HC Deb 06 December 1972 vol 847 cc1600-13

7.11 a.m.

Mr. Greville Janner (Leicester, North-West)

I welcome the opportunity to invite the Government to comment upon the unhappy and unfair situation in which at least 1 million people in this country and their families find themselves as a result of mistakes made by those individuals more than 10 years ago. I should like to read a letter that I have received from a youngster who does not live in my constituency but who wrote to me as a result of my invitation to young people in the senior schools in my constituency to suggest subjects upon which they would like to see legislation.

This is one of the most moving letters that has ever come to me. I have removed the name of the youngster for reasons that will appear, and I shall omit three items which may identify the district in which he lives. He wrote: Dear Mr. Janner, I see you want ideas for new laws. I am 15 and have a good idea. My Dad is a good kind man and votes labour too. He has worked in his job for 17 years. Two months ago some goods was stolen from a shop near to us. A policeman came round in plain clothes and asked everybody questions. My Dad was being questioned downstairs and the policeman said, 'We know you have a record and been in trouble. You was in trouble in 1954'. My Dad said, 'Yes I was only bound over for a year'. We all heard it and Mum cried and we was all upset. But it was not my Dad who done it and two other men was fined at"— and he identified the court— I think you should change the law so as if a person lives a good life for some years these things should be forgotten and taken off the records. I won't give my address as we have had enough worry and we have all forgiven Dad. I was not born then anyway. To me, it is shocking that a man's record should be dragged up and thrown in the teeth of his family about 15 years after the offence happened, especially if it were such a minor offence that the court saw fit to treat it with a bind over. The time must come in any decent society when a person who has erred may say, "I have repaid my debt to society. I am now entitled to leave it behind me." The time must come when he can regard himself as rehabilitated and his slate as cleaned.

In most civilised countries there is some provision for rehabilitation; in our own there is none. This matter is not confined to one lad and his family. It has been estimated that there are about a million people who, having committed an offence, have gone 10 years without committing another and are extremely unlikely ever to stray again—even more unlikely to do so than those who have not committed an offence and suffered thereby.

In my constituency this matter has been raised, invariably quietly, by numbers of people who have suffered or whose families have suffered from the lack of any rehabilitative law. Some people cannot obtain insurance or cannot get jobs because a fidelity bond cannot operate where an employee has a conviction. Some people whose fingerprints are on files cannot get jobs, even as temporary postmen. This applies even when the person was convicted as a juvenile and even when a man has been arrested and there has been no prosecution.

There have been cases in which people have been charged with minor driving offences and their convictions for utterly irrelevant matters which occurred many years previously have been brought, quite properly, before the court. It is the propriety of this behaviour which disturbs me so greatly. The fact that people have convictions lies in the path of their emigrating. There are people who wish to take an honourable part in public life but, because there was a finding of guilt when they were children, there is always the possibility of their past being exposed hanging like the sword of Damocles above their long-since completely innocent heads.

Those who have committed driving offences are entitled after three years to go to the post office and obtain, with no difficulty, on payment of 20p, a clean licence. If the offence were of driving under the influence of drink or drugs a person has to wait 10 years for the licence to be wiped clean. It is recognised as appropriate that a policeman looking at the licence shall not see that 10 years ago the person was convicted even of an offence involving drink. It is right and fair that drivers should be entitled to obtain a clean licence. It is equally right and fair that people should be entitled to obtain a clean licence for life when they have succeeded in going straight for a lengthy period.

The Minister of State, Home Office (Mr. Mark Carlisle)

The hon. and learned Gentleman will remember that, while the licence might be clean, the drunken driving conviction remains on the record.

Mr. Janner

That is so. It may be that the legislation which I hope the Minister will say that the Government have in mind will contain an alternative proposal to enable the record to remain. A committee of lawyers has sat with the members and officers of the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders, under the chairmanship of the noble Lord, Lord Gardner, to consider the problem. The Government might prefer a system which enables the records to remain on the file but makes it improper and unlawful for the records to be revealed or to be used against the offender. What appals me at present is that there is no prospect of any person who has managed to go straight remaining unworried and unanxious, away from the possibility of lawful blackmail by the revealing, justifiably and properly, of offences that occurred many years previously.

