§ Amendment proposed: No. 15, page 6, line 3, at end insert
§ (d) to give false information by way of evidence as required by section 3 of this Act.—[Mr. S. C. Silkin.]
§ Mr. Goodhew
Amendment No. 15 and Amendment No. 16 each propose to add a new paragraph (d). I do not know whether the drafting is correct.
§ Mr. S. C. Silkin
The manuscript of the Amendment was not in that form. I deliberately left out the appellation "(d)" of the second, but someone kindly has filled in the blank.
§ Amendment agreed to.
Further Amendment made:No. 16, in page 6, line 3, at end insert—
(d,) to give a false certificate as provided for in section 3(1)(d) of this Act.—[Mr. S. C. Silkin.]
§ Mr. S. C. Silkin
I beg to move Amendment No. 17, in page 6, line 5, leave out from ' to imprisonment for a term not exceeding five years ' and insert'on summary conviction to a fine not exceeding £100 or on indictment to a fine not exceeding £500 or to imprisonment not exceeding three years or to both such fine and such imprisonment '.
§ Mr. Deputy Speaker
It would be convenient to consider, at the same time, Amendment No. 18, also standing in the name of the hon. and learned Member for Dulwich (Mr. S. C. Silkin), in page 6, line 12, leave out from ' to imprisonment for a term not exceeding five years ' and insert' on summary conviction to a fine not exceeding £100 or on indictment to a fine not exceeding £500 or to imprisonment not exceeding three years or to both such fine and such imprisonment'
§ Mr. Silkin
Clause 16 creates certain offences in relation to this procedure. They are offences we have now added to by Amendments Nos. 15 and 16. The purpose of Amendments Nos. 17 and 18 is to give substantially greater flexibility to the means of dealing with offences committed.
It was a surprise to me to find, even in the original form of the Bill, that the sole penalty prescribed for an offence of " knowingly and wilfully " solemnising…a marriage by Registrar General's licence in any place other than the place specified in the licence; …was that the person concerned should be liable to imprisonment for a term not exceeding five years.
I am sure that I can anticipate what my hon. Friend the Joint Under-Secretary of State will be saying about that—we have heard it many times before. No doubt he will say that we are simply following what the Marriage Act does and that in a Bill of this kind we should not depart from the provisions of that Act even though they were 824 brought into effect as long ago as 1949, when ideas about penalties may have been rather different from what they are now and even though wt are dealing with special circumstances with this Bill. I am sure—indeed, I hope—that he will go on to say that the working party can look at all these matters.
But we should look at the matter rather more carefully than that. The offence of… knowingly and wilfully—(a,) to solemnise a marriage by Registrar General's licence in any place other than that place specified in the licence;does not seem to me to be amongst the greatest offences known to the law, and to suggest that the only appropriate penalty is that of imprisonment for a term not exceeding five years seems to put it on a par with offences of grave dishonesty or assault, and so on, which is going a little far.
The same criticism applies to the other part of Clause 16. Subsection (1)(b) states:to solemnise a marriage by Registrar General's licence without the presence of a registrar except in the case of a marriage according to the usages of the Society of Friends or a marriage between two persons professing the Jewish religion according to the usages of the Jews; ".The heinous crime where one has not got two people who are members of the Society of Friends consists of solemnising a marriage without the presence of a registrar, and for the unfortunate person who does it, a sentence of a term of imprisonment not exceeding five years is specified.
Finally, subsection (1)(c) states:to solemnise a marriage by Registrar-General's licence after the expiration of one month from the date of entry of the notice of marriage in the marriage note book;If a person delays for one month and one day after that date—and I have already drawn attention to circumstances in which delay could easily occur, and my hon. Friend agreed to look at this matter—and does so "knowingly and wilfully ", the unfortunate gentleman concerned will be guilty of an offence for which he is liable to up to five years' imprisonment. All this seems out of proportion to the kind of thing we are dealing with even in the Bill as it stands.
825 1.15 p.m.
I refer to the Amendments which the House has already been good enough to make. My hon. Friend the Member for Luton (Mr. Howie) has drawn attention to the difference in principle between the matters which were contained in those Amendments and the matters already contained in the Bill before it was amended, and also to the fact that there may be some difficulty or doubt as to whether the person accused of the offence was absolutely certain, or not absolutely certain, that the information he was giving, or the certificate he was giving, was false. Whilst I accept that that goes essentially to the question whether or not he has committed an offence, none the less it indicates that there may be very wide gradations in the seriousness of the offence which under this Bill may be committed.
