§ Order for Second Reading read.
§ Mr. Speaker
Before I call the Secretary of State, may I explain to the House, although the attendance of hon. Members appears somewhat depleted at the moment, that I have a very long list of names of hon. Members who are hoping to catch my eye, and several have indicated that they wish to speak both in this debate and in the two-hour debate, on a different subject, later this evening?
I must advise hon. Members that, if they are fortunate enough to catch my eye in this debate and they wish also to speak in the later debate, it would be only fair if they waited until others had spoken in that later debate, although, as I say, the debates are on two separate subjects.
§ 4.3 p.m.
§ The Secretary of State for the Home Department (Mr. Merlyn Rees)
I beg to move, That the Bill be now read a Second time.
It is right to say at the outset that the Bill does not have a single theme. I cannot hope during a speech of reasonable length to touch on every subject covered in the 50 clauses and 11 schedules, and I hope that the House will agree that it is more helpful to concentrate on the major subjects, describing the background to the provisions of the Bill and, where appropriate, mentioning changes that we may propose during its passage through the House.
First, with regard to conspiracy, Parts I and II derive from the recommendations of the Law Commission in its report on conspiracy and criminal law reform. The Law Commission is continuing work on aspects of conspiracy, but Part I embodies the main principles of the law of conspiracy, which it identified after several years' work, including publication of a consultative working paper.
Clause 1 creates a statutory offence of conspiracy in place of conspiracy at common law, which, in general, is abolished by Clause 5. In future, the offence of conspiracy will be limited to an agreement 238 by two or more people to commit a criminal offence.
As regards penalties, Clause 3 links the penalty for conspiracy to the penalty for the completed offence. At present, the penalty for conspiracy is at large, which means that a court may impose a very long sentence of imprisonment for an agreement to commit an offence which has not actually been committed, even though the offence itself attracts only a small penalty. I regard the new provision in the Bill as a great improvement in the law.
Clause 1(3) re-enacts the provisions of the Conspiracy and Protection of Property Act 1875, which exempts those involved in a trade dispute from the law of conspiracy if the conspiracy is to commit a summary offence for which imprisonment may not be imposed. The penalty for conspiracy in the context of a trade dispute to commit the offences under the Conspiracy and Protection of Property Act 1875 is limited by the Bill to three months. Strangely, Parliament seems to have intended this in 1875 in the first place but, because of a defect of drafting, the penalty was in fact left at large.
§ Mr. Stan Crowther (Rotherham)
interrupt my right hon. Friend so early, but can he explain why Clause 1 does not provide what the Explanatory and Financial Memorandum claims that it provides? It does not limit conspiracy to an agreement to commit an offence; it is an agreement to pursuea course of conduct…which will necessarily…involvean offence.
May I give an example? My right hon. Friend and I are together at a meeting and he is in a hurry to go to the railway station. I say "Do you want to come in my car?" and he agrees. We have then agreed to a course of conduct. But my right hon. Friend, in this example, does not know that I have had too much to drink, which will necessarily involve an offence. My right hon. Friend does not know, but he will be guilty of conspiracy, and Clause 1(2) provides a defence only if I do not know, not if he does not know.
§ Mr. Rees
I am grateful to my hon. Friend for raising that matter. I assure him that we believe that the drafting as it 239 stands meets the point covered in the Explanatory and Financial Memorandum. I should be willing to go into argument about it, but I suggest that the best time to do that will be in Committee. All I say to my hon. Friend now is that I am sure that the words on page 1 of the Bill meet what is said in the Explanatory and Financial Memorandum.
Part II of the Bill modernises and amends the criminal law about entering and remaining on property. Part I abolishes conspiracy to trespass. Part II abolishes the common law on forcible entry and detainer and the related statute law, which dates from 1381 and has not been changed since 1623.
In place of those common law and ancient statute law offences there are five specific offences provided for in Clauses 6 to 10. They cover violent entry on to premises, a failure to leave premises at the request of the displaced residential occupier, trespass with a weapon of offence, trespass on diplomatic premises, and the obstruction of court officers executing an order for possession.
These offences have already attracted considerable attention inside and outside Parliament, and they will no doubt be discussed in detail in Committee. It would be inappropriate to attempt a detailed explanation of each offence today, but I must emphasise that, in our view, many of the fears expressed about this part of the Bill have been greatly exaggerated.
Clause 7—I come now to squatting—is chiefly directed at a squatter who moves into residential premises while the lawful occupier is away, for example, on holiday, We have been giving careful thought to how far an offence along the lines of that provided for in Clause 7 should be used to protect property against squatters. There were several debates on this question in another place, and we have already consulted the police and local authority representatives. Before reaching a final view we shall, of course, wish to hear the views of the House. The Government will be giving further consideration to the possible extension of Clause 7, bearing in mind the views expressed in both Houses and the possibilities of improvements in civil procedures.
