§ Order for Second Reading read.
§ 2.23 p.m.
§ Mr. Kenneth Marks (Manchester, Gorton)
I beg to move, That the Bill be now read a Second time.
I am grateful to the hon. Member for Sevenoaks (Sir J. Rodgers) for his help and co-operation in ensuring that a debate on the Bill is being held today, and to the sponsors of the Town and Country Amenities Bill and other speakers for their brevity and reticence. I also thank the Minister of State, Home Office—who is to speak in the debate—for his help and co-operation, aware as I am of the reservations that he and Government Departments have about the Bill.
The aim of the Bill is to lift a burden of injustice from more than 1 million people—people once convicted of an offence who have gone straight for some years, people who live under the shadow of their record. It is certainly not a criminals' charter. It is a charter for those who have rehabilitated themselves, who have become respectable and respected among their fellow citizens—people who have done their best.
I am not a lawyer—and this is very much a lawyers' Bill—I am a teacher. I 2111 have spent most of my 20 years of teaching in elementary and secondary modern schools in a large city and I know the scrapes and troubles that boys and, to a lesser extent, girls get into in their latter years at school and in the years immediately following. Some of them are caught, go to court and are fined, or receive some other punishment. Some of those go on to a life of crime. They graduate—approved schools, borstals, prison—and in the intervals between sentences they continue their crimes. They present a tremendous problem to our society. But it is not this problem that we seek to solve in the Bill, although its provisions could perhaps provide encouragement to some of them to go straight.
The Bill is concerned with a much larger number of people who offend once, or perhaps more than once, and then settle down to become hard-working and decent citizens. They have paid the penalty imposed upon them by the courts, but they serve another sentence—a life sentence. Their criminal record lives with them until they die, and at any time its disclosure can put an end to their rehabilitation, cause them to be unemployed, and cause misery and sometimes the break-up of their marriage and their home.
In 1970 a joint committee to examine this problem was set up by the all-party lawyers' association, Justice, the Howard League for Penal Reform and the National Association for the Care and Resettlement of Offenders. It was under the chairmanship of the noble and learned Lord, Lord Gardiner, and its members were Louis Blom-Cooper, Who is a Queen's Counsel and a magistrate, Kenneth Cooke and Eric Crowther who are stipendiary magistrates, Mrs. Kate Frankl, also a magistrate, Hugh Clare, a former secretary of the Howard League for Penal Reform, and head of the Division of Crime Problems, Council of Europe. Of all the countries in the Council of Europe, which number considerably more than the nine of the EEC, ours is the only one without a law which ensures that a person's rehabilitation is accepted by society.
Also on the committee were barristers Paul Sieghart and Eric Stockdale, Rupert Townshend-Rose, Martin Wright of the 2112 Howard League, and Tom Sargeant, the Secretary of Justice. I am sure that the country as a whole will be grateful to them for their work. The committee examined the problem and possible solutions, and reported in 1972. The cases which the committee cited as examples are known to a great many of us, thanks to the report, the Press and the other media.
There is the young man who, after conviction for theft, worked and saved and wanted to invest his savings in a small business but could not get the necessary insurance. There is the 23-year-old who could not get a job as a postman because he had been reported for, but not charged with, selling eggs as a boy and was on the police records. There is the 62-year-old grandmother who, at the age of 18, was convicted for soliciting and for 40-odd years lived in dread that her family and her neighbours would learn of it. I could add many more from the cases I have received, and I know that other hon. Members have received many in recent weeks. There is the scientist, now in his 60s, who was convicted 25 years ago for an offence that is no longer an offence under our law, whose career has been thwarted and whose life has been made wretched ever since. There is the mother who is worried because her son wants to join the police and she has an old conviction that he does not know about. There is the woman whose husband cannot understand why she will not apply for certain posts, despite her academic qualifications. She was caught shoplifting 20 years ago, while still at school. I have mentioned only six cases. According to the Home Office research unit there are probably 1 million.
When I was a teacher I used to illustrate large numbers like this by referring my pupils to a similar number of people that they could recognise. In those days 1 million meant 20 times the crowd at the Manchester football ground. I wondered how I could put this figure into a parliamentary context. If only one in 100 of those people lobbied their Members of Parliament at the same time there would be a crowd of 10,000 outside St. Stephen's entrance—and it would probably be the most well-behaved demonstration we have ever seen, because these are people who do not demonstrate—people 2113 who, from the very nature of their problem, cannot demonstrate. They do not usually write letters to their Members of Parliament.
One million people is equivalent to the electorate of 15 parliamentary constituencies. It is more than the difference between the Labour and Conservative vote at the last election. It is 1,575 electors per constituency—more than the majorities, in 1970, of 37 Labour Members, 44 Conservatives, 3 Liberals and a Scottish Nationalist.
I talked of six cases. Had I gone on at that speed night and day I would not have been able to talk of all of them before the next General Election, presuming that the Prime Minister called one in the first week in October.
The committee's proposals were embodied in the Bill in its original form and presented in another place by Lord Gardiner during the last Session of Parliament. It had the support, in principle, of a great many organisations and people, including the Confederation of British Industry, the Magistrates' Association, the British Insurance Association, the Lord Chief Justice and his immediate predecessor, Lord Parker, and Vic Feather, and it had the unanimous support of the three organisations which had set up the committee.
I am sure that Lord Gardiner, as well as those of us who have sponsored the Bill in this House, would want to pay tribute to Mr. Paul Sieghart for his work in the drafting of the Bill and his untiring efforts in its promotion.
The Bill as we have presented it to this House is as it was in its amended form after the Report stage in another place. Here I confess to error. Further amendments were approved on Third Reading in another place and have not been included. This was new to me, but this can be put right in Standing Committee, when I expect that there will be other amendments.
In the Lords the Bill went through all its stages with amendment but without Division, and there were four long debates.
§ Clause 1 defines the rehabilitated person as one who has been convicted, has duly served or complied with his sentence, 2114 and has not been convicted of any further offence for the appropriate period, thus making a conviction a spent conviction.
§ The effect of this, as stated in Clause 2, is that no evidence of a spent conviction will be admissible in a court or tribunal in Great Britain, with specified exceptions, and any question put to a rehabilitated person about his past will be deemed not to relate to the spent conviction or to the offence.
