|(1) Nothing in section 2 of this Act shall affect—|
|(a) any right of Her Majesty, by virtue of Her Royal Prerogative or otherwise, to grant a tree pardon. to quash any conviction or sentence, or to commute any sentence;|
|(b) the enforcement by any process or proceedings of any fine or other sum adjudged to be paid by or imposed on a spent conviction;|
|(c) the issue of any process for the purpose of proceedings in respect of any breach of a condition or requirement applicable to a sentence imposed in respect of a spent conviction; or|
|(d) the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or other penalty the period of which extends beyond the rehabilitation period applicable in accordance with section 4 of this Act to the conviction.|
|(2) Nothing in section 2 of this Act shall affect the determination of any issue, or prevent the admission or requirement of any evidence relating to a person's previous convictions or to circumstances ancillary thereto—|
|(a) in any criminal proceedings before a court in Great Britain (including any appeal or reference in a criminal matter);|
|(b) in any service disciplinary proceedings or in any proceedings on appeal from any service disciplinary proceedings;|
|(c) in any proceedings relating to adoption or to the guardianship, wardship, marriage, custody, care or control of, or access to, any minor, or to the provision by any person of accommodation, care or schooling for minors;|
|(d) in any care proceeding under section 1 of the Children and Young Persons Act 1969 or on appeal from any such proceedings, or in any proceedings relating to the variation or discharge of a care order or supervision order under that Act;|
|(e) in any proceedings before a children's hearing under the Social Work (Scotland) Act 1968 or in appeal from any such hearing; or|
|(f) in any proceedings in which he is a party or a witness, provided that, on the occasion when the issue or the admission or requirement of the evidence falls to be determined he consents to the determination of the issue or, as the case may be, the admission or requirement of the evidence notwithstanding the provisions of that section.|
|in the application of this subsection to Scotland. "minor" means a child under the of eighteen, including a pupil child.|
|(3) Subject to subsections (4) and (5) below, it at any stage in any civil proceeding before any court or other judicial authority (within the meaning of section 2 of this Act) in Great Britain (not being proceeding to which section 6 of this Act applies) the court or authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done between the parties except by receiving or requiring evidence relating to a person's spent convictions or to circumstances ancillary thereto, that court or authority may receive or, as the case may be, require the evidence in question notwithstanding section 2 of this Act, and may determine any issue to which the evidence relates in disregard, so far as necessary, of the provisions of that section.|
|(4) Subsection (3) above shall not apply if the issue to which the evidence in question is alleged to be relevant is the failure of any person (whether he is the rehabilitated person or anyone else) to comply with any obligation to disclose to any other person any spent conviction or any circumstances ancillary to a spent conviction, unless the failure alleged occurred in circumstances to which an order under section 2(2) of this Act for the time being applies.|
|(5) Subsection (3) above shall not apply if the issue to which the evidence in question is alleged to be relevant to the property of the dismissal or exclusion of the rehabilitated person from any office, profession, occupation or employment, or of any treatment accorded to him in any occupation or employment, unless the evidence relates to a spent conviction which, by virtue of any order under section 2(2) of this Act, the rehabilitated person would not, if asked, have been exempt under section 2(1A)(a) of this Act from disclosing, or excused under section 2(1A)(b) of this Act for not disclosing, in relation to his appointment or admission to that office, profession, occupation or employment, or in relation to any position, assignment or function held or performed by him in the course of that occupation or employment.|
|(6) The Secretary of State may by order exclude the application of section 2 of this Act in relation to any proceedings specified in the order (other than proceedings to which section 6 of this Act applies) to such extent and for such purposes as may be so specified|
|(7) No order made by a court with respect to any person otherwise than on a conviction shall be included in any list or statement of that person's previous convictions given or made to any court which is considering how to deal with him in respect of any offence."—[Mr. Alexander W. Lyon.]|
§ Brought up, and read the First time.
§ Mr. Deputy Speaker
With this new Clause are to be taken Government Amendments Nos. 4 and 25, and Amendment No. 24, in page 7, line 67, at end, insert:'(c) in any proceeding relating to the disciplinary jurisdiction of any judicial authority having the power referred to in subsection (4) of section 2 (effect of rehabilitation)'.
