Metropolitan Police would devote manpower in this way, during their present shortage, unless they thought this was a very serious problem. I say that this points to the existence of a real problem and substantial menace to our system of justice. Moreover, it is a growing problem.
What ought I to have done in these circumstances? Some, including a number of most respected authorities, think that I should have acted, if at all, very cautiously and set up an inquiry, but that would have taken a substantial time, and, even when it was complete, who can tell that there would have been an opportunity for further criminal justice legislation?
62 In the meantime, I am sure that the problem would have gone on growing. Therefore, as I told the House in August, the Government decided to act, and everything that has occurred since then in this field has made me more convinced that this was the right decision.
Now why the 10 to 2? First, because although the Scots have managed for many centuries with a simple majority of 8 to 7 in a jury of 15, and without, as far as I am aware, any allegation of more frequent miscarriages of justice than in England—
§ Mr. Jenkins
With somewhat different rules, as I was going on to say, but without a very big majority, without any allegation of more frequent miscarriages of justice. Their system is in some ways different from ours, and I thought it right only to move to a very decisive majority, and I do not think anyone can deny that 10 to 2 is, of course, a very decisive majority. If it were required for political purposes very few of us would ever get to this House, and even those of us who got here would find it very difficult to take any decisions once here. At the same time, I think that before finding a man guilty we want a very decisive majority indeed.
But can we be certain of combining this with dealing with the problem which I have described? In absolute terms, of course, the answer is "No". We have to strike a balance, but I think that 10 to 2 is about the right one. Out of 12 men, particularly with the Clause 11 provision for excluding those with criminal records from jury service, it will be very difficult to find more than one or two subject to bribery or intimidation, and I believe that the attempt to do so will substantially decline, because it will become less worth while, which will be a very good thing all round.
I may perhaps inform the House, though I do not regard this as a decisive argument, that the Gallup Poll conducted a survey of public opinion on this matter and found that 72 per cent. on those questioned were in favour of the majority verdict by 10 to 2; that 11 per cent. were against, and that 17 per cent. did not know. I do not say that this 63 is a decisive argument, because we have to make up our minds. I noticed the hon. and learned Member for Montgomery (Mr. Hooson) nodding when I said that this is not a decisive argument but, perhaps, using the phraseology which I used earlier that it was a qualitative rather than a quantitative argument, I might remind him that his right hon. Friend the Member for Orkney and Shetland (Mr. Grimond) has come out very clearly in favour of majority verdicts; and if the Liberal view is against majority verdicts it must have been a verdict taken by a majority and not by unanimity.
But nothing that I have said would make me wish to give the impression to the House that I underestimate the seriousness of this problem, or that I do not understand the point of view of those who may have misgivings, which we may argue out, and argue out very exhaustively, at subsequent stages of the Bill.
I should perhaps mention two additional safeguards. First, majority verdicts will not be accepted until after a long retirement of at least two hours, and longer, in the discretion of the judge, in complicated cases. Secondly, we have made easier the machinery of criminal appeal, particularly by our acceptance of the Widgery proposals, about which I shall say more later, for providing legal assistance after conviction.
After dealing, as I thought desirable, with majority verdicts at some length, I now mention the third of the proposals. Exclusion of criminals from jury service was the second, which I thought it right to mention for improving the chances of convicting the guilty. This is contained in Clause 9, and relates to sprung alibis. This prevents the defence, without leave of the court, which should be granted when any new fact or witness genuinely comes to light, from bringing an alibi defence without advance notice and an opportunity for the prosecution to refute, if it can be refuted.
In all these ways what I think we have certainly done is substantially to improve the machinery of law enforcement, without damaging the position of the innocent.
I now turn to the third of our main policy strands, that relating to penal policy. First, I deal with Clauses 20 and 64 21 which concern the punishment of persistent offenders. These Clauses abolish the sentences of preventive detention and corrective training, which have not been greatly used in recent years, and which involve an element of difficult and not very useful rigidity of categorisation in our prison system. At the same time, the courts are empowered to impose sentences of up to 10 years in certain circumstances, and five years in other circumstances, upon offenders whose record means that they can legitimately be regarded as persistent, even when the maximum sentence for the offence upon which they are indicted may be less than those maxima of five or ten years.
Clause 40 abolishes corporal punishment in prison. No such punishment has been confirmed by the Home Secretary since June, 1962; in other words, neither by myself nor by either of my two predecessors, one from each party. It was used sparingly even before that. It was abolished in Scotland in 1949, and there is no evidence that this move has had any adverse effect upon prison discipline in the northern part of the United Kingdom. England, indeed, remains almost the only country in Europe—Finland, I believe, being the only and somewhat surprising exception—to retain this rather archaic form of punishment.
Perhaps more important however is the fact that there is no approach to hard evidence that this has had any unique deterrent effect. Violence, I believe, tends to breed violence, and violence exercised under the panoply of State power is no exception to this rule. A prisoner who assaults a prison officer does, of course, present a most acute custodial problem, but I find no support in the facts for the view that this problem can be solved by corporal punishment. Those who have suffered it have in several instances again committed similar assaults. We retain the alternative punishments of forfeiture of remission, cellular confinement, dietary punishment, loss of privileges and loss of earnings. These, I believe, are at least equally effective, and more in keeping with the general penal approach of a civilised country.
The main range of the penal provisions of the Bill revolves around the single theme, that of keeping out of prison those who need not be there. I approach this 65 from two separate but convergent directions. First, the overstrain upon prison resources, both of buildings and men, is at present appalling. The prison officers are bearing a very heavy burden indeed. Without a comparable increase in buildings or staff, the prison population for all establishments has increased from 11,000 in 1938 to 29,000 in 1964 and to nearly 35,000 today.
Such numbers, many of them in for very short periods, make it extremely difficult for the essential custodial and rehabilitative task for men serving sentences of more than a few months to be performed. They militate against effective security and also against the development of properly organised prison work, with something like a full working week, a direction in which I regard it as most important for us to move quickly.
Even if these considerations did not exist, even if—a most unlikely hypothesis—we had limitless resources of officers and buildings for use in the prison service, I would still take the view that a prison population as big as our present one defeats its own ends—and defeats it by frittering away the deterrent effect of a prison sentence.
I want to keep this deterrent effect a sharp instrument. But by using it too freely—by getting too many people used to prison too easily—we blunt our own armoury. I am disturbed by the situation in which 10,000 fine defaulters go to prison each year, some of whom may be among the 5,000 drunks who do likewise, in which 75 per cent. of all sentenced prisoners get their acclimatisation from periods in prison ranging from a few days to four months and in which about 35,000 people are each year remanded in custody before conviction, although in only about half of those cases are prison sentences given on conviction. I have, therefore, sought means in the Bill of trying to deal with all these aspects of the problem.
In Clause 12 we introduce considerable restrictions upon the power of magistrates' courts to refuse bail. These apply where they are dealing with cases punishable with not more than six months' imprisonment. Beyond that they retain their full discretion, and even within the six months there are certain categories; and types of circumstances 66 relating to the individual which limit the restriction. In Clause 12 (5,g) there is also a wider discretionary power for magistrates, which I know some people consider to be too wide. There are certain good reasons for its inclusion, but we can discuss this in Committee, as we can also cover the points put forward by "Justice", in its interesting report published this morning.
In any event, the clear intention of Clause 12 is that magistrates should use remands in custody considerably more sparingly, particularly when a prison sentence is not likely to result, and that in all cases where bail is refused magistrates should be required to state their reasons.
In Clauses 22 to 25 we introduce the suspended sentence into our penal system. The difference between this and probation or conditional discharge is that it is a definite sentence imposed by the court, the execution of which is suspended. In other cases it is the imposition of the sentence which is suspended. The suspended sentence is used widely in other countries and was widely supported in evidence to the Royal Commission. I believe that it should have a substantial deterrent effect of those who may be hesitating on the verge of a life of crime.
Sentences of up to two years may be suspended at the discretion of the court and the period for which they can remain in suspense can vary from one to three years, but a sentence of six months or less must be suspended if the offender has not been in prison or borstal before and provided the offence did not involve assault, the threat of violence or indecent conduct with a person under the age of 16.
By this means, we shall substantially avoid sending people to prison for the first time unnecessarily. Whichever way the outcome goes in an individual case, I do not believe that society can lose. If no further offence is committed, the deterrent has worked, prison space has been saved, and the offender has not been made used to prison conditions. If a further offence is committed, the offender will be punished, certainly and surely, both for the earlier and the subsequent offence. This is a sensible but by no means necessarily a lenient proposition.
In Clauses 26 to 30, in Clauses 60 and 61 and in Schedule 2 the Bill deals with 67 the question of fines. At present, many maximum fines bear little relation to the current value of money or current earnings, particularly among young offenders. They therefore have little meaning as a punishment. Accordingly, we have followed a recommendation of the Criminal Law Revision Committee and have increased the maximum fine which a magistrates' court may impose for an indictable offence tried sumarily from £100 to £400, and for a summary offence where there is no other statutory provision, from £25 to £100.
In Schedule 2, a long Schedule, we have endeavoured to bring a whole range of maximum fines up to date and more or less into line with other maxima not there mentioned. All this will make a tough fine a somewhat more effective alternative, in some cases, to a short term of imprisonment, but we still have the problem of those who, although originally punished by a fine, find themselves in prison through non-payment. This affects more than 10,000 people a year and in 1964 of those so affected, 4,500 had no previous institutional sentences and 2,000 had no previous proved offences against them.
§ Dame Joan Vickers (Plymouth Devonport)
When we come to discuss these Clauses in Committee, will it be possible for the Payne report to be available, remembering that it will have a great effect on these provisions? If the right hon. Gentleman could have that report available before the Committee stage, it would be of great assistance to hon. Members.
§ Mr. Jenkins
The Payne report was, of course, commissioned by the Lord Chancellor and not by me. It relates to civil debt, but I have endeavoured to keep in step with Mr. Justice Payne and I do not think that what I am proposing here would be out of line with his recommendations. I know that he is anxious to produce his report as soon as possible and I will remind my noble Friend the Lord Chancellor of the advantage of having it available before the Committee stage, if that is possible.
I believe that our previous basic approach to this problem of imprisoning those who do not pay their fines, which has remained substantially unchanged since 1935, too readily accepts imprison- 68 ment as an alternative to payment. The sanction cannot, of course, be removed altogether, but we propose to modify it considerably.
The cases in which time to pay may be refused are restricted. The courts must look into the means of every defaulter who has been given time to pay before committing him to prison, other methods of enforcement must always be fully explored, and there is introduced a new method of enforcing payment by attachment of earnings and other assets. The net effect of all this will be to make fines bite harder and thus serve as a more useful alternative to prison, while, at the same time, making it more possible to enforce them without resort to imprisonment.
The next proposal to be considered against the background of this general aim of reducing the prison population is that for dealing with drunks. This is contained in Clause 59. We can probably all agree that a prison sentence is a fairly hopeless way of dealing with drunkenness. Magistrates themselves feel this, but do not know what else to do with this type of offender. Most of them need support and welfare aid rather than the normal regime of a local prison and this we are endeavouring to provide.
We already have one hostel solely for drunks in operation and another is ready to open. In addition, some general hostels take a few drunks. Nevertheless, I do not believe that the Clause, making the offence of being drunk and disorderly no longer punishable by imprisonment, can be brought into operation until we have progressed a little further with the provision of hostels, but I hope to make it operate soon.
§ Mr. Frank Tomney (Hammersmith, North)
My right hon. Friend will be aware of how difficult it is to obtain a conviction in a case of drunkenness, particularly if a man elects to go to trial by jury. The police are particularly concerned about this. Has he considered the possible effects of having, say, two all-night courts in London, at which people charged with drunkenness could be tried there and then, when they are drunk?
§ Mr. Jenkins
I am not entirely sure that my hon. Friend's proposal for 69 instant justice would be wholly conducive to the dignity or the effectiveness of the law. I have a feeling that what my hon. Friend has partly in mind, certainly when he was talking about the attitude of juries, was their reluctance, it is alleged, to convict in cases of drunker driving, but not in cases of being drunk and disorderly, which is not an indictable offence.
How much effect will all this which I have been describing recently have on the size of the prison population? Estimates at this stage are bound to be very approximate and should be treated with great caution. However, the best estimate we are able to make is that the measures I have described might reduce the annual number of prison intakes by about 18,000, or nearly 20 per cent.
The effect on average daily population would be less, probably not much more than 10 per cent., for the obvious reason that we have been dealing, in the proposals I have put forward, with the quick turnover people rather than the medium and long sentence men. But it is the former, the quick turnover men, who cause an administrative burden on the prison service out of proportion to any beneficial effect it can have on them. It is these, too, who are in danger of being too easily acclimatised to prison life. From the point of view of the purposes I have suggested, therefore, I think that The 20 per cent. figure has more validity than the 10 per cent. figure.
I turn, however, to a matter affecting the prison population of medium and long-term prisoners. Clauses 36 to 39 provide for the release of prisoners on licence. This is the first time that a parole system, except for very short periods—for example, when a prisoner has been bereaved—has been introduced into our penal system, though it is a feature of many foreign systems, notably in the United States. As hon. Members know, these particular Clauses stem from the White Paper on the Adult Offender, which my noble friend Lord Stow Hill presented to the House a year ago.
At present, prisoners are normally released after completing two-thirds of their sentence, the remaining one-third being remitted for good behaviour. Thus a prisoner sentenced to six years can normally expect to serve four years. But 70 in a number of cases what happens is that before reaching the two-thirds point prisoners reach what the White Paper describes asa recognisable peak in their training at which they may respond to generous treatment, but after which, if kept in prison, they may go downhill.Except for those prisoners who, because of some psychological defect it may never be safe to release, and those relatively few killers for whom a life sentence must mean what it says, everybody sent to prison must one day be released, whatever his crime and however long his sentence. It is surely in the interests of the community that our system should be flexible enough to permit the early release—though at least one-third of the sentence or one year, whichever is the longer, must be served in any case—of prisoners in whose cases there is a good chance that by being released early they may be enabled to live useful and industrious lives.
In the case of those prisoners, it would be self-defeating to insist on their serving the full two-thirds of their sentence if, as a result of which, they come out and lapse quickly back into crime, whereas this might have been avoided by earlier release. I stress that this provision is every bit as much in the interests of society, if not more so, as it is in the interests of prisoners themselves.
How many prisoners will be eligible for parole, and how many will be granted it? About 4,500 will be eligible as soon as the Bill is enacted, but I would not expect that more than, say, 20 per cent. will be granted parole, either as soon as they become eligible or at a later stage. Altogether, the reduction in the average daily prison population might be about 600.
I think it important to emphasise—and I know there has been concern about this—that there is no question of parole being automatic. If criminals think that they can now rely on only having to serve only one-third of a long sentence, then they are in for a rude awakening. The chances of anyone convicted of serious violence being granted early parole, for example, are pretty slim. The system will be such that parole is granted only to those who, after careful study by those 71 best qualified to form a view, are believed to offer a genuine prospect of success. If at any time after release, up to the two-thirds point of his sentence, a particular prisoner disappoints the trust placed in him, his licence can be revoked under Clause 37(1).
I come now to the machinery—
§ Sir John Hobson (Warwick and Leamington)
The Home Secretary used the phrase, "those best qualified to form a view". Who was he referring to?
§ Mr. Jenkins
The right hon. and learned Gentleman will be glad to know that I was just coming on to that. I had, as he rose to his feet, said, "I come now to the machinery".
Selection will be based on a continuous process of assessment within the prison organisation, under which a full record will be built up in the prison on all prisoners who are actually or potentially eligible. Each case will be considered periodically by an informal committee at the prison, consisting of the governor, a senior probation officer in the district, and a member of the board of visitors. This small committee will make recommendations to the Secretary of State, but the decision will rest with him and in difficult cases he will consult the trial judge or the Lord Chief Justice.
I know that there is a strongly held view that this system is not the right one and that, instead, we should have an independent parole board. This is not an easy question and I do not pretend that the case against such boards is by any means cut and dried. Nevertheless—and on this I shall be glad to listen to the view of hon. Members on both sides of the House, both in this debate and in Committee—my present view is that the procedure I am supporting is, on balance, the right one.
There is one final point I should make about parole. That is about the power to revoke a licence. This power will be exercised on the basis of reports reaching the Home Secretary about the prisoner's behaviour, and, in particular, from the supervising probation officer. That additional work will undoubtedly be an extra burden on the Probation Service. Indeed, the working of the Bill as a whole will depend very largely upon 72 the devoted work we get from that service and shall need even more in the future.
I am, therefore, glad to be able to tell the House that recruitment for this service is at present going well. The net increase this year should be approaching 200. Our recruitment target over the next five years takes full account of this part of the Bill and the burdens it will impose.
§ Mr. Leo Abse (Pontypool)
Has the co-operation and full agreement of the probation officers been obtained on the adjudication of the question of parole and their acting in the rôle which has been described, of giving reports on those released?
§ Mr. Jenkins
I do not think that they will object to giving reports in the least, and I am sure that they will be most anxious to co-operate. I think that they see certain difficulties about being the responsible authority for recall. They think that this may endanger their relationship with the prisoner. This is certainly a matter which we shall have to take into account.
I turn to the last section of the Bill which, I feel, I must mention to the House. This relates to the Widgery proposals for legal aid. Part IV restates more simply the law on legal aid in criminal proceedings which is at present scattered over a number of Acts. It also gives effect to some of the recommendations of the Departmental Committee on Legal Aid in Criminal Proceedings, whose Report was published in March of this year.
The most far-reaching change is in the financial basis on which legal aid may be granted. The existing system, under which a person who is unable to pay the whole cost of legal representation is granted legal aid entirely free of charge, is replaced by one in which the courts will have the power to require a legally-aided person to make a contribution to the costs according to his means. The Widgery Committee thought that the present all or nothing basis of legal aid in criminal cases could result in unfairness. I think that most people would agree that, if a person can pay something towards the cost of legal aid, it is 73 fair that he should do so. This is the basis of the civil scheme.
It has been suggested, however, that the contribution scheme here may mean that fewer persons will accept legal aid if they have to pay towards it. But the contribution will not be such as to cause hardship and I do not think that large numbers of applicants will be deterred by having to pay a contribution. What the new scheme does mean is that the applicant will have to weigh the advantages of legal representation against the small financial sacrifice it will entail. The sacrifice will be relatively no more onerous and, indeed, will often be less onerous than that borne by persons of moderate means who are not eligible for legal aid.
Another important change which will fill a serious gap in the existing scheme is the introduction of more effective arrangements for providing persons who are convicted on indictment with legal advice on the question of the grounds of appeal and assistance in giving notice of appeal or applying for leave to appeal. These are the main legal aid recommendations dealt with in the Bill.
The Widgery Committee, to who our thanks are due for a careful study of the whole system of legal aid in criminal proceedings, made other recommendations. In particular, it gave useful guidance as to the criteria which the courts should use in judging whether, apart from the applicant's means, it is desirable in the interests of justice that he should be given legal aid. The Government agree in principle with the recommendations in this valuable Report. This does not mean, however, that the Government consider that immediate effect should be given to all the Committee's recommendations, including those which do not require legislation.
A good legal aid scheme is an important feature in the administration of justice, but it cannot be immune from considerations of cost, particularly at the present time. It is necessary for the Government to consider to what extent the country can, at present, afford the additional cost of giving effect to these improvements. Although public expenditure on legal aid in criminal proceedings is less than that in civil proceedings, it is still very considerable and is mount 74 ing each year. It is estimated that the expenditure for 1966–67 will be about £2¾ million.
The Widgery recommendations for which provision is made in the Bill, which, as I have mentioned, include the introduction of a contribution scheme, should result in a net saving to the Exchequer. If, however, all the Widgery recommendations are implemented, the rate of increase in expenditure on criminal legal aid as a whole will be accelerated and there will be not a saving, but a net increase.
I hope that in due course full effect will be given to the Widgery proposals. Where changes depend, directly or indirectly, on the making of Statutory Instruments we intend not to introduce them until the contribution scheme is also ready to put into operation. Likewise, I do not propose to commend to the courts the adoption of the recommendations that involve the manner in which they should exercise their discretion in the grant of legal aid until that stage.
The Widgery scheme, both the favourable and the unfavourable parts of it from the point of view of the Exchequer—the other way round, I suppose, from the point of view of the individual—should come into operation not piecemeal, but as a whole.
§ Mrs. Joyce Butler (Wood Green)
Before my right hon. Friend leaves his review of the contents of the Bill, could he say why he has not brought airguns within the firearms certificate procedure? He told me in reply to a Question on 17th November that he was considering doing this.
§ Mr. Jenkins
I did not find that it would be practicable to take steps which would be workable and effective in this scheme, but I shall be glad to discuss, either directly with my hon. Friend or at a later stage, the details of the airgun position.
I have tried, and, I think, succeeded, in just under an hour—I apologise for the length of my speech, but I am fortified in having seen that the late Lord Chuter-Ede, when he last introduced such a Measure, took an hour and a half to do so—to cover the main points of the Bill. I have not by any means been able 75 to deal with every point of substance, still less to say a word about each Clause. But I believed that it was better to pick out the main proposals and to try to explain not merely what they did, but the thought behind them.
We have worked on this Bill in the Home Office for many months. I think that we have produced a Bill which we can commend with confidence to the House. But it would be extremely foolish to suggest that in a Bill as complicated and wide reaching as this the details of every proposal are beyond improvement. I believe that we can have a most rewarding and almost entirely non-partisan Committee stage. The House, in its collective wisdom, will, I am sure, have a great deal to contribute, and I can assure hon. Members that they will not find me unduly rigid. If Parliament had nothing to contribute to a Measure of this sort there would be something very wrong with Parliament.
At the same time, I am sure that the main lines of the Bill will stand up, and that the Bill should be taken and treated as a balanced whole. I believe that it marks a major step forward in our criminal justice procedures. It will help to make them more rational, comprehensible and straightforward. It will also, I hope, help to make the country a safer place in which to live, and it will give us a penal system more able to do its proper job in accordance with civilised standards and modern criminological knowledge. It is based, as all our crime and punishment policies should be, on a mixture of hope and realism, without subordinating either to the other.
§ 5.6 p.m.
§ Mr. Quintin Hogg (St. Marylebone)
The right hon. Gentleman the Home Secretary had no need to apologise for the length of his speech. This is a complicated and important Bill and I cannot see how he could possibly have compressed it more than he has done.
I have a certain melancholy feeling as I address the House on this occasion. I made my maiden speech on the abortive Criminal Justice Bill of 1938 and I served on the Committee of that Bill. I also spoke and served on the Committee of the 1948 Measure. We have hardly a record of success in this matter, speaking as a 76 Parliament. We have passed these successive Measures in the atmosphere of hope and realism in which the right hon. Gentleman finished his oration.
As the right hon. Gentleman told us at the beginning of his speech, we are faced with the biggest crime situation that we have ever faced. Indeed, even in the short space of my Parliamentary life which I have sought to describe, we are even now retracing our steps. This Bill, amongst its other provisions, abolishes preventive detention and corrective training which we introduced in a mixture of hope and realism in 1938 and again in 1948. Although in 1938 and in 1948 we could point to widespread unemployment and poverty as one of the contributory causes of crime, in 1966 we are faced with the worst crime situation of our history but this cannot even be suggested as one of its significant contributory causes. Therefore, it is no criticism either of the right hon. Gentleman or of his Bill that I would prefer to say how my own feeling has developed over the 28 years that I have been covering, rather than deal in detail with all the provisions which this Bill contains.
In his broadcast on the subject, the right hon. Gentleman said that at first sight the Bill might seem a random mixture. This is unduly harsh as a description of it. It is a mixture, but it is not a random mixture. It is a potpourri of more or less intelligent suggestions, few of them new—with respect to the right hon. Gentleman's opening paragraphs—and mostly from identifiable and almost all from responsible sources. The fact that many of these suggestions are highly controversial is not necessarily an argument against them. Therefore, if what is wanted is such a mixture the Bill is good enough and I would wish it well.
But the main burden of my song is that what is wanted is not such a mixture, because I believe that a potpourri of intelligent suggestions from high-minded and experienced men is not what is wanted at present. Indeed, it is not better in principle than what has already failed over the period of 28 years during which I have been examining the subject, in a mixture of hope and realism.
What I believe is wanted is a new appraisal of the fundamental assumptions of our penal system, a new rational and 77 coherent approach to English criminal law. I say "English criminal law" because it happens to be in that branch that I have practised to some extent, but I suspect that the Scots are in a rather similar plight. That is the keynote of what I wish to say.
One criticism which I hope that the right hon. Gentleman will not find ungenerous is that to some extent he put it out of his own power and that of his immediate successors to make such an approach when he condoned what I can only describe as the sabotage of the Royal Commission on the Penal System by a minority of its members. This was among his first administrative acts on taking up office. We shall pay for many years for that ill-considered and rash termination of what was already an overdue inquiry. What we are considering today is very much a poor second best compared with what we might have had.
I must make a second critical observation. As the right hon. Gentleman indicated in his remarks on the probation service, the Bill will not work, indeed it will do more harm than good, unless on its legislative bones there is afterwards put the flesh of solid administrative support. The probation service, undermanned and, I think, under-valued except by those who know what it does, requiring high qualifications and very highly specialised training and experience, will be heavily strained by the suspended sentence proposals and the system of licence revocation.
The magistrates' clerks, who are also a very highly overworked section of the community, at any rate in the country, will have an additional burden put on them by the provisions for the payment of fines and stoppage of earnings. The provisions regarding shot-guns will certainly put more work on the police.
I do not know to what extent the prison and borstal services will be affected, but the Bill will mean in practice that the right hon. Gentleman will have to ask his colleague for administrative support for the various proposals he now makes. Unless he gets it, the legislative effort we put into the Bill will be largely wasted.
In his closing remarks the right hon. Gentleman made what I believe was a valuable prophecy of a non-partisan Committee stage for the Bill. I think 78 that I can promise him just that and I think that he will agree that in matters of this kind, I have not proved a partisan opponent across the Floor of the House.
One point on which at the moment I anticipate a party division is in the Clauses introducing the parole system of release on licence. Although we welcome that in general as an experiment which must certainly be made, we do not think that either release on licence or revocation of licence once granted should be ultimately in the hands of one man, even if he is the Home Secretary. We on this side of the House think that it should be a matter of collective wisdom —the collective wisdom of a number of different viewpoints.
§ Mr. Sydney Silverman
Could the right hon. Gentleman say why, in his opinion, this could be a matter of party division?
§ Mr. Hogg
I say so only because it happens to be part of my party's policy, and not because I shall not appeal on an objective basis to hon. Members on both sides of the House, including the Home Secretary who, I was glad to notice, said he was not keeping a closed mind on this matter. At the moment, I am recording this as no more than being provisionally the view of my right hon. and hon. Friends and myself.
For instance, we do not think that this subject should be a matter within the day-to-day responsibilities of a political Minister. We believe that it should be not only detached from politics, as I am sure that the right hon. Gentleman and any likely successor would make it, but should be seen to be detached from politics. We think that it should not be in the hands of either officials or Ministers responsible for the ordinary conditions of incarceration. We do not think that it should be in those hands administratively, and we do not think that it lends itself very easily to the day-to-day business of Parliamentary Questions, which I think would certainly follow from the present proposals. Although a parole board is not necessarily a judicial or quasi-judicial function, we think that there is a quasi-judicial element in it, especially as involving the right of the individual who is in prison or whose licence is subject to revocation to make his own representations and to 79 be heard by a body whom he can reasonably expect to be impartial.
For all those reasons, I ask the right hon. Gentleman to look again at Part III and to fulfil his promise not only to me but, I am happy to notice, to certain quarters in other parts of the House, of an open mind, preferably by producing an alternative scheme before the Committee stage, since he has the whole resources of the Civil Service at his command, which we have not. If he will not do that, I ask him at any rate to listen to the proposals we shall make.
As I have already indicated, the rest of the Bill is a potpourri. It is rather like the earlier books of the Bible. I went through the Bill marking the various sections with different letters. There was "P", the priestly editor—Parker, of course—who first promulgated the desirability of majority verdicts. I am with the Home Secretary about that, but he must not expect to get an easy ride in Committee on that controversy.
The public is divided, the Press is divided, and the legal profession is deeply divided, with probably a majority against it. I explained my own view as recently as August, and therefore I shall not inflict it on the House again. I would only say that even if there were not the kind of evidence which the right hon. Gentleman brought forward today and to which I alluded in August in the House, I am not convinced that it is at all rational to give one or two persons out of twelve the right of veto, and I am not at all convinced that it always operates in favour of the accused that there is the right of veto.
I am quite convinced that there exists the incorrigible member of a jury who stands out for a conviction as well as the perverse member of a jury who stands out for an acquittal. That is borne out by some of the figures which the right hon. Gentleman gave. A disagreement, whatever else it does, inflicts upon the accused a double anxiety and double strain of a second trial. Moreover, if it ultimately results in acquittal, it inflicts on an innocent man the anxiety of a second trial, and, in addition—as I think I heard the Attorney-General murmur at that point—unless he gets legal aid he has to pay his own costs in the ordinary course. Therefore, anything which tends to diminish the superstitious awe in which 80 some people hold absolute unanimity is probably a move in the direction of rationality and not necessarily a move against our fundamental liberties.