§ Mr. Andrew Bowden (Brighton, Kemptown)
The right hon. Gentleman will, I am sure, acknowledge that he has received strong representations from local authorities, including my authority in Brighton, about the term "displaced residential occupier". It is the view of my chief executive and town clerk that the present drafting would not enable the local council to take steps to remove squatters.
§ Mr. Rees
Perhaps the hon. Gentleman will reconsider the words I used—bearing in mind the views expressed in both Houses and the possibilities of improvements in civil procedures. We have discussed this matter with a wide variety of bodies and individuals in recent weeks. It is a difficult field.
My strong view was that we should put into the Bill the recommendations we have received and that we should listen to the views of the House on various aspects of this matter. Moving too far in this area might seem a good idea, but it is an extremely complicated field. That is why I felt that, rather than put an amendment down now, we should listen to the views of the House, and that we shall do during the Committee stage.
§ Mrs. Audrey Wise (Coventry, South-West)
Does not my right hon. Friend agree that a good deal of the problem which can arise with regard to empty property is caused precisely because it is empty for far too long? This is a matter of housing policy and possibly needs different procedures and the better use of property.
§ Mr. Rees
That is one aspect of the problem that is undoubtedly true. That is another reason why I felt that we should listen to the arguments in Committee rather than rush into legislation. What I am recommending so far is what is in the Bill. I think that before going any further we ought to listen to the arguments in Committee.
§ Mr. George Cunningham (Islington, South and Finsbury)
I realise that possible improvements in civil procedures is not my right hon. Friend's departmental responsibility. However, can he say something more now, because he will realise that if there were not to be a 241 speeding up of civil procedures one might take a different view of the possibility of the extension of Clause 7 than one would otherwise take? Before the Bill comes back on Report we should like to know more about the speeding up of civil procedures.
§ Mr. Rees
The possibility of improvements in civil procedures is a basic factor that has to be taken into account. The reason I used the word "possibility" is not that we have only just thought about it. I have been talking about it with my right hon. and learned Friend the Lord Chancellor and we shall come back with views on it.
When the Bill was introduced into Parliament the offence of obstructing a court officer in Clause 10 was limited to circumstances in which the court officer was executing an order for possession issued under the summary civil procedure introduced in 1970. An amendment was passed in another place to extend the offence to cover the execution of all orders for possession. I shall be inviting the House to restore the Bill to its original form because that power would place an unacceptable burden on the police and, in my view, would involve the police in areas in which they should not be involved.
With regard to Part II in general, our approach is not unyielding or dogmatic. This is an area where the law has long been overdue for reform but there is certainly room for discussion about how best this can be done. I and my colleague, the hon. Member for Pontypridd (Mr. John), have had more than one discussion about the Bill with representatives of the TUC. As the Bill continues its progress through the House these discussions will be continuing. During the discussions I have been anxious to meet the concern of the TUC that the Bill should not have the unintended effect of impeding peaceful industrial action. There is general agreement that, so far as possible, the criminal law should be kept out of industrial disputes.
We are considering a number of points that the TUC has made about the way the new offences might work in the context of a trade dispute. If our consideration suggests that the Bill can be improved we shall introduce amendments at a later stage. I regard the discussions 242 we have had as of the greatest importance because, I repeat, I do not want unintended implications of changes in the law to cause even further problems as time unfolds.
Before turning to Part III I ought to say a word about our decision not to give effect in this Bill to Part III of the Law Commission's report on conspiracy. We concluded that before creating further specific offences with regard to morals and decency we should take a broader look at the whole subject of obscenity. I hope shortly to be appointing a Departmental Committee to undertake a fundamental review of the laws of obscenity, indecency and censorship. That is the best way to proceed. It is a subject which excites many people one way or the other. [Interruption.] I note that the mention of the word excites some hon. Members.
Be that as it may, it is one on which we ought to have further consideration. When I first became Home Secretary, and read the reports to be translated into law, I thought that this was something which needed further consideration. I shall be appointing a Departmental Committee.
§ Mr. Leo Abse (Pontypool)
Since the Law Commission made it unequivocally clear in its report, emphasising it in italics, that it was not concerned with the general law of obscenity, and the proposals it put forward did not call for any such general rule, how can my right hon. Friend say that there should be yet further postponement on a matter which has already been of concern to the Law Commissioners, apart from many people in the country, for 11 years? That concern was expressed with vigour by Lord Gardiner in another place. Why is my right hon. Friend now postponing a matter which could be dealt with in the manner which the Law Commissioners clearly indicated?