§ Mr. Lyon
This clause is a much more substantial matter and is one of the few issues of principle which are raised in the amendments which we are discussing today. It arises out of the debate that we had on Clause 5 of the Bill as it emerged from Committee, which, as hon. Members will recollect, dealt with the effect of rehabilitation upon the courts and, in particular, upon magistrates' courts.
The way in which we approached the matter in Committee was as follows. The Bill as drafted in Committee followed the decision of the sponsors that, for the purposes of sentencing, the Crown courts and the higher courts should be able to look at spent convictions but the magistrates' courts should not. This was justified on the grounds that the mischief which they wished to prevent was the disclosure in minor criminal cases of previous convictions which may have been very much more serious a long time ago, which did damage out of all proportion to the kind of case which was being considered before the magistrates' court.
My view, which I expressed in Committee, was that if a spent conviction really is a spent conviction, a matter which ought not to be held against a man because he has lived it down, save in most exceptional circumstances, it ought to apply to all courts and not just to a magistrates' court. No one had put down an amendment in Committee to cover that situation. I indicated that I had allowed the Bill to go into Committee with the position relating to the magistrates' court as originally dictated by the sponsors, in order to listen to the debate and to make up my mind in the light of the debate.
1950 The hon. Member for Chislehurst (Mr. Sims) sought to delete the provision relating to magistrates' courts, and there was also a sponsor's amendment which dealt with a compromise which had been reached; namely, that in indictable offences tried summarily in a magistrates' court the magistrates would be able to look at spent convictions but that in relation to summary offences or road traffic offences they would not.
I said in Committee that I did not find that to be a very happy compromise because there were cases involving summary offences of some gravity and there were indictable cases tried summarily which were not of great gravity, and it is a little difficult in practice to distinguish logically between the two. I therefore suggested in Committee that I would look at the possibility of allowing the spent conviction to be used for sentencing in all circumstances but that any reference to it should not be published in the Press afterwards.
It was borne in upon me by the sponsors that to do that might also have unforeseeable and difficult results. Therefore, I have discarded that possible alternative. The course that I have decided to take is dictated by a feeling that the watering down of the original provision in Committee has left very little of substance as a protection for people with spent convictions when it comes to sentencing in any court, and that I ought to try to deal with the matter by including all the courts. Therefore, what I am suggesting is that all criminal courts should be allowed to consider spent convictions in the sense that the matters can be laid before them, and that as a matter of practice they should not place any reliance on spent convictions save and except where it is in the interests of justice either for the prosecution or for the defence that they should do so.
How to achieve that end was the problem which faced me. I did not wish to lay an even more complex amendment on top of all the other complex amendments which I had put before the Committee, and I was anxious that we should proceed as quickly as possible in order to allow the Bill a swift passage through 1951 Parliament. I have therefore asked my officials to contact the Lord Chief Justice to ascertain whether, in principle, he would be prepared to issue a practice direction which would dictate the practice to be followed in the Crown courts. We in our turn in the Home Office would propose, through instructions, to try to dictate the practice in the magistrates' courts.
It may be, if the Lord Chief Justice, on reflection, considers it right, that he will issue a statement about the practice in all courts, which would help to establish what we all want to see, namely, that spent convictions shall not be used in any court in relation to any sentence save in the most exceptional circumstances where they may be relevant.
We shall watch the position thereafter. The Lord Chief Justice has agreed to take that course. The terms of the announcement or practice direction have not yet been settled, but what we are trying to ensure—the exact terms will be a matter for discussion—is that the prosecution will not disclose spent convictions when putting antecedents before the court, so that evidence of spent convictions will normally be put in writing and not be given orally. A copy of the record of convictions, including spent convictions, will be given to the accused, and the court should refer to the spent convictions only if, in the very exceptional circumstances to which I have referred, it feels that they are relevant to the sentence which it proposes to pass in order that its decision may be understood.