It seems rather extraordinary that we should be limiting the courts to imprisonment to a term not exceeding five years, which means, if I understand the situation correctly, that all these offences will have to be dealt with on indictment, however relatively trivial in the circumstances they may be. A magistrates' court would not be entitled to deal with the matter. It will be impossible to impose a penalty by way of a fine. It will have to be imprisonment or nothing. I cannot see any sense or justification for limitations on that time.
The Amendment would give a desirable flexibility to the way in which the offence could be dealt with instead of the limitation of a sentence of imprisonment for a term not exceeding five years, which necessarily means treating the offence as indictable and going through all the machinery up to quarter sessions.
It provides two possible methods of dealing with the offences concerned. Which method is chosen will obviously depend upon the degree of gravity of the circumstances in relation to the offence rather than simply pigeon-holing all these offences as though there could be no difference in the degree of gravity. The less serious offences would be capable of being dealt with on summary conviction by the imposition of a fine not exceeding £100. That seems to me to be a perfectly reasonable way of dealing with an offence 826 of this nature which could not be regarded as being excessively grave.
The court would, no doubt, bear in mind the particular situation with which we are involved: that a person, possibly on his deathbed, is anxious to make a marriage which, perhaps, he has wanted to make for a long time but has been unable to do so. Perhaps he wants to marry a person with whom he has been living as though she were his wife, or he her husband, as the case may be. That is the sort of situation which we are dealing with. The temptation in those circumstances perhaps to stretch a point a little beyond the true facts is a grave one and one which the court should be entitled to take into account.
In many circumstances of that kind, the ability to deal with the matter by way of fine on summary conviction should be adequate. In the more serious cases, the Amendment would enable the courts, on indictment, to deal with the matter by way of a more serious penalty, here again extending the inherent flexibility of the Bill, which provides only for a term of imprisonment, by allowing the higher court to impose a much more substantial fine—not exceeding £500—a term of imprisonment, which I propose to reduce to three years from five years because I feel that five years is excessive for this sort of offence, orboth such fine and such imprisonment.Those conditions would give the courts the much greater discretion which they should have. Those provisions would be very much in line with the views recently expressed by the Lord Chief Justice when he suggested that mandatory punishments are wholly undesirable. I do not say that the present worry is a mandatory one, but the basis of what the Lord Chief Justice said was that the courts should have as wide a discretion as possible in the punishments which they can impose. I entirely agree with him about that. The Amendment would enable effect to be given to that principle.
I regard this as an important improvement to the Bill. I hope that we shall not receive by way of reply simply the answer that the principal Act dealt with the matter in this way and, therefore, we ought not to depart from it. We are dealing with particular circumstances. Our ideas on penalties and the criminal law generally have I hope moved a very 827 long way since 1949. I am glad to see my hon. Friend the Under-Secretary of State for the Home Department present with us. He will, I am sure, bear out in his mind, if he cannot do so audibly, what I have just said. This is surely the time to make a change and not to be frightened of creating some sort of precedent.
§ Mr. Howie
I strongly support my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) in his Amendments. I must at this stage say that if the sponsor of the Bill does not feel inclined to accept these Amendments, I shall be very tempted to push them to a Division. I might not yield to that temptation—it will depend entirely on the strength f the hon. Member's arguments —but I am strongly tempted to push the Amendments to a Division, which might prove hazardous for the Bill.
The Bill is unduly inflexible. It may be that the rest of the law is inflexible also, but that is not a sufficient argument. On a number of occasions throughout our debates on the Bill, we have had to put up with the argument that because the principal Act is inflexible and is cast in certain directions, the Bill must be inflexible, too. There is something in that argument, but I do not find it at all strong on this group of Amendments.
The only punishment provided in the Bill is imprisonment. Presumably, that is because reasons of inheritance might be connected with the need for such a marriage. If a marriage of this sort for purposes of inheritance were improperly carried out either by the medical advisers, the registrars, the superintendent of registrars or the parties to the marriage, it might be sensible to punish them severely. At the same time, we must realise that marriages of this nature might be carried out for nothing more than sentiment or for the convenience of children, to give them a name, in which case I should have thought that any irregularities were fairly forgivable.