§ It has been suggested that this is legalised lying. I think that the law would simply set a humane example. Rather than forbidding the asking of questions—a much more difficult matter—the law would treat the question as relating only to convictions which had not been spent. Endorsements on a driving licence provide a similar case.
Another approach can be seen in the Children and Young Persons Act 1963, Section 16(2) of which states:
In any proceedings for an offence committed or alleged to have been committed by a person of or over the age of twenty-one, any offence of which he was found guilty while under the age of fourteen shall be disregarded for the purposes of any evidence relating to his previous convictions; and he shall not be asked, and if asked shall not be required to answer, any question relating to such an offence…".
Clause 3 of the Bill deals with the rehabilitative periods reckoned from the date of conviction, namely, a period of
§ In the original Bill that maximum period was two years, and 30 months was added as an amendment in another place.
§ Clause 3 also defines the various terms with regard to sentences and states that where a person is under 18 at the time of conviction the rehabilitative period shall be halved.
§ Clause 4 provides for a certificate to be issued to persons when sentenced informing them when the conviction would become a spent one.
§ Clause 5 provides for certain exceptions to allow evidence of spent convictions in certain courts and in certain cases.2115
§ Clause 6 deals with defamation actions and is one on which the Standing Committee may wish to consider the recommendations of Mr. Justice Faulks' Committee on Defamation, if these are available.
§ Clause 7 refers to unauthorised disclosure of spent convictions, which would become a separate offence, so there would be no need to rely on the Official Secrets Acts. It also lists those who would have access to the records and gives powers to the Secretary of State to add to that list.
§ During the last few weeks I have heard and read many times the words, "I have sympathy with your Bill." We in this House have power to do more than sympathise. We have the power to act to help our fellow citizens. We can see the problem. The Bill provides a way to help. It may not be perfect. Few Acts of Parliament are. In common humanity I ask right hon. and hon. Members to assist me in this sincere attempt to help the Bill forward to its next stage.
§ 2.37 p.m.
§ Dame Joan Vickers (Plymouth, Devonport)
I congratulate the hon. Member for Manchester, Gorton (Mr. Marks) on producing what I call a very "human" Bill indeed. For a legal Bill—I will not go into the legal niceties, not being legally trained—it is nice to find a Bill which is couched in such sympathetic language. I think that the hon. Member is seeking to remove from many people a second life sentence.
I come from a city which has special difficulties, because we have so many Ministry of Defence organisations. The Ministry of Defence will not accept anybody who has any blemish at all on his past record. Then there are the railways and the Post Office, as the hon. Gentleman mentioned. This means, with defence lands as well, that it is left to private enterprise to re-employ these people, which makes it all the more difficult.
If the Bill secures its Second Reading and then goes forward, the hon. Gentleman will be able to consider that he has given great happiness to many people and taken a great step to stopping them from committing crime again. Persons who have been continually unemployed, who have applied for job after job and been turned down, very regrettably—this 2116 has happened in more than one case—because they have disclosed their past, often turn to crime again.
A more difficult aspect about Ministry of Defence establishments arises, for instance, when a contractor is doing only a temporary job of, say, rebuilding or building a new workshop. Such a case arose the other day. Contractors on a Ministry establishment employed a man aged 58 merely to make tea, and they paid him a very good salary. It was discovered that the man had not worked for over eight years. When questioned his record, not a good one, was discovered, and he was instantly dismissed. This is one of the reasons I have great pleasure in supporting the Bill.
I am pleased that the hon. Gentleman includes courts-martial, because courts-martial are, more often than not, held more for reasons of discipline than because any real crime, such as stealing molesting or assaulting someone, has been committed, although the offence charged may be regarded as crime in the eyes of the Service concerned. With a court-martial it can be a question of discipline only, so I am glad that the hon. Gentleman has included that provision in his Bill.
Following the Street Offences Act, a woman can be convicted. The hon. Gentleman referred to this matter in passing. That Act, which I have been trying for several years to get changed—as I believe Lord Chorley has, in another place—makes it even more difficult for a woman, if she marries happily, who is perhaps before the court for shoplifting if her previous offence comes out in her past record. I hope that this will help in trying to get some further change in the Street Offences Act.
If the Bill becomes an Act—I hope that it does—it will give new life and hope to many people. It will also help to reduce crime in future, which is what we all want, for the reasons that I have stated. Further, it will mean that many people will be able to obtain employment, which they have been unable to do hitherto and so raise their standard of living.
I shall not raise any points of detail about the Bill because I shall hope to-do that and learn more about it if I 2117 serve on the Committee. I did not anticipate getting the chance to speak again, having spoken on the previous Bill, but I should like to add my support to the measure that the hon. Gentleman has so ably introduced.
§ 2.42 p.m.
§ Mr. Edmund Dell (Birkenhead)
I should like to join the hon. Member for Plymouth, Devonport (Dame Joan Vickers) in congratulating my hon. Friend the Member for Manchester, Gorton (Mr. Marks) on his luck in the Ballot and on his choice of this Bill. He is also to be congratulated on his skill in choosing the previous Bill which has enabled him to secure a Second Reading debate today and, I hope, a Second Reading.
§ The Minister of State, Home Office (Mr. Mark Carlisle)
Does the right hon. Gentleman agree that his hon. Friend was even cleverer in picking the sponsor of the previous Bill as a sponsor of this Bill as well?
§ Mr. Dell
My hon. Friend sems to be a most ingenious man, which I hope will lead the Minister to agree that the Bill must be about as good a measure to meet this purpose as can be designed. No doubt we shall hear about that from the Minister at a later stage.
I was particularly impressed by the argument presented by the hon. Member for Plymouth, Devonport on the way that the Bill can help to reduce crime. The object of removing from many people a tremendous burden which they should not have to carry so long after an offence is one to which the House should certainly address itself.
There have been objections to the Bill, to some of which my hon. Friend has referred. I particularly wish to refer to an article in the Justice of the Peace of 19th January about the Bill which presented, I suppose, a reasoned objection to the method chosen by my hon. Friend for achieving his purpose. I think that we should consider what is set out in this article though, as I shall indicate, to a considerable extent its argument can be met. Indeed, when we come to the crucial question of how to meet what is considered to be a "commendable aim", the comments in the article fall down 2118 and we have to rely on the Bill and the work which has preceded it for an answer to the problem.