If that practice is obtained in all our courts, it will, I believe, be a bigger advance than either the Bill as originally drafted or the amendment passed in Committee. Since the Lord Chief Justice is willing, in principle, to take the course to which I have referred, I have thought it more convenient that we delete from Clause 5 all reference to criminal courts. That is the object of new Clause 2 with the paving amendments relating to it. New Clause 2 will reinstate such parts of Clause 5 as are still maintained after that deletion, and it will, in effect, cut out the criminal courts.
I should refer to one other matter of substance, which was raised both in Committee and by the Solicitor-General. The 1952 Bill as it stood in Committee allowed a spent conviction to be put to the accused when, under the rules of evidence, it was relevant to do so for credit. It did not allow a spent conviction to be put to a witness where, under the existing rules of evidence, that also was relevant.
If the practice is coloured by the practice direction, as I expect it to be, one hopes that in courts in general spent convictions will just be disregarded. But it will be possible under the amendments which I am now laying before the House to put to a witness as well as to the accused a spent conviction if the existing rules of evidence allow that to be done.
I am not happy about that situation. All I can say is that there will be occasional cases—rare, I hope—in which a spent conviction will be relevant and right to be put both to the accused and to a witness, and it would be wrong to prejudice the accused if he could not use such a device against a witness to test credit.
Other parts of the new clause deal with certain matters raised in Committee, with the object to polishing up the drafting as it emerged from Committee. Basically, most of them are drafting matter, and I need not detain the House with them. No doubt, the hon. Member for Orpington (Mr. Stanbrook) will wish to deal with his Amendment No. 24.
§ Mr. Sims
I thank the Minister both for the changes which he proposes and for his detailed explanation. I was the Member who raised this matter in Committee. It seemed to me to be central to the Bill, and my main objection was to the proposal as it then stood. The steps which the Minister has taken meet my case completely, and I am grateful to him.
§ Mr. Hal Miller (Bromsgrove and Redditch)
Will the Minister be good enough to refer to the last word of subsection (4) of the new clause? Is there a misprint? Should not the word "applies" be "applied", since the exemption must refer to the actual period, and the verb should be in the past tense?
§ Mr. Weitzman
I am not happy about the arrangement now made, which alters the original provision in the Bill that in 1953 magistrates' courts spent convictions should not be mentioned. Admittedly, my hon. Friend has arrived at some sort of compromise by arranging that there should be a practice note given by the Lord Chief Justice, but practice notes may be altered from time to time, and it seems an unsatisfactory way to legislate to declare that a proposed provision should now give way to a practice note given by the Lord Chief Justice.
The original idea in this part of the Bill was that, because magistrates' courts throughout the country were presided over by magistrates with differing ideas, spent convictions should not be referred to, whereas in the Crown courts, where a trained and experienced lawyer sat as judge, the matter was entirely different. In a Crown court, the learned judge has a discretion. In a magistrates' court, constituted in a different way and, as I say, presided over by magistrates who may have different ideas as between court and court, the position is entirely different, and I should much have preferred the original arrangement to remain.
The difficulty is that there has been such a short time to consider these matters. The Report stage has come very soon, and the amendments were not available until yesterday. One could not put down an amendment, therefore, save by way of manuscript. I am not tempted to do that—I recognise the difficulty—but I protest at the change which has been introduced. I regard it as a bad change which ought not to have been made.
§ Sir Michael Havers (Wimbledon)
I congratulate the Minister and his officials and the draftsmen on having produced the new clause in such a short space of time. I was not a member of the Committee, but I kept in touch with what went on, and I was concerned by the apparent anomaly which existed between the proposed procedure for the Crown courts and the magistrates' courts. I think that we may rely upon all courts, in spite of what the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) said, to observe a practice direction given by the Lord Chief Justice, and I am more than happy to leave it in his hands to frame how that practice direction should be given.
1954 Subject to the amendment which will be proposed by my hon. Friend the Member for Orpington (Mr. Stanbrook), I welcome the clause.
§ Mr. Stanbrook
It would be churlish not to thank the Minister for the clause and the way it amends the powers of magistrates' courts on sentencing. I rise only to rebut the point made by the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) that magistrates without legal training were not the best people to have access to all information concerning any individual defendant appearing before them. Lay magistrates deal with over 95 per cent. of all criminal cases, and they are chosen not because of their legal training but for their knowledge of the world, their experience and their common sense. Those are the qualities which primarily go to assessing a proper sentence for any individual, and it is right that full discretion should be awarded to them.