§ Mr. Rees
I am grateful for the report from the Law Commission but I felt that it had wider applications than the effect on the statute law. It is easy for individuals who have a particular view one way or the other to say that we should proceed. But it is a subject on which the community in general has views and I want to carry the community with me with regard to any changes that I make. I want to look at this far more widely 243 than the Law Commission dealt with it. There are wider aspects of obscenity and decency and so on which I believe we ought to get right before we legislate. That is the reason why I have decided to act in this way.
Part III of the Bill gives effect to the main recommendations contained in the report of the James Committee on the Distribution of Criminal Business between the Crown Court and Magistrates' Court which was published in November 1975. I should like to take this opportunity to pay tribute to the late Lord Justice James, whose untimely death was a blow to all who knew him. To have accomplished a review of this vast and complex area of criminal law and to have produced, all in the space of only two years, such a comprehensive and valuable report is a remarkable testimony to Sir Arthur's tireless energy as well as to that of his colleagues on the Committeee.
The James Committee was set up when pressure on the Crown court resulting from increases in the crime rate had already led to lengthy delays in the hearing of cases in the higher courts to the extent that, by 1974, the number of cases awaiting trial at the Crown court was around 8,000. These pressures have since increased, despite the extra resources which the Crown court has been given. By September 1976 the figure had grown to some 12,000 cases.
What does this mean in terms of waiting time for persons committed for trial? It means that in London, where, as one would expect, the problem is seen at its most acute and is the most worrying, a person who is committed for trial today is likely to have to wait on average about fifteen weeks before trial if he is in custody, and twenty-five weeks if he is on bail. That is the London situation.
Elsewhere the situation is not so bad. Even so, however, it would be wrong to assume that this is only a London problem. On the South-Eastern Circuit—other than London—for example, the delay is four months, while on the Northern Circuit it is between two and three months. We cannot resolve these problems simply by building more courts and providing more judges and court staff. We must recognise that in the criminal justice system, no less than in 244 any other area, resources are finite and cannot be expanded indefinitely.
This is not merely a question of money, though, in present economic circumstances, that is obviously important. It is also a question of actual resources available. We must therefore look for other solutions, and the need to find them is now even greater than it was when the James Committee was set up.
§ Mr. Robert Kilroy-Silk (Ormskirk)
My right hon. Friend has pointed out in detail a whole series of offences that are now to be removed from jury trial even though this is essentially a London and South-Eastern problem. Can he give figures for the waiting times in magistrates' courts? Is it not the case, particularly when cases are not heard in one day, that the waiting time in magistrates' courts in many areas is just as long as in the Crown courts? Will that not be exacerbated if further cases come before the courts should the Bill, in its present form, go through this House?
§ Mr. Rees
I have more to say on the nature of the changes. Meanwhile, I will try to get my hon. Friend the figures for which he has asked.
After beginning its detailed examination of the subject, the James Committee quickly became aware, as it said in the report, thatthe existing rules governing the distribution of business between the Crown Court and magistrates' courts are complicated, confusing and anomalous.It identified a total of six existing categories of offence, each carrying its own procedure. It stressed that any new scheme should be simple, easy to apply and readily understandable by all concerned. To this end, it proposed that the six categories should be reduced to three—namely, offences triable only in the Crown court, offences triable only in the magistrates' courts, and offences which should be triable either in Crown court or in the magistrates' courts in accordance with the new procedure that it recommended. Where a case was in the third category, the accused should have the right to insist on trial in the Crown court, although not to insist on trial by magistrates. That is provided for in Clause 14.
The James Committee went on to consider the allocation of existing offences to each of the three new categories and to 245 make detailed recommendations, most of which the Government have accepted. The Government agree with the Committee's view that the main criterion should be the seriousness of the offence in the eyes of society. The maximum penalty is a guide, though not an infallible one, to the seriousness which society attaches to it. The Committee did not base its conclusions either on an assumption that one mode of trial is inherently superior to another or on an assumption that magistrates and juries approach the question of guilt or innocence differently.
It has sometimes been asserted that magistrates are more "establishment-minded", and therefore more likely to convict than jurors, but the figures for the offences now in issue do not bear that out at all. Details of these figures, which represent the percentage of acquittals of persons pleading not guilty to various offences in the Crown court and in magistrates' courts, were given in answer to a Parliamentary Question by my hon. Friend the Member for Manchester, Blackley (Mr. Rose) on 26th January. These show that the percentage of people pleading not guilty who were acquitted was actually higher in magistrates' courts in respect of every offence which is now triable at the Crown court but which, under the Bill, will become triable solely in the magistrates' courts.