Three points appear to be made in the article. The first is that there are many detailed points at which the Bill is faulty but these can be tidied up in Committee. My hon. Friend has already indicated some of the points that will arise only because he took what was perhaps not the final version of the Bill from the other place.
The second objection in the article is that a discrimination is introduced into the Bill between the Crown court and the magistrates' court on the type of information that in certain circumstances should be available to the court before sentence.
The attitude throughout of all those who have been associated with the Bill is that here is an objective to be fulfilled. If the Home Office suggests that certain improvements are necessary there is and has been a readiness to accept such proposals. I see no objection to meeting that particular criticism if the Minister thinks it right to recommend it to us.
We then come to the main question raised in the article: how to deal with what it describes as a "commendable objective". It states:The report ends up by proposing a remedy which goes far beyond what is necessary to achieve its commendable aims".It criticises the Bill on the principle that it seeks toalter the law by forcing people to pretend that that which had been never was.I appreciate that criticism, but I should like to know from the authors of this article and of this type of criticism, given that they accept that this is a commendable aim, what the alternative is.
The weakest part of the article, which, for all I know, may be highly persuasive to a lawyer, is when it suggests that there is an alternative. It refers to the provisions of Section 12(1) of the Criminal Justice Act 1948, under which certain types of what the layman would regard as convictions are to be regarded not as convictions—for example, an absolute or conditional discharge or a probation order. The article, suggesting that the solution to this problem is to extend the principle of Section 12(1) of the 2119 Criminal Justice Act in a significant way, states:Such reforms, coupled, perhaps, with a significant extension to a much wider range of sentences of the already mentioned principle enshrined in the Criminal Justice Act 1948, Section 12(1), would effectively eliminate almost all the evils to which the Gardiner report drew attention.That would seem to enshrine into the law to an even greater extent than the Bill proposes the fact to which the article objects—that people will be pretending that that which had been never was. It cannot be put forward seriously as an alternative to the proposal in the Bill that, for example, convictions which led to sentences of imprisonment, should be regarded as not being convictions. From what date should they be regarded as not being convictions? If an alternative had been proposed which got over this problem it would have been worth considering, but I know of no alternative, and Justice of the Peace does not provide one.
The Bill devotes itself to a most important objective, about which the hon. Member for Plymouth, Devonport so eloquently spoke. I have to compare it with any alternative that is put forward for meeting it. I know of none. Therefore, I think the House would be well advised to accept the approach in the Bill, with such amendments as the Home Office may wish to make, and thus remove this burden from the many people who are currently subjected to it.
I should like to see some amendments to the Bill, but in a different direction from those proposed in Justice of the Peace. For example, Clause 3(9) provides:The Secretary of State may by order substitute different periods or terms for any of the periods or terms mentioned in subsections (1), (2), (3) and (5) of this section".I should like the word "different" to be replaced by the word "shorter". When introducing a new principle into the law one has to be fairly careful and perhaps give rather long periods before a conviction becomes spent. But they are in many cases long periods. I wonder whether, after experience, they might be reduced from the periods specified in Clause 3.
Similarly, I wonder about Clause 3(2)(e), under which a custodial sentence imposed as an alternative to a fine is to 2120 be treated as a custodial sentence, and the period before the conviction in such a case can be regarded as spent is defined in relation to a custodial sentence. Is that reasonable, bearing in mind the circumstances—such as those I was discussing with the Minister in the early hours of the morning last week—in which many people are sent to prison in default of payment of a fine?
I should like to see some liberalising amendments in the Bill along those lines, but as a Bill to achieve an objective which the House ought to wish to achieve, I give it my whole hearted support.
§ 2.50 p.m.
§ Mr. Ernie Money (Ipswich)
I join my hon. Friend the Member for Plymouth, Devonport (Dame Joan Vickers) and the right hon. Member for Birkenhead (Mr. Dell) in warmly welcoming the Bill. It is both a human Bill, as my hon. Friend described it, and a humane Bill, which will make a great deal of difference to the lives of many people who have genuinely rehabilitated themselves. All of us have had constituency experience of some of the problems and burdens which the existence of a conviction, perhaps in youth, may place upon the citizen. This is especially true in relation to employment in local government, even in circumstances which have nothing to do with the conviction in question, for example, employment as a driver when the conviction was for dishonesty many years earlier. I hope that the House will warmly accept the Bill and give it a fair wind.
I come now to some points of detail on which I shall be glad to hear from my hon. and learned Friend the Minister of State now, or when the Bill goes to Committee. I take, first, Clause 3(3). In the case of an absolute discharge, the sentence is to be treated as an effective sentence from which a person may be regarded as rehabilitated only at the end of six months. Often, in the mind of the court, there is the hope that an absolute discharge can be treated as just what it says, and a court is often very puzzled about what to do when a technical offence has been committed and it wishes to impose the minimum sentence.
I hope that the House will find it possible to give the courts power to impose a genuine absolute discharge, which would 2121 carry no form of moral obloquy whatever and entail no period before which rehabilitation can be gained. There should be some form of formal penalty which the court may impose which shows that although the complaint was properly laid under whatever law may apply the defendant has no measure of moral obloquy to meet. Unhappily, courts often find their hands tied. They say that they wish to give an absolute discharge, the intention being that it shall bear no weight upon the individual, but inevitably it will play some part in his background.
I am more unhappy about Clause 5(3)(b) and (g). Both these paragraphs touch on long-standing problems. If someone is giving evidence—this applies especially to a defendant giving evidence—and he is making an attack on the character of a prosecution witness, it is right that the court should have discretion to allow his character to be disclosed. In this context there is, however, one particularly distressing type of case with which most practising advocates will be familiar. Some one may have a serious conviction a long time back in his history—a conviction which is not known to his employers, his family or even anyone in the district in which he lives. The advocate is then faced with the problem of deciding either to present the case with his hands tied behind his back, not being able to make a head-on attack on a prosecution witness, although his instructions are that such an attack should take place, or to run the risk of damage being done to his client by that conviction being disclosed—possibly a far greater risk than the risk of conviction on the count on which the defendant is then charged.