The magistrates are unpaid servants of society, the very best type of public servants. They are the people on whom we rely for the maintenance of law and order; they are the essence of a civilised society. We should trust them, and it is a good thing that the Government have accepted that principle in the clause by allowing them full access to information about previous convictions.
§ Question put and agreed to.
§ Clause read a Second time.
§ Mr. Stanbrook
I beg to move, as a manuscript amendment to the proposed clause, in line 29 after "hearing" insert:(f) in any proceedings relating to the disciplinary jurisdiction of any judicial authority having the power referred to in sub-section (4) of section 2 (Effect of Rehabilitation)The new clause that we have just agreed to contains a number of alterations and extensions from the principle of the Bill, and modifications of the principle of exemption from that principle. In particular, subsection (2)(b) contains a reference to Service disciplinary proceedings or any proceedings on appeal from any Service disciplinary proceedings. I believe that it should apply also where disciplinary proceedings are being conducted by a profession. For that reason I believe that the Government, having accepted the principle, should accept my amendment.
§ 11.45 a.m.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
I begin by declaring what may be an interest in that from time to time I sit as a member of a panel of legal assessors to the disciplinary committees of the General Medical Council and the General Dental Council. The Bill is concerned with criminal convictions, and I understand its purpose generally to be to prevent them from being dragged up unfairly out of the past for no useful purpose but to the prejudice and embarrassment of the offender, and as such I support it. However, the Bill already recognises that there are circumstances and contexts in which the effect of a conviction may, but not necessarily will, be relevant, however far back that conviction may have been recorded.
It may be relevant to the matter which a tribunal now has in hand. The question of sentencing for a subsequent conviction is an obvious example. The Bill already recognises that earlier convictions should not in certain circumstances be concealed from the tribunal, so that the protection of the Bill is withheld from criminal proceedings under the clause tabled by the Minister. It expressly preserves the normal admissibility of any evidence relating to a defendant's previous convictions and the reason must be the power of tribunals, criminal courts first and foremost, to impose really heavy penalties.
They should, therefore, before exercising that most serious and important power, know the full story. At least, they should be able to know the full record of the defendant before them. So often they must ask themselves whether the latest offence is out of character and whether it is likely to be repeated; can the public be adequately protected without imposing a heavy sentence? The purpose of the amendment, which I support, is not to extend that principle but to extend in a logical way the application of the principle to disciplinary proceedings by judicial authorities as they are defined in the Bill.
Parliament has created a large number of bodies separate from the criminal courts to exercise disciplinary powers over, generally, professional people subject to their jurisdiction. The disciplinary committees of the General Medical Council and the General Dental Council are obvi 1956 ous examples, and there are many more. The codes were laid down for them in a series of Acts passed between 1950 and 1960. All of them have the function of promoting high standards of professional conduct ultimately for the protection of the public. Most, if not all, have the power to erase a defendant's name from the professional register if that were thought appropriate on proof of conviction of a criminal offence.
That is a most severe penalty. It is capable of bringing to an end the professional life of the defendant, and it is not, therefore, one which should be exercised in all cases without the ability of tribunals to look at the complete record of persons before them. In the interests of justice and the public, these tribunals need to know, in exercising their powers, the defendant's complete record, or they may need to know it just as a criminal court may need to know. Take common offences such as the abuse of drugs or alcohol. The question for the committee in that sort of case is whether the defendant has done it before, albeit seven years previously, or whatever the rehabilitation period may be. If so, was it once or several times, and were the circumstances ancillary to those previous convictions? Did the defendant promise on those occasions to give up drink? Can he be allowed to continue safely to practise on the strength of his present assurance that he will stop drinking?
In the Bill as it stands any evidence of such convictions or series of convictions. or circumstances ancillary to them cannot be given to the tribunal. Registrars of disciplinary committees are liable to criminal proceedings if they divulge such information improperly. I know that the General Medical Council and the General Dental Council are most concerned about this issue, and I agree with them. The amendment would correct the situation.