I come now to the Widgery proposals. I am sorry to tell the right hon. Gentleman that I am rather more heavily critical of them than he was. I quite understand that it is attractive to say that a man who is proved to have means and who, after a long trial, is convicted ought to pay something towards the costs of his own unsuccessful defence. At first sight, there would appear to be no flaw in that argument, but the answer, surely, if that if he has means he can be dealt with by being ordered to pay the whole or a substantial part of the costs of the prosecution, without any additional legislative structure, and to pay a fine in addition. If, on the other hand, he is acquitted, I see no reason why he should be asked to contribute towards the cost of his defence.
Often, a man is ruined as a result of an unsuccessful trial, apart from undergoing the anxiety and pain which an unsuccessful trial imposes upon him. I go so far as to say that the time has come when it would be just to award costs to an unaided defendant in criminal proceedings when the result of the trial is acquittal. The reason why we do not is the very unsatisfactory conviction rate to which the right hon. Gentleman alluded in a quite different connection.
§ Mr. J. T. Price (Westhoughton)
On the question of awarding costs to a defendant who succeeds against the prosecution, might that not have the effect of increasing the reluctance of prosecuting authorities to take action unless they were fairly certain of getting a conviction? I am afraid that, with that kind of sanction, there would be a great disincentive to institute prosecutions, as there is already at times for civil servants acting under the Factories Act, for example, unless there was certainty of conviction.
§ Mr. Hogg
I should be very sorry to think that a prosecuting authority would take that kind of consideration into account at all.
I come now to the Tucker proposals and other proposals relating to the preliminary hearing. I was glad that, when 81 pressed, the right hon. Gentleman generously admitted the Conservative authorship of the first part of those proposals. The Tucker proposals for restriction on publicity for preliminary proceedings will be controversial, and again, I am sorry to say, I myself support the right hon. Gentleman. The Scots have succeeded in carrying on with this nefarious practice, from time immemorial, I think. It has been the practice in Northern Ireland for quite a long time, and on the Continent always. I see no reason why we should not introduce it here, for the reasons which the right hon. Gentleman gave, though I must tell him—I shall return to this later— that I consider that he has missed a great opportunity in this Bill, once he has accepted the proposition that the reporting of the preliminary hearing should be restricted, to recast the nature of the preliminary hearing altogether. I believe the same to be true of his, to my mind, acceptable proposals for the restriction of last-minute alibis.
I confess myself profoundly agnostic on the subject of corporal punishment. hope that the right hon. Gentleman knows what he is doing. I do not know whether he has been wise at this juncture to abolish it in closed institutions, as we have done for many years in the courts of law. It is at first sight paradoxical that, whereas the great majority of our State schools allow it and all our public schools practise it fairly liberally, the one place where a person can be entirely immune from it is borstal, which caters to some extent for persons of the same age. No doubt, the right hon. Gentleman will thrash this matter out with greater enthusiasts for corporal punishment than I am, to their satisfaction.
§ Sir David Renton (Huntingdonshire)
What my right hon. and learned Friend says of borstal is equally true of detention centres.
§ Mr. Hogg
I am much obliged to my right hon. and learned Friend.
All this shows that, given the abolition of the Royal Commission on the Penal System, I have rather coyly to confess that, had I been in the Home Secretary's shoes, I should probably have been driven by the innate conservatism of the British public, Parliament and the legal profession, to produce a Bill different 82 in detail but remarkably similar in substance to the one now before the House. However, as I am not in the right hon. Gentleman's shoes—no doubt, this cheers hon. Members opposite—I think that the best way I can use the time of the House on Second Reading is in giving some of the reasons why I say that this kind of prescription is not really good enough at the present juncture, and why I consider that one of the significant contributory causes of the lawlessness—it can be called no other—of the English-speaking societies of the world is less, perhaps, a double dose of original sin and more a failure to legislate coherently on the subject of criminal law and procedure.
I start from the proposition that law is, or it ought to be, part of the social sciences. Historically, it was the first, and that is why it is so archaic, but in the 20th century we ought to begin to regard the subject rather more rationally than we have hitherto. Since I went to the Bar 34 years ago, all branches of the law—and among the most serious examples of this I would put the criminal law—have become steadily more complicated, less accessible and, I would say, fundamentally less rational. Looking at the forest of judicial decisions and the mass of ill-related statutes, nearly all legislating by reference and nearly all legislating ad hoc, I would say that the criminal law is something which it is impossible for a layman even to find, if he wants to.
I believe that law should be coherent, intelligible and accessible. Both the legal profession and Parliament have a great responsibility to society for arranging that the more fundamental distinctions in English criminal law have to be left to the confusion of judicial precedent and, sometimes, even to the indecent obscurity of Norman French, surely the least respectable of dead languages, if, indeed, it can be called dead since it lives on in the Treason Act.
§ Mr. Hogg
But let us count our blessings. English criminal law has three great assets, great assets because they are among the things that make life worth living in this country, namely, incorruptibility, independence of political interference—let us add that among the assets 83 of the jury system is its remarkable independence of judicial influence—and its speed.
Let us not underestimate the value of speed. Let one reflect on the condition of the Ruby trial, now back at square one after three years, in respect of an event witnessed probably by 20 million people; or the trial of Sacco and Vanzetti, who were executed 14—or seven—years after the event—even if they were guilty; or take the case of the Continental codes where prisoners remain month after month in prison while the juge d'instruction fumbles with his files. Speed is not a bad asset in the scheme of criminal justice as we have it.
Having said that, I am sure that the foundations of English criminal law are far too rickety and antiquated to make the best basis of a coherent system in the twentieth century. We have to recognise—I think the right hon. Gentleman touched on this—that some of the fundamental things that the modern student of English criminal law has to study stem from the fact that felonies were for many centuries capital offences except insofar as this was mitigated for the literate by benefit of clergy, and for that reason we go into the extraordinary distinctions between murder and manslaughter, between larceny and embezzlement and fraudulent conversion and receiving, which are a nightmare to every English legal student. We have to remember that, until living memory, the accused was not allowed to give evidence on his own behalf, that there were no police, no accountants, little literacy, no effective court of criminal appeal and little enough appeal even in civil cases.
The result has been a series of unnecessarily refined distinctions in substantive law, in procedural law the survival of a large number of outdated safeguards and the absence of modern methods of investigation in the field of commercial law. No one who has reflected on, for instance, the nature of the Cadco case or another case which may even yet come before the courts, the Savundra case, can feel satisfied with the penal arrangements of our commercial law or the law of finance.
In spite of protests from my right hon. and learned Friend, I should like to agree 84 very largely with the criticism that the right hon. Gentleman made that we are sometimes in danger of forgetting the original purpose of justice, which is to ascertain the truth, to convict the guilty, and acquit the innocent, bearing in mind as we all do, that we must let a certain number of guilty men off in order to prevent the conviction of any who are innocent.
When I look at the panoply of English criminal justice at assizes, I am sometimes reminded of a fox hunt. It is very wicked to chop one's fox in cover, shoot him with a gun, or poison him with strychnine. But provided that one pursues him ritually with a trencher-fed pack of twelve suitably bred hounds, presided over by a huntsman in a red coat blowing a horn of the ritual kind, a great number of errors in both directions are permitted to the sound of universal satisfaction.
Supposing that instead of this sporting approach to our criminal problems we were to start from a more rational viewpoint, what should we find? The first thing, we should have found 50 years ago—and that means that it is 50 years overdue—is a penal code, like any other civilised State, except those which—God help them—imitate ourselves. Of course, a penal code would be quite difficult to frame, but that means that it is more important than ever to start now. The whole process may take five or ten years, but that, again, is a reason for starting now.
I will tell the right hon. Gentleman and his colleagues how I think they ought to start. They ought to put the matter to the Law Commissioners as a matter of extreme urgency, and the Law Commissioners ought to go first to the academic branch of the legal profession and ask it to formulate different branches of our code. I can think of an obvious example in Professor Cross for the law of evidence. But no doubt other names will occur to right hon. and hon. Gentlemen who have knowledge of this world. I believe that the Government ought to publish their draft code in the form of a textbook with comments and alternative suggestions, and then it could be enacted by Parliament when the profession and the public have had an opportunity of examining the proposals.
85 After all, we have done this in the field of the property Acts of 1925 by very similar methods. We have done it in relation to the sale of goods in 1893, when Chalmers on his own did exactly this. We did it in 1882 with the bills of exchange Act. We have done it in marine insurance, and we have done it by enacting schedules to give certain types of code in commercial law where we are driven to do so by international agreement. But we have never tackled the systematic process of turning the English criminal law into a penal code. If we did so we should find that it would be more accessible, more coherent and more intelligible and that the public and the various professions, not only that of the lawyers, would find it more acceptable and more easy to co-operate with.
That brings me to the fact that we cannot afford to wait for a penal code in order to bring in more rational suggestions. Take the preliminary hearing, for instance. Why has not the right hon. Gentleman taken the opportunity provided by the Tucker proposals to change its character from its fundamental accusatorial basis? The accusatorial basis is rendered necessary by publicity. Of course, one gets injustice where there is publicity and the inquisitorial basis is involved But the preliminary hearing in every other rational series of judicial process is not a full-dress rehearsal for the ultimate trial.
The right hon. Gentleman, of course, being right to restrict last-minute alibis, why has he not appreciated that the last-minute alibi is only a special example of a defence sprung at the last minute which would never escape before any jury ever constituted, honestly approaching the case, if it were not produced at a moment of time too late for the prosecution to probe it? After all, under the right hon. Gentleman's proposals or his existing system, the prosecution has to lay down its cards face upwards before it gets a trial. Is there any rational justification why the defence should not do the same? How about the silence of the accused?
Of course, it was right in the old days, when the accused could not give evidence on his own behalf, that one should not be able to twist his words against him or compel him to answer specific ques- 86 tions out of context. But is it really sensible in the twentieth century to have all this elaborate charade or parlour game—the judges' rules, the admissibility of confessions, the extraordinary evidence by policemen about so-called verbal statements, always exactly corroborated by the notebooks of at least two other policemen, arrived at independently, no doubt, and made exactly at the time, and only in order to refresh their memories?
I must not, of course, offend my colleagues by complaining of the juryolatry which generally affects British thinking on the subject of criminal trial, and so I will go straight to the question of the treatment of offenders.
Here again, there can be no doubt that this House has failed over a period of 30 years. We take a great deal of time asking whether capital or corporal punishment are what is called a "deterrent". Have we ever asked whether prison is a deterrent? Prison is our only weapon of last resort, but it does not seem to be succeeding extraordinarily well and when we talk about the reformation and moral rehabilitation of the prisoner, why have we not tried to do that which the priest in the confessional or the lawyer in his chambers often tells the offender—that the way back to moral and social health is to try and put right what he has done wrong?
Of course, we cannot do it because, as we know, traditional English jurisprudence does not allow such a revolutionary thought to prevail. The fox has to be hunted to its inevitable conclusion and there is a deep gulf fixed between criminal and civil proceedings, which means that the judge in one court can order repayment of money but in another is unable to do so. But other civilised societies do not find such a distinction at all fundamental or invincible.
As I pointed out to the right hon. Gentleman in August, the Home Secretary must have something to say that is constructive about the problem of violence in support of professional crime. Any system of criminal law must depend ultimately upon identification of the accused, and that means that, if we rely solely on imprisonment as the weapon of last resort, there is a temptation for the professional criminal, as distinct from the individual delinquent, to use violence 87 to intimidate, suppress or finally to destroy evidence of identification. That evidence may consist of a policeman or a victim or simply of a bystander.
But, at the moment, our penal system gives no adequate deterrent. I suggested in August—and I do not know why the right hon. Gentleman has not done this in the Bill, because I believe it comes also from the Law Society—that crimes of serious violence should be treated as an act of bankruptcy in order that the property of the accused should be administered by a trustee. This would at any rate remove the temptation to salt the stuff away until he comes out, and I am sure this operates in a great number of criminal minds. If we combine the practice of restitution with the stoppage of earnings and the administration of the estate by a trustee in bankruptcy, we might at least get a coherent approach to reformation and, indeed, to deterrence which the present system is not at the moment providing.
Perhaps I may pause for a moment to make another suggestion. I do not fully understand why the right hon. Gentleman has not yielded to the perpetual warnings of the Court of Appeal on the status of criminal convictions. Anyone would think that, once a man had been convicted, ordinary citizens could rely upon his guilt for most purposes. They are not able to do so. I shall not shed many tears over Mr. Sparks in the case of Sparks v. Hinds or even over Odhams Press in the case of Goody v. Odhams. Perhaps it is as well that a new terror should be added to Sunday journalism. But how about Crippen, whose executors tried to get life insurance on his wife for the benefit of Ethel le Neve? If that had been tried now, it would have succeeded.
How about the motor accident, involving an innocent victim, when the witnesses have died between the criminal and the civil proceedings, so that the victim is denied compensation? Such a case caused the recent alteration in the law. How about the recent case where a bank sought to recover money which had been stolen and was met, in effect, by a plea of not guilty? The right hon. Gentleman has referred this question to the wisdom of Lord Justice Diplock, than whom there is no greater authority. 88 But perhaps this kind of vagueness and inability to legislate about simple matters which affect Parliament is symptomatic of our national decline.
Therefore I receive this Bill in some sort of dilemma. I promise the right hon. Gentleman my support in most of his controversial proposals. But I still reflect, with a good deal of regret, that the Bill is yet another complication to the law, a new edition of Archbold, a new series of pieces of legislation by reference and Schedule and not a coherent approach to what ought to be a valuable field of social science.
§ 5.45 p.m.
§ Mr. Neil Carmichael (Glasgow, Woodside)
I congratulate the right hon. and learned Member for St. Marylebone (Mr. Hogg) on a most remarkable speech. As a layman, however, I feel that he was being almost unfair to laymen in the Chamber in that we have been so bemused by lawyers over such a long period that we never have felt it possible to do other than criticise or add a contribution to legislation provided by lawyers for us. Over a long period now, lawyers in this Chamber have probably greatly exceeded in number any other single profession and one wonders why the pressure has not been greater and more carefully directed towards carrying out some of the worth-while suggestions and revolutionary changes which the right hon. and learned Gentleman suggested.
Like most hon. Members, and judging from the reviews and discussions I have heard and taken part in outside, I feel that the Bill is quite an advance and is in the tradition of the great Gladstone Committee of 1895 in recognising that the purpose of imprisonment is to improve morally and physically the well-being of prisoners. We are all aware that we are facing a totally new situation in the problem of crime and crime prevention and of weaning away from crime those people who err, perhaps not so much as the professional criminal but have nevertheless moved away from the "norm" of society and are, therefore, classed, for at least a short period, as criminals.
As I listened to my right hon. Friend the Home Secretary, I felt that this whole attitude to the Bill was the sort of attitude that I would much like to see from 89 many other members of the Government. he admitted that there were problems in the Bill on which he hoped that the House, in Committee, would be able to help him and that he would be very willing to listen to the criticisms that emerged in Committee, although—and this is quite reasonable, for it is his final responsibility—he would stand firm on the major proposals.
In the House of Commons, to which we come from different parts of the country and from different social strata with different experiences, we all have a great deal to contribute—indeed, things that even criminologists and lawyers are not always able to contribute. One of the things which I have found in discussing this question of crime with police, lawyers and criminologists is that they begin to get the Idea that the world is composed of criminals. So, sometimes it is good that ordinary people with ordinary experiences should be able to face them with the reality that the vast mass of our people are law abiding. As I see it, the job of the House of Commons is in some ways to counter-balance the pressures put on the Home Secretary from the experts, the criminologists and the lawyers, by leavening attitudes and ultimate decisions with a certain reality and common sense.
Since the Bill was published, there has been a spate of comparisons between the law in England and the law in Scotland. Some of the proposals in the Bill have obviously been influenced by the Scottish system. Much has been made of this similarity. While I believe that the Scots have, as in the past, a great deal to contribute to the rather more backward aspects of the English legal system, I also believe that the English are learning fast and that they are learning not only from our example, but also from many of the mistakes we have made.
For this reason, I am rather pleased that preliminary hearings are to be retained, despite all the criticisms of the right hon. and learned Member. Perhaps they ought to be recast, but at least they are an advance on the system which we have in Scotland in that the prosecution has to produce evidence at such a hearing, whereas in Scotland defence lawyers often have great difficulty getting the evidence which the Crown has been able to discover.
90 I want to speak particularly about two aspects of the Bill. These are the suggested system of release on licence and the philosophy which my right hon. Friend has advanced today and on previous occasions that the greatest deterrent to crime is the catching of more and more criminals. With reservations about what constitutes a criminal, I entirely agree with his philosophy.
I think that we are all anxious to find ways in which to make the licensing system work. The problem is how to decide how people are to be released on licence. I do not think that the suggested machinery is adequate. One criminologist said to me that this was a metaphysical matter, that we were trying to make arguments without having any raw material on which to work. We have inadequate knowledge about methods of releasing prisoners on licence and the best thing to do would be to try numerous methods in different parts of the country, not putting all our eggs in one basket, not using one machine from one end of the land to the other.
I would like a fair variety of occupations and types of people to be represented on panels in different areas, with the Home Office Research Establishment or some of the universities, with much more money than they are now getting for so important a subject as criminological research, preparing a proper assessment of the results obtained from the use of different combinations of people on the panels.
My suggested types would not be very different from those suggested by my right hon. Friend, but I would widen the range considerably. I think that there would also be needed a representative of the police, a prison officer, a probation officer, a sociologist, a magistrate and someone in the trade union world—because there would have to be someone to decide what opportunities the released prisoner would have in the world outside —a practising lawyer, perhaps not a criminal lawyer—a chaplain and a psychiatrist.
The most controversial type which I suggest for at least some of the panels would be a released prisoner, someone who had been out of prison for five or 10 years and who had established himself as having improved his moral and 91 physical well-being while in prison and who had come out and shown over five or 10 years that he was able to cope with society. Such people represent a great reservoir of information and experience and we should be wrong not to give them responsibility and not to learn from their ideas. I do not suggest that all of those people should be represented on each panel, because a panel should not be too big, but there should be combinations of such types and then we would have to wait and see which combination was most consistently successful in producing the required results.
I want also to refer to saving time, particularly the time of the police, and to the idea that the job of the police is to fight criminals and so to act as our greatest deterrent to crime. This is the basic purpose of the Bill and one of my right hon. Friend's main objectives.
I have become convinced from numerous talks with many people on the fringe of crime—police, lawyers and even criminals themselves—that we are on the edge of, if we have not already entered, a period of highly organised crime in Britain, something not yet quite at the American level, but perilously close to it. Because of this, we must treat the police in a way which we have been dodging for a very long time. The police are having tremendous difficulty not only about getting recruits but in preventing the wastage of recruits. We must break through this difficulty and accept that crime and the crime wave are imposing an enormous burden on society which will become almost intolerable within the next 10 years if we are not able to do something revolutionary.
Despite all the arguments about prices and incomes, one of the effects of the Bill must be a substantial increase in the pay of the police. With that increase, we shall need to demand from the police much higher standards, particularly of education, to deal with the increase in crime and the greater sophistication in crime which is now coming about.
Although the idea failed in the 'thirties, for many reasons of prejudice and antagonism within the police, I think that ultimately we shall have to return to something like the Hendon principle and 92 consider the possibility of the introduction of graduates at higher levels of the police force to combat the much more highly educated criminal who is running big crime today—even more than was the case 30 years ago. My only reservation is that if graduates are encouraged to join the police in large numbers because of increased opportunities for them, policemen starting at the bottom must have every opportunity, in service training and ultimately in release, to allow them to move up the promotion ladder so that they, too, can take the most responsible jobs within the force.
I am not thinking in terms of a minor increase in salaries, but of a very substantial increase. After great thought I have come to the firm conclusion, with which I hope all hon. Members will agree that in this situation the police must be treated as an exception to the prices and incomes freeze. I know how unpopular this may be in the part of the country that I come from, but I believe in this.
In addition to the advances which the Bill makes in penology, and to the suggestions that I have made for streamlining and improving recruitment of officers and helping in the detection of crime, another requirement is that there must be a great deal more money spent in finding out what it is we are after, and in finding out more about what constitutes crime and the best ways of dealing with it.
In the latter part of his speech, the right hon. and learned Gentleman the Member for St. Marylebone gave the impression that he, and I assume others, were doubtful whether the methods now being used were in any way correct. The only way that we can find out is by spending a lot more money to discover what makes a criminal, how they may best be treated, once caught, and how the most efficient use can be made of the manpower available for catching criminals.
§ 6.2 p.m.
§ Mr. W. F. Deedes (Ashford)
I judge from the very thoughtful remarks that we have just heard from the hon. Member for Glasgow, Woodside (Mr. Carmichael) and even more so from the speech of my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg), that this is not likely to be a highly controversial Bill. That in itself does not guarantee that it is in all respects a good Bill. After 93 hearing the remarks of my right hon. and learned Friend, and the prospect which he offered, and after again considering the contents of the Bill, I come down strongly on the side of the "code of St. Marylebone". I believe that all hon. Members who heard my right hon. and learned Friend's speech feel that, while much that he said may remain in the realms of the future, we are not on this occasion, making the most of the opportunities offered to us.
I know that some hon. Members have hailed the Bill as a landmark in crime reform and penology. Without disrespect to the Home Secretary I think that it is nothing of the kind. The Bill comprises a miscellany of emergency measures and some experiments. It is largely directed to plugging holes in the law, and to dealing with the chronic overcrowding in prisons, and the need to speed certain aspects of court procedure. I speak here as a layman. I have no doubt that a great many other lawyers will contribute to this debate. Some of the measures in the Bill are based on the reflections of the advisory bodies, some official and some unofficial, but quite a lot it seems, are based on very little reflection, and very little has been based on very long-term thinking.
Here I would echo what my right hon. and learned Friend said in regretting the fact that the Royal Commission was wound up when it was and that we now have no long-term thinking to look forward to. This Bill does not compare with the Criminal Justice Act of 1947 as a far-reaching Measure. I regret that the Royal Commission was not allowed to finish its work.
§ Mr. W. T. Williams (Warrington)
We have heard, both from the right hon. and learned Gentleman and now from the hon. Gentleman, this comment about the Royal Commission having been forced to wind up. Does the hon. Gentleman really believe that anything very useful can come out of a Royal Commission which was so long at sixes and sevens with itself that its members had considerable differences and had no single mind on any subject?
§ Mr. Deedes
I do not accept that. No one has suggested that the Royal Commission was forced to wind up. It should have been encouraged to continue its 94 work. This did not happen. I make no complaint, however, about the fact that this is an emergency Bill. As one penologist put it to me, "there is a fire on" and this is a very necessary and competent job of salvage. Of course we should stop people nobbling juries, athough in the view of many policemen with whom I have discussed this matter there is an even greater need to stop one bloody-minded juryman obstructing justice, and that is not quite the same thing.
There is also a need to streamline court procedure to save the time of the police. We ought to check the use of shot-guns for crime, which has not yet been mentioned very much in this debate, having failed on the first round. Of course we must try to reduce the prison population, in so far as they are not doing it for themselves. All of this is very useful, but it does not stand comparison with the sort of measure offered by a Government of the same complexion in 1947. That was a landmark.
I am less sure whether this is the right moment for the Home Secretary—and I know that this is contentious—to abolish corporal punishment in prisons. I think that he may have made a psychological mistake here. Until we can more scientifically sort out the agggressive psychopaths and characters of that nature from the rest, until we can sort out the lions from the lambs and provide the right security blocks for prisoners of a certain nature, then prison officers ought to have a safeguard. As the Home Secretary said, it has not been used for a considerable time—since 1962 I believe he said—but it ought to be accepted as having a bearing on their morale. I rgret that this moment has been chosen for a step which probably ought to come sooner or later; the timing seems to be clumsy.
In this connection where are these security blocks? Where will they be? What is the precise state of planning of the Albany Block on the Isle of Wight? Although it is not wholly relevant to the Bill, the Home Secretary had something to say at the weekend about life sentences. We ought to know a little more about the maximum security aspects of prisons, as well as those things mentioned in the Bill.
I am not absolutely sure whether those portions of the Bill providing for increased fines and a reduction of short 95 sentences have been very clearly thought through. What we have to reckon with, and what I do not believe the Bill has reckoned with sufficiently, is the habitual minor offender, the frankly inadequate individual who occupies a large part of the court's time and a great deal of prison accommodation. I hope that I am wrong, but I have a feeling that the Bill may lead to the courts having to resort to sentences of nine months to 12 months for those individuals and therefore, to an extent, we shall empty the prisons of some persons but fill them with others.
These are not my main anxieties, and I would like now to come to my principle point of criticism of the Bill, the portions of the Bill which some regard as forward-looking and long-term—the suspended sentences in Part II and the release on licence in Part III. In so far as The White Paper outlined these, there are no surprises. Our minds have been prepared.
I wish I felt that our administration was equally well prepared for it. I fear that this is not so. I would remind the House that we have not yet been able to invoke Section 20 of the Criminal Justice Act, 1961 which envisaged release on licence and which was conditional upon adequate staffing before it was brought into effect. I think that I am right in saying that it has not yet been put into effect. The critical questions, as the Home Secretary and others know well, which are really exercising the administration, penologists, and those who will have to make this work are: who decides when the prisoners are to be released and on what criteria; how are they to be supervised, and in what circumstances, if necessary, will they return? Having heard the Home Secretary, I am bound to say that this still seems to me very shaky ground. The White Paper on the Adult Offender gave only the sketchiest outline answers to some of these questions, and the Bill gives no more. I listened to the Home Secretary very closely. He moved round certain of the gaps, but certainly did not fill them. These proposals seem to me to matter more than any others in the Bill, because so much will depend on their success or failure.
As I said, I am not a lawyer. If I were a lawyer, I should sense with some misgiving the very big shift from judicial 96 work to administrative work—from the Judiciary to the Executive. But the leading question is: What will constitute authority in the case of the suspended sentence or release on licence? That is the question which worries me. There have been various suggestions made about this.
I should be prepared to consider one of two proposals: either that the prison staffs, possibly assisted by people outside, should be considered the main arbiters, or there should be, as I know some of my hon. Friends would prefer to see, a parole board under a judicial president with the probation and after care services represented on it. What would be entirely wrong would be for decisions to reside ultimately with the Home Secretary, which would mean, in effect, unknown—I will not say faceless—administrators in the Home Office. That must be wrong.
Then we come to the crucial question of supervision during what, in effect, is one-third of the man's sentence, after the first one-third and before the one-third remission. There is a critical element in the scheme. A great many figures have been canvassed. The Home Secretary indicated today that 600 out of a possible 4,500 might be eligible. But at this moment we have 2,500 probation officers who are nearly all overworked. My information is that they are dealing with about 70,000 cases, which means that everyone has a very full case-load on his book. If that figure is wrong, perhaps it could be corrected later.
Have we in this new proposal given the administration a fair run? This is a rhetorical question, because I know that we have not. How are we to get the men we require and the administration on which this will entirely depend? For example, if we limit the scheme of release on licence to safe men whom we can reasonably be assured will succeed, we shall not give the scheme a fair run. Have we the supervisory staff outside the prisons to justify the experiment with men who represent some degree of risk? That is the essence of the scheme.
What about the machinery for recall? Most hon. Members are aware of the anxieties of the probation officers. They would like recall to be preceded by a judicial hearing. From my very limited 97 experience, I think that they are right. It is important that the trust which has developed between the probation officers and the prisoners on probation and licence, which is indispensable, should not be compromised by any suggestion that probation officers should become un-uniformed policemen.
No doubt the Home Secretary is aware, although I do not think he laid enough stress on it, that the administrative arrangements will decide the question of success or failure. I have some doubt about whether he will be able to command the means which will be needed to provide this successful administration.
May I make a practical suggestion on which I think the Home Office should think positively? I believe that we may have to consider the appointment of assistant probation officers on the lines of nursing auxiliaries. This will not be popular with the National Association of Probation Officers, but we are chronically short of trained social workers. It seems to me that trained social workers will be indispensable to the proper working of Part II and Part III of the Bill.
The course outlined in the Bill will be very expensive in terms of money. We may save money on the men we do not put in prison, but, in my view, there should not be any net saving. If we back these proposals as they should be backed, there will be a net loss. This will cost more than the system we are running now. For example, where will we get the hostels which I foresee we shall want in far greater numbers than we have now, because a large number of individuals are simply not able to stand alone outside prison? They will fail unless we can give them the support which a hostel can offer.