We all know the very great difficulty that decent people who have gone astray have in rehabilitating themselves. We all know that the dog with a bad name has a desperately difficult time. We all should know that if a person succeeds in spite of his bad name in establishing a good reputation, a civilised society should do something to protect him. Even if he has erred, forgiveness is a virtue which should be exercised.

I fully appreciate the difficulties of the police. I am not trying to increase them. I fully appreciate also that the letter which I read indicates that a particular officer behaved in a tactless and thoughtless manner. That is not a condemnation of the force, or necessarily an argument for changing the entire law. It may be that this could be dealt with administratively. Have the police any instructions to avoid this sort of situation arising? If they have not, will the Minister undertake to consider whether such instructions ought now to be given to them?

I do not know the lad who wrote to me, or whether he will know of this debate. If he does, I hope that he will at least feel that consideration will be given to the situation he has described to prevent it from happening to others, and that, whether or not it is done by the law, we shall find out from the Minister whether the Government have some sort of change in mind.

After all, I believe that we are the only country in Europe, or at least the only one adhering to membership of the Council of Europe, which does not have such a law. It is nothing revolutionary. It exists in countries such as Germany, which is not necessarily renowned for having always had the most advanced and radical approach to crime. It exists in countries widespread throughout the world, including many of the States of the United States, and Canada and Belgium. I see no reason why we should not have some such-protection for people in this country.

My first question to the Minister concerns the Government's proposals. Are the Government prepared to wipe the slate clean? Do they not recognise the need for law reform? If so, what is being done to change the law?

My second question, in so far as results can be achieved immediately without a change in the law, is: what consideration is being given by the Government to such changes? In particular, will the Minister undertake to consider, with the police force, how to avoid the kind of utterly inhumane and unnecessary suffering caused to families by the revealing of ancient information concerning members of those families which need not have been revealed in order that police inquiries could be carried out satisfactorily?

In most courts, old, stale convictions are not taken into account when consider- ing how to deal with a much later offence. When an offence which occurred 10 or 15 years previously is on the record, the court normally takes no note of it, and very often says so.

But the cruelties of this life are seldom committed by the courts. They are usually matters which result from the unhappiness of life. They result because records are too readily available, because there is too little privacy in the criminal records and because such records can easily be obtained.

I wish to pay tribute to those individuals and organisations concerned with the preparation of the document called "Living it Down: a Problem of Old Convictions" and to ask whether the Government have considered the recommendations made in it, and which are so concisely set out. First, is it accepted that there are about 1 million people who have a criminal record but have not been convicted again for at least 10 years? Secondly, is it accepted that the likelihood of any of these people being convicted again is minimal? Those are the two basic premises on which the recommendations are based. Thirdly, is it accepted that people with convictions are faced with great difficulties, especially in employment, insurance and in the courts, however exemplary their lives may have been for many years, and that malice or chance may at any time put an end to their rehabilitation?

Fourth, is it accepted that it is in the interests of all that when someone has done all he can to live down his past and enough time has passed to establish his sincerity, his record should no longer be held against him as long as he does not offend again? I appreciate the distinction between this question and the one raised by the bleak and simple statement on the Order Paper about wiping the slate clean in 10 years. Unfortunately, one cannot write a book, or even a pamphlet, on the Order Paper. This is the way in which I seek to air a desperately human problem and to inquire how one can deal with it. One solution put forward in "Living it Down" is that after 10 years, in all but the most serious cases, the record may remain but no one can produce it.

Is it accepted that the destroying or sealing of old criminal records would not be desirable but that instead the law should, to quote from "Living it Down", set an example by treating certain people as 'rehabilitated persons' when they have not been reconvicted for a number of years? Is it accepted that it would be right to make evidence of their past crimes inadmissible, subject to safeguards? Is the premise on which the document is based accepted by the Minister of State, who is a man of great humanity? What consideration has been given to this problem, and what do the Government propose to do about it?

Is it accepted that the necessary conviction-free period should vary with the gravity of the offence? Having accepted, as is inevitable, the premise on which the conclusions and recommendations are based, what do the Government say about the recommendations? Is it not the right way to regard this matter that there should be a basic period which should vary according to the seriousness of the offence, in much the same way as driving licence offences are dealt with where the offences involve the endorsement of the licence so that the licence may be cleaned and the length of time which the driver must wait must depend on the seriousness of the offence for which the endorsement is required?.