I hope that the House will consider whether, in such circumstances, it is possible to devise a system whereby convictions of that kind may not be reported by the Press in giving an account of the hearing.
The situation under paragraph (g) is even more distressing, affecting as it does two rights of the citizen. It affects the right of an accused person to have previous convictions of a witness known. Every practising advocate knows how important this may be. Only a few months ago, I was concerned in a fairly serious case before the St. Albans Crown 2122 court, in which, through an oversight—this was the type of case often referred to as street-corner fraud—the previous convictions of the shopkeeper, for embezzlement and larceny as a servant, were not disclosed when the case started. He gave his evidence, giving the impression that he was a totally respectable citizen who, as he put it in his own words, knew about the law and the working of the courts only from watching "Softly, Softly" on television. When the time came, the officer involved very properly disclosed to counsel for the Crown that in fact he had those previous convictions, and the jury immediately stopped the case because they were not prepared to accept his evidence any further.
That raises two problems. The insertion of the words in paragraph (g), "with his consent", mean that the rights of the accused person are diminished inasmuch as, if a person has, say, five serious previous convictions, perhaps even for perjury, they will not be admissible in evidence on behalf of the defendant if they have been covered by the rehabilitation period. The defendant will not be able to show that one of the prosecution witnesses may be a person of bad character in that respect unless that person gives his consent.
§ Mr. Carlisle
It is not my Bill, but I must say that he would have to be a very elderly person to have five convictions for perjury and be rehabilitated under the terms of the Bill. It does not apply to anyone who has had a sentence of more than two and a half years, and if he has been to prison for more than six months there must be a five-year gap between the conviction and the conviction becoming spent.
§ Mr. Money
I recognise that, and perhaps my figure of five was an exaggeration. Nevertheless, as my hon. and learned Friend well knows, it is possible for a person to be convicted for perjury and be sentenced to less than two and a half years. The risk is there that the rights of an accused person will be diminished. I am sure that my hon. and learned Friend accepts that.
The reason, on the other hand, is that very often someone who has a conviction of that sort, who lives in a fairly close 2123 community where there is a risk of these facts being disclosed, will not willingly come forward to give evidence. I would have hoped that the House might look at this matter again, perhaps putting some form of restriction on the disclosure of that sort of information in the Press or outside the court. It is evidence which it is perfectly proper for a court to have and for the jury to consider, but I should have hoped for some form of restriction to be placed on the use of that information in any other way outside the court.
Having dealt with these points generally, I warmly support what the hon. Member for Gorton has done in the Bill in not only dealing with the case of the person who has genuinely tried to rehabilitate, and that is desperately important if rehabilitation is to mean more than merely a pious form of cant, but in making the working of the criminal courts a good deal fairer to all parties concerned, if the safeguards can be maintained. Equally important, it means that some sort of check can be put on the degree of blameworthiness that someone who has behaved possibly incredibly foolishly as well as dishonestly early in his youth has to carry with him for the rest of his life.
Everyone who practices in the criminal court will have had experience of how often a person can genuinely change—a fact which can be ascertained simply from studying the record of previous convictions over a period. For example, someone may come up on a driving offence who might have a previous criminal conviction from 10 years before, yet nothing since. I hope that situation will be met in this way.
The Bill also deals with two of the least attractive features which have developed from the over-free granting of credit in the last few years. Unhappily, a good deal of information has been leaked to organisations with no right to use it and which use it irresponsibly and very often on a basis that is pretty close to blackmail. I hope that the penalties in Clause 7(6), including the penalty of six months, or a fine of £400, or both, for anyone who commits an offence by obtaining specified information by fraud, dishonesty or bribe, will be taken extremely seriously by the courts if the Bill goes through, as I hope it will. It 2124 has been quite monstrous in recent years that information of that sort should have been obtained and pressure brought to bear for the settlement of civil claims, and that people should have been made to pay up other claims against them in connection with rent or other forms of civil debt because unscrupulous people can get hold of information of that sort and use it.
I warmly congratulate the hon. Member for Manchester, Gorton (Mr. Marks) and I wish his Bill every success.
§ 3.3 p.m.
§ The Minister of State, Home Office (Mr. Mark Carlisle)
I begin by congratulating the hon. Member for Manchester, Gorton (Mr. Marks) on his success in the Ballot. As his right hon. Friend the Member for Birkenhead (Mr. Dell) pointed out, his careful attention to the procedures of this House led him to realise that even if one is fairly low down in the Ballot it is possible to take advantage over certain people who may be better placed by carefully choosing to be the second Bill on a day when one has already rigged the sponsors of the first Bill to be sponsors for one's own. For his ingenuity, if for nothing else, and for the courage he has displayed as a non-lawyer in venturing to take on this Bill, he deserves our congratulations.
The Bill, of course, is similar in all respects to the Bill which, having been introduced by Lord Gardiner in another place in the last Session, was discussed at length in that House. As the hon. Member has reminded us, that Bill was based on a report of a combined committee of Justice, the Howard League, and the National Association for the Care and Resettlement of Offenders. That distinguished committee was chaired by Lord Gardiner, himself a distinguished ex-Lord Chancellor. The Bill, therefore, certainly has a highly respectable parentage. It raises important issues. This is the first time the House has had the opportunity to express a view on them.
The intention behind the Bill is that those who have committed an offence, or offences, and have lived them down for several years, should be able to resume their place in society without the fear that at any moment their past will be resurrected, to their detriment, whether 2125 by appearing as witnesses, or by a story in a newspaper or, in certain circumstances, by a wholly different type of conviction in a magistrates' court. That is a reasonable aim, which deserves the sympathy that it has received.
The hon. Gentleman said that the best evidence the committee of Justice could provide, based on the research unit of the Home Office, was that there were perhaps 1 million people in that position. I understand that that was an assessment based on the number of people who had criminal records but who had not had a conviction over a period of 10 years. In view of the hon. Gentleman's comment, I should say that although the original offence must have been indictable, to have appeared on a criminal record, it does not necessarily mean that all those 1 million people were convicted of an offence the nature and gravity of which would necessarily be a grave embarrassment to them throughout the rest of their lives. But there are undoubtedly some people in that situation who have recovered and rebuilt their lives after the conviction. The figure of 1 million gives an impression of the size of the problem with which we are concerned.