Where is the research to evaluate the results which will flow from this? This I regard as absolutely crucial. What plans are there for increasing the amount of research being done? What will be the rôle of the Institute of Criminology at Cambridge where I think most of the criminal research is oriented? What plans are there for expansion in this respect? Research is the handmaiden of these ideas. Without it we shall not even learn from our mistakes. I am sure that the Home Secretary accepts that there 98 will be mistakes. It does not matter if there are mistakes provided public safety is not jeopardised. But this makes research absolutely imperative.
The money for this will be very hard to get. The Home Secretary will have a great deal of work in getting his colleagues to provide the money which he will need. The personnel will be even harder to obtain. It is wrong to suppose that this is a cheaper approach to penology than the one we have now. It is not. If we do it properly, it will cost enormous sums of money. If we do not do it properly, it will, alas, attract an increased volume of criticism, and, worse, it may ultimately fail.
§ 6.17 p.m.
§ Mr. W. T. Williams (Warrington)
I understand my right hon. and learned Friend the Attorney-General is to wind up the debate, so perhaps, situated as I am, I had better give him an immediate alibi. I have not discussed this speech with him, and all its faults and errors are my own.
§ The Attorney-General
If my hon. and learned Friend is too critical of the Bill, he will be in very bad trouble with me, as he is my Parliamentary Private Secretary.
§ Mr. Williams
We have listened to a remarkable speech by the right hon. and learned Member for St. Marylebone (Mr. Hogg). I thought it remarkable, but I did not think that it was wholly relevant. It reminded me a little of the theological student who had learned with great care about the Judges of Israel and, in his examination, was asked to recount the deeds of the Kings of Israel. He said that he did not want to talk about the Kings of Israel, but that he would state what he knew about the Judges of Israel. Much of what the right hon. and learned Gentleman said I found very interesting and of great value, save that it dealt wholly with a Bill of a kind not at all before the House.
This Bill does not purport to deal with the whole circumference of criminal law, and I think that I would be right if I were to seek to tread in the middle ground between Stechford and Marylebone, for this reason. The right hon. and learned Gentleman is too 99 severe. The Bill has faults, but what Bill could anyone introduce which did not have faults? Nevertheless, it adds up to a most valuable reforming Measure within the compass which the Home Secretary himself has chosen. I admit that in some aspects I also am critical, but I hope that anything I say will be regarded as being constructive, and I shall try not to lose sight of the wood for the trees. It will indeed be a pity if, on Second Reading —because hon. and right hon. Gentlemen felt that there were things in the Bill about which they were critical, even things which my right hon. Friend spoke of as being most imporant—the House should divide on the Bill, because there are items in it which Members would like to see out or which they would like to see improved.
I understand from the newspapers that the Liberal Party is proposing to divide the House, because its members are unhappy about the provisions of the Bill relating to majority verdicts. I hope that is not so. Although this is an important Committee point, it is a Committee point, and it would be a pity if the House were not to give its undivided support to a Bill which, within its compass, does advance considerably the treatment of offenders and attitude of the courts towards those before them.
The basic aims of the Bill are clear and good. The Bill seeks to improve the practice of the criminal courts, and tackles the treatment of prisoners once they have been convicted. There will be no disagreement from any part of the House on most of the provisions. The proposals regarding committal proceedings cannot give rise to great controversy. They go a long way towards more efficient and quicker criminal trials, and they provide safeguards for the accused which are desirable developments in our criminal law.
The provisions against springing last-minute alibis are sensible, and those which enable the courts of law to proceed quickly to main trial are, in themselves, of the greatest possible value in saving time and also wear and tear upon the nerves of those who are awaiting trial.
There is, however, one question which I should like to ask the Home Secretary regarding this matter of springing last-minute alibis. What is proposed if, in 100 fact, at the last minute somebody produces a new alibi? One thinks immediately of a trial like that of Hanratty where, at the last moment, an alibi was brought forward of which no inquiry was then made. When the Bill becomes law what will happen in such cases? Is it proposed that the trial shall be adjourned in order that inquiries might be made into the alibi, or is it then said, "You have lost your chance, you have crossed the line, and now it is not possible for you to take advantage"—even of an alibi of which the defence could only find evidence at a late stage, or where the character involved in the trial is a somewhat unusual one like Hanratty.
Of what happens when the case comes to trial, there are some questions that I should like to ask the right hon. and learned Gentleman who is to reply. The most contentious, of course, is that of majority verdicts. The Home Secretary has said that he regards this as being the most important provision. I appreciate the arguments which have been advanced in favour of the change. The right hon. and learned Gentleman the Member for St. Marylebone properly stressed a matter that should be in the minds of those who are committed to the doctrine of the inviolability of unanimous verdicts, namely, that the position in the twentieth century is different from that in the eighteenth; that, indeed, the time has now come when the prisoner has so many opportunities for presenting his case, for telling his story, opportunities which he was denied in earlier centuries, that it would seem that we are not in any way vitiating a sacred principle in changing the situation regarding majority verdicts. It can be argued rather, that what we are doing is making a reasonable and rational approach to what has become a difficult and, some feel, an intractable problem.
However, in this context, it is a pity that the Home Secretary, in introducing this change in our procedure, did not look at the matter a little further, to see whether the rules of procedure are not so strict or so rigid as to give the prisoner at the bar a considerable advantage which he should no longer enjoy. I have been in trials in which the prisoner has refused to answer questions by the police. He continues his refusal, and it is not possible for anyone at the trial to say that the 101 prisoner had refused to answer the questions or even to point out that the questions have been asked. A situation often arises that where a reasonable account should have been given, by the provisions of the Judges' Rules, no reference to the prisoner's refusal is at any time allowed to be made by any counsel engaged on the case. This is a procedure which might, with profit, be changed, because in my judgment it is right that if a man does not wish to give an answer, the fact that he has not done so should be given in evidence.
Although I have no quarrel, on principle, with this change to majority verdicts—I think a good case can be made out for it—it is, in my submission, less important to alter than to make the provision which is now being proposed in Section 11 of the Bill, namely, that people who have been convicted of offences in recent years should not be allowed to sit upon juries. In a case in which I was involved a juryman was threatened. He was not offered a bribe, but was threatened because he had previous convictions. The matter came to light because he went to the police and told them that he had previous convictions. He said, "The people who are being charged, or their friends, know that I have previous convictions and they have threatened me in these proceedings if I do not force either an acquittal or disagreement".
It is an exceedingly good thing that no one—if he has had a conviction, but is now an honest man—should be put in this unhappy position, or should have the opportunity of perverting the course of justice. My difficulty, however, is to understand how this laudable objective will be achieved. How can one discover who are the people who have previous convictions? It seems to me that this is a task of Sisyphus, and I should be interested to know what thought has been given to this procedure; for it seems to me that if we have some means of ensuring that only honest men are on the jury, then we can face with greater equanimity the possibility of a perverse or an obstinate man, and so need not be so concerned about the experiment of achieving a majority verdict.
A matter on which I feel strongly concerns the provision for legal aid costs. The attempts to obtain legal aid costs 102 from an accused person seem to me to have in them inherently great dangers of injustice. We have been told already that it is possible in such circumstances that people who are charged may refuse to take legal aid. I stake no personal claim in this, but it may well be that people who ought to be legally represented will refuse to be legally represented and their case thereby would suffer.
The fact that at the end of a case, and only then, are the costs to be estimated will add yet one more burden to the people—whether guilty, or even more if they are innocent—who are facing the misery, uncertainty and anxiety of a trial.
In my submission, the powers that the court already possess are sufficient to enable it to deal with a case in which a man has abused the processes of the court in order to obtain legal aid. If a man has been found guilty and he has means, the court has power to order costs. If he has been found innocent of the charge laid against him, he should be free of cost. The parallel with the civil legal aid provisions is wholly illusory in civil cases all that is in question is money, whereas in criminal cases a man's liberty may very well be at stake for a very long time. Therefore, far from wanting to restrict the provisions of legal aid for people in peril in this way, the weight and strength of my support would be wholly laid upon the side of granting legal aid without the provision which is proposed in the Bill.
The provisions of the Bill are clear in respect of what happens to the criminal once he has been caught and convicted. They are surely an advance on anything we have done previously. But I am not wholly in disagreement with right hon. and learned Gentlemen who have said that this is very like the experience of the much-married actress who, on marrying for the seventh time, said, "This is a triumph of hope over experience". We have tried in the House and in our criminal legislation for many years to find a way of dealing with convicted criminals which is both just to them and fair to society.
On the matters which are related to keeping people out of gaol I have nothing but complete approval. Keeping drunks and debtors out of gaol, restricting 103 magistrates from putting into prison on remand, abolishing preventive detention and corrective training in my submission are wholly good, and so are the provisions for suspended sentences.
In that context, however, I would underline the suggestion that has been made by the right hon. and learned Member for St. Marylebone—although I had this in my own notes, I add in my own defence—for I agree with him entirely that if these privileges, for privileges they are, are granted, and if a man is allowed to escape punishment, then we are entitled to look for other means of bringing home to him the heinousness and dishonesty of his crime. If we are to allow some relief from punishment, then the legislature is entitled to see what means are available to ensure retribution.
It seems to me, that within this Bill, it would be possible to make provision for repayment—where that is possible—of monies which have been dishonestly obtained or restitution of damage which has been wilfully and maliciously done. In that context the procedure proposed as a test of means for legal aid could be pursued for this more commendable purpose of seeing what means a criminal has to ensure that, as far as those means allow, he repays the people whom he has injured.
I meant to speak on the questions arising out of the use of parole, but I do not want to speak for too long because many other hon. Members wish to take part in the debate. May I, however, underline a question which we were asked by the right hon. Member for Ashford (Mr. Deedes)— and I will not elaborate the point. It is a matter of considerable concern as to who is to make the report. Many of us on this side of the House are also of the view that it would be better, whatever the disadvantages may be, to have an independent parole board rather than to exercise the responsibility for deciding when and how a man is to be released on a report from the prison. That may do a great deal to bedevil the man's relationships with the officers who have control over him.
Another point which no one has mentioned is, that hope deferred maketh the heart sick. It may well be that the 104 proper way to deal with this question of release on licence is to give the man, perhaps on advice, the opportunity of making his own application for release before an independent board when he thinks the time has come. Nothing can be more harmful to morale than for him to be left with a feeling that his date of release is moving ever further and further away.
The solution of another problem will demand a considerable sum of money—namely, that if this plan is to succeed there must be a service, either the probation service greatly expanded or some other parole service. We are told that the probation service does not want this work, and in my submission to ensure proper after care is probably one of the most difficult problems to be faced in any parole system.
The fact that the Bill makes the attempt which is made in it, and faces the problems which it is facing, proves that my right hon. Friend the Home Secretary has tackled the problem with courage and faith. I hope that the Bill will succeed in doing what all previous attempts aimed at the reclamation of the criminal have so far failed to do. I wish my right hon. Friend good will in it and I will support him, as far as I am able, in the Bill. I hope that in his reply the Attorney-General will give some reassuring answers to the questions that I have asked.
§ 6.38 p.m.
§ Mr. Mark Carlisle (Runcorn)
Like others who have spoken today, I thank the Home Secretary for the most lucid way in which he explained the Bill and I also thank my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) for his magnificently broad speech. I am afraid that I missed about three minutes of that speech when he was dealing with the archaic jungle of the criminal law. The reason for that is simple. I am a practitioner in that field, and other practitioners will know that one of the archaic principles is that we do not fix tomorrow's list until five o'clock today. It is necessary, therefore, at some hour to leave the Chamber to inquire in which court, if any, one's services are required.
The proposals in the Bill are welcome, and the vast majority are right, although 105 there is considerable vagueness which will need to be probed in Committee. I welcome the proposals for suspended sentences, which will give the courts the flexibility they require and will make a considerable psychological difference to the person who is today conditionally discharged. At the moment, a man sometimes believes that, on a second conviction he will not be punished for the offence for which he was conditionally discharged, whereas, under this principle, having been given a suspended sentence, he will realise that the commission of another offence will result in his suffering the previous sentence.
I wish to limit my speech to committal proceedings, release on licence and the question of majority verdicts. I thank the Home Secretary for the kind words he said about the pamphlet written by me and Edward Gardner, Q.C., on committal proceedings, and I will pass on what he said to Mr. Gardner. All we did was put into pamphlet form the views of many other bodies and also of the Home Office over previous years. This is probably the most welcome part of the Bill. The present system is time-consuming, largely archaic and achieves little of practical value.
The last figures which are clearly available, which the Home Office produced in 1958, show that about 76 per cent. of people being sent for trial at that stage pleaded guilty, and that in every case statements which people had made to the police had to be repeated in court and taken down on oath, although not a word was likely to be challenged later. One can realise the frustrating and annoying waste of time for the police and others involved.
The Home Secretary's proposals will not withdraw the safeguards of the accused. The real aims of committal proceedings—providing the accused with the knowledge of the case he has to meet and ensuring that he is not put on trial without there being a prima facie case—will be adequately safeguarded. I hope that it will be only in cases where there is a real desire to challenge at that stage that the accused will use his rights to demand committal proceedings. My experience is that even when a man pleads not guilty, in practice, no harm is done and no injustice incurred by cross-examining on statements of additional 106 evidence rather than on the sworn deposition of witnesses.
I am also glad that, in implementing the proposals of the Tucker Committee, the Home Secretary has ignored its advice in one respect. The Committee specifically said that the defendant should not have the right to elect for or against the publication of committal proceedings. I am glad that the right hon. Gentleman has decided that such publicity should be given to the defendant if he wishes.
I have one or two questions about the practical operation of this procedure. Does the right hon. Gentleman envisage that the statements will be served on the defendant before his appearance in court or merely on his appearance? There would be great advantages in his having the statements served on him or his legal advisers two or three days before, so that they could be considered quietly and a decision made.
In practice, also, many people who go to trial go at their own election on offences which are triable summarily or on indictment. It would be a good idea if the courts could know in advance which step was proposed. If they are not to know in advance, half the object of this procedure will be defeated, because the witnesses might be brought on the possibility of a summary trial only to find that they need not have come. We will have to discuss the practicability of this in Committee.
My second concern is with Part III of the Bill, the Home Secretary's power to release prisoners on licence. Every hon. Member will welcome this decision in principle. I have always thought it erroneous that the Home Secretary should have power to release people serving a life sentence but none to interfere with long-term sentences, in view of the length of some sentences. I also have considerable concern at the proposals in the Bill about how this will be carried out. I was glad to hear the right hon. Gentleman say that he will have an open mind on this matter.
I believe that he has made the wrong decision in leaving this in the hands of the Home Secretary of the day, rather than to rely at least on the advice of a parole board, even if it is not left to the board's own decision. The first reason 107 for this belief is that if this is left only to the Home Secretary and, in practice, to his advisers there is a grave danger that the principles of the Bill would be turned instead to practical expedients, and that the numbers of people discharged on licence, the rate of release and recall, would depend more on the state of crowding in prisons and the state of preparedness of the probation service rather than on a fair, judicial consideration of the individual man's case.
A parole board on a widely drawn judicial basis would give the man far more confidence than the choice of the Home Secretary himself. I mean no disrespect to the Home Secretary, but one must face the fact that people generally trust the judges more than the Home Secretary of the day. If the system is to work, it is important that the board which releases on licence should have the overwhelming support and trust of the people.
Finally, it is a matter of tremendous importance for the prisoner himself. If he is serving ten to 15 years, it may make a difference of four or five years in custody. He would feel the advantage of some independent board rather than another branch of the Executive. In general, the proposal that this should stay in the hands of the Home Secretary leaves too much power to the Executive. That power should be returned to the judiciary.
I join the hon. and learned Member for Warrington (Mr. W. T. Williams) and my right hon. and learned Friend in repeating the questions asked about how this will work. The Bill in this respect is very vague. It lays down no principles on which release will be decided. The Home Secretary said that it certainly will not be automatic. I hope that, in practice, it will not be too common. If it were, there is the danger that the judiciary would deliberately increase sentences, knowing that the licence system is likely to operate after a certain period.
Even more important than the principles of release is the question of who will supervise and, in particular, of how a licence will be revoked. The revoking of a licence to the man who has his licence revoked is the equivalent, to him, of his being committed to prison for a further period. It is clear, under the 108 Bill, that if he commits another offence, the system follows, but if it is done by recommendation of supervisors from outside, then I believe it is essential that there should be some formal judicial process so that the man knows he has had his licence revoked by a court, rather than through an administrative act by someone with whom he probably never comes into contact.
Also on this part of the Bill, I urge again what was said about the situation of the probation service. The Home Secretary said that the Probation Service is growing at the rate of 200 a year. This may sound encouraging, and the Home Secretary obviously thought that was a figure of which his Ministry could be proud, but let me remind him that until very recently, at least, the proposed figure for the Probation Service was, I believe, 3,500 by 1970. Since at the moment, in 1966, we are at 2,500, then with the present rate of increase, we are not going to get the proposed figure by 1970, and that figure, of course, was decided upon before any of the proposals of the Bill or their effects on the Probation Service were considered. I believe it is essential, if the Bill is to work, that the Probation Service should be vastly increased. I would say, in passing, that I believe that pay in the Probation Service should be increased, as someone has mentioned that the pay of the police should be increased. That is in abeyance at the moment because of the prices and incomes policy, and in the higher grade of the Probation Service increases in pay were held back because of the freeze.
I turn to the most controversial issue of all, that of majority verdicts. The Home Secretary said that going through the criminal law was rather like a stately and archaic minuet, and he talked of rules being rigged in favour of the accused. I though there was a great deal of force in that argument when he said that this arose at a time when the amount of punishment bore very little relationship to the offence with which the accused person was charged. I would however, respectively suggest to him that in looking at the rules he picked the wrong one.
I would suggest that rules such as the silence of the accused, the refusal to give evidence, the right to oppose jurors, are probably far more rules which were made in his favour because of the penalty which 109 followed conviction and were certainly the ones which should be shot at before the majority verdict.
I am not wholly opposed to what the Home Secretary said, but I must admit that since he made his announcement in August the reservations which I had have steadily grown during the ensuing period. I believe there is a danger that we are going to make a grave and fundamental change in our criminal law without any real evidence on which to base that change. Juries on the whole do an excellent job. They show patience; they show considerable care; and I believe also that in the vast majority of cases they are normally right. The hon. Member for Bury and Radcliffe (Mr. Ensor) says "No". I am only saying what my experience is.
I concede that there is a problem about the perverse or bribed or intimidated juror, but when the Home Secretary said that there is a mounting and formidable problem, then I would say with respect that no evidence has been put forward to suggest that the problem of the bribed or intimidated juror is in any way a problem outside the boundaries of London. Looking at the jury system, the amazing thing is that juries agree so often and that there are so few disagreements. I think the amazing thing is that on retrial the rate of disagreements—taking the Central Criminal Court—is 0.8 of 1 per cent.—second disagreements on retrial. Surely one must accept that there are some disagreements which are perfectly genuine disagreements because people perfectly genuinely disagree. While I fully accept that the bribed or intimidated juror is a problem and is a problem which has to be faced, I believe that the occasional disagreement caused by the perverse juror is perhaps not a high price to pay to retain the principle of the unanimous verdict that we have today.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Would the hon. Member accept that the view which he has just expressed is rather different from the view he expressed in August—
§ Mr. Carlisle
I have not entirely changed it. I said that, on balance, I could welcome it but I had reservations, and I think I specifically said that since August my reservations had been growing. This is partly due to what is, as I am sure the hon. Member must agree, the general opinion in the legal profession, and of the people one talks to in one's professional life, who tend to be, I think for fairly good reasons, against this change to the majority as distinct from the unanimous verdict. I said that I am not completely committed against it. I hope very much the Liberal Party does not divide the House tonight, because although I have reservations, I think that if that party did that I would have to vote for the Government in favour of the Bill as a whole. I do have grave reservations on the question of the majority verdict.
Another point I would put to the Home Secretary is this. I am not sure whether the effect of this change will not be the reverse of what he expects. If we have a majority verdict of 10 to 2 on indictment I have a feeling that we shall have more disagreements than we have at the present moment—that two jurors will stand out against the others.
I believe that if the Home Secretary wishes to look at the rules—the examples he gave proves this to the hilt—that far more important than to change the rule of unanimity is to do away with the right of the peremptory challenge. The example the Home Secretary gave is a perfect example. It proves that at the moment the defendant can challenge without giving reasons, and can succeed not only in getting people off the jury whom he does not want, but he can often succeed in getting on those he wants on. I firmly believe that if one is to have trial by a jury of 12 of one's fellow citizens one should not have the right to choose who those 12 should be. To a large extent the accused can get the sort of jury he wants. The hon. Member looks surprised but this is what happens.
§ Mr. Raphael Tuck (Watford)
The hon. Member has just said that the accused should not have the right to choose who the jury should be, but does he not feel that the accused should have the right to choose who the jury should not be?
§ Mr. Carlisle
If he has cause he should be allowed to challenge on that cause, but if he has no cause I believe we should do away with the challenge. We should thus do away with "fixed" juries and do it better than by merely removing the rule we have at the moment for a unanimous verdict.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
My hon. Friend would agree, would he not, that it might be desirable in certain circumstances not to have persons from a similar profession or similar class of trade sitting on the jury?
§ Mr. Carlisle
I entirely accept this. I see no reason why there should not be challenge on a valid cause. But one knows that the case which the Home Secretary gave was the perfect example. Here we have a situation, as I understand it, where by the use of the right of peremptory challenge the accused could not only remove those jurors they did not want to go on the jury, but to get ones on whom they wanted. I believe that these are the ones who may eventually become frightened or bribed jurors. In the cases the Home Secretary mentioned I understand that there were seven peremptory challenges, and in the second 15 and that it was one of those who went on in that way who was later found to have been tackled by one of the accused.
§ Mr. Alexander W. Lyon (York)
Is the hon. Gentleman saying that at the Old Bailey—and he will know the practice better than I do—members of the Bar are members of a conspiracy to get a person on to a jury because he might be subject to a bribe?
§ Mr. Carlisle
I am saying nothing of the kind. The hon. Gentleman will agree that if one's instructions are to challenge, one must challenge. If the accused says —and I have known, as often happens, the accused to challenge for himself—"I want you to challenge those jurors", he has the right to challenge and one must carry out those rights.
On the whole, I welcome the proposals in the Bill and hope that the Measure is given a Second Reading.
§ 7.1 p.m.
§ Mr. William Wells (Walsall, North)
The speech of the hon. Member for 112 Runcorn (Mr. Carlisle) disproves what is often said about speeches made in Parliament not influencing the way in which people think and vote. I confess that before he spoke I was convinced that this experiment of the majority verdict should be tried. Having heard his speech, I begin to think that perhaps the experiment should not be tried until other experiments have been tried and failed.
None the less, the case advanced by my right hon. Friend the Home Secretary was a formidable one in relation to the problem confronting us in parts of this country—of crime being organised as a big business. Although there has always been an element of this, it is now organised on a scale and with a width of range and scope that has never been experienced before.
The Bill has received a general degree of welcome from both sides of the House and I share in that. I regret that the right hon. and learned Member for St. Marylebone (Mr. Hogg) is not in his place, because I wish to refer—and I will do so in his absence, because there is nothing personal about this—to the criticism he made of the Bill as being a potpourri. The Bill will be superseded in time, perhaps sooner than many of us think, but we are living in an era when the character of crime—in its extent and, so to speak, the capital invested in it as a business as well as its methods of execution—has changed dramatically and swiftly.
During the years immediately after the war, when crime was increasing, we thought that it could not be poverty because people were rich. We thought that it must be because boys were not disciplined when their fathers were away at the war and that young men who were respectable before 1939 had acquired a taste for violence after the war. Now, 21 years after the end of the war in Europe, we know that any such analysis is hopelessly inadequate.
It will necessarily be a task taking many years to accomplish the kind of revaluation of the criminal law for which the right hon. and learned Member for St. Marylebone was pleading. In my opinion, it would have been in the highest degree irresponsible of the Government to have introduced at this stage, for example, a committal procedure analogous to 113 the inquiries made by the juge d'instruction in France, or its equivalent in Germany. The whole scope of the inquiries of such an officer is entirely different from that of magistrates, who are essentially, in their approach, judges. The juge d'instruction, although called a judge, is, in essence, a highly qualified police inquirer. That we should change our committal procedure so fundamentally as the right hon. and learned Member for St. Marylebone suggests may be right, but it is certain that before we embark on such a change we should inquire into it far more thoroughly than anybody has done on this side of the Channel.
I welcome the Bill and have a few comments to make about certain parts of it. I do not share the criticisms of the right hon. and learned Member for St. Marylebone, echoed by other hon. Members, of the suggestion for contributions in legal aid. There may be a good case for the objectors in an absolute sense, althougt I am not convinced of that. I believe that it is a little starry-eyed, in relation to criminal proceedings in this country, to talk about the innocent and to suggest that those who are acquitted are always innocent. I should have thought that this was a matter that might well be left to a Committee stage Amendment in relation to the discretion of the courts.
I am certain that a good many cases get far too advanced and even go to trial without legal aid having been granted. One reason for this is the objections of many magistrates to granting legal aid. If there were a system of contribution, this would mitigate these objections by many magistrates' courts to granting legal aid in cases which, time after time, have gone to the Court of Criminal Appeal, now the Criminal Division of the Court of Appeal.
I welcome the suspended sentences provisions of the Bill in a general sense as an experiment. It is well worth trying, although there is one provision to which I take grave exception. That is the one which deprives magistrates' courts of any discretion in the matter where the maximum sentence that was imposed was one of six months. It is unsound to let anybody commit any offence and go to court with the idea in his mind that he has a right not to suffer any penalty for committing that offence. Many people 114 with clean records who come to court are surprised if they are not put on probation. It is one of the philosophies of the young delinquent that he has a divine right to probation. The conviction that everybody is entitled to one criminal offence is unsound, but it will be strengthened by this provision.
There are many points on which I would wish to comment, but because of the pressure of time I will not do so. I will utter only one word of warning, or enter only one caveat, against the philosophy underlying part of the Bill. It may be that the country has leaned over too far in protecting the rights of accused, but it must be remembered before accepting that proposition unconditionally that the resources of the prosecution in any case are infinite and the resources of the defence, even when legal aid is granted, are generally quite narrow. If, therefore, the aesthetic sense of my right hon. Friend the Home Secretary is sometimes offended by the archaic minuet, the question which must be asked is not whether this is archaic, but whether, on the whole, it promotes the cause of justice.
Although there are few specific provisions in the Bill to which I object—the one to which I strongly object I shall mention in a moment—I nevertheless have a little suspicion of a philosophy which will remove too many of the safeguards of the defence. Crime as a big business must be tackled, but I do not believe that the proper way to tackle it is by methods which will hamper the defence of people charged in magistrates courts and quarter sessions with comparatively minor offences, committed generally in isolation. Certainly not as part of any major business enterprise.
The Clause to which I object very strongly in its present form and which I hope will be substantially amended in Committee, but I doubt whether any Amendment will make it right, is Clause 7, which provides that where a written statement is served and where certain formalities are completed, provided that no objection is given to it by a party within seven days that statement can be admissible in evidence. It is essential at least that the Clause should be limited so that a defendant shall be 115 advised before he agrees to such a statement being admitted in evidence, because many accused will have no idea of the relevance of a statement or otherwise.
Further, it must be accepted that many accused have a low standard of literacy. I should not care to forecast what many of them will make of the kind of statement that will be furnished. Even where the defendant is represented, I doubt very much whether he should be bound to accept a written statement as part of the evidence against him until the papers are seen by counsel who will represent him at the trial, and that does not always mean counsel who sees the brief a week beforehand.
This is an example of an approach I am suspicious of. Clause 7 must have been drafted either by those who know little of the actualities of what goes on in a criminal prosecution or, if they do know, have too little regard for the rights of an accused person who has all the panoply of the police, of the county that is trying him, and perhaps of the Director of Public Prosecutions, arrayed against him.
Although I support the Bill wholeheartedly in its main provisions, I hope that this one will either disappear or be greatly modified. I trust that at the end of the day we shall emerge with a criminal system strengthened to bring the malefactor to justice but with the safeguards for an accused person before he has had an opportunity to take advice substantially maintained.
§ 7.17 p.m.
§ Mr. Norman Miscampbell (Blackpool, North)
This is an important and reforming Bill which contains, in Clause 10, a great, historic change in what has been a tradition of the British criminal judicial system. It is a change which I view with the gravest misgivings. I shall concentrate on the one point of Clause 7 and the question of majority verdicts. It cannot be said too strongly that what we are debating is not a universal criminal question at quarter sessions and assizes. It is an Old Bailey problem alone.
I have had some experience of legal practice in the North of England. It inevitably took me frequently to the 116 criminal courts. Over 10 years I never heard a word of complaint, nor any suggestion, that anything like this was needed. When I was there recently I took the trouble to speak to those who were my colleagues then and who still actively practise. Every one of them said, "This is not necessary. We do not come across this problem."