To get this matter in proportion, I must stress that the James Committee's recommendations, and the provisions of the Bill, do not make any radical change in the allocation of business. In the 1975 Criminal Statistics, we find that of 2,110,000 people proceeded against, only 68,600 were committed to the Crown court for trial. If the Bill as it now stands had been in force, the Crown court would have tried about 6,000 fewer and the magistrates' courts about 6,000 more.
This transfer of 6,000 cases would give material relief to the Crown court, which is heavily pressed and seriously in arrears, but even so, the transfer is small in proportion to the whole, and cannot therefore be said to affect radically the existing system.
Some offences formerly in the "hybrid" category—that is to say, offences which may at present be tried either on indictment or summarily—are now placed in the category of offences 246 which are triable only by the magistrates. Most of these, such as the offence of assaulting a constable, do not now carry any right to the accused to be tried by jury; the existing position is that the prosecutor may apply for trial on indictment, but not the accused. But there are also a few hybrid offences, such as drinking and driving, and solicitation by a man for homosexual purposes, in respect of which the accused also has at present a right to demand trial on indictment.
The James Committee considered these in some detail in Chapter 2 of its report, and I do not wish, in advance of the debate, to embark on a detailed discussion of them, as that is really a matter for Committee. However, the issues were very fully canvassed and some changes were made, and I think the right balance has now been struck.
§ Mr. Kenneth Clarke (Rushcliffe)
Did I understand the Home Secretary to say that the decision about which category in which to place each offence has been taken solely on the seriousness attached to that offence, which was basically the approach of the James Committee? Has he, however, rejected the Committee's proposal that the offence of assault on a police officer should be made triable by jury? If that is so, surely it cannot be because the right hon. Gentleman takes a less serious view of that offence than the James Committee did.
§ Mr. Rees
I am glad that the hon. Gentleman has raised this point during my explanation of the classifications arranged. Many people believe that a great change has been made in this respect, and I have sought to show that there has not. He has raised another important point, of which I am not unaware. Sometimes there is a disadvantage in being Home Secretary but not a lawyer. However, I think that is easily overcome, since there are plenty of lawyers around to give me advice. The question of what is serious in the eyes of society cannot always be put in a form of words to meet a legal statute. I accept that. What is regarded as serious by society at one time has changed in the eyes of society a couple of decades later.
I turn now to some important changes made to the Bill since it was first published. First, after prolonged debate in another place, the provision making 247 certain small thefts triable only by the magistrates was removed. Secondly, a clause was inserted to enable provision to be made by rules for advance disclosure to the defence of the prosecution case in magistrates' courts. A number of hon. Members spoke to me about this earlier, and the change was made in another place.
A further major improvement made to the Bill in another place is the amendment of the Road Traffic Act 1972 to remove the concept of dangerous driving or cycling from the road traffic law. Clause 39 substitutes new offences of causing death by reckless driving, which will be triable only on indictment, and driving recklessly, which will be triable either way, for the offences of causing death by reckless or dangerous driving and driving recklessly or dangerously. The offence of careless driving, which is triable only summarily, remains unaltered.
The concept of dangerous driving has been criticised because it can range from instances of deliberately hazarding other road users down to relatively minor faults which can scarcely be distinguished from careless driving. These provisions have found wide general acceptability from all sides.
The Bill, in Clauses 28 to 32 and in Schedules 1, 5 and 6, increases and rationalises a large number of maximum fines for a range of offences following upon recommendations in the James Report. That football hooligans, vandals and others may be liable to fines of £1,000 once the Bill has been enacted has caught the headlines, and rightly so. I met the football organisations in December to discuss the problem of football hooliganism, and I am arranging a further meeting with them as soon as possible.
Many of the offences with which hooligans may be charged will carry the new maximum, as will offences against the anti-rabies legislation and most of the serious offences which may be dealt with by magistrates. The maximum compensation which a magistrates' court may order is also increased to £1,000. Maximum fines alone are by no means the answer to football hooliganism or any other kind of crime, but it is our responsibility to ensure that the courts have at their disposal adequate powers to deal 248 with those who come before them, and the Bill tries to do this.
§ Mr. George Cunningham
Are we not constantly going to be in difficulty, especially in time of high inflation, in that the value of the maximum fine will be eroded by inflation? Are we not in the end going to have to get round to scale fines, where we have scale "A", "B", "C", or something like that, and scales are automatically increased, a change which could be made by Order-in-Council?
§ Mr. Rees
There is power to increase fines by order. We can look at the question of scale fines in general in Committee to see whether it is appropriate to bring in such a system. This is undoubtedly a serious problem, especially as parliamentary time is often short. It is certainly correct to say that the penalty of a fine is eroded by inflation.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
May I call the Secretary of State's attention back to Clause 39 on the question of altering the Road Traffic Act? I apologise for doing so after he has moved on from it, but this is an important matter. What difference does he imagine that this change will make? The previous provision was that the driving was in a reckless manner or in a manner dangerous to the public. That has always been defined in law as meaning the same thing. What difference does the right hon. Gentleman think that the new definition will make?