Do the Government accept that evidence of all convictions should remain admissible whenever a rehabilitated person is convicted again on indictment or if he wishes to have it given? In other words, does the Minister accept that there should be a distinction between offences which are generally regarded as minor, and which can be dealt with summarily, and those which are more serious? How does he regard those offences?

Finally, and perhaps most important, are the Government prepared to make it an offence for anyone without authority to reveal the unhappy past of a person who may have been going straight for 20, 30 or 40 years? Most of us know people who have been convicted many long years ago and who have long since attempted to forget, and, in many cases have succeeded in forgetting, their past. But the records remain in a state in which they can be dredged up to bring unwarranted disrepute upon them and uncalled for and sad misery to their families and friends.

It is not the appropriate time to make a long and full case. However, I believe that it is right that the House should consider at any time the hardship suffered by many people.

The questions which I have asked are fair and reasonable. I trust that the Minister will agree. I accept that he cannot outline in a reply in this sort of debate the full area of policy. On the other hand, the questions which I have asked are specific and clear, and not only the House but the country is entitled to a reply.

The lack of civilisation implied by the law and practice as it stands is deplorable. I hope that it will not be long before no one will find it necessary to write a letter to any hon. Member complaining of the sort of situation which was shown by the letter from the boy who discovered, through an inquiry by the police of his father, that his father had committed a minor offence before the boy was born. That was an unnecessary matter.

I hope that the time will come when people who have not committed an offence for 15 years will be able to get insurance. I hope that the time will come when there will be, either through administrative or legal means, a way to remove the fingerprints of a person from the file, so that he will not be prevented from getting a job at the Post Office or anywhere else merely because he was going to be charged with an offence, even if no charge were finally brought.

I hope that the dangers of unfair publicity will be removed, as the report "Living it Down" suggests. The result will be that people will not be able to plead justification in court on the basis of stale convictions because they will not be entitled to bring such a record before a court.

I hope that at least this short debate will have enabled the House to consider a problem which is deeply worrying to so many people. I ask the Minister to treat the matter with seriousness and to attempt to reply for the sake not only of the lad who wrote to me, and of the many constituents who have spoken to me, but of all the millions of people who are directly or indirectly affected by the results of mistakes which were made many long years ago which should have been erased and forgotten.

7.35 a.m.

The Minister of State, Home Office (Mr. Mark Carlisle)

By leave of the House, I will reply to the hon. and learned Member for Leicester, North-West (Mr. Greville Janner). I am grateful to him for the speech he made. I assure him that I do indeed consider this an important subject and fully appreciate the concern that he and many others have expressed from time to time on this issue. It is a difficult one. I am sure all of us are anxious to ensure that a person who at a previous stage has committed one perhaps isolated offence and who has then lived a perfectly honest and upright life should not be hampered all through his life by the publication or the fear of publication of his previous misdeed.

I accept that the existence of a criminal record can, and indeed clearly does, cause difficulty and embarrassment to individuals who are trying to go straight after an isolated criminal offence of some kind. On the other hand, I think, despite what the hon. and learned Gentleman put on the Order Paper, that he himself in the end accepted that one cannot dispute the necessity to maintain records of criminal convicts. The Justice report, "Living it Down", itself recognised that criminal records … should continue to be maintained and be accessible to those who really need them. That is paragraph 71.

It went on to say that the police … must … be able to find out whether any specified person has a criminal record, regardless of whether or not he has in the meantime rehabilitated himself. That is paragraph 72. Therefore, the hon. and learned Gentleman's proposal that all criminal records should be destroyed after a period of 10 years is, I think, a non-starter. Of course, the title of his debate does not say that.

Mr. Greville Janner

No, it does not. In fairness, the hon. and learned Gentleman should refer to the fact that I have drawn attention to the practice of the police in maintaining records of criminal convictions of more than 10 years' standing. It is the practice and the way it should be adapted which concerns me.