The aim of the Bill is admirable, and is one that has received a great deal of sympathy and wide support. It is one with which the Government have sympathy.
§ Mr. Money
Does my hon. and learned Friend agree that however trivial an offence may be in terms of the passage of a period of years there are many public organisations, particularly the Armed Services and the Government services, in which a conviction of any sort has the mandatory effect of stopping employment?
§ Mr. Carlisle
That is a relevant point, which I entirely accept. I made my earlier point only because the hon. Member for Gorton may have inadvertently given the impression that all the 1 million people to whom he referred were of necessity living under the fear of exposure.
The issue that must be decided by the House today is whether the means proposed in the Bill to achieve its desirable end are an acceptable method of dealing 2126 with the problem. The approach of the Bill received almost universal acceptance in another place, and there is no doubt that it has also had general acceptance outside the House, apart from the strong attack on it in Justice of the Peace. There is no doubt either, in view of the list of backers of the Bill, that it has weighty support from both sides of the House. All those who have contributed to this short debate have supported it.
The Government support the intention of the Bill. We believe that it is important that the issue of principle should be fairly and fully stated to the House. If that issue is acceptable to the House, the Government will not wish to attempt to prevent further progress on the Bill or advise the House to reject it.
The Government, however, have grave reservations about a number of matters within the Bill. Some of them are of a fairly major nature, and one such matter has been mentioned by the right hon. Member for Birkenhead. At the moment some of these matters are drafted in a way which the Government find unacceptable. Therefore, if the Bill is to proceed into Committee, and if it be the hope of its sponsors that it should proceed from Committee into the statute book, we would wish to see certain amendments made to it before giving it our enthusiastic support.
I approach the Bill in a sense of constructive criticism, as I believe my noble Friend the Lord Colville did in another place. I shall spell out briefly some of the issues which we see arising and one or two of the major difficulties which will have to be faced in committee.
§ Mr. S. C. Silkin (Dulwich)
The Minister has said that the Home Office would wish to see certain amendments made to the Bill. I would be with him in that, and if I catch your eye, Mr. Deputy Speaker, I hope to say so. Will the Minister tell the House whether the Home Office is prepared to give drafting help to ensure that such amendments are made, or will it be left to the Committee to do the best it can?
§ Mr. Carlisle
As the hon. and learned Gentleman will appreciate—certainly the right hon. and learned Member for West Ham, South (Sir Elwyn Jones), who is a former Attorney-General—I am not in a 2127 position to answer that question in a direct form. I have noticed with pleasure the co-operation which has been offered by the sponsors of the Bill throughout the proceedings in another place. The leading sponsors, if I may so describe them without disrespect to the other sponsors—namely, the hon. Member for Gorton and my hon. and learned Friend the Member for Northwich (Sir J. Foster)—have already been to see me. I should be willing to discuss with them the types of matter which are important. However, I am not in a position to undertake that drafting assistance will necessarily be available. I take account of what the hon. and learned Gentleman says and I am grateful to him for raising the point.
The Bill makes an attempt to deal with rehabilitation by a legislative solution. It provides that a conviction should become spent after a certain period, that period depending on the seriousness of the penalty which was imposed. It provides that the offender should then be treated, for most purposes, as rehabilitated in respect of that conviction. A spent conviction is to be assimilated as one which has been quashed. That means that the conviction should be considered as if it had never occurred and one which the person concerned would not be bound to admit. It could not, except in certain circumstances, be referred to by other people.
The critics of the Bill say, as was said by the hon. Member for Gorton, that it is establishing a group of people about whom the truth cannot be told. It seems to me that the issue of principle which this House has to decide is whether that is an acceptable way of approaching the problem. The Government do not wish in any way to persuade the House not to find that acceptable. We merely want hon. Members to realise the issue that they face.
Since it works on convictions, equally, it sets out to help only those whose criminal behaviour has led to a conviction, and therefore ignores a great number who may have equally discreditable instances in their histories to live down but were never convicted. But it has to work through the criminal conviction, because the criminal conviction is the verifiable event which may in itself create difficulties in connection with such matters as applications for employment 2128 or insurance cover, or may even lead to dismissal from a job already obtained or invalidation of an insurance policy if, at a later stage, the conviction comes to the notice of the insurers.
I shall not attempt to mention any Committee points, as such, but perhaps I may refer to some of the effects of the Bill, beginning with the effect that it would have on the civil law of defamation, which would clearly be extremely marked.
I feel it my duty to say that the law of defamation is at present being examined by a committee under Mr. Justice Faulks, and its report will shortly be submitted to my noble Friend the Lord Chancellor. It is unfortunate that, due to the timing of these matters, we are having to debate this issue in principle on the Floor of the House without the advantage of that report.
Mr. Justice Faulks has written to me, and feel that it is right to tell the House that his committee has grave reservations about the effect of the Bill on the law of defamation, and obviously the weight of that report and the detailed criticisms in it will be matters which the Standing Committee will wish to consider carefully should the Bill receive a Second Reading. I should be misleading the House if I did not say that Mr. Justice Faulks has made it clear that his committee is opposed in principle to the effect that the Bill will have on the law of defamation.
§ Mr. Alexander W. Lyon (York)
I hope that the hon. and learned Gentleman will not leave it there. Will he tell the House why the committee is opposed to it?
§ Mr. Carlisle
I do not think that I can. The report has not yet been published. It is in the process of being published. However, Mr. Justice Faulks has written to me. Perhaps I may read the last few lines of his letter. He says:However, for the reasons explained in our report, my Committee feel that the provision of the Bill which seek to change the law of defamation should be opposed; affecting as they do the principle that truth should at all times remain a defence to civil actions for defamation.However, the report also contains a more detailed criticism of individual parts of the Bill, and I am sure that the Committee will wish to take that into account 2129 provided that the report is published in time.
§ Mr. Carlisle
Mr. Justice Faulks is saying that his committee is opposed to the Bill on that issue. This is because of the Bill's provision that no evidence to the contrary should be admissible in any subsequent court proceedings affecting a person who is rehabilitated under the provisions of the Bill.
The net result of the provisions of the Bill is that in defamation proceedings the defences provided by Clause 6 of absolute and qualified privilege remain available in most circumstances but that all other defences, including those of justification and fair comment, may not be used, subject to the limited exceptions in Clause 6.