I have tried to recall the number of occasions when I had a disagreed jury. I cannot remember whether it was three or four times. The first time I appeared at the Old Bailey I had one of the rarest of situations, apparently-0.8 per cent.—when we disagreed twice. I do not think that this was symptomatic, because it was a case in which any jury would genuinely have disagreed. It may be the type of disagreement which gives one cause to worry when one sees the changes that are being proposed in the Bill.
As soon as the suggestions were made that we should make this change I and a number of others asked the Home Secretary what were the figures on which he based his decision. With a great deal of frankness it was said that the experience on which the decision was based amounted to a year and a half in the Old Bailey. When one has asked questions about assizes and quarter sessions at which one has practised or knows about, the answer has been, proper or otherwise—I do not intend to discuss that matter now—that it would be too difficult to find out what agreements there have been over the last five years.
It may be technically difficult at this stage to find out what disagreements there have been in varying quarter sessions, although I think that the information could have been obtained. However, I accept the view of the Home Secretary that it would be very difficult. The generally accepted figure, and the one on which we have got to work, is that the number of disagreements is no greater than about 3 per cent. at the most.
§ Mr. S. C. Silkin (Dulwich)
Does the hon. Gentleman take the view that the vital issue in this part of the Bill is the number or percentage of disagreements or rather the quality of certain of the disagreements?
§ Mr. Miscampbell
I take the view that it would be best to stand by our present practice of the unanimous vote. I would 117 not tamper, without good cause and good evidence, with something that I think has stood us well in the past.
As I say, the truth of the matter is that there is no evidence on which this House can make up its mind tonight. We have got 18 months of experience at the Old Bailey, and one can thereafter simply accept the view that has been expressed in all quarters that the figures are in no way excessive and that they are entirely explainable by the number of disagreements that one would expect in any case.
One is therefore thrown back on to one's own judgment. What is one's own judgment of what happens when a jury disagrees? I think that most juries disagree not because the majority wants to acquit, but because the majority wants to convict. I think that that is a fairly safe proposition. One finds at second trials that of juries who undoubtedly wanted to convict a man and probably would have convicted, one-third or probably mere than one-third, would find it in their power to acquit the criminal.
§ Mr. Miscampbell
The hon. and learned Gentleman says that he may not be a criminal. Quite right. The accused is acquitted in one-third of the cases. Surely these figures should give us cause to consider. There is the certainty, or the near certainty, that a number of people who can quite genuinely convince 12 of their peers on a second trial that they are innocent would be convicted under the proposals in this Bill.
As to the nobbled juryman—this is my second and main objection, and it is a matter on which a great deal of weight is placed by those who advocate the change —all that he can do at best is to create a disagreement. He does not get an acquittal. We know that the figures for second disagreements are practically negligible. In fact, the second time round only 0.8 per cent. come to a second disagreement and I suppose that nobody in the House would think that in criminal trials, with all the difficulties of securing proof and producing evidence, that is an excessive figure for second disagreements. No jury would be likely to end up in a series of disagreements, no matter how many times the matter was put before 118 them, and that is why we have the excellent tradition that when a case has been put to a jury twice and the jury disagrees on the second occasion, the case is not tried again.
In this case, we have the fact that even though somebody may have nobbled a juryman and bribed him, even though such a person may have obtained disagreement on one occasion, there is no evidence at all that he will finally secure the man's acquittal by a second trial. One is, therefore, driven to the conclusion that what we are doing here is changing the traditions of our judicial system, changing the whole basis on which we say that men shall be deprived of their liberty, so that we shall have an administrative advantage. I do not think that these proposals amount to more than an administrative advantage of avoiding second trials, but avoiding them, I fear, with injustice to many who will appear before the courts.
However, one cannot be absolutely negative and I suggest that this matter can easily be put to the test. It seems to me that two things have to be shown immediately if this matter is to be put to the test. We should have a year or two's pause before we introduce the system. That is not much to ask when we are giving up so much. During that period every clerk of assize and every clerk of quarter sessions should report the number of disagreements in his court. I would think that that would be the fundamental and necessary evidence that we would need to start with. But that is nothing like sufficient.
We should also ask, in each case where there is a disagreement, jury foremen to state on a piece of paper, without any names being given, the numbers by which juries disagree. A foreman would not give any names. He would merely say, "We disagree 11 to 1", or whatever the number was. If we had these two simple facts before us—the number of disagreements and the way in which juries disagree—the House might be able to come to a sensible conclusion. Without some real basis for the change, I feel that we would be taking a step which is not justified and which, therefore, could not be taken.
§ 7.27 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
The hon. Member for Blackpool 119 North (Mr. Miscampbell), in a very interesting speech, has devoted himself to one point only, namely, Clause 10. I should like to follow him on that point for one moment, although I consider that this, like a number of the other controversial parts of my right hon. Friend's Bill, is, strictly speaking, a Committee point, and I should like to deal with the more general background of the Bill.
Speaking for myself on this point, I am entirely unconvinced by my right hon. Friend's argument. I found it singularly unconvincing. I should think that he himself found it singularly unconvincing, and I think that his unusual reluctance to be interrupted and questioned about it probably arose out of his own sense of insecurity about the validity of his proposition. He spoke as though the rule that a jury must be unanimous were some kind of accidental inadvertence that had crept by mistake into our criminal law. It is nothing of the kind.
The rule that a jury must be sure, must be satisfied—as used to be said—beyond all reasonable doubt, would be meaningless unless there were a unanimous verdict. Any validity that a jury's verdict has depends very largely upon its unanimity. The direction which judges give when they direct juries on the grounds on which they can convict, and of what they must be satisfied before they convict, is not merely, "You must be sure", but, "Every one of you must be sure". That is the bedrock on which the sanctity of a jury's verdict depends.
The right hon. and learned Member for St. Marylebone (Mr. Hogg) wanted to make a change in the law that would be outside the scope of the Bill. He wanted to make a jury's verdict of guilty itself sacrosanct so that it was evidence that a man was guilty in all subsequent proceedings. I wonder whether he will still think that if we adopt the rule about a majority verdict. Is that also to be sacrosanct? Is a man who is convicted by a majority verdict of a jury never to be allowed to challenge it again in any other court of law? Is the verdict to be regarded as establishing the facts now and for all time? One has only to examine those questions to see how unsound is that proposal.
120 Before leaving the subject, there is one other thing I wish to say. Many people have talked as though when a jury disagrees it is a bad thing for the administration of justice. It is not. It would be a very poor system of criminal justice, and the public would soon lose its confidence in it, if every jury always agreed. I can illustrate that point by one very controversial case.
There was a man called Hanratty. His trial lasted three weeks, and the jury deliberated for ten hours. During that ten hours they came back certainly once, and I believe twice, to ask the judge for further directions. At the end of those ten hours' deliberations, at the end of a three-week case, they came back and alleged, unbelievably, that all of them were satisfied that the man was guilty. Does anybody hesitate now to say that it would have been a very good thing for everybody concerned if that jury had registered the disagreement which obviously alone could explain its ten hours' deliberations?
It is not a bad thing that a jury should disagree, nor is it true that when a jury convicts it is more likely to be right than when it acquits. On that rather eccentric dictum of the Lord Chief Justice I believe that this whole fantastic proposition has been founded. However, I have said that that is really a Committee point and it can be more adequately discussed in Committee at a later stage.
I would now like to say something about the more general aspects of the Bill. The right hon. and learned Member for St. Marylebone was criticised by my hon. and learned Friend the Member for Warrington (Mr. W. T. Williams) for making what my hon. and learned Friend called an irrelevant speech, for talking about things that were not in the Bill. I think that that criticism was misconceived. This is a Second Reading not a Third Reading debate. At Third Reading we shall be entitled to talk only about what is in the Bill and not about what is not in it. On Second Reading, when we are trying to assess the Bill's value, we are perfectly entitled, and it is our duty, to see it against the background of all the problems with which it deals, to see whether any have been left out and whether a different Bill dealing with other things might not have been better.
121 With apologies to my right hon. Friend the Home Secretary, I find the Bill a great disappointment. I regard my right hon. Friend as the best Home Secretary I have ever known, and for that reason I looked forward hopefully, expectantly, to a much bigger, broader, deeper Bill than that which he has produced. Like the right hon. and learned Member for St. Marylebone, and unlike my right hon. Friend, I participated in the 1937 discussions and again in the 1948 discussions.
What are the really valuable parts of my right hon. Friend's Bill, except the repeal of the provisions we introduced in 1948? They were introduced not because they were the latest ideas in the progressive penal world in 1948, but because they were the progressive ideas of 1928—corrective training, preventive detention, They are abandoned now. They are abandoned because they were harsh, unjust, oppressive and totally ineffective. They were based on the notion that punishment, particularly by imprisonment, was a valuable thing in itself. We all know that that is not true, and we all know that no man ever came out of prison after a prison sentence a better man than he was before he went in. That is because the whole approach of our criminal system, of which we are too inordinately and patriotically proud, is a wrong approach to the whole question.
My right hon. Friend talked about trying to keep a system in which the courts would establish the truth. Our courts have never attempted to establish the truth. There is no machinery which enables them to do so. It is a contest, not a research. It is a fight between one man who says that the accused is guilty and another who says that he is not. Then 12 men are asked to say at the end of the day—and now they will be asked to say it by a majority—whether or not a particular fact has been established, namely whether the man in the dock did or did not do the act of which he is charged.
But that is not the important question. Of course, one has to decide it. Of course, one has to know the answer. But when one has found it out that is the beginning of a sensible judicial inquiry and not the end of it. In a system that really wanted to establish the truth one would want to know the man's background and what 122 sort of man he was. On the basis that he committed the act charged, one would want to know how he came to commit it, what restraints there were, what temptations he resisted and what were his difficulties. The court would make its decision on what to do with him, as would the Home Secretary at a later stage, with full knowledge of all that social background. Our courts scrupulously refrain from admitting as evidence anything of that sort.
§ Mr. Charles Doughty (Surrey, East)
After conviction, whether by plea of guilty or by verdict of a jury, not only is there a full statement in writing from the police, from a probation officer and from the prison commissioners if relevant, but the man himself or his counsel can bring forward any fact he wishes, and, if any of these matters are lacking, the court will probably adjourn the case for those aspects to be gone into.
§ Mr. Silverman
The hon. and learned Gentleman must give me credit for knowing the basic element of the practice. Of course, there are statements. Of course, the police officer in charge is called into the box to tell the judge what the police officer thinks about it. Of course, defending counsel, if he knows his duty, will make a suitable plea in mitigation. But there is no evidence. There is no inquiry. There is no research. No probation officer is called. No medical evidence is called.
§ Mr. Miscampbell
With respect, the probation officer is called, and he now gives the greatest care to his report, which is before the court. It may not go as far as the hon. Gentleman wants, but all this evidence is certainly there.
§ Mr. Silverman
He is sometimes called. I go further and agree that he is often called. But when?—in the few minutes that the judge has to determine sentence between the jury's verdict and the passing of sentence. No time is taken to consider anything. No test is made of any of the statements offered. No real inquiry is made into what the crime really was, and, unless we know what the crime really was, it is nonsense to pretend that we have a system of penal justice which is concerned to find out the truth. I think that I have said enough to illustrate the point and I do not want to make too long a speech, but 123 I wanted to show the bearing which this has on many of the other proposals in the Bill.
There is the question of suspended sentence, but there is also the much more important question of release on licence. There has been a good deal of intelligent and informed discussion on this proposal, on the criterion which is to be applied and who is to apply it. So far, I have heard no suggestion that anyone shall hear the prisoner himself. Who is more concerned? Who is most concerned? Surely, the man himself has a right to be there. Surely, he ought to have the right to initiate an examination. But, even then, how would the examination be conducted? What ultimately would be the criterion?
If, in the end, it is the Home Secretary who has to determine, in the light of all the evidence he can discover, whether a man is to be released on licence and, if he is, who is to look after him while on licence, how can the Home Secretary possibly do this unless, before the man is sentenced at all and before he becomes my right hon. Friend's responsibility in any way, there has been an inquiry into the question of what sort of man he is and how he came to be in the tragic position which he occupies?
Other countries do it. France does it. Scotland does it to some extent, and some others do it. They do it at the very beginning of the case. We are arguing about whether we ought to reform our committal proceedings, whether there ought to be any committal proceedings at all. In some countries committal proceedings are themselves concerned with the background of the crime. And why not, if justice is to be done, and, a fortiori, if we are really trying to find out the truth?
I had hoped that my right hon. Friend would be able to bring in a Bill which made a new approach, which made a new inroad on what is probably the greatest social problem of our time. This Bill does not. It makes some improvements in the present position, some of them very valuable improvements, others of doubtful validity, and others no improvement at all. I still hope to live to see the day when this country makes a genuine attempt to establish a system 124 of criminal justice which begins from the determination to find out what the truth was.
§ 7.46 p.m.
Mr. Richard Sharpies (Sutton and Cheam)
Like everyone else who has spoken, the hon. Member for Nelson and Colne (Mr. Sydney Silverman) has made a thoughtful and constructive speech, and I shall later follow him in one or two of his observations. I agree very much with the hon. Gentleman's concluding remarks.
I am very concerned about the method which the Home Secretary proposes to adopt for the system of release on licence. I agree with what was said on this subject by the hon. Member for Nelson and Colne. The first person who has an interest in release on licence is the prisoner himself. We have yet to be told how the prisoner will be able to make representations and whether he will be able to put forward a case in support of being released on licence.
One of the great defects in the solution proposed by the Home Secretary is the amount of influence which the prison governor and prison staff will have in deciding whether or not a prisoner is to be released on licence. I envisage serious difficulties arising inside the prison itself where the prison governor is to be both judge and gaoler in cases of this kind.
I am sure that the Home Secretary is making a mistake in leaving these decisions to himself. We all know how they will be reached. They will be reached on the recommendations, very largely, of the prison governor, based on reports about how the man is behaving in prison. They will be assessed by civil servants, honestly and genuinely assessed —I make no criticism of those who will have to fulfil this very difficult task —but they will be assessed, as has been said, by "faceless" men, and the decision will in the end be the decision of a political Minister. Again, it will be given in all good faith, I am sure, but it will be a political Minister who eventually announces the decision on whether or not a prisoner should be released before he has served his full term.
This will lead to great difficulties. The Minister responsible will be open to challenge in the House by Question 125 and by Adjournment debate on every decision which he reaches. I cannot believe that this is the right way to examine most difficult problems of this kind.
After the man has been released, there is the burden which falls on the Probation Service. The service is already considerably overworked, carrying an enormous burden, and it will have this additional task placed upon it. It will fall to that service to make recommendations, presumably—they are the only people who can do so—for a man's licence to be revoked. I cannot think of anything that will make more difficult the relationship between the released prisoner and the probation officer than introducing this complication.
I beg the Home Secretary to think again about this. Doubts have been expressed on both sides of the House. I ask him to think again and see whether he can put forward proposals for some form of parole machinery with a judicial basis—and I mean not entirely a judicial tribunal, but one advised, also, by lay people with responsibilities outside.
§ Mr. Roy Jenkins
But could the hon. Gentleman—he asked me whether I would think again, and I am certainly willing to do so—say how we could avoid the probation officer not perhaps having to make a decision, but perhaps having to make a recommendation if a release on licence had gone wrong?
I agree with the right hon. Gentleman that this is extremely difficult. I think that under these proposals the probation officer will certainly have to be brought in, but his task will be easier if the release on licence has already been recommended by a body outside the Home Office. However, I appreciate that there is a very real difficulty in this to which I hope the right hon. Gentleman will give further consideration. I do not pretend that I know the answer: I pose the problem.
One matter to which the right hon. Gentleman did not refer in his speech is Part V of the Bill—the question of firearms. We on this side, during the passage of the Firearms Bill, put forward a large number of Amendments which would have had the effect of strengthening the Bill. I am glad to say that, although the majority of them were rejected during the Committee stage of 126 the Bill, a large proportion were accepted when we came to Report. I think that we had a very much better Bill as a result of that.
One of the suggestions put forward during the passage of the Firearms Bill was that there should be registration of shotguns. That was rejected very firmly on Second Reading by the then Under-Secretary of State for the Home Department, who said that the then Home Secretary, after considering the problem from every angle, had decided that the possibility of extending the firearms certificate procedure to shotguns was not practical.
The House should now be told what has led the right hon. Gentleman to consider that it is practical. I do not object to the proposal, but we should have been told, perhaps during the Second Reading speech, what has happened during the 18 months that have passed between the Second Reading of the Firearms Bill and the present date to reverse the position put forward very strongly by the hon. Gentleman who then spoke for the Home Office.
Have the police been consulted about it? My understanding is that the police have been consulted and that the Police Federation has expressed very strong reservations about the difficulties in administration which will arise. I understand that the suggestion is that this should be done, to some extent at least, by civilians attached to the various police forces for the purpose. My understanding is that there are between—we do not really know—2½ million and 5 million shotguns which would have to be registered. I hope that the task of registration—
§ Mr. Doughty
Under this Bill it is not the registration of shotguns, but the registration of people who are allowed to carry shotguns.
§ Mr. Sharples
This is something that we might have cleared up, whether or not each separate shotgun has to be registered, or whether the holders of shotguns themselves have to be registered.
§ Mr. Roy Jenkins
The hon. and learned Member for Surrey, East (Mr. Doughty) and not the hon. Member for Sutton and Cheam (Mr. Sharples) is right.
§ Mr. Sharples
I am very glad to hear that, because it makes the proposal very much more practical than it would otherwise have been. Still, I do not think that we should underestimate the very considerable additional burden, which, even so, will be placed upon the police in administering this part of the Act. I am glad that the Home Office has now reversed its earlier decision about this. I believe that this is right provided that the administrative difficulty can be overcome.
A number of hon. Members have referred to the suspended sentence. I welcome the decision of the Home Secretary to give this at least a trial. However, I would express some concern about the limitation put upon the courts in respect of first offenders being sentenced to periods of six months' imprisonment or less. Although I sympathise with the right hon. Gentleman in trying to reduce the prison population by this means, I can imagine cases where a court might well feel that a short sentence of imprisonment might have the effect of preventing crime in the future. I think that it is a dangerous matter when we start to restrict the powers of the court in sentencing in matters of this kind.
I turn briefly to the very much more controversial subject of majority verdicts. I speak as a layman in the matter. I tell the Home Secretary frankly that I was prepared to be convinced by what he had to say today. But I also read the very powerful article in the Sunday Telegraph on 4th December, by Lord Devlin, who, arguing against the change which the right hon. Gentleman now proposes, said:The Home Secretary will no doubt produce the formidable evidence to be thoroughly examined as it should be.I was disappointed at the evidence which the right hon. Gentleman produced. It did not convince me. He put forward in some ways strong arguments against the jury system as a whole. But I certainly did not hear any convincing argument about majority verdicts in themselves. It may well be that there have been—we all know the kind of cases to which the right hon. Gentleman was referring—some cases where individual members of juries have been nobbled. But even with the small number of figures 128 that the right hon. Gentleman was able to give us I am still left with the impression that this relates only to a very small number of cases indeed.
Perhaps the right method of tackling jury difficulties would have been to go much further in accepting the recommendations of Lord Morris of Borthy-y-Gest's Committee with regard to the quality of juries rather than by introducing this very radical change in the system, which comes about on very slender evidence. The right hon. Gentleman will have to put much more convincing arguments than he did today if he is to convince me on this.
My right hon. and learned Friend described the Bill as a mixed bag. It contains many provisions with which I do not find myself in disagreement. Many have been suggested by right hon. and hon. Members on this side of the House. It is, however, very largely an administrative Measure and I do not believe that, in itself, it will make any contribution to the major problem of solving the rising crime rate.
I find myself in agreement with hon. Members who believe that prison—which is the only ultimate remedy we have now —does very little to reform. Anyone who has spent time going round our prisons will probably conclude that many prisoners will not commit a crime again in any case, because the punishment was not so much their sentence but being found out, and that, for those who will commit crime again, prison is probably the best school for learning criminal ways. One only has to see men being taught trades like brick making and decorating, which suit them admirably to take up criminal life in future.
The time has come—and this is what disappoints me in the Bill—for a radical look at our penal system and a heaven-sent chance was thrown away when the Royal Commission on Penal Reform was disbanded. I hope that, before long, we shall have a radical new Measure of this kind and the opportunity to look at the whole question of the prevention of crime and penalties. Bankruptcy and the separation of the criminal from his ill-gotten gains are much more likely to deter criminals in future and I hope that, at some stage, we shall have another and more far-reaching Measure. I am disappointed that the right hon. Gentleman 129 has not seized his opportunity to introduce it now.
§ 8.4 p.m.
§ Mr. Victor Yates (Birmingham, Ladywood)
If it is true, as the hon. Member for Sutton and Cheam (Mr. Sharples) says, that the effect of prison is to make a bigger criminal of a prisoner, that is surely a very great argument in favour of the principal recommendation of the Bill, which is to remove as many people from prison as possible. In that sense, the Bill is a very important and progressive Measure.
The right hon. and learned Gentleman the Member for St. Marylebone (Mr. Hogg) spoke of our failure to solve the problem of crime and suggested that this was due to our failure to legislate coherently. I speak only as a layman, like the hon. Member for Sutton and Cheam, and many legal issues have been discussed today. But I am sure that it is not so much a question of legislating coherently as of this House not having an opportunity thoroughly to discuss the question of crime in a Measure of this nature for the last 18 years. Many of the propositions in the Bill will be in the form of experiments and we shall need to examine the results very carefully. It would be a tragedy if we had to wait for many years again before we can review our experiences.
A number of hon. Members have questioned the legal issues involved, particularly that concerning majority verdicts. As a layman, I am rather worried about this proposal. I cannot bring legal arguments to bear, as some of my hon. Friends have been able to do, but I was influenced by the article in the Sunday Telegraph by Lord Devlin, a former Lord of Appeal. I think we must examine this argument very carefully. I was also much impressed by a memorandum by the National Council for Civil Liberties. I have no doubt that my right hon. Friend the Home Secretary has a copy. There was a unanimous view opposed to this proposal.
§ Mr. Archer
If my hon. Friend is suggesting that the view in that memorandum is the unanimous view of the National Council for Civil Liberties, I assure him that that is not the case.
§ Mr. Yates
I accept that, but with a memorandum of this nature one would 130 think that it was the view of the National Council, although, of course, it may not be an absolutely unanimous view. I am only saying that, like other hon. Members, I would like to be convinced by evidence that this new procedure is right.
I would like to know how many of those who have been retried and subsequently acquitted would have been convicted had a majority verdict been taken from the first and disagreeing jury. We have been told by my right hon. Friend that 65 per cent. have been convicted and 37 per cent. have been acquitted but on new trial a very large number have also been acquitted. I only want to be convinced. I appreciate my right hon. Friend's argument about trying to prevent professional criminals from interfering with the course of justice, but we must examine the matter very carefully because, if we are to have decisions with which two or three members of a jury disagree, this will create an element of doubt and I have always been impressed that, in English law, we have had to have a decision which was unanimous and beyond all reasonable doubt. But I am open to conviction. I have not yet made up my mind, and I hope that my right hon. Friend will be able to bring some more evidence that will enable us to have a clearer view of the matter.
I welcome the Bill, especially because it is an attempt to keep out of prison many people who ought never to be there. The right hon. and learned Member for St. Marylebone asked whether anyone had raised the question of whether prison was a deterrent. I can assure him that I have raised that issue several times in the last 20 years. I once said in the House that local prisons were breeding grounds for criminals. Throughout this time I have visited several prisons and if the right hon. and learned Gentleman has he will know that the conditions there produce criminality. There are 5,000 prisoners who are sleeping three to a cell. Conditions are unsatisfactory including overcrowding, and they all make for bitterness and possibly make people worse. If we cannot turn out prisoners better than when they went in, at least we have an obligation not to turn them out worse.
131 I congratulate my right hon. Friend on some of the measures which he has introduced, for instance, the abolition of preventive detention. I have argued with several Home Secretaries about this matter and I deplore the fact that after all our experience it has taken so many years to convince the authorities that this system is both unjust and ineffective.
I raised with the then Mr. Gwylim Lloyd-George, the then Home Secretary, the case of a prisoner who had been sentenced to ten years' imprisonment for a crime for which the sentence was normally two years. The prisoner was not likely to live for ten years and I asked him if he would write to me setting out his views about the system of preventive detention. He asked for permission to have 12 foolscap pages on which to set out his considered views about preventive detention, but the Home Secretary refused permission. He was given only five years to live and he did not live beyond that time. In one year, about 40 prisoners serving sentences of preventive detention died before they could be released. After all the arguments which were submitted against the system 12 years ago, only now have the authorities been convinced and in this respect the Bill is certainly progressive.
Hon. Members have devoted a lot of time to the administration of the Bill. Of course that is important, but not so many hon. Members have welcomed the idea of sending men out on parole, of letting them out on licence. I welcome this decision, and there are many safeguards in the Bill in connection with men and women released on licence. I am convinced that it will not only be fair to the individual, but will give prisoners an incentive to go right, and I do not think that we will have many cases in which the opposite is true.
The right hon. Member for Ashford (Mr. Deedes) spoke about the cost of this proposal. However, if we adopt the system whereby men are released from prison on licence, the overall cost must be reduced. It is very expensive to keep a prisoner in a close or other prison and we have to weight the cost of the proposal in the Bill against the money saved to the system. I think that this is a good idea, although I agree that it is vitally impor- 132 tant that the administrative machinery should be right.
My concern is connected with who will decide that a prisoner should be released on licence and who will decide when he should be recalled. At the moment, the Home Secretary has power to allow out on licence a prisoner serving a life sentence and he also has power to recall. This is a great power to place in the hands of the Home Secretary. One case which I have been considering for a few years and which I have put to three previous Home Secretaries concerns a woman who is still in prison for murder and who, after being released on licence after nine years, was brought back without any reason being given. I suppose that she will now have served about 14 years and she is still only about 33. I appreciate how difficult it is for a Home Secretary to decide issues of this nature and I think the Home Secretary ought to have some other authority with him before making such a decision.
If large numbers of prisoners are to be allowed out on parole, it is vitally important that there should be some kind of board to decide whether a prisoner should be released on licence and, if necessary, whether he should be recalled. Nothing has created greater bitterness, even leading to violence in Parkhurst on more than one occasion, than the decision of a preventive detention board that additional remission could not be agreed, no reason being given. It is important for reasons to be given, not only for the release on licence, but also for recall.
As much as anyone else, prisoners must see that justice is being done. It has been suggested that a judge ought to be on such a board because judges are trusted, although I have not met many prisoners who trust judges. Probation officers do a wonderful job, although they are certainly underpaid. They are certainly underpaid. I believe, as was said by the right hon. and learned Member for St. Marylebone, that they are under-valued. They are doing a wonderful job and their experience is vital, as is the experience of the police. Surely we could reach some agreement as to who should be responsible? The Home Secretary should not be overloaded with responsibilities.
The Criminal Justice Act, 1948, failed largely because the Government of the day made these proposals for great 133 changes but did not provide the machinery for the changes. This was certainly true of longer-term prisoners, for whom a community life has to be provided. We must say to the Government: if one is to be successful in the attack on crime, if one is to provide prisons which will help rehabilitate the prisoner and to turn out the prisoner at least no better than he was before he went in, then one needs new prisons to replace the antiquated Victorian structures of today.
We need more hostels and more work for prisoners. Men in prison should be given work. It is disgusting that prisoners in most of the local prisons are given only 20 hours work. Even today they are still sewing mail bags. Our whole method of payment and working needs to be revised. I am told that the pay today is from 3s. 6d. to 11s. a week and that it cannot be increased during the period of severe restraint.
The greatest deterrent of all is the withdrawal of liberty from the individual. If men want to escape, it is because they value their liberty. Many of the provisions of this Bill go a long way, and if we can arrange our prisons so that we relieve the overcrowding and the evil conditions existing there, we shall have done a great deal to make it possible for these people to lead a better life when they are released and return to society.
The administrative problems are very great. There are not enough probation officers, and I doubt very much whether we can get them under present conditions. We will have to make a tremendous effort and when we have done this, I hope that we shall not allow our arrangements to go by without discussion for another 18 years and that we shall not have to live so long with the injustices perpetrated during the last 20 years.
§ 8.25 p.m.
§ Mr. Charles Doughty (Surrey, East)
I begin by taking up the last words of the hon. Member for Birmingham, Lady-wood (Mr. Victor Yates), who spoke of the injustices of the last 20 years. In any system there must be a certain number of injustices, but I would not like it to be thought that we have been administering injustices in the last 20 years. Such a statement is wholly inaccurate.
This is only a Bill which takes certain things out of our legal system and puts 134 certain things into it. That legal system—I am speaking of the criminal legal system—has been brought into being over hundreds of years. Many acts of Parliament have been passed during that time. In the leading criminal textbook, Archbold's, which is in the Library, I looked at the index this morning to see how many statutes and sections of statutes were referred to. There are 32 pages of index referring to statutes and sections of statutes.