Mr. Carlisle

I accept that it does not use the word "destroy", but the hon. and learned Gentleman will realise that if what he is concerned about is the prac- tice of maintaining records, the only way in which one cannot maintain them is in effect to destroy them. I am saying that I think the suggestion—which I am not saying he developed in the end—that the criminal records should not be available in any way whatever goes too far, is too sweeping, is unacceptable and, as I think he agrees, goes beyond what Justice proposed and what he himself is proposing.

I want to comment on the keeping of records at the moment. First, with regard to the letter the hon. and learned Gentleman read, of course one realises the distress and upset which must be caused when a previous conviction of a parent suddenly becomes known to a boy who had no idea that his father had ever been in trouble and where the offence was committed before the child was born. I would always be prepared to look at any individual's case which was brought to my attention where it was felt the police had improperly used knowledge of this kind.

There may be occasions where, although a person has only one previous conviction—for example, for a sexual offence—it is necessary to interview the individual because of the similarity of the traits of another offence many years later. It must be in the discretion of the police to interview those whom they consider it necessary to interview. I would be willing to call for any report from a chief constable in any case where it was felt that the use of a long-past conviction was being used unfairly in police investigations.

Mr. Janner

Can the hon. and learned Gentleman give an undertaking that any person who comes forward with such a complaint would have it dealt with in complete privacy? Clearly that is the stumbling block. He would be loth to have the matter dragged forward and made public. Therefore, it is essential that the public should be assured that any such investigation would be carried on privately with the proviso that any police officer whose conduct is impugned must have the right to reply. The fact is that people such as this lad do not want their names or addresses given. That prolongs investigation of these complaints.

Mr. Carlisle

One must have certain details before one can investigate a complaint. It would be impossible to investigate a complaint unless the complainant were willing to give the name and address and presumably to make a statement about the complaint. This would be treated in the same way as all other complaints, in that the report to the officer carrying out the inquiry into the complaint would be a privileged document to the chief constable, and would not be publicised.

The Home Office make it a rule that they never publish the report in an ordinary case of complaint. But, obviously, a statement would have to be taken from the individual for it to lead to any form of disciplinary hearing. In any event, the officer against whom the allegation was made would have to be seen.

The police have a system of weeding out stale convictions, but they do not do it after 10 years. All convictions for indictable and for some non-indictable offences are recorded on a national register or a regional register, and there is a standard procedure for eliminating the criminal records of those who are considered unlikely to come to the notice of the police again. I understand, for example, that it applies broadly speaking to all people 40 years of age or over who have not come to police notice for 20 years and who have been convicted only once and sentenced to a term of six months' imprisonment or less. Their complete record is removed. Anybody over the age of 70 who has not come to the notice of the police for 10 years also has his records entirely removed. This procedure is now followed by most criminal record offices and is being, or will be introduced in regional offices where it is not the practice.

The hon. and learned Member was not quite accurate in what he said about fingerprints. Section 40 of the Magistrates' Courts Act, as extended by Section 33 of the Criminal Justice Act 1967, provides that where a person not less than 14 years old is in custody charged with an offence punishable by imprisonment, on the application of a police officer not below the rank of inspector, the magistrates may order that his fingerprints be taken. However, Section 40(4) requires that if he is acquitted or if no charge is brought against him, all copies and records of fingerprints shall be destroyed. It is true that fingerprints taken with consent are not covered by the statutory provision of the Act, but, as a matter of normal police practice, they are in fact destroyed if no conviction results from the proceedings. I assure the hon. and learned Gentleman that all police records are kept in circumstances of the greatest confidentiality and that we do all we can to ensure that that confidentiality is maintained.

From time to time, information on convictions is sent to certain bodies by the police. For a number of years, there have been arrangements under which the police are asked to bring to the notice of responsible professional and other bodies certain types of conviction of persons engaged in medicine, the law, the public service and the care of children. When this is done, it is because it is in the public interest. For example, it is in the interests of children themselves that the employers of those caring for them should be entitled to know whether such a person has a conviction for an offence involving a child.