§ Mr. Rees
As I understand it, there are a number of areas in the law where the existing definitions are not very clear and this is an attempt to clarify an area in which so many people become involved because so many people own motor cars these days. If the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) has views on the matter we shall be prepared to listen in Committee
I was talking about penalty amendments. The various penalty amendments in fact go wider than merely strengthening the courts, important though this undoubtedly is. Clause 28 provides that all offences triable either way shall carry the same maximum fine on summary conviction and that the prescribed maximum shall be £1,000. This is an important simplification of the summary 249 penalty structure and is a key element in the rationalisation of criminal business in Part III of the Bill.
The present maximum fine normally available to magistrates is £400, established in 1967. The increase in the Bill takes account of inflation since then and is itself inflation-proofed. There is a power in Clause 47 to increase the maximum summary fine for offences triable either way by order if a change in the value of money is such as to justify this. This power, and the figure of £1,000, were both recommendations of the James Committee. This is the point that my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) was making, but, on the question whether scale fines would be better, I shall be happy to listen to my hon. Friend's argument in Committee.
Schedule 6 to the Bill increases the maximum fines for a number of purely summary offences. The schedule exemplifies a new four-point structure of summary fines, based on £1,000 as the new highest fine, by applying increases to the appropriate level. The schedule may look something of a ragbag but it contains those offences over which real concern has been exjressed, either before the Bill was introduced or in another place, about the inadequacy of the maximum fines. The package of provisions relating to penalties goes some way towards simplifying the present complicated tangle.
§ Mr. Abse
What consideration has been given to the effects of this massive increase in fines on the number of people who will go into custody because they fail to pay fines? With our prisons already choked and the appalling conditions inside prisons, what consideration has been given to making certain that the only people committed to prison will be those who are wilfully defying the courts, as distinct from those who are unable to pay? Does my right hon. Friend realise that what he may be doing—which I am sure is contrary to his wish—is to ensure that there are likely to be more people in prison?
§ Mr. Ernest G. Perry (Battersea, South)
Is my right hon. Friend aware that in today's editions of the two London newspapers, the Evening News and the Evening Standard, the London Tory Party is reported as saying that it will set up vigilante groups in London if the Tories are returned to power in the Greater London Council. Does my right hon. Friend realise that setting up vigilante groups is against the interests of London? The Metropolitan Police have done a fine job in controlling law and order. Does my right hon. Friend agree that this is a retrograde step by the Tory Party?
§ Mr. Rees
First of all, on the question of vandalism, I have had a conference this week with a large number of people from all the local authority associations, probation officers and the police on the real problem of vandalism. The problem needs consideration.
But on the matter of vigilantes, anyone who reads the papers today will know that if there is any question of vigilantes, it will have to be dealt with by the law. We cannot have Paisleyism in London. This is a matter for the police alone to deal with. I shall read the newspapers with interest to see what is involved.
With regard to young offenders, I share the widespread concern about the prevalence of criminal conduct among those under 17 and the need to keep under review the working of the Children and Young Persons Act 1969.
We looked at this matter with particular care in the light of the comments of the Eleventh Report of the Expenditure Committee and set out our conclusions in the White Paper (Cmnd. 6496) published a year ago. The Bill incorporates some of the proposals made by the Expenditure Committee and adopted by the Government.
Clause 35 provides for new powers of fine enforcement in respect of young offenders. Where an attendance centre is available, the courts will be empowered to make an attendance centre order for a juvenile who defaults in payment of a fine. Alternative powers available in all cases will enable the courts to bind over 251 the parent or guardian of the defaulting child to ensure that the outstanding sum is paid, or, where in all the circumstances it is reasonable, to order the parent or guardian to pay instead of the defaulter.
The Bill also increases the maximum levels of fines and compensation which may be imposed by a juvenile court. We agree with the Expenditure Committee that junior attendance centres perform a useful function for juveniles. The Bill makes a small technical change which should improve their usefulness.
At present the law requires the court which made the order to deal with any breaches which occur, and it is therefore not practicable for a court in one part of the country to make an order in respect of a boy who lives elsewhere. Amendments to the Criminal Justice Act 1948 contained in Schedule 9 will enable the court for the area where the order is to be served to deal with breach proceedings. This enables us to make all the attendance centres available to all courts, wherever they are situated.
We have agreed with the recommendation of the Expenditure Committee that the junior attendance centre system be extended where possible. Notwithstanding the present financial stringency, some limited resources have now been made available and consultations have been started with a view to establishing a few additional centres in the areas of the most need.