Apart from that there are many other aspects of criminal law brought in by the judges. There are the Judges' Rules, The M'Naghten Rule, and the Rules of the Court of Appeal, now the Court of Appeal (Criminal Division), which have to be administered. It is its duty to administer the criminal law and, believe me, it is a complicated business. A clarification of this law is long overdue.
Bills like this, when they become statutes, make the administration harder, because one has to learn the new practices and the new rules. Some of these Judges' Rules have never been debated in any House of Commons, and I for one criticise them to a considerable extent. One must not ask a man who is a suspect what he was doing the night before, when the burglary was committed. What is the answer one gets nowadays—having cautioned the man that he need not say anything—" I want to see my solicitor before I say anything."
If one were to say to a jury that here was a man, asked to say what he was doing on the night before, when he was suspected of having broke into a house, any honest man would give a straight answer, but he refused to do so. The Court of Criminal Appeal would say that that was a misdirection and the conviction would be quashed, and another criminal loosed upon the public. It is high time that this problem was tackled, so that those who have to administer the law and those who have to live under it are more in touch with what is going on.
Like so many things, there are criticisms to be made of the Bill and at the same time there is a certain amount of praise. On the whole, I approve of it, although there are one or two things, which I believe to be mistakes, and to which I wish to draw the attention of the House. I certainly approve of the shortening of committal proceedings.
135 They are very long-winded, having to be taken down in longhand or sometimes straight on to a typewriter. All the witnesses have to turn up to give evidence and that is often very inconvenient to businessmen. It takes the magistrates, or the clerks of the court—who are very difficult to get nowadays—a long time to do all this, and I am sure that the accused will suffer in no way if committal proceedings are abolished and the proposals in the Bill are followed. The proceedings will be shortened, simplified and it will be easier to get witnesses.
There is the question of majority verdicts. Because, in the past, we have insisted upon complete unanimity, there is no ground for saying that we must always do so in the future. Rules change to a certain extent. Now, certainly in Greater London, we have the highly organised, very determined gangs with their own rules and methods of enforcing the rules against their members who break them; and they are tough and rough. They have their own methods of obtaining acquittals for their colleagues who fall into the hands of the police. One of the easiest and simplest methods is to nobble, by bribe or threat, one of the jurors. That is what they have been doing: make no mistake about it. That will spread if a stop is not put to it.
Then there might be on the jury somebody who has a peculiar view. I should like to mention one case of which I know. I do not suggest that it is typical. Since I mention one case, it does not mean that it is a reason for changing the rules. A burglar was committed for something which he had done many times before, and no doubt many times since. He had made the mistake of leaving behind his finger prints. The police knew who he was from his finger prints. He was charged before a jury, and the jury disagreed because one man said, "I do not believe all this nonsense about finger prints, or that it is possible to read them through magnifying glasses. One finger print looks like another". There was a second trial at a cost of hundreds of pounds and he was duly convicted. We must do away not only with the juror who has been "got at", but the juror who has extraordinary views and who holds out to the end.
136 A point which has not been mentioned is this. When a jury disagree, why should they be told that they cannot return a verdict for another two hours? Suppose that a jury goes out at half past twelve and returns at one o'clock and says, "We cannot agree". When they ask what the division is, they may say that it is 10 to 2. When asked whether there is any chance of the two changing their view, the foreman may say, "None at all. They have made it clear that they will not". The judge may then say, "It is one o'clock. If you come back at half-past two instead of two I will accept the verdict, but I cannot do it beforehand".
The jury are then shut up in a room again with no food or drink. They will not be a very pleasant 12 people whom one meets in an hour and a half's time.
§ The Attorney-General
I hope that the generous sessions over which the hon. and learned Gentleman presides is more hospitable to the jurors than would appear from the picture which he paints.
§ Mr. Doughty
There are no facilities for giving them lunch. I believe that sometimes a cup of tea and a bun is sent into them, but that is a most unsatisfactory lunch. The same applies in the evening.
§ Mr. S. C. Silkin
I agree very much with what the hon. and learned Gentleman says about this safeguard. Would not he agree that the danger is this. The majority on a jury which is divided 10 to 2 will say to the minority, "If you agree with us we can end now, but if you do not agree with us you will have to go on for another two hours, and the result will be exactly the same."
§ Mr. Doughty
I cannot say what goes on in the jury room. It may be that the 10 jurors will say to the two jurors, "We all want lunch. This fellow has obviously done it. You change your mind". But often somebody holds out and says, "I do not think that he did it. I will sit here as long as you like and I will not agree with the majority". So the jury gets angrier and angrier, and so does the person trying the case. This is not good for the administration of justice.
137 It may look good to say in a Clause, "You should not accept a majority verdict for two hours". But we should see how it works out in practice. However, I agree that we want majority verdicts.
Another matter for which provision should be made in the Bill, although it is very complicated, is this. There are many cases—I do not wish to mention names: hon. Members will have them in mind—in which people are not prosecuted. They concern big frauds in which organisations or companies have got away with a lot of money. The fraud squad, which is hopelessly overworked, can deal with about one case in 50. They know that if they chase up that one case the jury, who sit in the box with no facilities for reading the documents, have a mass of figures and cross figures put before them and they have not, at the end of a case lasting three or four weeks, the faintest idea of what it is all about. How could they have?
The jury tells them that they have to be sure before they can convict. They say, "How can we be sure when we cannot consider the papers properly because they slide on the floor, and so on", and so they acquit. If they convict, the Court of Criminal Appeal will quash the conviction. What is the good of looking through papers for days or weeks when it is not worth the trouble? Many criminals who have got away with thousands of pounds are not even prosecuted. We shall have to think of a different system of trying these people, than that of putting them before 12 ordinary people who have never before seen these columns of figures or seen where the money has been siphoned away, as it so frequently is.
I do not like the Clause dealing with the suspended sentence. The Government have tried to find the answer to the problem, but it does not meet all the circumstances. If the person charged is a first offender, the court may take into consideration the man's character and will say, "We will suspend sentence"; but another court, which may not be aware of the full facts, might say, "There is no need to suspend sentence."
It might decide to put the man on probation, or bind him over. If a man breaks the probation order—one of the 138 terms being that he must be of good behaviour—he may be sentenced at the time that he comes before the court again. This is introducing an alien idea into our criminal law, because of the difficulty of deciding under which circumstances the suspension should be removed and the sentence served.
I will not go into detail about the Clauses concerning collection of fines in magistrates' courts. I can sum up the provisions by saying that the fines will not now be paid—except the fines of those who park their cars in the wrong place or drive their cars dangerously. They are generally people with steady jobs and steady incomes and who, reluctantly but willingly, pay their fines. But we are talking about criminals, and not about those people who drive their cars badly or leave them in the wrong places. What is the good of taking out a county court summons against those people to whom I am referring? What is the point of disclosing their incomes? Often they have been living on National Assistance for the past three months.
What is the good of taking these steps in regard to that type of criminal, as opposed to the person who breaks the Road Traffic Act? Is there anything financially worth-while in imposing a fine on these criminals and giving them time to pay? There should be a prison sentence imposed in default, otherwise this type of criminal will snap his fingers at the court and will go out laughing. This is the sort of thing that would happen if the fines mentioned in the Bill are imposed.
A lot has been said about the release on licence, or on parole. I hesitate to use the term "ticket of leave", because it has long since been out-dated and is not referred to nowadays. It is not an attractive proposition, except in a very few cases. It can only be done in those cases where a person has received a prison sentence of at least three years, which is not imposed for trifling offences or on trivial offenders. It would mean long sentences to start with, because the person imposing the sentence will say that if a man is found to be of good behaviour and there are prospects for that person in the future, he will be released. The sentence will be stiffer to start with.
139 The ordinary criminal, when sentenced, likes to know for how long he will be in prison, whether it will be for one year, two years or three years, less one-third for good behaviour. Under the provisions of the Bill he will not know what the term will be, because that will be something which the Home Secretary, or the parole board, will have to decide one day. If the board should decide against him, as it will do in a large number of cases, we shall have a much more difficult person than we had before.
Reference has been made to prisoners on preventive detention who had been refused remission of some of their sentences and had become violent. It will be exactly the same for those refused leave on licence by the parole board or the Home Secretary. They will become very difficult prisoners. I know that the prisons are full, but this seems a weak way of trying to thin out the prison populatioin by releasing some of them in this way.
There are, unfortunately, a great many people—one sees them in the courts throughout the country—who used to be called habitual criminals. That expression was abolished and they are now called persistent offenders. Whenever they are out of prison they commit offences. They may not be serious offences—for example, these people may be pickpockets, although that is a serious offence in some respects.
The public must be protected from such people. That is why we have preventive detention. The idea is not to increase the sentences, not to punish a man who has committed such an offence, but to keep such a man away from the public for the protection of the public. That is what is said in the 1948 Act and that is why the sentence is imposed. Such sentences are being imposed, and will continue to be imposed, until the Bill becomes law.
What is it proposed to do with these people in future? We shall not cease to have habitual criminals. The Bill reintroduces preventive detention under a different name and with a shorter maximum sentence—10 years instead of the 14 years in the 1948 Act. Quite simply, we must have some method of locking up the habitual criminal for the protection of the public. Nothing can change 140 that unless we simply permit the public to be robbed or assaulted by these people.
For a different reason, I agree with the proposals about corrective training. Such training was not introduced for the purpose of keeping a young criminal—it applied to people under the age of 30 —away from the public. It was used for prisoners for whom it was felt there was some hope of rehabilitation. It was felt that if they learned a trade in prison they might use it when they came out of prison. But nowadays the ordinary prisoner, if suitable, can be sent for that instruction. It will be left for others to allocate prisoners in this way rather than the court first sentencing them.
I notice that the hon. Member for Nelson and Colne (Mr. Sydney Silverman) is back in the Chamber. May I point out to him that a court sentencing a man has very full information before it. It has written statements from the police and is given the man's antecedents and the points in his favour. The Probation Service will tell the court all about the man's antecedents, his family and his weaknesses and his reasons for committing the offence. If necessary there can be a medical report and, if appropriate, a report from the Prison Commissioners.
The convicted man may say anything on his own behalf that he wishes to say. Either he or his counsel must see all these documents to decide whether he agrees or disagrees with them. It is not true to say that the court does not have the fullest information before it imposes a sentence upon an accused person. If it feels that it has not enough information it can adjourn the case so that the necessary information is made available.
Among the various hotch-potch matters—that is not an unkind description—in the Bill there is the provision about shotguns. I am entirely in agreement with that. The shotgun, whether sawn-off or not, is a terrible weapon at close range—even more destructive than a high-powered rifle. It has been used far too often in the smash-and-grab raids which have taken place. Almost anybody can get a shotgun and use it. Now people will need a licence to carry one. I agree with the increased fines—the value of money has gone down and fines must go up.
141 On the whole, I welcome the Bill, though there are one or two reasons which make me doubt whether the Bill will work well in practice. However, we should remember that, for the first offender who makes a mistake, for the person who is likely to "go straight" in the future, the courts have great powers of leniency. But we should not forget that all criminals cannot be chided and told to reimburse those whom they have robbed. What do they do it with? It is not enough to say that, if a person is let out of prison, he must be good. Anyone who thinks that criminals can be made honest forgets the dangerous, determined and persistent criminals, who must be dealt with by the only method left—by imposing sentences which have to be long and severe.
§ 8.46 p.m.
§ Mr. William Price (Rugby)
I had not originally intended to speak. I thought that if there was one Bill which ought to be left to the experts, this was it. I am surrounded by experts. It was not until I read the Bill that I realised that it was possible that I might have a contribution to make. It was not until I heard the right hon. and learned Member for St. Marylebone (Mr. Hogg) that I got completely and utterly lost, but accept responsibility for that. I take the view of my colleagues—that it was a brilliant, technical and far-sighted speech.
I have a great respect for my right hon. Friend the Home Secretary. If he does nothing else in his time in the House—we all expect him to do a great deal more—he will go down in Parliamentary history. He has drawn a Bill which we can all understand—a very fine achievement. Some of us—certainly I—think that the greatest service he could pay to mankind is to let his draftsmen free on the Land Commission Bill.
The problem with the Bill is knowing where to start. It would be a miracle if every hon. Member did not find something with which he disagreed. I do. Before I begin to criticise, however, I must say that I regard it as a bold, imaginative and long-overdue attempt to rewrite much of our legal system. There are three very important points on which I have reservations. First and foremost, is the introduction of majority verdicts. 142 I do not disagree with that, but I am surprised and disturbed that we are recommended to accept majorities of 10 to 2. There is something not quite logical about that. Where there are 10 jurors, majorities of nine to one are allowed and, where there are 11, of 10 to 1. The suggested majority for a full jury does not follow, and I should like to know why a majority of 11 to 1 was not more logical.
I concede the difficulties. We have heard that little is known about jurors and the way they reach their verdicts. I have sat through many thousands of court cases. One of the reasons that I came to the House was to try to get away from lawyers—[Laughter.]—and that was perhaps the biggest mistake I ever made. However, there is a masonic-like secrecy about the way in which jurors operate. I understand my right hon. Friend's difficulties in trying to recommend anything which would get over these problems.
We know that he is motivated by the fear of jury-nobbling. I have worked for many years in provincial courts, and I concede the view of the other side of the House that this is very much a matter for London. I have never come across a case of it. As my right hon. Friend the Paymaster-General would say, there is a good deal more horse nobbling going on. It is difficult enough even at the Old Bailey to bribe one juror. I suggest it is virtually impossible to bribe three.
But this is what it means with a full jury. To get an acquittal a man has to convince three jurors that he is innocent; 10 to 2; that means he has got to get 9 to 3 before he is acquitted or before there is a retrial. I am not a mathematician, and I shall be grateful if I can be put right if I am wrong on this. It is no use the right hon. and learned Member the Member for St. Marylebone shaking his head. If the verdict is 10 to 2 he is guilty, so he has to convince not 2 but 3—
§ Mr. Doughty
If there is a disagreement there is a new trial, but at the first trial he is not acquitted; there is a new trial.
§ Mr. Edwin Brooks (Bebington)
I do not quite follow my hon. Friend's arithmetic, unless he is assuming that, like Mr. Ian Smith, he has to convince himself also.
§ Mr. Price
He has to convince me as well. I am prepared to discuss this outside the Chamber. Till then, I stand by my view that to get a retrial a defendant has to convince not one juror, as now, but in future three.—[HON. MEMBERS: "No."]—One hon. Member is shaking his head one way and another is shaking his head the other way. We cannot all be right, we cannot all be wrong. I would be grateful if the lawyers could get together to discuss this among themselves. I must say that, having raised this myself, I am now lost. I console myself with the thought that even the lawyers cannot agree among themselves.
My other objection, and it is a strong one, is to suspended sentences. It is for the simple reason that Clause 22 is not necessary at all. Despite what my right hon. Friend said, probation already provides a very adequate and sensible form of suspended sentence. There can be no doubt about that at all. A man commits an offence; he is put on probation; he commits another offence; he goes to court for sentence—for both, eventually, one at a time. If that is not a suspended sentence it is difficult to know what it is. I suggest that that Clause is quite unnecessary. The Bill proposes suspended sentence for not more than two years. That is a very dangerous precedent indeed, because a man would have to commit a fairly severe crime to get two years. It means that if that Clause goes through we shall end up with a man serving no sentence at all—a very curious way of solving the crime wave, and I hope my right hon. Friend will have second thoughts about this one.
I now come to the proposal—one which affects me personally as a court reporter —to prohibit reports appearing in the newspapers, on the television or on the radio, before a case is finally settled. I am glad to say that this is one issue, on which I might have been expected not to agree, on which I wholeheartedly agree with every hon. Member who has spoken in the debate so far; I do not think anyone has criticised the suggestion at all. We have one or two national newspapers, 144 as we expected, being critical about an attack on their powers and freedom. The trouble with those newspapers is simply this, that they spend so much time attacking everyone else that they build up a persecution complex. I am the last one in the House to want to take any powers or freedom from the newspapers, but there can be occasions, and this is one, when other considerations are as important as the newspapers.
We have heard the argument about the influence on juries. I am concerned about the influence on defendants. A person appearing court these days is subject to a good deal of publicity indeed. He gets one lot when the offence is committed—a paragraph saying "Mr. So-and-so will appear in court tomorrow morning"—another couple of lots at the remand hearings, another lot of publicity at the committal proceedings, some more when the case goes to the sessions or assizes and yet another lot of publicity on appeal. We could manage without at least one of that collection.
The newspapers argue that they are losing some of their freedom. That is not true. They will have their full rights eventually, when the case goes to the sessions or assizes, and, at that point, they will be able to publish the facts fully. They are merely being asked to wait a few weeks and not to inflict the same report on their readers at least twice, which is what is happening now.
The newspapers go on to argue that publicity brings in witnesses. From experience, I know that this may be marginally true, but witnesses usually come forward long before the committal proceedings. The Shepherds Bush case was a classic example of this. Generally speaking, witnesses come forward as a result of publicity at the time when the offence is committed; so that the newspapers cannot get away with that one, because it is not true.
I am glad of the provision which allows defendants the right to have their cases reported, although there are three questions which, while they may seem Committee points, would reassure some of my colleagues if they could be answered now. First, at what stage will the defendant ask for the full report to appear, remembering that there is a danger that if he leaves it too late there will not be 145 any reporters present to do the reporting? Secondly, what will be the position if editors decide not to waste having a reporter in court all day merely if he is likely to pick up one or two results? Will the bare details be available as official handouts from the clerks of courts, as is done in some parts of the country? In other parts of the country a reporter gets nothing. There is a great deal of inconsistency about this? Thirdly, what will happen to the public in open court? The whole purpose of the Clause, as I understand it, is to prevent the general public from being informed at committal proceedings. It surely follows that if members of the public go to court and sit in open court, they will get the full details, anyway. House are the two matters reconcilable?
When one considers the question of increased fines, one must admit that at present many punishments are unrealistic and subject to considerable inconsistency. For some reason unknown to me, judges, recorders and magistrates—magistrates generally get the blame, but they are not the only blameworthy ones—are reluctant to impose anything like the maximum punishment available, and I hope that my right hon. Friend will advise them that these fines are there for the purpose of being implemented.
I did not wish to become ideological about this, but I suggest that not enough attention is being given to ability to pay. Fines are intended as a punishment. In some cases they will be substituted for imprisonment. A £500 fine to one man need be no severe hardship at all. A £10 fine to an old-age pensioner can be a very real blow indeed. No one should get away comparatively lightly merely because he happens to have a healthy bank balance.
§ Sir Eric Errington (Aldershot)
What would the hon. Gentleman do in a case where the defendant has stolen something—I particularly have in mind shoplifting and similar cases—yet has no resources at all? That is the sort of case with which magistrates have difficulty at present.
§ Mr. Price
That was the very point to which I was coming, and I had intended to deal with it by making a revolutionary suggestion. If we are prepared to have 146 suspended prison sentences, then let us be logical about it and have suspended fines in cases of very real hardship. I may be wrong about this, but it would meet the sort of difficulty raised by the hon. Member for Aldershot (Sir E. Errington). The principle is exactly the same whether we are dealing with fines or prison sentences.
§ Mr. T. L. Iremonger (Ilford, North)
I do not quite follow the hon. Gentleman. A fine is suspended because the accused person has not got the money to pay it; if, when he commits another crime, the suspended fine is brought into operation, there is nothing to suggest that he will have the money then. On the other hand, if a sentence is suspended in time an accused person can, if he lives long enough, still pay the sentence in time, if necessary.
§ Mr. Price
The obvious answer is this. Many hundreds of people appear before magistrates and are not able to pay the fines imposed upon them. They get time. If someone has not got the available resources, he should be granted time. I have no figures on this. I have no doubt that my hon. and learned Friends will tell me that the numbers are very high. I should imagine that in some cases those concerned cannot pay the lawyer's fees. The answer is to give them time in which to pay. This has gone on for many years and has taken place in many hundreds of cases with great regularity.
Despite the reservations I have about the Bill, I regard it as a major step forward. Its great virtue is that it sets out to safeguard the rights and privileges both of the defence and of the prosecution. I hope that my right hon. Friend the Home Secretary will succeed.
§ 9.1 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I cannot quite understand why the hon. Member for Rugby (Mr. William Price) described his last point as an ideological one. I did not follow his argument. I have considerable sympathy with his unavailing effort to get away from lawyers. I disagree with what he said about suspended sentences. A suspended sentence is not the same as probation. Probation officers have enough to do without having additional people put under their care who might be more susceptible to suspended sentences when the sentence is passed 147 and then suspended so that they know exactly what term they will have to serve in respect of the trial offence if they commit another offence.
I am in somewhat of a dilemma on the Bill, for this reason. In many ways it is a most progressive and workmanlike Bill. I agree entirely with many of its Clauses. I agree with some of them in principle, although I may have criticisms as to their detail. So far, so good. However, there is one Clause—namely, Clause 10—which changes our law fundamentally. This is a very great change in our legal system. The Home Secretary suggested, as the hon. Member for Nelson and Colne (Mr. Sydney Silverman) pointed out, that we had somehow inadvertently and by accident evolved the rule whereby juries returned unanimous verdicts.
No theoretical basis for the jury exists. No jurist ever invented the jury. No legislator ever gave it form. The jury evolved to suit the British system. The odd thing about it—I am surprised that on this ground alone it does not have more support from the right hon. and learned Member for St. Marylebone (Mr. Hogg) —is that it has worked for centuries. On principle, I am not addicted to things that have worked for centuries. In fact, I view them with great suspicion. However, when a system has worked for centuries, when it has been tried every day—there must have been hundreds of juries sitting today—and when it has been found to work, we should hesitate long before messing about with it.
I am not averse to a reappraisal of our whole approach to criminal law and our judicial system. If this were a fundamental reform, I would view it with more sympathy than I do now. I think the right hon. and learned Member for St. Marylebone was right in this at least, that in this Bill there are no really fundamental reforms in so far as the Bill does not present a new approach to or a new appraisal of our problems in the criminal field. In fact, I am a product of our gladiatorial system of the courts, and I am not at all convinced that that is the best way of getting at the truth. But a new doctrine is put forward here, that the purpose of a trial is to get at the truth. Truth is something quite different.
As I understand it, the purpose of a trial in this country is to discover whether 148 a man is guilty or innocent of the charge brought against him. He is presumed to be innocent until he is proved to be guilty. The guilt has to be established by the prosecution. There are three elements that seem to be very important in considering the way in which the jury system works. First, its verdict must be unanimous. Secondly, its reasoning is secret; it does not have to give its reasons for a decision. Thirdly, the verdict of a jury must be such that if it finds a man guilty, each and every member of the jury must be sure so that the accused's guilt is proved beyond all reasonable doubt.
In Clause 10 the Home Secretary is undermining not only the first principle, but the third. No one can say that a man has been found guilty beyond all reasonable doubt if two people on the jury think that he is not guilty.
§ Mr. Sydney Silverman
If we accept Clause 10, the judge's summing up will in future have to be fundamentally changed. Instead of saying to the jury, "You will each of you be satisfied of the accused's guilt", he will say "Ten of you must be satisfied, and so long as 10 of you are satisfied the other two do not matter."
§ Mr. Hooson
I agree with the hon. Gentleman. What is more, I think that not only will the approach to this subject be changed, but we shall undermine this basic principle of our law.
I should like to quote from Lord Devlin's book, "Trial by Jury", where, on page 57 of the Hamlyn lectures, he says:The sense of satisfaction obtainable from complete unanimity is itself a valuable thing and it would be sacrificed if even one dissentient were overruled. Since no one really knows how the jury works or indeed can satisfactorily explain to a theorist why it works at all, it is wise not to tamper with it until the need for alteration is shown to be overwhelming.Then I pose the question: has the need for change been established to our satisfaction as being overwhelming? Let us look at the evidence produced by the Home Secretary today. The Home Secretary has put forward only one reason for changing the system. He put forward only one reason today. Indeed, when he broadcast he said:We decided that this change was right because of disturbing recent evidence of criminal interference with one or two jurymen in important cases.149 One can see again the emphasis that he put on the "recent evidence of criminal interference with one or two jurymen in important cases." As I understand the Home Secretary's case, he is saying, "Because I know of no other way of dealing with this small number of cases, we must change this fundamental principle whereby a jury has to bring in a unanimous verdict."
There are two things involved here. First, he is upsetting for ever more the quality of a verdict in this country. So far, we have heard a good deal about the men who ought to be convicted. Let us think for a moment about the men or women who ought to be acquitted. Because of the unanimity rule, when a man is found guilty the 12 people trying him have all agreed that he is guilty, and when a man is found not guilty they have all been satisfied that he is not guilty. The quality of the verdict is something that we must hear in mind. It will be a very different thing—
§ Mr. Hooson
I will give way in a moment. It will create very considerable difficulties if a man is to go around saying, "I am a man of perfectly good character. I was acquitted by 10 votes to 2." It was once said of a man in Wales that the only thing that could be said against him was that he was once ac-quilted by an Anglesey jury.
§ Mr. S. C. Silkin
I am grateful to the hon. and learned Gentleman for giving way. Surely he is quite wrong, when talking of acquittal, to say that 12 people have decided that the man is not guilty? Surely the position is that 12 people have decided that they are not satisfied that he is guilty? If the basis of acquittal is reasonable doubt, as the hon. and learned Gentleman has put it, and if 10 out of 12 members of a jury are not satisfied that the defendant is guilty, would he suggest that in those cases there is no reasonable doubt?
§ Mr. Hooson
The hon. and learned Gentleman is quite wrong. Under our law, when a man is charged with an offence he is presumed to be innocent, and that presumption lasts all through the trial. If the prosecution do not establish his guilt, the jury find him not guilty and 150 they find him so unanimously. If one juror thinks him to be guilty, and does not accommodate his view to that of his fellow jurors, they disagree. The Home Secretary has embarked upon a fundamental departure in the Bill.
Therefore, it is right that we should deal with the second question, raised by the quotation from Lord Devlin, of what is the overwhelming need for the change. I think that the Home Secretary quoted only one case today, when he referred to five men who had been acquitted and a sixth convicted at the Old Bailey. He made a statement of the evidence that I presume is available of various people approaching some of the jurors. One of the interesting points about that case is that five men were acquitted. If it was a nobbled jury it would have been even easier to have an acquittal if all that was wanted was a 10 to 2 majority. If there had been a disagreement in that case one could understand the Home Secretary's reasoning. As I understand the Home Secretary's observation, the implication was that the five men should not have been acquitted, but should have been convicted. Therefore, I do not see that the case he put forward was any support for his proposition.
Let me take the matter a little further. I think that it is right to say that there is very little, if any, evidence of nobbling juries outside the London area, and that almost all the cases where there is some evidence centre around the Old Bailey. I understand the Home Secretary to be saying that these cases are so serious that big criminal gangs are getting away with it, and that we do not know how to deal with the matter save by introducing that Clause.
Can the Home Secretary tell the House, by intervening now, whether there has been any prosecution in recent times against any person for trying to interfere with a jury?
§ Mr. Hooson
I shall give way in a moment.
Presumably, if the Home Secretary does not interrupt me at this point I can assume that there has not been such a prosecution in recent times.
§ Mr. Hooson
I shall give way in a moment.
If that is so, not sufficient evidence has been brought forward for a prosecution to be launched. I would accept the Home Secretary's view that it is difficult to obtain the right evidence in that kind of case, but it is very significant that there has not been a single prosecution in recent times.
§ Mr. Grieve
I am anticipating what I hope to say if I catch Mr. Speaker's eye. In my own experience during the last 12 months, in the provinces, there was an attempt at Northampton, where I sit as recorder, to interfere with jurymen, and the person guilty of it was brought to justice.
§ Mr. Roy Jenkins
The hon. and learned Gentleman must assume no more from my silence than that I do not wish to interrupt him.
§ Mr. Speaker
Order. The hon. and learned Member for Montgomery (Mr. Hooson) has the Floor. We are getting confused with so many hon. Members rising at once.
§ Mr. Hooson
The Home Secretary has brought forward no overwhelming evidence to justify this change. If there are cases, they are few, and even if these few are important there are other means of dealing with them. They do not justify making a change in this basic safeguard of our law. While we persist in the, so to call it, gladiatoral system in our criminal law, the unanimous verdict is a great protection. If the Home Secretary proposes to change a rule which has been found to work and work satisfactorily over centuries, he owes it to the House of Commons to bring forward a stronger case.
There was evidence in the eighteenth century of gross interference with juries. The prosecution very often tried to nobble juries at that time, and many of the decisions which are now great bastions of our liberty were made in the face of attempts by the prosecution to nobble juries. If there had been a reforming Home Secretary at that time who wanted to change the system because of a temporary series of attempts to nobble juries, 152 what then? Would his reform have been justified in the light of our knowledge and experience today?