As the hon. and learned Gentleman probably knows, my right hon. Friend the Member for Barnet (Mr. Maudling), when Home Secretary, asked for a review to be made of the arrangements. That review is now in progress and my right hon. Friend the present Home Secretary has said that he will make a statement when the review is complete. Before turning to the wider issue of "Living it Down", I should like to say that the Home Office is concerned about the possibility of people being highly embarrassed by the publication in a court of a stale conviction, as in the type of example that the hon. and learned Gentleman cited when a person charged with a parking offence suddenly hears it read out that assault or some minor form of larceny 25 years ago he committed an indecent about which no one else knew anything. We are concerned about that possibility and we are considering a circular to magistrates' courts to advise them about the types of offences that should be mentioned in this way. The hon. and learned Gentleman knows from experience that in the High Court that offence would probably never have been read out in open court.

I turn to the Justice report and the argument that there should be a period after which a man should be deemed to be rehabilitated and after which no reference should be made to his previous conviction. I have studied the proposal with interest and I have had a long talk with the noble lord, Lord Gardner and Mr. Paul Sieghart, two of the authors of the report.

In principle I am attracted by the desire to do something to prevent an individual's being suddenly confronted by a stale conviction when, for instance, he comes forward as a witness, so that his past is dragged up although he had "lived it down". Personally, I am attracted by the idea that in some way that period should be tied to a sliding scale, so that the severity of the crime is recognised by the length of the period that would have to elapse before the man was deemed to have "lived it down". However, having studied with care the Bill which the noble Lord, Lord Gardner proposes to introduce—a copy of which he was good enough to send to the Home Office for comment—I have had to tell him by letter that we see substantial practical difficulties in the proposals it contains.

I shall not go into detail now. At this hour, I think that it would not be of great value if I did, though I am quite willing to let the hon. and learned Gentleman know what some of the objections on practical points are. I shall take just two examples, to which he himself referred.

First, the person wishing to emigrate. The proposal that a conviction would not have to be announced in this country would have no force in the country to which the person was going. Therefore, far from avoiding difficulty, he might find that matters were considerably worse. If, in filling in the forms in this country, he relies on the proposal in the Justice report and does not disclose a conviction, but later that conviction somehow becomes known in the country to which he has gone, he may well be removed therefrom on the ground that he has come in on a false basis.

Second, the hon. and learned Gentleman asked for my view about offences becoming relevant in later criminal cases only if they were of a major rather than a minor nature. With respect, that is not quite the proposal. The proposal is that records may be read out at trials on indictment but not in cases tried summarily. Thus, as I understand it, the record of a person could be given to the court if he were tried on indictment but could not be given if he were committed for sentence. I see the hon. and learned Gentleman looking doubtful, but, with respect, I think that he will find that I am right about that.

Also, it means that in the case of summary conviction a man would be regarded as rehabilitated in respect of certain past offences which might be nearer in time to the conviction whereas in the case of conviction on indictment he would not be regarded as rehabilitated in respect of an offence which he had committed in the much more distant past. In this way the court might be given a totally misleading picture of what the man's previous record was.

Above that, however, I must point out that there are grave questions of principle, on which people must make up their own minds, whether the idea of the "legal lie" is appropriate. All I was concerned to do was to point out to the noble Lord, Lord Gardner the practical difficulties, as we saw them from a Home Office point of view, in the proposals in the draft Bill which is published along with the Justice report.

We shall, of course, listen with care to anything that is said in any debate which takes place on the Bill in the other place. I share the hon. and learned Gentleman's concern about the problem of the stale conviction. But I cannot at this stage say that the proposals in "Living it Down" would necessarily be acceptable to the Government as a method of dealing with it.

Mr. Greville Janner

The hon. and learned Gentleman has been good enough to indicate the Government's view. Will he add an assurance on one other matter? Plainly, the police must on occasion interview people even though their convictions are old. Will police officers be instructed not to conduct such interviews in the presence of the family of the person interviewed? Could that be considered? Could a circular go to police forces asking them that, when they interview people who have gone straight for a long time, they do not make their inquiries in front of the family?

Mr. Carlisle

Methods of investigation must always be a matter for chief officers of police and the policemen serving under them. I think the hon. and learned Gentleman is raising an unnecessary fear. I am sure the police are extremely careful to use tact in these matters. I would wish them to do so, but I cannot believe that there is any justification for a circular. I am sure that this is the sort of matter that chief constables and senior officers always bear in mind when making inquiries so that the inquiries they have to make are made in a way which does not cause undue or unnecessary embarrassment.