It might be that if the authorities felt that the reasons behind the irregularities were to give children a name, they might turn a blind eye, but we should not rely on that. We cannot pass laws in the expectation that those who in due course will operate those laws will turn a blind eye to evasions of them.
§ Mr. S. C. Silkin
My hon. Friend would, I am sure, agree that it becomes much more difficult to turn a blind eye to an offence when the only penalty which the law provides is imprisonment for a term of up to five years.
§ 1.30 p.m.
§ Mr. Howie
Perhaps my character is different from that of my hon. and learned Friend, but it is exactly that which would make me turn a blind eye. If I were in charge of this kind of business—I am happy to say that that is extremely unlikely—and thought that, by applying the law, the effect would be to send some malefactor to prison for five years when the offence had been perhaps irregularly giving a name to children, I should be inclined to turn a blind eye. I should probably go to gaol myself at a later stage.
§ Mr. S. C. Silkin
May I express the hope that if I am ever charged with this kind of offence my hon. Friend will be on the jury.
§ Mr. Howie
I can understand that it is good to have a friend on the jury—almost as good as having not only a friend, but also a relation in another place. However, as a Member of Parliament I cannot get on a jury. At any rate, I have applied to be excused jury service, which is not quite the same thing. Therefore, I shall be unable to assist my hon. and learned Friend in that way.
I think that both my hon. and learned Friend and I are probably right: that the seriousness of the sentence in a sense adds seriousness to the offence which would make it difficult even for me to turn a blind eye to it, however much I may be tempted to do so.
This becomes worse when we add the two additional matters for which a sentence can be imposed. On an earlier Amendment I drew a distinction between offences concerned with carrying out an act such as those in paragraphs (a) (b) and (c) and offences concerned with, as I thought, the forming of an opinion which might be wrong under what should now be new paragraphs (d) and (e). I thought that there was a distinction between the two kinds of offences and it seemed to me that there should be a distinction between the kinds of punishment which can be imposed for offences which, under 829 the principal Act, are not of equal importance.
My hon. and learned Friend was correct to draw attention to the fact that one offence isto solemnise a marriage …after the expiration of one month from the date of entry of the notice of marriage in the marriage notice book ".I have no doubt that it is extremely dreadful, through slackness or for any other reason, to wait for longer than a month before solemnising a marriage. But it is terrible that a person should be sent to gaol for five years for doing it. Five years, even with remission for good behaviour, open prisons, and all the delights which can be enjoyed by prisoners, is still a longish time. I think that the penalty is absurdly inflated in relation to the offence. If it was an enormous fraud, perhaps not. But since the reasons for the offences can range so widely, I think that it is a great exaggeration.
I want now to consider the jury problem. Experience throughout history is that if a jury thinks that the relationship between the offence and the sentence is disproportionate it becomes more difficult to obtain a conviction. The lesson that we learned from the severe penalties for sheep stealing, stealing handkerchiefs, and so on, in the 19th century, was that if a jury thought that the sentence was out of proportion to the offence it would not convict. I think that in this instance a jury would be likely to react in a similar way.
I cannot see any sensible man—not even a judge—sending anyone to gaol for waiting longer than a month to solemnise a marriage in these circumstances. It is impossible to visualise sending anyone to gaol for five years for that. It is clear, therefore, that five years is far too long and that, in addition, the alternative of a fine is absolutely necessary.
I know that the hon. Member for St. Albans (Mr. Goodhew) is very humane and would not send anybody on his side to gaol if he could reasonably avoid it. I urge him to accept these Amendments and to bear in mind that I am tempted to carry them to a Division if he does not. I put it to him as an argument rather than a threat.
§ Mr. O'Malley
I listened with considerable interest to the case put forward by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) and by my hon. Friend the Member for Luton (Mr. Howie). They would expect me, in replying to their speeches and to this Amendment, to be consistent. I know that consistency is regarded as a high virtue in this place. An exercise which has always amused me—I am not sure how valuable it is, but I have done it on many occasions—is to turn back to other hon. Members' speeches to see what they said five or ten years' ago or on the last debate on this or that subject and to point out that they have changed their minds or that they are being inconsistent. So, as I said, we place a high value on consistency in the House.