The Expenditure Committee recommended that changes should be made to improve the effectiveness of supervision orders. We have consulted those concerned, and in the light of those consultations propose to put down Government amendments to the Bill for this purpose.
As I announced recently in reply to a Question from my hon. Friend the Member for Eton and Slough (Miss Lestor), it is our intention that, when making a supervision order, the court should have power to impose both a general requirement to be of good behaviour and any particular requirement which, having regard to the circumstances of the case, it considers necessary to prevent further offending. The court, we propose, should also have power to deal with a breach of the terms of the order by imposing a fine or, where an 252 attendance centre is available, by making an attendance centre order.
It is also our intention to encourage more effective and flexible schemes of intermediate treatment by removing the present rather complicated restrictions on the time limits, within the maximum of 90 days, for a residential requirement by the supervisor.
Clause 42 brings to an end the criminal jurisdiction of the coroner, which is of very ancient date. The Brodrick Committee, which reported in 1971, came to the conclusion that this jurisdiction was incompatible with present-day concepts of justice. To complete the change recommended in this field by Brodrick it will be necessary to make changes in the coroners' rules. For this purpose I have set up a working party on the coroners' rules to complement the changes being proposed in the Bill.
Clause 41 extends the powers of arrest and entry available to the police to deal with breaches of the anti-rabies controls.
I should now like to refer to some of the matters on which Government amendments are likely to be introduced. The first is in regard to bomb hoaxes. I intend to move amendments to the Bill to create two new offences to deal with bomb hoaxers. At present there are several provisions which can be applied to bomb hoaxers, but there is no offence specifically directed against them. The police have told me that they encounter substantial difficulties in the prosecution of bomb hoax offenders for this reason. Some offenders can slip out of the net altogether; others can be dealt with only after a complicated task of deciding which provisions fit the circumstances of the offence most clearly; and the maximum penalties for the most widely applicable offence are too small.
In my view, this is a serious defect in the law. Bomb hoaxers can be a menace to the police and to the public, especially at a time when resources are already severely stretched in dealing with a genuine bombing campaign.
I have today looked—incidentally it worked out this way—at the arrangements made by the police during the bombing campaign, and they were excellent. I say that because, after the bomb at the Hilton Hotel in November 1975, the police in central London received over 253 200 hoax bomb calls which made their job in dealing with that horrible situation a good deal worse. Such behaviour can be a danger to the public by diverting police attention from where it is most needed.
The inadequacy of the law regarding bomb hoaxes was first noted by the Law Commission when it reviewed the law on conspiracy, and I am grateful to the Law Commission for its preparatory work in this area. The first proposed offence deals with those who place or send hoax bombs, while the second is related to false reports about bombs. I shall put down amendments in Committee to introduce these two new offences.
On a rather different point, I intend to move an amendment to change the penalty in Section 3 of the Explosive Substances Act 1883 for conspiracy to cause an explosion from 20 years to life imprisonment. This is in line with the penalty structure for conspiracy in the Bill and meets a point made by Mr. Justice Ackner in the course of the QE2 explosives trial at Winchester.
We hope to be able to introduce amendments in Committee to allow for the service and execution of process—summonses and warrants—throughout the United Kingdom.
We also hope to be able to introduce a Government amendment to give effect to a proposal by the Magistrates' Association in order to improve sentencing practice and reduce unnecessary court appearances. This involves giving a court which has convicted a person of an offence and which becomes aware that within the near future the defendant is due to be sentenced by another magistrates' court for a different offence of which he has already been convicted the power to transfer the case to the latter court, which would then proceed to sentence for both offences at the same time. This will overcome some of the disadvantages which can result from two courts imposing within a short space of time sentences which are incompatible, such as a fine followed by a sentence of imprisonment.
During the passage of the Bill in another place the Government undertook to consider a proposal to make imprisonment less readily available in cases of summary convictions for the offence of unlawful possession of cannabis or 254 cannabis resin. The position is complicated by the proceedings in the case of Goodchild, which have exposed a serious defect in the existing law. Subject to the final outcome of the proceedings in that case—which may not be before June—it may well be desirable to take the opportunity of this Bill to restore the effect of the law to its original intent.
The House will appreciate that, while an issue of such substance remains to be resolved, there are difficulties in determining what further changes in penalties may be appropriate. We have to consider not only what the implications of such changes might be for our attitude and that of the courts and the enforcement authorities to the offences themselves, but how such changes might best be fitted into the more rational structure of penalties that we are seeking to achieve.