Other means are open to us to deal with this problem. There is the ordinary criminal law, but there is another course, too. In any case in which an attempt was likely to be made to nobble the jury —it is reasonably foreseeable, and the number of cases is limited to big frauds and big crime involving gangs—
§ Mr. Hooson
—or conspiracy—why would it not be possible for application to be made to the judge in chambers, with prosecuting and defence counsel there, to have the jury segregated during the period of the trial? Such cases arise only rarely. No one should get away with the idea that these are commonplace occurrences in our courts. They are not. Why should not an application be made to the judge for the jury to be segregated? Would not this be much better, and ought we not at least to try it before making the fundamental change proposed by the Home Secretary?
§ Mr. S. C. Silkin
The hon. and learned Gentleman suggests that, when it is thought that the jury might be nobbled, there should be application to have the jury segregated. If the jury were segregated, would that not be telling the jury that it was expected that the defendant was the sort of person who would try to nobble them?
§ Mr. Hooson
If the jury were to assume that, then let them assume what they like. What happens at the moment, if an attempt is made to nobble a juror, is that he brings the matter to the notice of the judge, and very often in open court.
§ Mr. Sydney Silverman
The hon. and learned Gentleman might mention that, until comparatively recently, the jury was automatically segregated.
§ Mr. Hooson
That is true, and in the United States juries are often segregated today. I see no difficulty in this matter at all.
§ Mr. Hooson
The right hon. and learned Gentleman speaks of a six weeks' trial as though that, also, were commonplace in this country. It is not. A six weeks' trial is a rarity.
The Home Secretary referred to the rule in Scotland. This is a wholly misleading analogy. The Scottish system is completely different. They have a simple majority verdict. But prosecutions which are brought forward in England could not be brought forward in Scotland because the evidence does not exist. I know that the Scottish conviction rate is higher than the English one, but before certain evidence can be even tendered in Scotland there has to be corroboration. Such rules do not apply here.
If the right hon. Gentleman was saying, "We will take over the Scottish system, stock, lock and barrel" there might be something in it, but one cannot point to Scotland for one part of the system and say, "They have a majority verdict there and it works, so it will work satisfactorily in this country", where the laws of evidence are different.
I think that the Home Secretary has approached this reform in the wrong way. I have great sympathy with those who suggest that we need to rethink our position with regard to the criminal law and the way tthat we try to get convictions in criminal cases. I would not oppose fundamental changes if they were found to be necessary. I have long advocated that we should have an experiment with an inquisitorial magistracy system. I see that Lord Kilbracken, the Chairman of the Scottish Law Commission, advocated this in a recent series of Hamlyn Trust lectures. I think it right that in certain circumstances the accused should be asked to give evidence. I see no reason any longer for the maintenance of the old rule that the accused should not be made to go into the witness box.
I am prepared to accept this, but what I think is wrong is, on evidence as thin as that which the Home Secretary has put forward today, to change a fundamental of our jury system which has been found to work satisfactorily. Let it be hoped that the recent spate of attempts 154 to nobble juries is a temporary matter. The Home Secretary does not seem to have tried to deal with it in any other way. What we shall do if we pass the Bill is to take a leap in the dark, and we shall be making a fundamental change on completely unsatisfactory evidence.
In the light of this, I would have liked to divide the House on Second Reading because I think that it is so important, but I have been persuaded that as the Home Secretary invited a non-partisan approach this matter can be considered again during the Committee stage, and we shall reserve our position on it on Third Reading. However, I am sure that the House will be making a fundamental mistake if it changes the rule on this evidence.
§ 9.22 p.m.
§ Mr. Leslie Hale (Oldham, West)
The hon. and learned Member for Montgomery (Mr. Hooson) made an excellent speech but continued three minutes too long. He concluded by offering to abrogate other principles in order to have help in defending one. To suggest compelling an accused man to go into the witness box and take the oath and testify and be liable to be prosecuted for pleading not guilty seems to me a major alteration which ought not to have been introduced in a concluding sentence of what was otherwise a moderate speech.
Had a vote been forced tonight, I should have voted for this excellent Measure because of the many things that are in it, but if it comes back with Clause 10 unaltered I shall not vote for it in any circumstances whatever.
My right hon. Friend the Home Secretary has won very great respect for his courage and for his handling of the Home Office, but he erred twice today. One occasion was in a rather frivolous interruption of the hon. Member who asked—it was a fair question—whether there had been any prosecutions for tampering with juries, which is the only reason we are going to be given. The previous occasion was when the example of an alleged tampering with juries which had resulted in a unanimous verdict. How the production of a unanimous verdict can be regarded as an argument in favour of abrogation of this principle, I do not know. I put down some Written 155 Questions to my right hon. Friend, and the figures he gave today are not quite as impressive as those he gave me then. My right hon. Friend, most correctly, gave me information which was as full as I could reasonably have expected. On 25th October. I asked:…how many cases of alleged crime were tried in the most recent 12 months for ease of computation, before a High Court judge or Commissioner of Assize and a jury; and in how many cases the jury have failed to reach an agreed verdict.The reason for that phrasing is obvious. This seemed to me the sort of thing for which figures would be most readily available. In his reply, my right hon. Friend included the Old Bailey, because the figures are collective:Information in this form is not available, but, in a sample of 536 trials before a jury at Assizes and the Central Criminal Court in 1965, there were 10 trials in which the jury disagreed."—[OFFICIAL REPORT, 25th October, 1966; Vol. 734, c. 157.]That is a very much smaller figure than is mentioned in any of the articles we have read or in any of the speeches about the subject.
A distinguished lawyer wrote to me and suggested that I ask my right hon. Friend what happened in these ten cases. But when I practised in the courts I was told that I should never ask a question unless I had a rough idea of the answer. So, after replying somewhat priggishly to my lawyer friend, I found out. In these ten cases, six were found guilty, three were found not guilty and in one case there was a second disagreement.
One hon. Member opposite said today that juries do not disagree enough. That is true. Of course it is a nuisance if a jury disagree, but the whole point of unanimity is that 12 good men and true have come to an unbiased decision of guilt before a man is put down.
The right hon. and learned Member for St. Marylebone (Mr. Hogg), to whom I always listen with pleasure and often with instruction, made an excellent speech. I sat listening with delight, because I thought that it was going to get better as it went on. He postulated the right questions but did not supply any answers. Later on, he got slightly frivolous about this question of juries.
156 The jury system is as important a part of the constitution as any other democratic institution. Yet we are being asked to abolish the present system in Clause 10 of a mixed Measure containing an immense number of very useful provisions, with a major reform—I hope it works—in reducing the number of people unnecessarily in prison, which is perhaps one of the most important matters of penal reform, and on it I congratulate my right hon. Friend in the most generous terms. If we can stop locking up the immense number of people who should not be in prison at all we will have taken a major step to penal reform and reclamation in clearing what is too much of a mixed audience in our local prisons.
But, in making such an alteration to the jury system like this and in this manner, one might just as well abolish the Monarchy in Clause 5 of a mixed Bill dealing with public officials. On whose authority, on whose recommendation, is this being done? It is because some one says that one jury was tampered with and that no one was ever prosecuted for it. But, in that case, the jury came to a unanimous decision anyway.
The right hon. and learned Member made a somewhat frivolous interruption about sitting on a jury at a six-week trial. He spoke about the inconvenience of the juryman. It is very inconvenient to be in the dock at a six-week trial. If the right hon. and learned Gentleman —and if I am wrong he will correct me—will recall, I think he will find that the last of the six-week trials was one in which a large number of farmers were charged with conspiracy to obtain grants from the Ministry of Agriculture of false statements. They sat there for six weeks. They spent thousands and thousands of pounds in their defence and they were convicted. But the Court of Criminal Appeal said that there was no evidence of conspiracy at all, or that the only evidence of conspiracy was that they all happened to use the same auctioneer and, as they lived in roughly the same rural area, that was not surprising. The conviction was quashed after six weeks of standing in the dock waiting for the jury. In that case they were unanimous, but juries are not always right.
157 I admit that I am taking a conservative view, but it is about the preservation of a liberal institution.
§ Mr. Hale
No one says that juries are always right. What we say is that the public trusts jury decisions. Normally speaking, as we know, the Court of Criminal Appeal will not intervene with the verdict of a jury at all, except in the historic case from Liverpool when it was said that the verdict was so wholly against the weight of the evidence that it could not possibly be sustained.
The jury's verdict, the judgment of 12 good men and true, is virtually sacrosanct in our courts. The right hon. and learned Gentleman must not be frivolous about this. It is too serious a subject for frivolity. He knows perfectly well that judges make many more mistakes than juries do, and that it is trial by judge or by recorder which is nearly always responsible for producing the observation from the Court of Appeal, "What a pity that the case was put on at all" or, "What a pity that this or that section was overlooked or forgotten" and so on.
The jury was our great instrument against tyranny, twelve good men and true. The verdict of ten to two might well lamentably mean that there are two highly intelligent men who regard the issue as having so much importance that they are not prepared to surrender their judgment even to the majority. Those two are very likely to be right, more likely than the ten rather good-natured men who have agreed together under one dominant personality. We all know that this has happened.
§ Mr. Alexander W. Lyon
I can tell my hon. Friend of one case where that happened in just the numbers he has mentioned. Two intelligent men said that the accused was guilty and the other ten said that they could not understand the case and wanted to acquit. It took a long time, but in the end the jury convicted.
§ Mr. Hale
What has that got to do with it? The right hon. and learned Gentleman has quoted some cases in which he has said that something happened. We know all about this. If I wanted to quote cases, I could cite that of William Gardiner in which, on the first trial, there was disagreement by eleven to one for a conviction—in a murder case in which there was a good deal of suspicion, but nothing very conclusive—and in the second trial disagreement by eleven to one for acquittal, with a defence by the same people. Everybody knows that there are vagaries. I had a case in which my very distinguished counsel very charmingly made a blunder and asked the fatal question and got the wrong answer and the jury disagreed, and I changed counsel and had the most brilliant man on the circuit and the jury convicted us without leaving the box. Everyone knows that these things happen, and everyone knows that nobody scrutinises some of our democratic institutions through a microscope.
If one started looking at the monarchy for death watch beetle, one would find all sorts and sizes of things which might sap one's confidence. The strength of our belief in the monarchy is looking at the alternative. Think of the right hon. and learned Member for St. Marylebone as first President of the British Republic and how can we hesitate to retain the thing which we trust, whatever its defects may be!
This is rather more than that. I was a little sentimental about the abolition of the grand jury, which was an infernal nuisance but the powers of presentation of the grand jury were important constitutional powers. This still exists in many American States. The hon. and learned Member for Montgomery raised the position on acquittal but the truth is that we are introducing the Scottish verdict of "not proven". What is the good to a respectable man, of high character, of an acquittal by nine votes to three or ten votes to two? If it is recorded in open court that two men thought that he was guilty, that at the end of a long trial that two unidentified jurymen were convinced of his guilt, what is the good of an acquittal then?
This is the institution for which, on the trial of Throckmorton, the jury went to prison rather than give a verdict against 159 their conscience; the jury who acquitted William Penn were fined and imprisoned and kept in prison until heavy fines were paid because they had not complied with the direction of the Crown. I wish that the hon. Member for Ebbw Vale (Mr. Michael Foot) was here tonight so that we could refresh our memories about the treason trials of 1793, and 1794, about William Hone, fighting three days running for freedom of speech and freedom of publication, the jury who defied the verdict of Mr. Justice Abbott, who was replaced the next day by Ellenborough, who came to conduct the second trial and again the jury acquitted; he was tried on a third indictment and again the jury acquitted, in spite of the strongest directions from the Lord Chief Justice.
These are landmarks in our liberty. These are the things that matter, and no one has thought about this. With great respect, the right hon. Member made a most excellent speech for 55 minutes, and one thing that was utterly convincing were the sort of arguments that he put forward in favour of this. The right hon. and learned Gentleman the Member for St. Marylebone can say things that I would not dare to say. He said that he put a letter "P" against it as indicative of the place where the proposals came from. [Interruption.] I have to mind my Ps and my Qs. I am unable to find any other source that this rather casual idea, that on the whole rather too few people are being convicted, and it would be rather a jolly good idea if we could get more people by abandoning constitutional principles, which have secured liberty to our fellow citizens in the past. In my view, this is quite a monstrous proposal. It is a great pity, because it places what is in general a very good Bill in jeopardy.
There are two points that I would like to make, one because the learned Attorney-General is replying; and we do not often have the privilege of talking to him on such matters. The right hon. Gentleman said very rightly and profoundly, that our criminal law has to be looked at and has to be carried out and has to have the appearance of justice. It really has, even in these days, when all moral decisions have to be approved by the Treasury. We still ought to have regard to that, and I say that the time has come when we should ask the Director of Pub- 160 lic Prosecutions what he is there for and to whom he is responsible, and what he is doing about it.
The moment that one gets a limited company then it is free. If I could only form all of my constituents into limited companies—and a number of them are—they could do almost anything they liked, with complete freedom.
If the train robbers had had the good sense to form themselves into a limited liability company before the event, what would have happened? The Board of Trade would have said, "We see no reason for exercising our powers. This does not seem the sort of case which comes within our purview." The Director of Public Prosecutions would have said, "It is an extremely complicated matter and the question of whether notes which were going out of circulation and had gone out of circulation were money is a matter for profound and learned investigation." The right hon. and learned Member for Middle Wallop would have introduced a Bill under the Ten Minutes Rule procedure to say that engine drivers must be compelled to wear protective helmets. The Scottish banks would have got together and pooled enough money to buy themselves a rubber stamp so that they could deface their notes in Edinburgh and not expose themselves to the risk of coming to the great and wicked Metropolis, like The Guardian.
My right hon. Friend knows perfectly well the sort of cases to which I refer. I do not want to put people in prison. If the Department would rather have them yachting in the Mediterranean, I do not mind. There was an inquiry about Rolls Royce which cost a lot of money. I put down Questions about a couple of laundry companies. Arctic White was one. Both had something about Snow White, but no dwarfs. Both had a capital of £2. They got £1,000 from a very honest constituent of mine; and already Questions were being asked by a Member opposite. I sent all the particulars to the Director of Public Prosecutions and the Board of Trade.
Months later I dropped a note to them and was told that my letter had been sent to the Attorney-General. I asked the Attorney-General for a Written Answer as to why he had got it, and he said that it was because the Director 161 of Public Prosecutions, in accordance with the usual practice, which I had never heard of, had asked him to reply. So I waited another month and said, "If he has asked you to reply, why have you not done so?". Now I have a reply to say that the matter is in the hands of the Boa rd of Trade. [Laughter.] This is all very well, but my man was swindled and nobody doubts it. We should be capable of catching these people when they are engaged in wholesale national swindle.
People are interested in these matters. The Cadco report is out of print. I was never recommended to buy sausages approved of by his late most gracious Majesty I was once invited to an institution in Paris which was said to have basked n his patronage at one time, but that is a long time ago. But here is another story of a colossal swindle and it was said, "It is under constant consideration. Every avenue is being explored". We know what that means. It means that it is at the bottom of the "in" box instead of having been transwerred to the "out" box.
I should like to say in conclusion one thing which I have said before. I say it again because the right hon. and learned Gentleman was stimulating and provocative in the best sense of the word. He provoked even me to speculation. What do we send people to prison for? We do so because we have not thought of any other way of dealing with them. But is it any good sending them to prison for a long time? One of the troubles is that if we put them down for 30 years they get over the wall very quickly. There is an incentive from which most of them suffer which concentrates their minds, as Johnson would have said, wonderfully on the question of the wide open spaces.
But every day I read in the newspapers that we have to deal with crime by "upping" the sentences. We have been doing this all my life. Lord Chief Justice Goddard was appointed Lord Chief Justice soon after the war. He was a very distinguished lawyer, a very honest man. I have great respect for his views on punishment, which were much the same as those of Lord Ellenborough. Certainly they were not mine. He made a series of public announcements saying that people should be punished and that he 162 was going to stop crime. He put up the sentences, and the crime rate went up. Again he put up the sentences, and the crime rate went up.
In an Answer which I received, it was shown that the length of sentences in the cases of violent crime increased from 50 to 56 per cent. The Answer which I received from the Home Secretary a week or two ago was that they were still at least 33 per cent. higher than they were in 1938. The crime figures have gone up constantly all the time. I do not say that the one is necessarily a result of the other. I merely say that prison is the place where many criminals are made. As I have said before, it is not true that Little Lord Fauntleroy caused Bill Sykes to burst into tears and repent. He is more likely to have got him to thieve handkerchiefs and released earlier in order that he might organise a career of crime. We have to have understanding. We have to find some way of ensuring that the Home Office commands the respect that it deserves. I have no wish to direct magistrates. Only a few days ago a man of 79 in my constituency was sentenced to three months' imprisonment for a first offence. I thought that perhaps he had been sentenced because he had no home —but no. In another court a man of 33, tried for exactly the same offence, against exactly the same girls, in exactly the same circumstances, was fined £25. These disparities are matters that are rather shocking. A man of 79, spending his Christmas in prison, does not serve any purpose—and it costs us a lot of money, because a prison is an expensive place to run.
I am sure that my right hon. Friend's efforts will have the approval and even the benediction of the Chancellor of the Exchequer. To keep someone out of prison, it will save us £15 or £16 per week. I congratulate the right hon. Gentleman. I apologise that it is inevitable that one rises to criticise instead of to approve. It is for that purpose that we rise, and I hope that the Measure will go through without Clause 10.
§ 9.47 p.m.
§ Mr. Percy Grieve (Solihull)
I share the welcome which has been generally expressed to the Home Secretary from both sides of the House for the greater 163 part of the Bill. I say that despite the fact that I have reservations about a good many of the Clauses, which probably should not be expressed on Second Reading, but during the Committee stage. In particular, have I reservations about Clause 22, on which I would like to enlarge for a short time this evening.
I share the criticisms which were made by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg), about what is not in the Bill and about what, if I may put it this way, the Bill is not. Many hon. Gentlemen have said that this is a Bill in which one can see no single philosophic trend in the treatment of delinquency or crime. It is a Bill which deals with many matters that are being widely canvassed today as being proper for consideration, such as the crime wave and the importance of bringing our criminal law and procedure up to date.
As my right hon. and learned Friend said, it is sound in regard to the very important matter of the silence of the accused, and the extent to which, if at all, we should modify the rules of caution of accused persons, the lack of the right by prosecuting counsel to comment upon the accused's not going into the witness box, and matters of that kind. It is silent about the question of restitution. There are certain minor powers of restitution in the courts. I venture to suggest that this is a topic of considerable importance, and is one which should be considered today.
It is silent on the point raised by my right hon. and learned Friend the Member for St. Marylebone about estoppel and the rule in Hollington v. Hewthorn. I am bound to say that there is a considerable body of opinion which takes the view that when a criminal matter is decided in the criminal courts and has gone to appeal, or appeal has not been made, that ought to resolve not only the right of the accused vis-à-vis the Crown, but also the right of persons who are similarly interested in claims against the criminal.
In Continental jurisprudence, and in civil law in criminal proceedings there is a partie civile, and when a person is convicted of a criminal offence, for example, a bank robbery, the bank be- 164 comes the partie civile and gets such remedies as the court can give it and such restitution as the court is able to make. Any funds in the possession of the accused can be given to the person he has robbed.
It seems to me to be wholly wrong that in our law the bank which has been robbed has to bring a separate action against the accused for restitution, and in the course of those proceedings the accused may reopen the whole question of his criminality and put in issue matters which have already been determined by a jury. This matter is causing great concern to the courts at the moment and it ought to be dealt with in the sense that I have suggested.
The hon. and learned Member for Montgomery (Mr. Hooson), in an eloquent speech, discussing the jury system, suggested that the time had come when we might have a complete reappraisal of the whole of our system and might consider, for instance, whether it was not appropriate to have an inquisitorial procedure on the arrest of the accused so that he might be brought before an examining magistrate. I suggest to the House that we should be giving a great deal of thought to such matters. Clearly, that is not something which can be dealt with in a Bill of this kind.
As I understand it, the Bill is designed to make reforms in the existing system, and in so far as it sets out to make those reforms and to make the existing system work better in the modern context of an appalling rise in the figure of crime in the country, then, subject to detail, it has my approval.
I do not propose to go through every Clause, but I will turn, first, to consider the matter which, more than any other, has aroused controversy on both sides of the House, irrespective of the political allegiance of those who mentioned it—the majority verdict of the jury. Every generation faces new problems, and it is a great temptation to every generation facing the problems of that generation to cut down and undermine the liberties which may have been acquired painfully and expensively over the centuries.
If I may give an example, I believe that the proposal before the House not long ago for the compulsory taking by police officers of breath tests of persons, irrespective of whether there was any 165 reason to think that those persons were under the influence of drink, was an infringement of the liberty of the subject which was quite intolerable. It was an attempt made in a world and in a country where there is appalling carnage on the roads because people drive under the influence of drink. The same problem actuated many people to suggest that jury trials should be abolished in all such cases because, they say, too many get off. I would oppose that. This is how I have considered the proposal to have a majority verdict of the jury. The Home Secretary's reasoning is right.
I was profoundly impressed by the eloquent speeches of the hon. and learned Member for Montgomery and the hon. Member for Oldham, West (Mr. Hale) in defence of the present unanimous verdict, but we are inclined to be too influenced by the mystique of this ancient institution. During the war, we were content that people should be found guilty or not guilty by seven jurors. Why, then should we hesitate now, in the context of the matters which the Secretary of State described, to accept a finding of ten jurors—
§ Mr. Grieve
The ten will have to be unanimous among themselves.
The hon. Member for Nelson and Colne (Mr. Sydney Silverman) said that the Clause was directed against the disagreements of juries. Nothing of the kind. It is directed against disagreements by juries which have been obtained by subornation, corruption or intimidation. The right hon. Gentleman quoted compelling examples which have happened in London in recent months. A number of my hon. Friends and the hon. and learned Member for Montgomery asked, "But has this ever been known outside London?" Considering that this kind of intimidation or subornation is likely to be carried out only by the most audacious criminals working in gangs—the small people referred to by some hon. Members are most unlikely to be in this category—it would not be surprising if it had gone outside London.
166 To quote the name of a pamphlet published recently by some of my right hon. and hon. Friends, crime knows no boundaries now, and a good deal of the big crime in the provinces is committed by gangs working either in alliance with or directly from London. This has been my experience sitting on quarter sessions for many years.
As I said in an intervention in the speech of the hon. and learned Member for Montgomery, only a few months ago, I knew a case of an audacious attempt to suborn a juror. In a case which I was trying at Northampton, a man was sitting in the public gallery in the morning. The court adjourned for lunch and the jury rose with the usual warning not to discuss the case with anyone not of their number. At 2 o'clock it was reported to me that the man in the gallery had followed a juryman home in his car.
The juryman had left his car at his house. The man who had followed him said, "How are things going at the sessions?" The juror answered, "I must not talk about this." To which the man replied, "But that chap is not guilty and there is 50 quid for you if he gets off. You can have 25 quid now if you like". The juryman, fortunately, and honestly and in public spirit, went straight in and dialled the police, and the matter was reported.
I am glad to say that the man who attempted to bribe him, to interfere with justice in this way, in due course met his desserts—
§ It being Ten o'clock, the debate stood adjourned.
That the Proceedings on the Criminal Justice Bill may be entered upon and proceeded with at this day's Sitting at any hour during a period of two hours after Ten o'clock, though opposed.—[Mr. Roy Jenkins.]
§ Question again proposed, That the Bill be now read a Second time.
§ Mr. Grieve
He met his desserts at Birmingham Assizes, but had he fallen for that bribe justice might have miscarried.
The danger of this kind of activity lies not only in its possible success with juries, but in the way it can subvert the justice of a trial. There are various courses open to a court when this happens. It can 167 dismiss the jury altogether and start again. It can, as I was requested to do in that case, carry on, simply dismissing that jury man. But the jury wonder what is happening, what is going on in the background.
All this kind of thing interferes in a very grave way with the course of justice, and I believe that this simple reform is not a high price to pay—indeed, I do not believe that it is paying a price at all—to achieve a position where the criminals are most unlikely to interfere with juries, because it is unlikely, I imagine, on the face of it, that they will be able to interfere with more than one or two.
With regard to those whom other hon. Members have mentioned, the crank, or the person who has a grudge or a chip on his shoulder, who is holding out on the jury, we could have a juryman holding out on a jury with the object of conviction, whereas the enlightened opinion of the rest of the jury is that the accused should be acquitted.
§ Dr. M. P. Winstanley (Cheadle)
Cranks and interferers with juries apart, the hon. and learned Member referred to the breathalyser and new methods of dealing with drunken driving. I think that he would agree that the Minister of Transport has brought before the House methods of seeing that more drunken drivers will be brought to justice. Perhaps he would also agree that these methods will inevitably mean—I make no objection to this—that more innocent people are, in fact, to be charged. Would he not agree, however, that this therefore means that the defences for an innocent person must be absolutely up to the hilt?
§ Mr. Grieve
I do not concede for one moment that more innocent people are likely to be charged. I believe more people are likely to be charged, but that is quite another matter. As to the influence of alcohol on driving, and the degree to which people's driving may be impaired by alcohol, subject to the reservations I made, I agree with what was being done by that Bill.
I turn now to one or two other Clauses of the Bill, and particularly Clause 22, about which I do have a submission to make to the House.
§ Sir E. Errington
Would my hon. and learned Friend not think that in many cases the reason for disagreement in a jury is the inadequate summing up which sometimes happens—it happens rarely—from judges?
§ Mr. Grieve
Well, having had frequently myself to sum up I confess that I have not always found my summings up adequate. I dare say that others have found that. However, that may happen sometimes, but I do not believe it really is frequently the cause of disagreement.
One point before I come to Clause 11. I should like to deal with a point made by my hon. and learned Friend the Member for Surrey, East (Mr. Doughty), on the question of the time factor, which is introduced in Clause 10(3), which says:A court shall not accept a majority verdict unless it appears to the court that the jury have had not less than two hours for deliberation or such longer period…This is really a Committee point, but I am bound to say that I would be happier to see this Clause without this qualification. It would seem that the judge could deal with this matter when summing up to the jury, for example, by saying, "It is desirable that you should arrive at a unanimous verdict, but if you are unable to do so, then a verdict of 10 to 2 will be satisfactory". However, this is a Committee matter which we can go into at greater length at that stage.
I congratulate the Secretary of State on Clause 11. I agree that criminals should be kept off juries. Although I wholly approve of the Clause, I foresee certain administrative difficulties. How does the right hon. Gentleman consider that it will be implemented in practice? Will clerks of the peace and of assize have lists of people, householders in the area, who have had more than five years' imprisonment? That might result in abuse. I ask this question in a helpful spirit since this matter should be gone into, perhaps at a later stage, with care.
I do not wish to delay the House by consuming more than my fair ration of time. As a weapon in the armoury of the court in dealing with criminals, I have nothing but approbation for the suspended sentence. I cannot agree with the hon. Member for Rugby (Mr. William Price) that there is no difference between a suspended sentence and probation. There is a tremendous difference, 169 even allowing for the let-out which the Clause gives to courts to reduce the suspended sentence if the man comes up again.
It is a real sword of Damocles suspended over the head of someone who has erred and who knows not only that he is likely to go to prison if he offends again, but that, unless something exceptional arises, he will go to prison for the period for which he was originally sentenced. This is a powerful addition to the powers of the court and one which has been used in many Continental countries for many years with effect.
I take issue with the Secretary of State over the restrictions which Clause 22 imposes on the general powers of the court. In recent years there has been an increasing tendency in legislation to reduce the discretion of the court in dealing with offenders and to increase the discretion of the Administration. There is a fundamental philosophical problem here about the extent to which it is right to interfere with the discretion of the court. If one thinks back to 18th century philosophic thought, to Montesquieu and the conception of the separation of powers which determined a great deal of our present constitutional system, it seems that we may be going too far in interfering with the discretion of the court.
Clause 22(3) states:A court which passes a sentence of imprisonment for a term of not more than six months for an offence shall, subject to the next following subsection, make an order…In other words, a court shall not have the power to send a person to prison, when it otherwise would have done so, on a first offence. I appreciate that there is a saving clause which excludes…an assault on or threat of violence to another person, or of having or possessing a firearm…and so on, but I submit that this is not good enough and that it is far too drastic a limitation on the discretion of the court.
I believe that this will inevitably mean in many cases and this will happen particularly in magistrates' courts, although there is no limitation to that effect; it applies as much to assizes and quarter sessions as to magistrates' courts, although 170 the hon. and learned Member for Walsall, North (Mr. William Wells) thought that it would apply only to magistrates' courts —a grave limitation being placed on the discretion of the courts.
There may well be crimes of dishonesty in respect of which, because it is absolutely essential to discourage others, someone must be sent to prison for a short time. I agree with the strictures upon the short sentence which are generally made; but I agree entirely that there may be times when a short sentence, even for a crime of dishonesty, is necessary.