The effect of this is to create a class of persons about whom the truth cannot be told once the rehabilitation period has elapsed. This will undoubtedly have an effect on journalists who report criminal trials long after they are completed and on historians, biographers and other writers who will have to take account of the provisions of the Bill. Hon. Members will have to ask themselves whether they find that desirable and acceptable.
I turn next to the effect on criminal proceedings. In general, the Bill seeks to safeguard the present position in the Crown court as regards the admissibility of evidence of previous convictions both when that occurs in the trial as admissible through the rules of evidence and in the giving of antecedents prior to sentence. I think that that is essential. On the other hand, the Bill does not allow reference to spent convictions in the magistrates' court—and the House should bear in mind that magistrates' courts try about 98 per cent. of all criminal cases.
I must tell the House that the Government and the Home Office have—and certainly I have—grave reservations about a system which would depart from the principle that the rules of evidence 2130 should be the same in both courts. On top of that, it seems odd to expect magistrates to reach a decision on the basis of restricted information when, apparently, the Crown court needs to know the full background of a defendant, rehabilitated or not. Obviously, this matter would have to be further considered in Committee.
I am not suggesting that there is not a case for some form of control over the publication of past convictions on conviction in the magistrates' court, because we know that that is partly the evil—if that is the word—at which the Bill is aimed. But, as drafted, the Bill is too sweeping in its approach and the Government have grave reservations about whether it is right to limit reference to convictions in the magistrates' court in any circumstances. The Home Office has already given advice to magistrates' courts against citing in public old and irrelevant convictions, but we believe that the court should be in possession of all available information when passing sentence and should make public as much of that information as it thinks relevant.
There are certain more detailed difficulties. For example, in certain circumstances the magistrates' court may commit an offender to the Crown court for sentence on the basis of his character and antecedents, but in such circumstances the Bill would not allow the lower court to hear about any spent convictions when deciding whether the defendants' antecedents required the court to commit him to a higher court. Although this might have been dealt with at a later stage, as the Bill is drafted there is also a serious problem about a probation order. I refer to these matters only because I think that this is one of the areas that the Committee will have to look at carefully and where the Government will probably ask the sponsors to consider some fairly major amendment.
I come to the question of employment and insurance. The Bill's effect is fairly major in this respect. At the moment, it is a widespread practice for employers and insurers to ask applicants whether they have any previous convictions. Under Clause 2 questions put to rehabilitated people are deemed not to relate to spent convictions, so the answers that employers received would not be wholly accurate and truthful. But that is a 2131 principle of the Bill to which hon. Members on both sides of the House give strong support, and it has support from outside. That, too, is a matter to which we should have to return at a later stage.
§ Mr. Money
In certain industries and trades it is an increasingly prevalent system to have bonding, which often creates a special difficulty for someone who may have lived down a previous conviction of some age but finds himself refused a bond for a reason that is not disclosed to his employer but is merely on the basis that information is available to those who do the bonding that he has a previous conviction.
§ Mr. Carlisle
That is one of the matters with which this Bill is meant to deal. I have pointed out that the Bill will have a fairly major effect on the present practice. I should not be taken as saying that I believe its effect to be undesirable.
Turning to the question of employees' references, there is a clear intention to allow the defence of qualified privilege to apply here. In Committee we shall have to look carefully to see whether the provisions in the Bill meet what I know from my personal discussions with them is the intention of the sponsors, namely, the safeguarding of the existing defence of qualified privilege on a particular reference given on request.
§ Clause 7 will make it a criminal offence to communicate information about spent convictions except in the circumstances specified as exceptions in the clause. It seems from the proposals of the noble Lord, Lord Gardiner and his Committee that this clause is clearly aimed at the unauthorised supply of official information, for example, by police officers to private detectives, or anything of that nature. As drafted it would appear that the Bill could catch such activities as the preparation of social inquiry reports on offenders who had been previously placed on probation and the routine exchange of information by social workers and such administrators as prison staff.
§ I know that the sponsors will realise the importance of ensuring that the Bill is not so drafted as to affect the dissemination of necessary information of that kind. I know that they have attempted to meet this by Clause 7(4)(c) and (d). This is another major area 2132 where the Home Office will wish to be absolutely certain that the point is met.
§ I feel slightly embarrassed about Clause 4 because I am aware that it was as the result of comments made by the Home Office Minister in another place that this system of certification was put into the Bill. It was an attempt to provide clarity and a degree of knowledge as to what offences are spent convictions. On further reflection I feel bound to advise the House that this is not a feasible way of doing it. My doubts are shared by the Justices' Clerks' Society, upon whom the burden of certification would fall.
§ Before the hon. Member for York (Mr. Alexander W. Lyon) laughs too long, I should say that we still believe that there is a problem but do not feel this is the way to meet it. When I remind the House that there were about 1,800,000 people found guilty of offences of one kind or another in 1972 the weight of the burden can be seen. Perhaps it is slightly ironic that the one way of avoiding these convictions becoming public knowledge would be by putting into circulation nearly 2 million pieces of paper a year giving full details of the convictions.
§ Mr. S. C. Silkin
Does that not show the advantage of having drafting assistance from the Home Office on both sides?
§ Mr. Carlisle
It shows the wisdom of our system, which provides several stages through which legislation must pass and enables us to consider various aspects more fully.
There are other problems. My hon. Friend the Member for Plymouth, Devon-port (Dame Joan Vickers) has mentioned those relating to courts-martial. There are also problems related to taking account of overseas convictions and the effect the Bill will have on applications by people seeking visas to go to other countries. We are in no way anxious to dissuade the House from giving the Bill further consideration, provided that the House decides, in its wisdom, to accept the principles involved. We believe that there are various major matters and will willingly look at them. I promise to look at them in conjunction with the sponsors to see if we can improve the Bill in Committee. Unless we are able to meet 2133 certain of these major concerns of Government, however we cannot promise to give the Bill unqualified support, although we support completely the Bill's principle.
I congratulate the hon. Member for Gorton on introducing the Bill. I applaud its authors for their efforts in drafting it. A good deal remains to be done but, with good will, and if it is the wish of the House, I believe that we shall be able to make the necessary amendments to make the Bill a suitable vehicle for carrying out what the hon. Member said was a commendable aim.