These are also matters on which we wish to obtain the considered views of the Advisory Council on the Misuse of Drugs but which the time table has not yet permitted that council and its various working groups to explore in full. The council recently decided, by a majority, to recommend that imprisonment should no longer be available as a penalty for a person convicted of an offence of possession of cannabis or cannabis resin who had not previously been convicted of a drug offence, but a number of consequential decisions remain to be worked out, and the council and its working groups are pressing ahead as a matter of urgency. When the council's views are available, the Government will wish to take stock of all the inter-related issues with some care.
I feel bound to advise the House, however, that there are some very substantial issues of both drugs and penal policy involved and that the resolution of these will not be easy. We do not think that it could be right to make changes which may have considerable and irreversible consequences without adequate evidence that the case for such changes is fully made out.
This is a worthwhile Bill which I commend to the House.
§ Mr. Abse
My right hon. Friend has been helping the House by going very quickly. I regret having now interrupted him for a third time. But, on the question of cannabis, I come back to the point 255 that I made earlier. In 1975 nearly 600 young people were imprisoned for possessing cannabis. To postpone the matter in the way suggested by my right hon. Friend, when we have the Wootton Report and, I repeat, so many alternatives to sending people to prison, seems to evade it in a way which cannot commend itself to this House any more than it appeared to commend itself to the other place.
§ Mr. Rees I understand the point made by my hon. Friend and the recommendation in the Wootton Report of some years ago. I could make a judgment on this matter now, but the Government want to hear the views of the House as a whole. If we proceed too quickly, those who want reform might, if deleated, have to wait many years before there is any change. Some people want reform in this area. But, as happens with reform of this nature, often there is greater feeling against it in the country as a whole.
Therefore, I suggest that, though it might appear that there is some dilatoriness, we should carry the country and the House with us and get it right. If this reform is defeated in this House, it may be a very long time before it comes forward again. I was trying to be helpful. A report on this matter is coming forward and we should consider it.
§ Mr. Christopher Price (Lewisham, West)
We understand that my right hon. Friend's slightly abstruse statement was meant to be helpful. However, in the opinion of many of us, merely shelving the matter again would put off a sensible decision on the matter. There is a great body of opinion in the House that would like to have a good discussion on the matter and perhaps a free vote at the end so that we can decide what the public would like to do about it. We should not just shelve it again.
§ Mr. Rees
I was not thinking of shelving it. I suggested June because I thought that we should almost certainly have time to consider it in Committee if not on Report. I take account of the suggestion of a free vote. I want this matter to be discussed. I want to have the report for which we have asked, which I understand is nearly ready.
§ Mr. Emlyn Hooson (Montgomery)
Does the right hon. Gentleman's last observation mean that he expects the report to be in his hands in time for the Committee that will consider the Bill to be apprised of its contents and of the recommendations before Report?
§ Mr. Rees
I cannot speak for the committee working on the report, because I have no control over it. I am hoping that that will be the position. That is what I should like to see.
This is a worthwhile Bill which I comment to the House. It takes us a little further along the road to a codified criminal law and it will help to relieve the pressure on the Crown courts. It would be a remarkable Bill indeed if we were not able to improve it on points of detail in Committee.
That is the way in which the Government approach the Bill as it begins its passage through this House. We shall listen to what the House has to say. I hope that we shall have a useful Committee stage. This is not a party matter. We shall listen to the views expressed on both sides of the House. It is in that spirit that I commend the Bill to the House.
§ 4.49 p.m.
§ Sir Michael Havers (Wimbledon)
I congratulate the Secretary of State on the skill he has displayed in going through the Bill and the pace at which he did it, because it is a complicated Bill. I also congratulate the Government on the pace with which they have brought the Bill before the House. The Law Commission reported only in March 1976 and the James Committee in November 1975, and the Bill was introduced in the other place shortly after we came back last autumn. The Secretary of State should be congratulated.
I add my congratulations to the James Committee on the detailed and helpful report that it has produced, and I am sorry that Lord Justice James died without being able to attend this debate. I may have missed his saying so, but I believed that the Home Secretary did not also offer congratulations to Mr. Justice Cooke and the Law Commission on the considerable assistance that they gave us in their report.
The Bill makes substantial changes in the criminal law and it has improved considerably as a result of its passage through 257 another place. I do not want to spend too long on particular details, but I wish to make a point about penalties. We welcome the increase in fines and the methods envisaged in the Bill for enforcing them, particularly with regard to young people.
I also wish to refer to the changes in the law on conspiracy in the Part I of the Bill. Conspiracy is an important weapon in the armoury of the criminal law for dealing with serious criminal cases. We must not forget that many conspiracies are much more serious than the commission of a single offence. For example, if the Bill goes through in its present form, half a dozen people planning to use violence on a number of occasions may, if caught on the first occasion—although it is clear that they were planning a whole pattern of violence?—be dealt with by only the maximum sentence for the single offence.
