REHABILITATED PERSONS AND SPENT CONVICTIONS (Hansard, 28 June 1974)

§ Mr. Alexander W. Lyon
I beg to move Amendment No. 2, in page 2, line 1962 59, leave out from first to ' to end of line 11 on page 3 and insert: 'his or any other person's past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto. (1A) Subject to the following provisions of this section and to sections 5 and 6 below—
(a) any question seeking information with respect to a person's previous convictions, offences, conduct or circumstances, put to him or to any other person otherwise than in proceedings to which subsection (1)(b) above applies, shall, if it is capable of being answered on the basis that it does not relate to spent convictions or circumstances ancillary thereto, be deemed not so to relate, and the answer to any such question may be framed accordingly; and

(b) a person shall not be subjected to any liability or penalty, or otherwise, prejudiced in law, by reason of any answer given by him, otherwise than in any such proceedings, to any question referring expressly to a spent conviction or spent convictions as such, or to any circumstances ancillary to any conviction or convictions, being circumstances peculiar to spent convictions as such.
(2) The Secretary of State may by order make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (1A) above in relation to questions put in such circumstances as may be specified in the order. (3) For the purposes of'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Amendment No. 3, in Clause 2, page 2, line 59, leave out from first ' to ' to end of line 11 on page 3 and insert 'his or any other person's past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto. (1A) Subject to the following provisions of this section and to sections 5 and 6 below—
(a) any question seeking information with respect to a person's previous convictions, offences, conduct or circumstances, put to him or to any other person, whether in proceedings to which subsection (1)(b) above applies or otherwise, shall be deemed not to relate to spent convictions or to any circumstances ancillary to spent convictions, and the answer to any such question may be framed accordingly; and

(b) a person shall not be subjected to any liability or penalty, or otherwise prejudiced in law, by reason of any answer given by him, to such a question as is mentioned in paragraph (a) of this subsection.
(2) The Secretary of State may by order make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and 1963 (b) of subsection (1A) above in relation to questions put in such circumstances as may be specified in the order. (3) For the purposes of'.

§ Mr. Lyon
I find these two amendments the most difficult of all the amendments on the Order Paper. There is a difference of attitude about the way in which questions can be asked about previous convictions. There is a good deal of sophistication about the drafting of the amendments, which both seek to do the same thing, in rather different ways. The question really is to determine the alternative effects of both amendments. I am willing to listen to the supporters of Amendment No. 3 and to consider whether it is an improvement upon the drafting of Amendment No. 2 by the parliamentary draftsman.
As I understand it, the basis of Amendment No. 2 is to try to clarify the existing drafting for questions both in and out of court. The amendment proceeds on the basis that questions out of court must be treated in a more elaborate and detailed way than questions in court. If somebody is asked a question in court the question and the answer are controlled by the court and can be dictated by the judge or the magistrates. For court questions it is sufficient for the Bill to prohibit the asking of unwarranted questions and to permit a person to refrain from answering such questions.
The effect of the proposed paragraph (b) in Amendment No. 2 differs from the existing paragraph (b) only in that it speaks of questions that cannot be answered without acknowledging or referring to a spent conviction instead of questions which relate to a particular spent conviction. The proposed new phraseology is designed to cover such questions as, "Have you ever become a rehabilitated person?" or, "What spent convictions have you got?" Such questions do not in themselves relate to particular spent convictions in terms of the existing Clause 2.
If a prohibited question is asked in court—for example, "Have you any spent convictions?" and the answer is, "No" when, in fact, there has been one, the general provisions at the beginning of Clause 2(1) are considered to be a sufficient defence to a perjury charge and 1964 any detrimental consequence arising from procedures in court.
Out-of-court questions are dealt with in the proposed new paragraph (a). There is no way, as there is in court proceedings, to prevent a question being asked. All that can be done is to try to ensure that the effect of the question is suitably circumscribed so as to protect the person being questioned. Paragraph (a) in the amendment is directed to such questions as, "Have you any convictions?" or, "Have you any convictions for dishonesty?". It deems that such questions do not relate to spent convictions. The answer may be framed accordingly—for example, "I have not "or, "I was convicted of theft last week", despite a conviction 20 years ago. There cannot be a deeming provision of this kind in relation to a question referring expressly to a spent conviction because such a question could not be answered on the basis that it did not relate to a spent conviction.
I assert that with all the authority of those briefing me.
The answer to the distinction between Amendments Nos. 2 and 3 hangs upon a certain approach which is only a question of logical sensitivity, and I am not particularly sensitive to logic. If a man is asked, "Have you a spent conviction in 1967 for theft?", can it be said that there is a deeming provision which says that that question was never asked or that it does not relate to an actual spent conviction in 1967 for theft? Can the question be disregarded or should it be said, "Well, the question was asked, we shall simply allow the person to take whatever action he likes in relation to it without any consequences". Questions can be asked in court without any deeming provisions, as they will simply be stopped by the court. Under Amendment No. 3 the question is deemed not to have been asked even though it has been asked and refers specifically to a spent conviction which is known.