§ Mr. O'Malley
That is an interesting theory. However, my hon. Friend knows that all members of the Government are open-minded and are always prepared to accept and examine evidence impartially at any one time. Nevertheless, if I am to be consistent in my treatment of the Bill, I must point out that the penalties set out in Clause 16 correspond to those for similar offences under the principal Act. So it is that we readany person found guilty of any of the above-mentioned offences shall be liable to imprisonment for a term not exceeding five years.I assume that the offences under the principal Act are based on the fact that the marriage may be found to be void, which has serious consequences for the parties. Nevertheless, as has been pointed out, this is legislation going back to 1949 and we are not examining the principal legislation this morning; we are simply looking at offences of the kind mentioned in this Clause of this Bill.
Quite frankly, there is no need for me on this occasion to maintain the admirable consistency that I have shown in dealing with Amendments this morning. When I looked at the Bill and saw five years in the Clause and then looked at the current legislation on the subject, it seemed to me that, whatever one's 831 views on the maximum sentence, certainly it was rather more rigid and inflexible than it ought to be, apart from the question on which I think every individual, according to his conscience, has to take a view—namely, the relative severity or non-severity of the maximum sentence laid down in similar legislation.
I think that we can treat these Amendments differently from the others, and I should like to explain why. So far, we have debated administration, the conduct of marriages, and the issuing of certificates. What we are here debating is the discretion which a court will have when examining individual cases. The Clause as it stands says that anyone guilty of these offences shall be liable to imprisonment for a term not exceeding five years. I think that a case can be made for saying that that is an inflexible provision, and that there might be occasions when it would be helpful for a court to have greater flexibility in deciding what penalty to impose. There does not seem to be a case for consistency with the previous legislation, and it seems, therefore, that there are good reasons for accepting the Amendments.
§ Mr. Goodhew
I am grateful to the Minister for his personal views on the matter. I was much moved by the speech of the hon. and learned Member for Dulwich (Mr. S. C. Silkin), more, perhaps, than I was by the scarcely veiled threats of the hon. Member for Luton (Mr. Howie). It seems that there is a good argument for not being as inflexible as we originally intended to be, particularly as someone is not likely to make a practice of committing offences of this sort. The offence is likely to arise only in some unusual circumstance. I am, therefore, attracted by the idea of a fine, rather than an automatic sentence of imprisonment, and I thank the hon. and learned Member for Dulwich for his helpful advice this morning.
§ Mr. S. C. Silkin
I am extremely grateful to the Minister and to the hon. Member for St. Albans for the sympathetic way in which they have dealt with these Amendments. I am delighted that all those who have spoken support the inclusion of the Amendments in the Bill.
§ Amendment agreed to.832
Amendment made:No. 18, in line 12, leave out from ' to imprisonment for a term not exceeding five years ' and insert:
' on summary conviction to a fine not exceeding £100 or on indictment to a fine not exceeding £500 or to imprisonment not exceeding three years or to both such fine and such such imprisonment '.—[Mr. S. C. Silkin.]
§ 1.45 p.m.
§ Mr. S. C. Silkin
I beg to move Amendment No. 19, in line 13, at end insert:(3) No prosecution under this section shall be commenced after the expiration of three years from the commission of the offence.On seeing the Amendment, hon. Members may have wondered about the reason for it. I have to make a confession. Up to now I have moved Amendments which seek to make a distinction between the Bill and the Marriage Act, 1949. I have asked the House, in some cases successfully and in others unsuccessfully, to be inconsistent with the principal Act, but here I am asking the House to be consistent with it. Section 75(4) says:No prosecution under this section shall be commenced after the expiration of three years from the commission of the offence ",and that is precisely what I seek to include in the Bill.
I hope that on this occasion consistency will prevail, and that the House will agree that this is the right thing to do.
§ Mr. O'Malley
My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) says that he is being consistent in following the Marriage Act. I think that, with one exception, we have both been consistent this morning, because this is what we have been advising the House to do. I accept the point made by my hon. and learned Friend, and I suggest to the hon. Member for St. Albans (Mr. Goodhew) that there is no reason why the Amendment should not be accepted.
§ Mr. S. C. Silkin
I am grateful for what has been said. I hope that it shows that I have read the Marriage Act before putting down my Amendments.
§ Amendment agreed to.