I will give one example. Sitting at quarter sessions I have never, save once, sent somebody to prison for a sentence of less than six months. The exception was a woman who had never been to prison before. She was a prostitute. The crime was that of stealing from a counter in a shop where a child had deposited it a purse containing the child's pocket money with which the child had gone out shopping. I may have been wrong; I am not submitting this to the judgment of the House, but it seemed to me that that was a crime which had to be marked as a matter of public example in the sentence, and I sent somebody, for the only time in my life, to prison for three months. Such situations will occur. They will occur more frequently before magistrates than at quarter sessions or at assizes, because magistrates know the local conditions and may have to make an example of somebody. This power should not be taken away.
I suggest, too, that the powers of legislating by order which are to be given to the Secretary of State by Clause 22(3,b) and Clause 23(5), under which the Secretary of State may extend the six-month period to 12 months, will put too much legislative power in this important matter into the hands of the Home Secretary, although I recognise such orders would have to be laid before the House and approved.
I have dealt with the two matters with which I wanted to deal in detail. I had comments to make on other matters. For instance, parole presents a number of difficulties, though I approve of it in principle. My right hon. and hon. Friends have dealt with these other 171 matters in detail, so I shall not further trespass upon the time of the House but resume my seat.
§ 10.12 p.m.
§ Mr. S. C. Silkin (Dulwich)
I welcome the Bill. I believe that it takes valuable steps forward in a number of directions. However, I deeply regret that it has not been possible to deal with the whole penal system in a far more radical and fundamental way than the Bill is able to do and to survey the whole concepts and purposes, in particular, of the custodial part of our system and to deal radically with them. I shall say something in elaboration of this when I deal with the question of parole.
The Bill seems to me to be concerned primarily with two objectives—first, the streamlining of criminal procedure, and secondly, the reduction of the prison population. I am far from saying that these are not extremely valuable objectives in themselves. Indeed, I would go further and say that by streamlining the procedure, by reducing the staff necessary to deal with procedure, and by reducing the prison population, the opportunity is presented for using prisons and prison staff far more effectively than they can be used with overcrowded prisons and with the staff being used far too much on purely administrative duties.
I deal, first, with one or two examples of streamlining. I applaud the streamlining of procedure, but it could go still further. I hope that my right hon. Friend will consider possible additions. For example, I believe that a great deal of time at the higher courts could be saved if there were an exhaustive review of the procedures there adopted. Is it really necessary in these days for all pleas to be taken orally? Cannot these be taken in writing before the arraignment? Certainly in the case of a plea of guilty let the judge make sure that that is what the man wants to plead. In certain cases it can take as much as half an hour to go through the pleas if there are a number of charges and a number of defendants.
Again, is it really necessary to take time swearing in the jurors in court? Cannot they be sworn in beforehand, the defendant being given the right to challenge them if he wants to? There are 172 other ways in which the procedure can be speeded up without any detriment to the rights of the defendant.
I agree with the proposals in the Bill concerning alibis. I think these are valuable. I invite the attention of my, right hon. Friend to something with which he is no doubt very familiar—the comment in paragraph 44 of the Report of the Criminal Law Revision Committee, that in the view of that Committee the alibi principle could be extended a great deal further to other cases. I have in mind charges of stealing where the defence is that the goods were obtained from some other person, and no doubt many other examples will be in the minds of hon. Members. I hope that the Clause can be extended in Committee.
Next, on procedure, I come to the majority verdict, a matter on which the House has been considerably divided. I cannot feel that a major question of principle is here involved. I cannot feel that Scottish juries can be wildly wrong in principle; I cannot feel that lay magistrates or appellate courts can be wildly wrong in principle by giving their decisions by a majority rather than unanimously.
If it is said, as it has been said, that one needs evidence to justify this change in our system, I would reply that this is the very kind of thing about which it is very difficult to produce evidence, certainly statistical evidence. It is very difficult for a Home Secretary to say that in this case and in that case a jury was nobbled or that the decision was wrong. It is very difficult for him to produce, even in the privileged confines of Parliament, the sort of evidence that he would have to produce in order to persuade people without a risk of the national jury being divided on this subject. I say—and I might not have, said it about all predecessors of my right hon. Friend—that I am quite satisfied that a Home Secretary as liberal-minded as the present one, who would be the last person to touch upon the fundamental rights and privileges of the citizen, would not be putting forward a Measure of this kind unless he were satisfied on the evidence available to him that this Measure is justified. I hope my hon. Friends will take the same view of the matter.
173 However, I must say that I, like some hon. Members opposite, have grave reservations about the two-hour precaution which is contained in the Clause. Of course, precaution is necessary. There must be some safeguard. But it seems to me that this is the wrong one. I cannot believe that the feeling of a majority of the jury that the minority, owing to its intransigence, is causing the jury to be kept in for two hours, is likely to produce well-balanced discussion in the jury room.
Other and more satisfactory precautions could be taken. I would like a provision that it would be within the trial judge's discretion whether to accept a majority decision, It should not be in his complete discretion, but I would lay down the kind of considerations he should take into account, and I hope that some of them would at least modify some of the criticisms made of that part of the Bill. For example, I suggest that he should have regard to the nature and seriousness of the case, to whether it is an original trial or a retrial after a disagreement, and if the latter, what the division was in the first trial, and which way.
I suggest that he should have regard to the length of deliberation by the jury relative to the complexities of the case, because some cases demand far more deliberation than others. I would require him —others may disagree—to have regard to whether the majority is in favour of acquittal or conviction, because I think that there should be much greater readiness to accept a ten to two majority for acquittal than for conviction.
§ Mr. Hooson
Is the hon. and learned Gentleman's point that there would be a different standard for serious cases and less serious cases?
§ Mr. Silkin
Certainly that is my point, and I think that it is perfectly right and valid. It should be much more difficult to convict for murder, for example, on a majority verdict than in a much less serious case which is likely to have much less serious consequences. I would certainly accept that.
I turn from procedure to Part II of the Bill, concerning the courts' power to deal with offenders. Here the Bill, in my view, produces progress, but I would make the general criticism that that pro- 174 gress seems to be directed more to a reduction of the prison population than to providing the best method of treatment for people when they are within a custodial institution, and how that can be related to each case.
I think that it is right to abolish preventive detention but that something far more far-reaching is necessary than the proposed extended sentence. We should be taking measures to deal with two specific classes of offender, the type that may be regarded as the persistent nuisance and the type that is a danger to society.
We should be considering alternatives to our present system, and putting into effect such ideas as sheltered workshops, a vast extension of the hostel system, and perhaps even custodial colonies, where it may be necessary in the last resort to put people for a very long period, even until they are no longer with us, if that is the only method of giving them the support they need, or if it is necessary for the protection of society. If we do that, we must have regard to the conditions in which they are to live, and in those circumstances those conditions should not be the same as in our ordinary prisons.
I reserve my judgment for the moment on suspended sentences. The Bill tries to solve the inherent dilemma in suspended sentences which is this: does the court mean what it says, or is it merely threatening something which may later be disregarded? There is some value in the provision as a kind of intensified conditional discharge. It is certainly no more than that. On the other hand, there seems to me to be a danger that some courts might regard it as a substitute for a probation order, and that could be very dangerous.
§ Sir J. Hobson
Perhaps some courts will not have the courage to eat their words when they find that they should.
§ Mr. Silkin
I agree that that is another possible danger. When someone comes to the end of a two-year period of suspension and commits a very minor offence, thereby possibly rendering himself liable for a very heavy sentence, it would be very difficult for the court that then deals with him to make the decision whether to impose the suspended sentence or cut it out.
175 As I said, I think that the real danger is that some courts may regard it as an alternative to probation, and in my view probation is one of the most valuable powers the court has. Nothing should be done which could possibly derogate from its value in any way. I myself regret that the opportunity has not been taken in the Bill to remove the restriction on combining probation with a fine, because I believe that in many cases this restriction may prevent the making of a probation order which would otherwise be desirable.
I come now to Part VI of the Bill. Unfortunately, because I was getting practical experience in being a criminal judge, I did not have the advantage of hearing the whole debate, and I have not heard anyone deal with the provisions of Clause 59 on alcoholics. I welcome this Clause very much, but I regard it, nevertheless, as disappointingly insufficient. The prevalence of alcoholism is extremely serious in this country. It is very much more serious in the United States, but even here it destroys life, it destroys health, it destroys working capacity, it causes abseentism, and it causes crime.
It is absolutely right that we should regard alcoholism as a disease rather than an offence, and this is what the Bill begins to do, but it does no more than take the offence of being drunk and disorderly out of the criminal calendar. The intention is to keep some people out of prison, and that is good, but, in my view, what we need is a positive policy to treat and cure alcoholism at an early stage. It must be a wide-ranging policy going much further than simply dealing with the person who is said to be drunk and disorderly.
There are other offences which are simply offences of drunkenness, but, quite apart from them, I think that, when a court believes that a person who has committed for example, a petty crime as a result of alcoholism and that such person could be treated better in a hostel for alcoholics, it should have discretion to send him there rather than commit him to prison. There should be a wide extension of the hostel system.
I come now to the provisions for parole. I said earlier that it seemed to 176 me that one could make the greatest criticism here and the greatest case for a far more fundamental review of our penal system than the Bill enshrines. I give a qualified welcome to the parole provisions. It seems to me that, preeminently, the purpose here is to reduce the prison population, and little more than that. The purpose should be far deeper. The whole purpose of parole should be to send a man out into the world, whether with supervision, with guidance, or entirely on his own feet, at the right time to enable him, if he possibly can, to learn responsibility and to learn to find his place in the world.
If that be the object, as I believe it should be, it is vital that the parole concept should be part and parcel of a much wider concept. I believe that sentences should at least experiment with a degree of indeterminacy such as, for example, the borstal sentence has. But quite apart from the question of indeterminacy, it is vital that there should be a far more thorough system of classification procedure, such as exists in California, after a man has been committed to a custodial institution, so that it is possible, within the limits of human judgment, to foretell the kind of response a man is likely to make both while within the institution and ultimately when he is placed on parole.
I do not believe that one can possibly accomplish this by some mathematical formula. One has to decide the right time for each individual. I believe that the right way in which to decide the right time is not the way that the Bill enshrines but by a system of permanent parole boards, which ought to include both people with experience of social welfare, prison work and so on and also lawyers, so that regard can be had both to the interests of the individual and to the interests of society. This is particularly necessary if one introduces any degree of indeterminacy into the sentencing procedure.
Finally, on the necessary concomitants of parole, I believe that there must be a system of supervision and after care which is integrated with the whole system of parole and which enables recall by the parole board to be obtained where that is necessary, but which in the meantime gives the man who is out on parole the amount of guidance and support, 177 whether in hostels or sheltered workshops or on his own, that he will require to enable him to take the greatest advantage of it.
Generally, as I have said, I regard the Bill as a major step forward in many directions, but at the same time I must criticise it on the basis of its being piecemeal and lacking a comprehensive philosophical base. I believe that that base could have been provided, though no doubt not at this moment in time, not so early as now, by the Royal Commission, which unfortunately died. The Government are not to blame for that. I have said that before, and I say it again, and I hope that no one will dispute it.
None the less, it seems to me to be a tragedy that we now have to grope forward lacking a clear definition of the concepts and purposes of the penal system that we are operating, lacking 178 even, as has been mentioned, any real knowledge of the effect of different forms of supposed deterrents and without both the guidance and the support which the authority of the pronouncements of a Royal Commission could have provided.
I do not believe it is too late. The Bill is not the last thing that will be done or said on the penal system. It will be an experiment. There are many features of it which are very valuable. But we shall all, I believe, want to go very much further. I believe that even now it would be possible for the Government to set up some new form of comprehensive inquiry which, while the experiments in the Bill are being tested out, will give for the future guidance as to the real philosophical basis and the real concepts and purposes that a penal system ought to have in the modern world.
§ 10.34 p.m.
§ Mr. Walter Clegg (North Fylde)
Many hours ago I thought that if I caught Mr. Speaker's eye I would make a long and powerful speech, but I am happy to tell hon. Gentlemen that most of what I would have said has been said far better than I could say it. So I shall be as brief as I can at this hour of the night.
I thought that the hon. and learned Member for Dulwich (Mr. S. C. Silkin) advanced the strangest argument of the evening about juries, that the argument should rely on the personality of the Home Secretary. I do not agree with that. I refer to this because, like the hon. and learned Member for Montgomery (Mr. Hooson) and the hon. Member for Oldham. West (Mr. Hale), I feel that this is a matter of the heart. I know that my right hon. and learned Friend says that it is a question of mistique, and that, almost, in his view, I regard it with awe and superstition. But I think there is something valuable here and what the hon. and learned Member for Montgomery said expresses my view strongly.
Perhaps I can turn to the problem as I see it as one who, as a solicitor, has practised in the criminal courts for many years. Unlike some members of the Bar, we are in contact with the client after acquittal or, very often, after sentence has been passed. If he is acquitted we see him trying to reintegrate himself into the life of the community. This is where a unanimous verdict is extremely valuable.
It even happens now that when a man has been charged some uncharitable people will say, "There is no smoke without fire." But at least a man who has been acquitted on a unanimous verdict can face the world and say, "I was acquitted", and of that there is no doubt. But if we have majority verdicts, I am afraid that when he goes into a pub or a club someone will say, "It is all very well but two of them thought he was guilty."
One must also consider the reactions of his wife and children to a man who has been charged with an offence but acquitted. When he is acquitted by unanimous verdict he can face his family and say, "I was acquitted. I am innocent." I agree that, to a lawyer, the 180 verdict of a jury does not necessarily mean that, but basically it does to the man in the street—and that, basically, is the point. But if two members of the jury have said that they thought he was guilty it could leave doubt in the minds of the man's wife and children and, in a moment of disagreement, this could be thrown at him and that would be a bad thing.
§ Mr. Brooks
I am grateful to the hon. Member. I am trying to follow his reasoning. Is he arguing that a person acquitted on a majority verdict would prefer instead the situation, which could arise at present, where there might be a ten-to-two vote and a hung jury and a second trial at which it would be impossible for him to prove that, at the first trial, perhaps as many as eleven thought he was not guilty?
§ Mr. Clegg
I am sorry. I thought the hon. Gentleman meant a jury that had been tampered with. Where there has been a disagreement, obviously it can be said under the present circumstances that some members of the jury thought he was guilty. But, if we import a majority rule, we will get more disagreements than we are getting now. I am as certain of that as one can be in these circumstances.
§ Mr. Clegg
I am sorry, but a number of other hon. Members wish to speak and I have very little time.
I have been considering the man who has been acquitted, but what about the man who has been convicted and is in prison, knowing that some members of the jury thought he was innocent? Is that going to make life tolerable for him in his cell with the canker eating into his mind? He will say to himself, "Two people on the jury thought I should not be here."
§ Mr. Edward Lyons (Bradford, East)
Would it not be rather the case that he could say that ten people were satisfied absolutely that he was guilty and not that two thought he was innocent?
§ Mr. Clegg
The hon. Gentleman may say so, but the man in the cell will not. He does not think of it in those terms, but in terms of "Two people voted for me and thought I was innocent." He feels that he is innocent. He knows that he is. This could make a vast difference to a man suffering a long term of imprisonment. According to the figures given by the Home Secretary, in some fourteen cases there was an acquittal on retrial and, therefore, we could get men who are free but who, if there had been a majority rule, would be in prison.
I turn now to the subject of parole. I share the doubts of many hon. Members on both sides of the House who are not satisfied—and I do not think that the Home Secretary is—that we have reached the right procedure for dealing with parole. I think that it was the hon. and learned Member for Warrington (Mr. W. T. Williams) who used the phrase "hope deferred makes the heart sick". This is something which has to be avoided in our procedure.
I say this with a little experience, because I was a prisoner, not in one of Her Majesty's prisons, but during the war, when I was a prisoner of war for three years and when we used to buoy ourselves up with the hope that the war would end by Christmas. With every allied defeat—and there were many on the way to victory—our hopes receded, and there was great bitterness—the heart was sick. If we have a parole system so that a man has his hopes buoyed up and then dashed down, we will find within the prisons that those who are kept become very bitter, men with sick hearts, and very difficult for the prison staff to deal with.
I agree with the Home Secretary that parole would be a move forward, but in Committee we shall have to think very carefully about how it is to be done. I agree that the man concerned ought to be present at the inquiry to put his own view. There was great feeling when convicted men were not allowed to hear their case presented in the Court of Criminal Appeal, and that is a consideration which ought to be borne in mind.
Fundamentally, the Bill does not go far enough. My right hon. and learned Friend the Member for St. Marylebone said that we ought to look again at the 182 whole underlying basis of our law. I thoroughly agree, but that would take a great deal of time and would probably need a Royal Commission. There are things which the Bill could do, but which it does not do. It will not increase the rate of detection of crime, and, if as the Home Secretary says and I agree, detection is the best of all deterrents, then by the test of increasing the detection rate the Bill fails.
The Bill should contain a provision which would improve the procedure of the law not only when a man is caught but before he is tried. This relates to the silence of the accused. The hon. and learned Member for Warrington made some mild suggestions about this, and in his pamphlet "Silence of the Accused" my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) also made some suggestions which could be included and which would increase the detection rate and would have more effect in the battle against crime—and the Home Secretary described it as a war—than any other measure in the Bill. While the Bill is going through Committee, I hope that the Home Secretary will see whether something on these lines can be done.
The use of a juge d'instruction has been suggested. There are many arguments about that, including that of time, but in Committee we could consider having an examining magistrate, not, as in France, in charge of the case, but to get away from what many people fear if the present cautions and silences are taken away—police bullying. An accused would be brought before a court and there questioned in conditions controlled by the court in that the magistrate would become an examiner—holding the ring as a referee. This would be practical without too great a change in the fundamentals underlying the Bill, and it might do a great deal of good to consider that in Committee.
§ 10.45 p.m.
§ Mr. David Ensor (Bury and Radcliffe)
At this time of night, my remarks will be very short. I want to remind the House that in 1956–57 there were 21,000 people in prison in this country; in 1965–66 there were nearly 31,000 people in prison. In 1965–66 there were 60,000 people on probation, 8,000 in approved 183 schools and 6,000 in borstals, as opposed to a prison figure, in 1940, of 11,000.
If these figures show anything, they show that it is about time we did something about the administration of justice. Since 1950, on both sides of the House, there has been a good deal of talk about doing something about the administration of justice. I commend this Bill to the House because it is a great attempt to do something about trying to rescue what is really a grave social problem.
In the time at my disposal it is obvious one cannot attempt to deal with the Bill in detail. I would have liked to have talked about psychiatric treatment of prisoners generally, the allocation of boys in borstals, and so on. I propose to deal with one problem, which has exercised the House, and that is the question of majority verdicts. The House will agree that throughout the afternoon and evening we have had a most informative debate. It has been extremely interesting and hon. and right hon. Gentlemen on both sides have contributed greatly to the interest and information.
Where some of my hon. and right hon. Friends have made a mistake—and I was particularly interested in the remarks of the hon. Member for Runcorn (Mr. Carlisle)—is that we are not necessarily dealing only with corruption. We are dealing with incompetence, fecklessness, and irresponsibility as well. It is perfectly obvious—and I say this with some diffidence, because the whole of my professional life has been spent in prosecuting—that it is a well-known fact that a vast number of people are being acquitted who ought to be convicted.
This does not only apply to crime but to a variety of cases, such as drunk in charge, sexual offences and offences which in some way are connected with drink, gambling and so on. It is an unfortunate fact, but it is a fact and one which we have to face. Everyone would agree that it is vitally important that the innocent should be acquitted. It is also equally important that the guilty should be convicted. That is not happening at present. It is not happening, not because my right hon. Friend the Home Secretary cannot prove matters, or because there has been no one convicted of corrupting a jury. This is not a question 184 only of corruption. It is a question of incompetence and irresponsibility—and it must be stopped.
This Clause is excellent. I would go further. I would do without juries altogether, because I believe that one would get a fairer and better trial, generally, and that justice would be fairly administered without a jury. There could be a trial before three judges, for example—and that takes place all over the Continent adequately and satisfactorily. I am not prepared to suggest that we in this country should go as far as that at this stage, but perhaps my right hon. Friend would consider whether ten to two is the right proportion, or whether it should be nine to three. Whatever it is, I am certain, speaking from a practical point of view, that this is a sound provision.
It has been said that the administration of justice in Scotland cannot be compared with that in England and Wales. With that I do not agree. The administration of justice in Scotland is admirable from a great many points of view, not least in the fact that they have majority verdicts in their juries.
It is admirable from another point of view—and I move rapidly in the last few minutes to a matter which causes considerable distress and alarm not only to hon. and learned Gentlemen on both sides of the House but to the general public. I refer to the taking of statements from persons who have been arrested and/or charged with criminal offences. In this country for many years we have had the judges' rules. They have been twisted, turned inside out and twisted back again so that it is rather difficult to recognise them in their original form.
Where Scotland can give us a lesson in the administration of justice is in the taking of statements from persons who have been arrested and/or charged with offences. In Scotland, once a man has been arrested and/or charged with an offence, he may not be questioned. If he wants to make a statement, it must be made in the presence of a magistrate or in the presence of a police officer who has nothing whatever to do with the offence with which the man is charged.
May I illustrate the difference between England and Scotland by giving figures for homosexual offences. In this country in the last four years, 94 per cent. of the 185 persons found guilty of such offences were found guilty on their own statements. In Scotland the percentage was less than 4 per cent. That illustrates the difference in the taking of statements in the two countries. Perhaps my right hon. Friend will consider this point when dealing with the taking of statements.
Generally speaking, this is an excellent Bill. I regret—although probably the House does not agree—that I have not had more time to talk about it in some detail, but I commend it to the House in every possible way.
§ 10.54 p.m.
§ Mr. Norman St. John-Stevas (Chelmsford)
I am glad to have a few minutes to say a word or two on the Bill. First, I welcome the Bill as a whole. In the circumstances of our present criminal knowledge and the state of development of our criminal science, this is probably the best Bill we could expect at this stage. But it is certainly not a revolutionary or radically reforming Measure, nor does it put the criminal law on a permanently satisfactory basis for the future, as my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) said in a remarkable speech.
The criminal law of England is a ramshackle house which has grown up over the centuries in accordance with few fixed principles and the only satisfactory solution is to pull the house down and build a new one from new foundations. A number of things are needed. We need a criminal code. We have had one in embryo for nearly a century, provided by Mr. Justice Stephen in the last century—adopted in India but ignored here. We need a new code of evidence and procedure. Above all, we need clear ideas about the purpose of sentencing.
If we are agreed that that purpose is not mainly punishment but to protect society by rehabilitating and reforming the criminal, then we should spend much more on criminology. The Home Secretary is unfortunate because he has been born too soon. The inadequacies of his Bill are directly traceable to our rudimentary knowledge of criminological science in this country.
I want to criticise severely one principle which I detect in the Bill, that at all costs the number of convictions 186 obtained should be pushed up. My first criticism concerns the provision about alibis. There has been a general mellifluous cooing of agreement about this proposal. I am sorry to interrupt with a raucous cry of dissent, but this provision is unjustified. There is, after all, a built-in regulator stopping false alibis, because if an alibi is proved a fake in the courts it is inevitably taken as an indication of guilt. Second, there is the question—not answered in the Bill—as to who will investigate the alibi.
If it is a police officer alone, this will be gravely prejudicial to the accused. One of the recommendations of the Criminal Law Revision Committee was that the defence solicitor should be present while evidence concerning an alibi is being taken from a witness. Why has that recommendation been excluded? Furthermore, if the defence is required to give advance notice of alibis now, what is to stop future Home Secretaries demanding advance notice of other matters, other defences which are to be raised such as self-defence or provocation.
§ The Attorney-General
This was the recommendation of the Criminal Law Revision Committee, which thought that the matter should be dealt with by administrative arrangements.
§ Mr. St. John-Stevas
I am grateful to the right hon. and learned Gentleman.
I press on to the second point about which I have the gravest doubts, the proposal to abolish the unanimity verdict of the jury. This is a principal fundamental to our law. We are told that it is different in Scotland. I say to that, so what? This is England, not Scotland, and here we are governed not by the rigours of the Roman Law but by the flexible processes of the Common Law, shot through with the natural law concepts of, fairness, reasonableness and equity. There is a reasonable working rule when considering for passing judgment a change in our fundamental constitutional law.
Has the case been established beyond reasonable doubt for altering that principle? Nobody this evening can say that the Home Secretary has discharged that burden. Where is the proof that the unanimity rule needs altering? Where is his evidence? We had some evidence 187 which could have been used to conclude that we should alter the rules for challenging jurors, and some evidence that the police ought to be more vigilant in stopping corruption of jurors. But we had none whatever for the abolition of the unanimity verdict. The only real justification for the change in the rule is that it may give some psychological comfort to the police, particularly the Metropolitan Police, with whom the Home Secretary has been rather over-concerned.
Yet it is precisely this argument of giving psychological reassurance which he has resisted when he has been asked to restore capital punishment and refused to do so. He has resisted that argument again, in the case of prison officers, when asked to maintain corporal punishment in prisons, and rightly so. If the confidence of the police is to be bought at the price of the confidence of the public in our system of justice, then that price is much too high to pay. I hope that on this most vital matter the Home Secretary, who has a reputation for liberality, will think again, otherwise he is liable to go down in history not as a reforming and liberalising Minister but as the Home Secretary who undermined one of the most fundamental institutions of our law, protecting the liberty and rights of the subject.
§ 11.1 p.m.
§ Sir John Hobson (Warwick and Leamington)
There can be little doubt that we have had a very spirited and enlivened debate upon the whole of this fascinating and important topic of criminal law and criminal procedures and upon the treatment of prisoners and penology. I particularly welcome the fact that so many hon. Members who are not lawyers have taken part. The right hon. Gentleman the Home Secretary himself, of course, comes within the category, as do the hon. Gentlemen the Member for Glasgow, Woodside (Mr. Carmichael), my right hon. Friend the Member for Ashford (Mr. Deedes), my hon. Friend the Member for Sutton and Cheam (Mr. Sharples), the hon. Gentleman the Member for Birmingham, Lady-wood (Mr. Victor Yates), and the hon. Gentleman the Member for Rugby (Mr. William Price).
188 I am quite sure that it really is essential that this extraordinarily difficult topic of crime and punishment should be the subject of discussion, not merely by lawyers, though their presence is essential, but by ordinary intelligent citizens who take an interest in these topics, and I hope that in Committee we shall have an equal, or larger, proportion of ordinary Members of the House, mixed with lawyers, so that we can endeavour to get to the heart of these procedures.
The Bill started out with flags flying high, but it has seemed to me that as the day has progressed it has been praised with innumerable regrets, because there has been much criticism aimed at many of its provisions. Of course, in general, it has much to commend it, and we certainly do not think that it would be right on Second Reading, in view of the good parts of the Bill, to vote against it. It is to a great extent a Bill which requires very detailed examination indeed in Committee, and that is where the major work upon it will have to be done; but almost everybody who has spoken in this debate has, I think, voiced some criticism of one or other aspect of the Bill. I think that the Government can take comfort from what people did not say—that they presumably agree with much of it, and if we analyse much of the speeches and see the limits of criticism we find a great deal of the Bill remains agreed by many speakers.
Nevertheless, there have been substantial criticisms of many phases of the Bill. I think that the fundamental feeling of the House has been that it is a Bill which does not go really to the heart of the problem which we all face today. Certainly, it does not, for instance, affect the substance of the criminal law. It touches only procedures and sentences and the treatment of offenders, and it does not provide the many radical solutions which many Members of the House would like to see, and, as has been constantly reiterated from all benches, particularly by my right hon. and learned Friend and by the hon. and learned Gentleman the Member for Dulwich (Mr. S. C. Silkin), it does not seem to proceed upon any fundamental and philosophical approach to the problems of crime and punishment 189 Having said that—I agree in this with the approach of the hon. Gentleman the Member for Nelson and Colne (Mr. Sydney Silverman)—there is much of it which people will welcome, there is much of it which will bring about interesting and necessary improvements, much of it which will raise many problems, and there is some of it which raises considerable doubts and requires much more detailed examination in Committee, and some of it which requires a great deal more explanation and justification before it should receive the approval of the House.
With 96 pages and Schedules galore, this is certainly an indigestible Measure. As for eloquence, it is not the sort of document one would wish to have for bedside reading. The Home Secretary said of it on television that it would strengthen the hand of all those engaged directly in the war against crime. He did not make such a high claim today, but merely said that it was directly relevant to the prevention of crime in our society. I believe that it is too optimistic to say that the Measure will have very much effect on the problem of the level of crime, and I do not believe that the rafters of many thieves' kitchens will, in the succeeding weeks, be ringing with the anxious voices of their inmates bewailing the Bill's passing, even in its entirety.
It is regretted on both sides of the House that the Measure does not seem to be supported by a theme, a real approach, to the problems of crime and punishment. I add my voice to the regret that has been expressed that the Home Secretary was unable to keep the Royal Commission on the Penal System together. We need a new and fundamental approach to the whole problem of what we are trying to do in dealing with not only those who have been arested and convicted, but with the prospective criminal and how he can be prevented from embarking on a life of crime.