§ 3.30 p.m.
§ Mr. S. C. Silkin (Dulwich)
My hon. Friend the Member for Manchester, Gorton (Mr Marks) and those who have assisted in the Bill, particularly my noble Friend Lord Gardiner and the three organisations which, together, were responsible for the booklet "Living it Down", will be most gratified that all hon. Members who have spoken in this debate have welcomed the Bill and have expressed their sympathy with its objectives, even though there may be differences of view about matters of detail, which I do not underrate, which will have to be dealt with in Committee.
The Bill raises in a direct form the problem of society's attitude to the offender and the attitude of many people that an offender, particularly one who has suffered detention, is an outcast or that, having once offended, he will go on offending. I am convinced that that attitude must change and that it is changing, just as society's attitude has changed and is changing in the related field of mental health. I do not underrate the influence of legislation in guiding society's attitudes, but in the end it is society which must become more civilised, perhaps be willing to take greater risks and certainly refrain from branding a man for life because he has offended once against its laws or perhaps against those of its laws which, logically or illogically, provoke a strong response from society.
If it does nothing else, the Bill will help to change society's attitudes to the convicted offender, perhaps not so much because of what it says and does as for the recognition by Parliament implicit in 2134 it of the principles behind it which have been explained so eloquently by my hon. Friend the Member for Gorton and by the Minister of State.
People are sent to prison as a punishment. The severest punishment may well be not the years spent in a prison or in some other form of detention but those which follow outside when the offender is seeking to rehabilitate himself in society. Society, although it seeks to assist the offender more and more in various ways which we welcome, imposes upon him on his release penalties and risks so great that the weak, the easily tempted and the easily disheartened—and even those who are not easily disheartened—may be unable to resist further temptation. The offender is handicapped in finding employment, in finding a place to live and in securing insurance. Those are just some of the vital areas of handicap. There are many others, many of which are so implicit in the working of society that we can only hope that they will disappear through the example set by the Bill even when the Bill does not directly touch them.
The Bill's origin is the report "Living it Down", which might well have been called "Living in Fear". The Bill impinges not only on the criminal and penal law but also on our laws relating to privacy and defamation. I heard the Minister's criticism of the defamation clause. All those subject matters of legislation must necessarily be affected if the principle of the Bill is to be accepted by Parliament and by society, not necessarily in the precise form in which the clauses appear here but in principle. That is inevitable if the existing mischief is to be dealt with.
I agree with the Minister of State that many matters will have to be fully considered in Committee and argued out on their merits so as to try to adjust the balance which is necessary in a Bill of this kind. I foresee a long and interesting period in Committee. Even if there were more time than there is, I would not wish to ventilate here many of the points which will arise in considering the detailed provisions of the Bill in Committee. I will, however, mention one or two.
In paragraph 26 of the report "Living it Down" the committee draws attention 2135 to the necessity for having before the court the fullest possible details of the antecedent history of one who is convicted so that it may deal properly not so much with the offence as with the offender. The Bill gives effect to that in Clause 5(3)(a). That is a matter of the greatest importance, not merely for the protection of society but for the assistance of the convicted offender. From my experience of dealing with offenders in the courts, I have found that to have the fullest possible knowledge, perhaps going right back to childhood, of the convicted person often enables the court to deal more leniently rather than more severely with the offender, and certainly to deal with him in a way which more satisfactorily suits his character, temperament and temptations. I hope that when we examine that clause, particularly in relation to how far we should go within the court system, we shall bear this in mind.
My hon. Friend the Member for Gorton used the expression "legalised lying". In view of the very wide terms of Clause 2(b), we must consider carefully whether there is not a better method of dealing with the problem than this present wording, which says that in the circumstances envisagedany question put to a rehabilitated person or to any other person about him (whether in or out of Court) relating to his past and any answer thereto shall be deemed not to relate to his spent convictions or to the offences forming the subject thereof.That sounds very ingenious, but is it totally realistic to suggest, as that wording seems to suggest, that in any conversation taking place out of court, whether relating to an offence or anything else, the conversationalists can be bound to such a formula?
The hon. Member for Ipswich (Mr. Money) has drawn attention to a difficulty in relation to the vital exception clause, which is Clause 5. As I understand it, subsection (3)(b) is intended to preserve the rule that a defendant who allows to be cross-examined either a prosecution witness or a co-defendant in a manner calculated to suggest that that witness is of bad character must accept the penalty that he himself may be questioned about his own character.
The subsection raises a rather wider point possibly than that which the hon. Member for Ipswich had in mind. The Bill seems to create the position, notwithstanding 2136 that and other provisions in Clause 5, that where a prosecution case stands or falls on the evidence of one vital prosecution witness, and where the defendant has nothing recorded against him, the prosecution witness cannot, if as a result of the terms of the Bill he is in the category of a rehabilitated offender, be asked any questions to show that he is a person who perhaps over a long period had been of bad character. We must consider very carefully before we accept that the protection of defendants should be reduced in that way. It may well be that this is inherent in the Bill as a whole. But I do not think that we can take that view.
The Bill is a balance—that is its merit—and we must get the right balance. It provides exceptions to the general principle, which is right. In Committee we shall have to see just how far the exceptions should go, always seeking to provide the right balance between the basic principle upon which it is founded and other circumstances which must be considered.
One of those circumstances is the relationship of the Bill to defamation. I have already said that that seems inherent in any Bill of this kind.
We shall want to know what the Faulks Committee recommends and proceed to the extent to which its recommendation is consistent not merely with the defamation clause but with the whole basis of the Bill. If it is inconsistent I hope that we shall not necessarily say, for that reason alone, that the Bill or that particular clause must fall.
These are important points of detail which in many cases have been considered by the distinguished people who drafted "Living it Down". It is in no sense a criticism of them if it should turn out, as I am sure it will, that the Standing Committee, looking at the Bill line by line and the way that it impinges upon matters not directly connected with it, brings to light matters which compel us to go in a somewhat different direction from the wording of the Bill.
I hope that the House will give a Second Reading to this widely accepted Bill. Again, I congratulate my hon. Friend the Member for Manchester, Gorton on the way in which he promoted it and express the thanks of hon. Members on this side of the House to the Minister of State for his sympathetic approach 2137 and for the promises that he made of assistance in putting it into the best possible shape to realise the principles upon which it is based.