Mr. Piers Dixon (Truro)
I should like to refer in particular to Amendment No. 3. I had great sympathy for the Minister when he said that he understood that the wording as prepared for him by the parliamentary draftsmen meant such-and-such. It might console the Minister to know that the sponsors of the Bill are 1965 in much the same situation. They, too, have their draftsmen, and when speaking in the House attempt to interpret in simple language what draftsmen of all sorts have put into various amendments.
I invite the Minister to consider two simple points which perhaps draw a distinction between his amendment and Amendment No. 3. First, in out-of-court proceedings, until a couple of days ago the Bill allowed a potential employee who was asked by his employer whether he had a spent conviction to answer, "No", even if he had one, but under Amendment No. 2 the employee will not be able to answer "No" to the specific question, "Have you a spent conviction?".
In in-court proceedings, the Minister is right in saying that the question about a spent conviction should not be asked in the first place because the judge or the magistrate should be wide awake and make sure that questions of that sort are not asked, but we all know, despite what some of my hon. Friends have said, that even magistrates are human and make mistakes, and a question such as "Were you convicted of stealing a bicycle 40 years ago?" is sometimes asked. Under the Government's amendment, a person who is asked that question and replies "No", although it is true that he has been so convicted, will be guilty of perjury.
It is in those two, I hope fairly simple, respects that Amendment No. 3 is an improvement on the Government amendment.

§ Mr. Weitzman
I listened carefully to what was said by both my hon. Friend and the hon. Member for Truro (Mr. Dixon). I cannot help but feel that both amendments seek to obtain the same result, and I must repeat the criticism that I have made before. The wording of Amendment No. 3 is much more satisfactory than that in the Government's amendment. It is simpler and more direct, and I hope that my hon. Friend will accept that amendment rather than ask the House to agree to Amendment No. 2.

§ Sir M. Havers
One of the great ambitions of successive Parliaments is to simplify the laws that they pass and make them more readily understood. Following 1966 the extremely difficult consequences of making perjury not illegal in certain circumstances—which has always been regarded as a major difficulty—it seems that those who have spoken prefer Amendment No. 3, and I confess that I do, too.
Amendment No. 3 has a neatness and simplicity. It is more easily understood than the other amendment on first reading, and that is important, because there may be occasions on which people will have to be advised by their solicitors about the situation. That may be very near the time at which a conviction becomes spent. I can see occasions on which adjournments will be begged in criminal cases so that another week or month can pass in order that the conviction can be spent and questions cannot be asked about it.
I prefer Amendment No. 3 to Amendment No. 2. I do not feel strongly about this, but the former amendment is a little neater than the latter.

§ Mr. Hal Miller
I am grateful to those who have supported the wording of Amendment No. 3. I do not want to engage in splitting logical hairs with the Minister who is more able than I am, but I should like to refer to two points that have been made.
I do not wish to be thought to be reflecting upon the attention with which judges pursue cases in court, but the judicial authority as defined in the Bill extends to a very much wider range of court and can be taken to be construed as covering arbitration proceedings by a mercantile body or by people who would not normally have borne in upon them the desirability of following the practice in the courts, and that is the reason for that Amendment No. 3.
The question of logic arises much more on the basis of the wording does not relate to spent convictions". That would seem to exclude the effect that we are trying to achieve, and I cannot understand how the overriding power in subsection (1) would be deemed to govern that.