After all, there were so many suggestions that one hoped would come from the Royal Commission, such as the idea employed on the Continent of sending people for custodial punishment; treatment at weekends and evenings in prison. I have always favoured the idea that those involved in, for example, serious 190 motor accidents should be sent to work in casualty wards of hospitals, watching motor car cases being brought in on stretchers. People who commit these sort of crimes should be made to do something useful for the community, instead of merely being told that they have been found guilty and given some sort of punishment.
The speeches of hon. Members have shown that the House appreciates that the only deterent weapon left in the criminal armoury of the courts, and the punishment of the courts, is imprisonment, apart from fines and probation orders. The only serious weapon today is imprisonment, and we have all recognised the serious limitations and defects, in many instances, of having that as the sole weapon for the protection of society. To this extent, I regret that the Royal Commission did not continue its work, even if it was fundamentally divided. Two reports provide an exceedingly interesting basis from which to see the arguments of both sides, and I have always thought it a good idea that Royal Commissions should have large minority reports, for one can thereby see the arguments and disagreements clearly and judge which courses it is possible to follow.
§ Mr. S. C. Silkin
It was not an argument about what should be done, but an argument for trying to find out what should be done.
§ Sir J. Hobson
That may be so. However that may be, another important aspect of what we are doing is the extent to which we are going to have any research into the operation and effects of the Bill. The Home Secretary did not mention how, if at all, research would be conducted—or by whom it would be carried out—into the operation and effects of some of these proposals. I hope that the Attorney-General will give an indication of the special research that will be done on this aspect. Are any projects in hand? If so, by whom? So far we have been given virtually no information about, for example, the effects of the 1948 Act and other provisions that have been passed since then. We know insufficient about what we are doing when we pass legislation which attempts to deal with the criminal law.
191 If we are not to have a Royal Commission, if we are not to have a code of criminal law and if we are not to have a code of procedure and evidence—or if there is no prospect of our getting these things—could we be told how the Government, and the home Office in particular, see the part of the Law Commissioners in future in the reform of the criminal law? Is the Home Office making use of them for help and advice, or is the Home Office ignoring their existence? In the extensive programme of law reform that the Law Commissioners have undertaken, a programme of 17 parts, with some fundamental problems that they are examining in the civil law, their only concern as far as the criminal law procedure is concerned is with imputed criminal intent—the single case of the Director of Public Prosecutions v. Smith, which is a well-known target for Left Wing commentators and propagandists, and I think it is a difficult problem, but it is not all that important; secondly, the archaic crime of maintenance which nobody is ever charged with nowadays; and, thirdly, obsolete crimes. This is the total extent of the Law Commissioner's involvement in criminal law under their formal programme.
It can hardly be said that they are in the forefront of any measures that may be contemplated or that ought to be taken in the reform of our criminal law and procedure. What part have they taken, if any, in the preparation of this Bill? Has this Bill been referred to them? have they had a chance to comment on it, or will they have the chance to comment on it, or is it the intention on this Bill and future Bills for the Home Office to ignore their existence? What is to be the relation in the future of the reform of criminal law procedure between the Home Office and the Law Commissioners?
Perhaps I could now deal with some of the important elements that are contained in the Bill. Certainly, I think that one of the most important, and one which may lead to most discussion in Committee, is the power of the Secretary of State to release on licence after one-third of the sentence has been served and his power to revoke the licence or parole when it has been granted. This is the 192 first occasion, apart from the provisions of the Murder (Abolition of Death Penalty) Bill, in which a power has been given to the Executive to take a part in deciding what shall be the actual length of punishment of a person other than the formal remission for good conduct.
I should make it clear that I am not opposed to the power to license, but I am opposed to it being placed exclusively in the hands of the Executive, exercise-able in secret by the Home Office for almost all prisoners who will find themselves in prison without any principles laid down by Parliament or by anybody else as to the way in which this power should be exercised, and with a complete discretion as far as the Home Secretary is concerned to use any machinery that he pleases or to take any advice that he pleases or that any of his officials please, subject to political questions and adjournment debates in this House if in particular instances individual Members consider that the Home Secretary ought to have exercised his power to release on licence or to revoke a licence in a different manner.
I am even more strongly opposed to the power of the Home Secretary to revoke a licence which is a deprivation of liberty, because I have always thought, and I said so on the 1961 Measure, that it is for the courts to decide whether the conditions are fulfilled on which a man should be deprived for the second time of his liberty.
The question of a parole board or its equivalent first arose on the Murder (Abolition of Death Penalty) Bill when it was suggested from this side of the House that not only all murderers but long-term prisoners—because it would be absurd if prisoners should be detained for life—should be subject to the same system.
§ Mr. Sydney Silverman
It is true, as the right hon. and learned Gentleman says, that that was suggested from his side of the House. It was also suggested from this side of the House. It was part of my own Second Reading speech.
§ Sir J. Hobson
Yes, I recognise that today there is a great deal of unanimity of view in all quarters of the House on how these parole boards should be drawn up. The power to release 193 at discretion on licence otherwise than by way of automatic remission for good conduct must be part of the provisions and functioning of the penal system as a whole.
That simply cannot be divorced from the sentencing policy of the courts, unless their sentences are either to become meaningless or they simply increase sentences in order to diminish discretion in general. To try to divorce it from the way in which the judiciary are exercising part of their powers must in the end lead to trouble.
As I see it, there are three possible systems. First, that those responsible for custody should be responsible for release. I am quite sure this is wrong and I regret that the Home Secretary's proposal places too much emphasis on those who have custody of the prisoner deciding on his release. If the governor is to be chairman of the committee, the prison visitor on the committee and the police to provide the third, I would have thought that this was not a satisfactory body either to take decisions or to give advice.
Secondly, one could have an independent board whether with or without representation from the judiciary. This I would much prefer. It is the system followed in America, and it is one which has received a great deal of support in the House.
Finally, one can have an executive decision in private with absolute discretion. This is what the Bill really provides. Whatever may be said about advice from the prison, the decision will be by the executive and subject to political pressure. I am convinced that this is the worst possible solution.
I am deeply grateful to the Cambridge Institute of Criminology for being good enough at short notice to provide me with a great deal of information about experience in the United States, at both Federal and State level. There is no example there where power of release on parole is done by executive administration, and none where it is done by a political Minister. It used to be done in a small number of States by the prison authorities, but that it has been abolished in every single State in the United States. In every instance now there are statutory State agencies, often employing full-time 194 members, and usually appointed at the highest level by the Governor and the Senate, and often with links with the judiciary because the Chief Justice or the Attorney General is entitled to appoint a proportion of the members.
In 1964, 60 per cent. of all releases from prisons in America were on parole, so they have got a good deal of experience of working a system of this sort. Their jurisdiction to consider is often linked to a proportion of the maximum sentence and not to the actual sentence. This has some logic because if the Judge extends mercy, why should others extend greater mercy?
I think that the fundamental decision that has to be taken on parole boards is whether or not one envisages them as normally releasing somebody at an early stage, or whether one regards it as a system where nobody will get early remission except unusual persons with particular things to be said for them.
I find it difficult to envisage a separation of the sheep from the goats, and to say that a proportion of 60 per cent. to 40 per cent. either get out or do not get out. I do not believe that it is humanly possible for even the most qualified body to make judgments of this sort. If one does so one creates exactly that situation mentioned so often, "Hope deferred maketh the heart sick."
I remember going when I was on the Home Secretary's Advisory Committee on the Treatment of Offenders to see a board which advised whether those sentenced to penal servitude should have one-third or one-sixth remission, a matter that can make a year or two's difference to what a man serves. I was not very impressed by the procedures by which the board arrived at its decision, but what distressed me was to see men who had gone to it thinking that they would get remission and then did not. It was very distressing to see the effect that had on men who hoped to get off a year or two in prison and had their hopes deferred.
There are, therefore, great difficulties in the boards, unless we are clear from the first whether they are intended to release pretty well all prisoners when they become eligible, except when there are exceptional reasons, or are intended only as a safety valve to release those 195 few prisoners who are obviously qualified for special treatment.
I am convinced that his conduct in prison is no indication of what a prisoner's conduct outside is likely to be. It is exactly the psychopathic inadequates who behave best in prison and worst outside. The highly intelligent criminal knows when to give the right answer to the prison governor and when to be polite to the warders, and, therefore, give a good impression in prison with not the slightest intention of being any better when he comes out.
I am also convinced that good supervision and after-care are absolutely essential if we are to have an extensive system of releases on parole. We have had no information—I hope that the Attorney-General can give us some—about how many releases will be effected under that system. What is his estimate of the total number of men who will be on parole at any one time? What extra number of probation officers will be needed if they are to be limited to a reasonable case load, and what are the estimates that the probation service will not only have all its present requirements but will be sufficiently strengthened to undertake that heavy extra load?
We must remember that it has never been possible for even the few releases intended to be under supervision under the 1961 Act to be brought under supervisions. The reality of the Bill, much as we welcome it, depends on the extent to which an effective after-sentence supervision can be provided and after-care can be given by some service, presumably the probation service. I have devoted most of my time to that topic because I regard it as being of very great importance, and it was one on which the Home Secretary said he kept an open mind. It is a major departure in our penal system and treatment which requires most careful thought.
I now want to say a little about other topics that have drawn a great deal of discussion. First, on suspended sentences I agree with my hon. Friend the Member for Sutton and Cheam, my hon. and learned Friend the Member for Solihull (Mr. Grieve) and the hon. and learned Member for Walsall, North (Mr. William Wells) that one should not interfere with the discretion of magistrates' courts unless 196 it is really necessary. I do not believe that one in 500 offenders before magistrates' courts is now sent to prison. Magistrates probably exercise a fairly wide discretion' and if we start tying them down to rules and remove that discretion we diminish their authority.
Secondly, the trouble with suspended sentences is that although it may be psychologically very effective on the man in the dock to threaten that if he commits another offence within the next two years he will go to prison for two years, there is a very great minus quality concerning the time when he has committed a stupid little offence and is brought back to the dock. The hon. and learned Member for Dulwich, East agreed that there is a major difficulty, because under the present provisions for a suspended sentence the court has to eat its own words. Having issued thunderous threats, it has to say that they mean nothing. That will bring the system of suspended sentence into disrepute.
It is possible on giving a conditional discharge or making a probation order to tell a man what one was minded to give him. I often did that, making it plain that under ordinary circumstances he would go to prison. It is then not too difficult to eat one's words later, if, in view of the circumstances, it is not necessary to send him to prison after all.
I therefore regard the provision as very marginal. It has a "plus", but it also has a big "minus" when one comes to operate it, and to that extent I am doubtful whether it is worth while.
Now, the question of majority verdicts. I agree with my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) that the unanimity principle is not something so fundamentally embedded in our constitution that it is absolutely unalterable. On the other hand, I regard it as a matter of very great importance, and, while I do not go the whole length with the hon. Member for Oldham, West (Mr. Hale), I think that very much of what he said has fundamental truth in it.
I should be very sorry to change the unanimity rule unless there was a real need and a real danger which required its change. So far as I can see at present, there is a problem confined to 197 London and to the Old Bailey. While I appreciate the quality of the argument in favour of a change, I am still unconvinced that it carries the necessity to alter the rule for all cases and in all parts of England and Wales. I am still willing to be convinced. I keep an open mind. I am rather in the condition of my hon. Friend the Member for Runcorn (Mr. Carlisle), who started with a leaning in favour of the provision for a change but found himself, as time went on, less and less in favour of it.
The other matter which troubles me is whether we may be substantially increasing the risk of convicting the innocent. It is all very well to say that we want to convict more guilty people. This I appreciate. It is all very well to say that the system ought to ensure more convictions. But I am sure that my hon. Friend the Member for Chelmsford (Mr. St. John-Stevas) was right when he said that one must approach the question with very great caution because one must be certain at each stage that one is not creating a situation in which those who ought to be acquitted will not be acquitted.
We know what happens on disagreements. A high proportion of those who are retried after a first disagreement are acquitted at the second trial. We all know from our experience that many of those are people who should never have been in position of having a disagreement on the first occasion. I have grave doubts about the matter. It is a question which will require the close attention of the Committee. Undoubtedly, we shall have a spirited Committee on this point, and on the result of those proceedings I reserve my opinion.
There are many points on which I would like to speak. We could all speak for hours on the various Clauses of the Bill, and, no doubt, we shall do so in Committee. I hope that we shall be given ample time to consider them fully in Committee. The Bill has much to welcome in it. It has much in it, however, which I regard as doubtful, and it lacks, as many hon. Members have said, a really fundamental approach to the problems of crime and punishment. We welcome parts of it, and we certainly do not regard this as a Measure on which we should divide the House, but 198 we have reservations about it which we shall raise in Committee.
§ 11.28 p.m.
§ The Attorney-General (Sir Elwyn Jones)
I respectfully agree with what the right hon. and learned Gentleman the Member for Warwick and Learning-ton (Sir J. Hobson) said about the high quality of the debate. We have had the benefit of a great deal of informed discussion and of weighty speeches, such as the one to which we have just listened from the right hon. and learned Gentleman, on the undoubtedly difficult problems which the Bill is designed to tackle. I am sure that my right hon. Friend will not only pay very careful attention to the suggestions and criticisms which have been made but will be greatly assisted by many of them. I am particularly sorry that I missed the speech of my hon. Friend the Member for Oldham, West (Mr. Hale), who described circumstances in which my office appears to have been the ham in the sandwich between the President of the Board of Trade and the Director of Public Prosecutions. I am sorry not to have heard his speech, as he has sat with us here to the very end of the debate.
The Bill comes before the country at a time when the fact must be faced that we are just not winning the war on crime. Recorded crime is increasing annually by about 6 per cent. That is the record likely to be shown for this year. More important is that organised professional crime is on the increase, and there is some reason to believe that such offenders, when they are caught, are protected by organised groups who may threaten witnesses or bribe juries. That is the reality of the nature of the problem that we face.
It is against that background that the Bill has been prepared. It was described by my hon. Friend the Member for Birmingham, Ladywood (Mr. Victor Yates), as an important and progressive Measure. I venture to agree. I do not want to make any party point, and I hope and believe that our Committee stage on this matter, as has been the case here, will not be conducted on a party basis. I know full well that the proposals in the Bill derive from suggestions from many sources, but it is some satisfaction to us on this side of the House 199 to recollect that this Criminal Justice Bill introduces the most far-reaching reform of our criminal jurisdiction since 1948.
Its provisions will, I think, help the agencies concerned in the war against crime—police, criminal courts and the prison service. But I believe that it will also end much of the fruitless waste and, indeed, the unnecessary suffering which some of our present arrangements involve. I repudiate the suggestion by the hon. Member for Chelmsford (Mr. St. John-Stevas) that the Bill is inspired by the approach "Let us have a conviction at all costs." The Bill, I think, has been careful to protect the rights of accused persons at all stages.
The debate began with a splendid and spirited speech by the right hon. and learned Member for Marylebone (Mr. Hogg), and, having heard it, I can only regret that the Office of Home Secretary is one of the few Offices of State that he has not filled. He called for a new appraisal of our penal system and of our criminal law, and for a new penal code, and he has given us five to ten years to do it. I am glad to say that a great deal of progress is being made, and has been made, towards the modernising and codification of the criminal law. That has been done principally with the aid of the Criminal Law Revision Committee under Lord Justice Sellers, and it is because of the specialisation of that Committee in this field that the Home Office will look primarily to it rather than to the Law Commission for guidance and assistance.
Perhaps I might refer, first, to the Criminal Law Bill, now in another place, which abolishes felony and makes many consequential simplifications of the law. Then there is the draft Theft Bill, which has been presented by the Criminal Law Revision Committee in its report earlier this year on theft and related offences. That proposes a completely new law of theft and, I think, goes a good deal of the way to meet the right hon. and learned Gentleman's point that there are now too many offences covering the same ground —and the realm of theft has been notorious in that respect.
Then there is the comprehensive review which is being carried out by the Crimi- 200 nal Law Revision Committee on the law of criminal evidence. This will cover many of the points raised by the right hon. and learned Gentleman and by other right hon. and learned Gentlemen who have taken part in the debate; for example, on the right of silence of the accused, on the judges' rules, on the admissibility of confessions, on the absence of the right to comment on the failure of an accused person to give evidence. All these problems are now being reviewed by this high-powered Committee. The House may like to know that Professor Cross, whose expertise in this field will be of great value, has been co-opted to the Committee to deal with these problems.
Reference has been made more than once to the termination of the Royal Commission. There was one aspect in the speech of the right hon. and learned Member for Marylebone which did much less than justice to the Home Secretary in that he spoke of my right hon. Friend condoning the sabotage of the Royal Commission by a minority of its members. He did nothing of the kind. He did his best to persuade them to go on but they would not. So, unhappily, the Royal Commission came to an end.
In its place, perhaps not armed with quite so wide ranging a field of inquiry, there has been set-up the Advisory Council on the Penal System, and again in relation to what the right hon. and learned Gentleman said—all or most of what he said seems to be in train—the Council has been asked to give special attention to the professional criminal and it will look in these circumstances at the Law Society's suggestion, repeated by the right hon. and learned Gentleman, that certain convictions should constitute an act of bankruptcy. It will also be considering the problems of restitution and reparation, which, it must be confessed, present formidable practical problems both at the court end and in particularly when it comes to enforcement.
Accordingly, the House must not be allowed to feel that we are laggard in carrying out quite fundamental appraisals of the criminal law. Perhaps I can say something in this context about the point raised in the most helpful and searching speech of the right hon. Member for Ashford (Mr. Deedes) on the aspect of 201 research and, in particular, research into the effects of the Bill.
During recent years, it has, I think, come to be accepted that any marked change in the penal system should be carefully observed where possible so that the precise effect of the changes can be objectively ascertained and checked against the intended objective. It can be accepted in principle that the effects of the Bill will be fully studied when it has started operating. Before Royal Assent, the Home Office cannot make firm plans for actual research projects, and the timing of the research will depend on the availability of staff and other pactical matters. Some of the research is likely to be done by universities, although the greater part of it would seem to be more suitable for the Home Office Research Unit to tackle. But it is a problem that my right hon. Friend has very much in mind.
The first aim of the Bill—to streamline the procedure of the courts to ensure that the time of the courts, the police and witnesses is not wasted—has, I think, been generally approved by the House. The House is no doubt interested in the view of my hon. Friend the Member for Glasgow, Woodside (Mr. Carmichael) that we are right to maintain preliminary hearings, despite the fact that Scotland has been operating without them—operating, he thinks, with a great deal of difficulty. It is reassuring to get that evidence from him.
The House already as a whole has approved the Bill's proposals to implement both the Byrne and the Tucker proposals, with the important difference that, under the Bill, the defendant can require full reporting of the evidence if he wishes. I was asked in this connection what the position was about the giving of written statements to the accused, whether it would be done in advance or not. The answer is "Yes, and, it is hoped, well in advance". In an emergency, they could be given to the defendant in court before the statements are placed in evidence.
As will be seen in Clause 2 (2,c), often the prosecution will be able to forecast how the defence will be run and whether the proceedings will be by committal or summary trial. But there will be occasions when it -nay turn up with its witnesses 202 as if for a summary trial only to find that the defence will not consent to such a trial but wants committal proceedings. What will happen then will depend on particular circumstances. The court could adjourn to enable statements to be served on the defence, or the defence might be prepared to accept them then and there, or it might be quicker simply to call the witnesses if they are present and if there is not too much oral evidence to be given. But perhaps these are rather more in the nature of Committee points with which we can deal later.
My hon. and learned Friend the Member for Walsall, North (Mr. William Wells) suggested that Clause 7, which deals with written statements, should not be used if the accused was not legally represented. The difficulty about that is how the prosecution is to know when it serves the statements whether the accused will be legally represented. He also suggested that the Clause had been drafted by persons ignorant of prosecutions and neglectful of the rights of the defendant. I shall have to report that to Lord Justice Sellers and the Criminal Law Revision Committee who were the authors of the words. I think that my hon. and learned Friend will find that what is provided is reasonably satisfactory.
The House has welcomed Clause 9 on the whole, with few exceptions, and the provision relating to alibis. My hon. and learned Friend the Member for Warrington (Mr. W. T. Williams) asked about the position of the last-minute alibi which the defendant wished to raise. That can be raised with the leave of the court and the court would have power to adjourn the trial if the trial judge thought necessary.
My hon. and learned Friend also asked how we could be sure of excluding jurors with previous convictions. There is no certainty of that, but it is intended that a warning notice should be sent out with the jury summons. That should be effective in dissuading disqualified persons from seeking to serve and, if they come along, there is always the possibility of an ex-prisoner being identified when he attends the court. The warning message with the jury summons, it is thought, should be a sufficiently effective deterrent in most cases.
203 The most controversial aspect of the Bill has undoubtedly been the proposal to introduce majority verdicts for juries. I have not been able to keep a score of the matter. The House seems to be fairly evenly divided about it and there have been eloquent speeches advocating both points of view.
I am bound to say that my right hon. Friend is now faced with mounting and formidable evidence that in London at least attempts have been and are taking place on a considerable scale to corrupt individual jurors. As my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) pointed out, it is difficult to prove these matters by way of evidence. The police know of several cases and have reason to suspect that there are several others and there is ground for thinking that others which have not been exposed to the point even of suspicion might well exist.
The result is that there have now to take place the most elaborate precautions to try to protect jurors. It usually happens in long cases where serious criminals are involved. The precautions taken by the police in one recent case required the participation of no fewer than 72 officers working in shifts and, of course, this is an appalling waste of the time of the police officers. Action is needed to make this bribery, or attempted bribery, unprofitable and it is my view and that of my right hon. Friend that the introduction of majority verdicts will tend to help in the solution of this problem, while, of course, providing no guarantee that it will be successful.
The proposal has two main purposes. The first, as I have said, is to check the abuse of the jury system by corruption of jurors, or attempts to corrupt. The second is, as was pointed out by my hon. Friend the Member for Bury and Radcliffe (Mr. Ensor), to reduce the frustration and waste which is caused when a jury is prevented from reaching agreement by the perversity of one or two jurors.
The problem of corruption is admittedly largely a London problem, but it is not entirely absent from one or two areas. It has been asked: why not use the armoury of the criminal law—the crime of embracery as it is so curiously called, to deal with this phenomenon? The 204 trouble is that it is an offence which is very difficult to prove. Although the Commissioner has been made aware of attempts at corruption in several major cases in the Metropolitan District during the last year or two, there has not been enough evidence to justify prosecution, and in recent years there has only been one successful prosecution for embracery in England and Wales, at Birmingham Assizes in 1966, of which the right hon. and learned Gentleman is aware.
These are the factors which have led my right hon. Friend and the Government to the view that we should make this admittedly significant and important change in the jury system. It is thought that the majority of 10 to 2 strikes the right balance between other objects of the Clause and the necessity to preserve adequate safeguards for an accused person. There has been a great deal of criticism of the necessary incarceration of the jury for two hours. My right hon. Friend will be glad to look at this, and consider whether it may not be sufficient to leave the matter to the discretion of the trial judge.
It has been suggested that the proposal to introduce a majority verdict, far from reducing the number of disagreements, will increase them. The House may like to know of American experience in this area. American research which has been published in the book "The American Jury", by Mr. Kalven and Mr. Zeisel.
A study of States with majority verdicts as compared with the States where unanimous verdicts are required suggests that the 10 to 2 majority verdicts reduces the number of disagreements by about 40 per cent to 45 per cent.
If the experience is relevant, and I appreciate the qualifications one must put on all comparative criminal statistics of that kind, it suggests that that fear is not well-founded. The other main matter, which was discussed, was the arrangement proposed for release on licence. As my right hon. Friend said in opening the debate, his mind is certainly not closed about these proposals.
As the matter will undoubtedly call for careful examination before the Committee, it might be helpful if I could tell the House now the kind of proposal that the Home Office at this stage, 205 has in mind, so that hon. and right hon. Members may be able to consider the matter before we reach Committee. The intention is that a prisoner should be released on licence, after consideration first, of his criminal and social history before his current sentence—including the length of periods at liberty, any conduct under supervision, or response to after-care, work record and domestic background; next, his response to treatment and training in prison during his current sentence; then the circumstances of his current offence including, in particular, any observations by the sentencing judge or the court of appeal; and, next, information about his domestic and employment situation on release.
If, after consideration of those matters, it appears that he has co-operated in the training provided and made satisfactory response, that he has reached a point in his sentence at which further training is unlikely to improve his prospects of leading a good and useful life on release, that there appears to be no significant risk of his committing a further serious offence, that arrangements are available or can be made for accommodation and occupation outside prison, and, finally, that there are no overriding objections in the circumstances of the offence itself, having regard to such considerations as observations made by the court at the time, then he may be released on licence. These are the principles on which the scheme will be operated. As to the numbers involved when the arrangements come into operation—
§ Sir J. Hobson
The right hon. and learned Gentleman refers to the intended scheme. Will it be in statutory form or will it be in such a form as to be capable of administrative alteration at any time?
§ The Attorney-General
The intention, I think, is that it should be altered administratively, but I should like to consider the point. I do not mean "scheme" in any technical sense.
I was dealing with the numbers when the arrangements come into operation. It is estimated that 4,500 prisoners will immediately become eligible for consideration for release on licence having served one-third of their sentence or 12 months, whichever is longer. It is not possible to make any reliable estimates at this sage of the number who will be 206 released, but the figure is thought to be unlikely to exceed 600. I am told that the impact on the probation service is well within the plans for expanding the probation and after-care service to 3,500 by 1970—in other words, it is well within the competence of the probation service to deal with it.
The proposed selection procedure is that selection should be based on a continuous process of assessment within the prison organisation. When the procedure is in operation a full case work dossier will be built up in the prison on all prisoners who are eligible or potentially eligible and that dossier will contain all the records and observations relevant to the question of release. Each case will be considered periodically by an informal committee at the prison. This is important, and I do not think the right hon. and learned Gentleman got it right. That informal committee at the prison will consist of the governor, a senior probation officer in the district and a member of the board of visitors or visiting committee approved by the Secretary of State for the purpose. The committee will have all the available information about the prisoner, and oral opinion from those in daily contact with him.
I must tell my hon. Friend the Member for Nelson and Colne that it is not normally intended that they should interview the prisoner. That was the practice of the Preventive Detention Advisory Board and the result was that a prisoner could not understand from what had happened at the interview why a favourable decision had not been taken in his case. But I take my hon. Friend's point on the matter, and I have no doubt that it will be strongly pressed later if this selection procedure is the one which is to be adopted.
The committee will be responsible for recommending which prisoners should and which should not be released, the final decision resting with the Secretary of State. In difficult or exceptional cases the Lord Chief Justice or the trial judge will be consulted where appropriate before a decision is taken. I appreciate that criticism has been made that this takes more into the executive field what might properly be deemed to belong to the functions of the judiciary. The Secretary of State already has substantial discretion in administering a sentence of imprisonment.
207 It is not true that he has had powers to license life sentence prisoners only since the abolition of the death penalty. He has had this power for many years, dating from when death sentences were commuted to penal servitude. In his discretion, the sentence can be served in open or closed prisons, with widely differing régimes; the last six months can be served in a hostel, with the prisoner going out to work each day. So the view can properly be taken that release on licence is no more than an extension of the existing flexibility.
The licensed prisoner will be under the safety of State's control and can be recalled at any time. The proposed inclusion in the local selection committee of a member of the visiting committee or board of visitors ensures some independent element in the selection procedure and should be a safeguard against favouritism or improper influence. In the last resort, the Secretary of State will be accountable to Parliament for all his decisions which can be called into question.
It is unlikely that he would exercise his powers in releasing a dangerous prisoner. This will ensure the protection of the public. My right hon. Friend has an open mind on this matter, but I thought that it would be reasonably useful for the House to know how his mind is operating in this respect.
The hon. and learned Member for Solihull (Mr. Grieve) was unhappy about the taking from magistrates' courts discretion about sentences for the first time. I agree that restriction—
§ Mr. Grieve
It is not only from magistrates' courts, but from all courts imposing a sentence of six months, is it not?
§ The Attorney-General
Yes, I think that that is right. The difficulty is that experience shows that it is essential to impose a statutory restriction if a substantial impact is to be made on the problem of shorter sentences. Experience has shown that provisions which rely on mere exhortation, like the First Offenders Act, 1958, are not sufficiently effective. That is the reason for this proposal.
On legal aid contributions, the view of the Widgery Committee was that the 208 "all-or-nothing" basis of the present system leads to unfairness. A man who, under the present system, receives no legal aid because his means are judged sufficient to pay for his own defence might, under the Bill, get legal aid, subject to his having to contribute part of the costs. It has been suggested that the introduction of the contributory principle will result in a reduction in the number of those who will accept legal aid. This will not be the case. The proposals will have the valuable advantage of extending legal aid to where it has been most significantly lacking up to now—advices on criminal appeals. Its extension there will fill a very important gap in the present arrangements.
§ I commend the Bill to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Standing Committee, pursuant to Standing Order No. 40 (Committal of Bills).