The new clause we have just accepted includes Service disciplinary proceedings and lots of types of proceedings from which the protection afforded generally by the Bill is withheld. The amendment seeks to add to that list a further category. A judicial authority is defined in Clause 2(4) of the Bill in terms which obviously embrace disciplinary authorities. I do not believe that the amendment is too widely framed to serve the purpose to which I have referred. The 1957 situation that it seeks to correct has probably arisen by oversight. The circumstances are miles away from the mischief which is the true and proper target of the Bill. I commend the amendment.
§ Mr. Alexander W. Lyon
I understand the motives behind the amendment, and I am sympathetic to its general tenor. There obviously are certain kinds of professional organisation with tribunals relating to high standards of probity in areas that touch upon the public which may find it necessary on occasions to see previous convictions, even including spent convictions.
The argument is not entirely self-evident. There are also many other areas of human intercourse where the fact that a man has a previous conviction may be thought to be relevant, at first sight, and where we are saying that because a man has lived down a past conviction it should not be held against him, particularly in relation to some kinds of jobs. It is not entirely easy to distinguish between a professional job which is governed by professional standards upheld by a disciplinary body and other kinds of jobs of high responsibility which are not professional but which nevertheless carry considerable importance.
If we are to exclude spent convictions in one sense, it is perhaps right to exclude them in another. What I should certainly want to see, even if I gave way on the amendment, or gave way to its spirit, is that any tribunal which thereby then had the power to consider a spent conviction would, on the whole, disregard it, except, as in the case of the criminal courts, in very exceptional circumstances.
Therefore, it would be a sine qua non that first it would have to be a judicial tribunal of high standing, capable of applying that kind of discretion, and it would also have to be borne in upon the tribunal that it was given the power specifically because it had that high standard and would apply that discretion.
The amendment is a little too wide. Clause 2(4) says thatjudicial authority'includes any tribunal, body or person having power—(a) by virtue of any enactment,"—so far, so good, but it continues:law, custom or practice; … to determine any question affecting the rights, privileges, 1958 obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.The House will see immediately that that is a good deal wider than the General Medical Council, the Law Society or any other of the professional bodies referred to this morning. It can include a number of bodies which may not have the same sense of discretion as we would expect from bodies such as the GMC.
I am in the hands of the House, and I will listen to the argument if the House feels differently, but I think that the best way for me to deal with this matter is to consider the representations of any body of that nature, about the right to look at spent convictions in relation to its disciplinary procedures, when we make the rules which will have to be made under new Clause 2(6). Under that provision:The Secretary of State may by order exclude the application of section 2 of this Act in relation to any proceedings specified in the order (other than proceedings to which section 6 of this Act applies) to such extent and for such purposes as may be so specified.In those circumstances, I can by order include the GMC and not include other bodies which may be more suspect. If the House passes the amendment I shall not have that degree of selectivity, because it will have excluded all judical tribunals of the kind stated in the amendment. There is no power under the rules to put them back again.
Therefore, I ask the hon. Gentleman to withdraw the amendment. I understand the spirit in which it is moved, and I promise that in the rules, which would have to be tabled in any case, and which are subject to the positive procedure, the House will have the opportunity to include anyone whom I fail to include.
§ Sir M. Havers
I am grateful to the Minister for what he has said. The Bill has a dual purpose. Its philosophy is to help those whose minor convictions should be forgotten, but it is also that the public interest must always be remembered. The public interest is just as important in disciplinary tribunals as it is in dealing with such people in criminal courts.
However, I am prepared to accept the Minister's offer, which I think is sensible. It will give him and the tribunals concerned an opportunity to consider not only whether they should be included in 1959 the exceptions under subsection (6) but whether they might also wish to draw up their own practice direction similar to that which the Lord Chief Justice will draw up for criminal courts. It might be an advantage for the future if a practice direction were laid down for disciplinary tribunals, so that they knew the framework within which they had to operate.
I believe that the Minister's proposal is a satisfactory way of dealing with the matter.
§ Mr. Stanbrook
In view of what the Minister has said, and the assurances he has given, I beg to ask leave to withdraw the amendment.
§ Amendment to the proposed clause, by leave, withdrawn.
§ Clause added to the Bill.