§ Mr. Alexander W. Lyon
On questions as nicely balanced as this, who am I to resist the combined wisdom of the House? I yield, and I shall accept Amendment No. 3.

Mr. Dixon
I am sure that the House is grateful to the Minister for what he has just said.

§ Mr. Stanbrook
We are coming to one of the more objectionable parts of the Bill. The clause seeks to make all truth into lies, and lies into truth. It does not matter about the wording, because that remains a fact.
When witnesses go into court and swear to tell the truth, the whole truth and nothing but the truth we think that we are getting something fine in our society. In fact, when there is a provision of the law which clouds the simplicity and clarity—

§ Mr. Lyon
On a point of order, Mr. Deputy Speaker. I thought that I had accepted the amendment and that the discussion had therefore been closed. I do not quite know to what the hon. Member for Orpington (Mr. Stanbrook) is referring. It may be that he is starting a Second Reading speech.

§ Mr. Stanbrook
You have not yet put the Question, Mr. Deputy Speaker, whatever the Home Office may think about it.

§ Mr. Deputy Speaker
It is not a matter of putting the Question. As I understand it, the Minister is prepared to withdraw the Government amendment. The normal procedure would be, following that, for me to invite the hon. Member for Bromsgrove and Redditch (Mr. Miller) formally to move his Amendment No. 3. The difficulty is that if an hon. Member begins to speak after another hon. Member—a Minister to boot, if I may put it that way—has sought leave to withdraw an amendment, withdrawing the amendment becomes rather more complicated.

§ Mr. Stanbrook
It may be made complicated, but it is not out of order. As I understand it, the amendment has not yet been withdrawn, by leave of the House, and leave of the House is necessary.

§ Mr. Deputy Speaker
I take the point. The Minister has not formally sought leave to withdraw the amendment yet. The hon. Member may therefore carry on.

§ Mr. Stanbrook
I am speaking for the rights of back benchers, because, as every hon. Members knows very well, an amendment may be withdrawn only 1968 by leave of the House, whatever the Minister may say.
I want to add a few words to the observation that I was trying to make. If Amendment No. 3 is accepted, these considerations will be in the minds of people who used to have a clear notion of what was truth and what was falsehood. The amendment will provide that— any question seeking information with respect to a person's previous convictions, offences, conduct or circumstances, put to him or to any other person, whether in proceedings to which subsection (1)(b) above applies or otherwise, shall be deemed not to relate to spent convictions or to any circumstances ancillary to spent convictions, and the answer to any such question may be framed accordingly. That is nonsense. It is a typical example of wasting the time of the House on trying to make truth into falsehood and falsehood into truth.

§ Mr. Alexander W. Lyon
I was about formally to ask leave to withdraw the amendment and to allow Amendment No. 3 to be put, but, in view of the criticism of the hon. Member for Orpington (Mr. Stanbrook) of words that are central to the Bill. I should like to add one comment.
The hon. Member is against the central principle of the Bill. I understand his opposition, but most of us are totally in favour of that principle. Once the principle is accepted, the question arises how, in proceedings in court or out of court, if a question is asked about a man's previous convictions, he is to be protected so that he does not have to divulge them.
The basic answer in the Bill is that if he is asked the question, he should not be obliged to answer it in a way that discloses his spent convictions. If he is obliged to answer, either because the law lays a burden upon him to answer or because of his own innate sense of honesty, if there is no defence to that situation, the Bill will be completely nugatory, having no practical effect in society at large.
Therefore, we have always said, and I say it again and the Press can go on repeating it, that in order to help a great many people who suffer because spent convictions are thrown up in their faces long after they have become spent, occasionally truth will be a lie and a 1969 lie will be truth. We allow that out of a greater sense of compassion for the man who has lived down his past and who should be allowed to live it down. There is no other effective way. I beg to ask leave to withdraw the amendment.