§ 3.49 p.m.
§ Sir John Rodgers (Sevenoaks)
I intervene with some diffidence since I am not a lawyer or legally trained but merely a layman.
I think that the Bill is just the sort of measure that justifies the Private Members' Bill procedure. I understand that it will affect about 1 million people, for whom no Government Department is responsible. They cannot write to the papers, they cannot march in the streets, they cannot demonstrate and they cannot even write to their Members of Parliament, except anonymously. At least, that is my experience. They live their lives in daily fear of exposure of something that happened many years ago which they have long since lived down. They have expiated their crimes. These people represent a frightened, silent minority with no organised voice.
By introducing the Bill the hon. Member for Manchester, Gorton (Mr. Marks) has done a great public service. It is fortunate that we still have the Private Members' Bill procedure to allow him to do so. I appreciate that the Home Office does not like all the clauses in the Bill. I hope, therefore, that it will not block the Bill but will try to improve it in Committee.
Should an offence which is no longer an offence in law be categorised as a spent conviotion however long the term of imprisonment or however high the fine? The law has moved on. Many people may be suffering because they once committed a crime which is no longer a crime. I should like that point to be considered in Committee.
I commend the Bill to the House and hope that it will get a Second Reading. If so, as a sponsor of the Bill, I shall have scored a double barrel today.
§ 3.50 p.m.
§ Mr. Alexander W. Lyon (York)
As a sponsor of the Bill, I warmly endorse all that was said so well by my hon. Friend the Member for Manchester, Gorton (Mr. Marks) in presenting it to the House. I intervene at this stage only because of the somewhat subdued enthusiasm with 2138 which the Bill was received by both Front Benches. I hope that, when it goes to Committee, that enthusiasm will be more tangibly expressed.
There should be no question about the Bill whatever. It is sane. It is sensible. We heard from the hon. and learned Member for Runcorn (Mr. Carlisle), speaking as Minister of State at the Home Office, the truism about the need for truth to be presented at any stage in civilised discourse. I had to meet criticism of that kind all the time I was trying to get through a Bill about privacy. I had to meet it for two years when I was a member of the Younger Committee on Privacy. It is about time the myth was exploded.
In a civilised society, we recognise that the truth may be more harmful even than lies. In a civilised society, decent people refrain from expressing the truth on every occasion about every person. There is a sensitivity towards the feelings of others which a compassionate person believes ought to dictate to him that in a particular case the truth should be withheld.
That is all that is being said on the Bill. If a man has for 10 years gone straight after a previous conviction, it ought to be said of him that he is substantially of good character and should be treated as such. The reservations which we have heard today about whether the Bill goes too far simply hark back to an out-dated attitude towards conviction. If a man has gone for 10 years without any other stain upon his character, why do we not now consider that the whole thing is dead and forgotten and should remain so?
We could say just that in the Bill, except that, as my right hon. Friend the Member for Birkenhead (Mr. Dell) said, we said it in relation to absolute and conditional discharge in Section 12 of the Criminal Justice Act 1948, and the simple truth, despite what the article in Justice of the Peace said, is that Section 12 never has afforded any tangible benefit. People continue to record convictions with absolute or conditional discharge, they go on repeating them in court, and they go on mentioning them in the currency of ordinary social intercourse. This is so because there was never any sanction against not repeating 2139 them. The Bill creates a sanction. It must do so, and because it creates a sanction it has to do so in a somewhat complicated way. But the object is to erase any mention of something long since dead which ought never to be held against a man again.
This is a humane Bill. It should be approached as such, and no technical objection ought to be raised in an attempt to defeat its aims in Committee.
§ 3.53 p.m.
§ Sir John Foster (Northwich)
As has been said, there are technicalities to be ironed out in Committee, including some which were raised in the article in Justice of the Peace. I entirely disagree with the general conclusion of that article, that the Bill goes too far, that it is an inept measure, and should be rejected. It will be noted that the author of the article does not suggest any remedies of his own, although as the right hon. Member for Birkenhead (Mr. Dell) said, he points out that the 1948 Act brought in this principle.
The Bill has been excellently drafted by those who describe themselves as laymen, that is, laymen inasmuch as they do not come from the stable of parliamentary draftsmen, but they had a lot of help from the Home Office when the Bill went through its stages in the other place.
To turn for a moment to one or two matters which need clearing up, I refer, first, to the reference in Justice of the Peace to convictions for keeping a brothel, and so on. The interesting point was raised by the hon. Member for Sevenoaks (Sir J. Rodgers) about convictions in respect of an offence which is no longer an offence. One that leaps to mind is conviction for gross indecency between consenting males or for buggery. If Parliament has decided that that is no longer an offence, there may be an argument for saying that it should be regarded as a spent offence. It is bad luck on someone who was convicted of something a long time ago which should no longer be an offence. That may be met with the argument that it is not a spent offence because the sentence he got was 2140 more than two and a half years and that therefore the offence should not benefit from the exemption in the Bill.
One interesting point which cannot be decided in Committee is the effect the Bill will have on other countries. The United States Government in a very thorough form asks whether one is entering America in order to blow up the President. Presumably the man who intends to blow up the President will answer "No", because if he is prepared to blow up the President he will be prepared to lie about it. It is rather like saying there is no bank raid today because there is a no parking notice outside the bank. I wonder whether under United States law a spent conviction is spent under the national law of the applicant filling up the form or spent under United States law. Inquiries might be made of the United States. It will not make any difference to the passage of the Bill, but it is an interesting point.
The Bill sets up the question of defamation. I expect that it will be said that truth should always be a complete defence but that is entirely wrong. Our law is different from that of most other countries. In a prosecution for criminal libel we say that truth plus the public interest must be a defence.
The reason in civil law why truth is a complete defence is that we feel that a person should not get damages for alleging something to be untrue which is true. However, in those cases I have always thought that the law should be that the defendant who states something which is untrue should not be made to pay damages but he should lose his case unless it is in the public interest or unless the public interest in those cases should be expressed in the form of a legal, moral or social duty. That is how I would criticise it, assuming that the Faulks Committee says what I think it will.
§ 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).