The same applies to drug offences where there is an organised drugs ring and where the organisers either stay out of the way or are caught early on—although the more serious situation then arises than from a single substantive offence. This was dealt with by Mr. Justice Wright in "The Law of Criminal Conspiracies and Agreements" on pages 81 to 82. It is referred to by the Law Commission on page 37 of its report. The report states:where the agreement or concurrence of several persons in the execution of a criminal design may be a proper ground for aggravation of their punishment—Such would be cases in which the cooperation of several persons at different places is likely to facilitate the execution or the concealment of a crime or in which the presence of several persons together is intended to increase the means of force or to create terror, or cases of fraud in which suspicion and ordinary caution are likely to be disarmed by the increased credibility of a representation made by several persons.That is a good example of what the courts have found over the years—that there are occasions when the act of conspiracy itself, sometimes caught early, is much more serious than allowed for by the penalties provided for the substantice offence. I refer to those who plan the crimes and leave others to carry them out.
Our view is that the Law Commission's original working paper was right, rather than its final conclusions which the Gov 258 ernment are following today. The Law Commission originally suggested that the maximum sentence for a conspiracy should be twice the penalty for a substantive offence. We certainly hope that we shall have an opportunity in Committee to discuss this and perhaps to make amendments.
It is necessary, as we can clearly see, to prosecute offences of conspiracy to corrupt public morals or outrage public decency until the gaps in the obscenity laws are filled. However, with respect to the Secretary of State, I do not understand why the Law Commission's recommendations on films should not now be followed. Of course, we all welcome the setting up of an inter-departmental committee on obscenity. The 1959 Act has been demonstrated to be inadequate on a number of occasions and there are gaps. Films are excluded, and over the years prosecuting authorities have been forced to use the rather artificial offence of conspiring to corrupt public morals. This has been so not only in respect of Soho cinemas—dens, as they really are—but in respect of one or two cases in which the British Board of Film Censors has refused a licence certificate and yet a local authority has stepped in and granted one. There was a notable case of this not long ago when the courts had to deal with the matter.
The present rash of cinema sex film clubs is a disgrace to any civilised society and city and one that is, I understand, happening not only in London but in other parts of the United Kingdom. We must bear in mind the power of local authorities to grant such certificates even though a licence has been refused by the British Board of Film Censors. That leaves us in a ridiculous position and one in which this rather artificial offence must be used, but the distributor escapes. The distributor, as a result of two recent decisions, cannot be prosecuted unless the prosecution can show that the exhibitor was corrupted by the distributor when he handed him the film to show in his dirty cinema, otherwise no conviction can follow.
The Law Commission spent a considerable part of its report on that and recommended that cinematograph exhibitions, whether or not held on premises licensed for that purpose, should be subject to the 1959 Act from which film shows are now 259 excluded. The Law Commission also recommended that the distributors should also be liable.
The recommendations included the keeping of the special defence of public good but excluded private dwelling-houses where such a film was shown, provided that no one under the age of 16 was present and provided no charge for entry was made. A final safeguard was that the consent of the Director of Public Prosecutions should be necessary before proceedings could be taken when the film was shown at a licensed cinema. The Law Commission went further and said that live performances—which are another evil that seemed to be increasing—and displays should be brought within the Act.
I fear and suspect that my fears will be justified and that when the departmental committee finally reports—which may be some time ahead—there will then be the usual problem that the Home Office finds in obtaining parliamentary time to put into effect recommendations that might meet with the approval of the House.
The scandal that is currently going on with regard to such films, which are widely advertised and patronised, could be dealt with easily by accepting the Law Commission's recommendations. That could be done without in any way damaging the inquiry that is to be set up.
§ Mr. Abse
Is it not clear, and should it not be emphasised, that while these recommendations may be wise, particularly as a holding operation, they are absolutely linked with the abolition of the existing offence of conspiracy to corrupt public morals or outright immorality? Is that not the reason why the Law Commissioners made explicit and clear that it would be regarded by most people as unacceptable for the provisions to come into existence without Parliament getting rid of, as the Law Commissioners emphasised, the offence of conspiracy to corrupt public morals?
§ Sir M. Havers
I do not have the figures, but I expect that the Law Commissioners had them and that the great majority of cases in which the charge of conspiracy to corrupt public morals has been used have been dirty film cases. I should have thought that if the Act 260 covered live shows and cinematic performances we could get rid of the anomaly of having to keep those two offences. I do not have enough facts on that, but I expect that the Home Office could provide them in Committee.
§ Mr. Mark Carlisle (Runcorn)
Does my hon. and learned Friend agree that the first part of the Indecent Display Bill that we introduced in 1973 would have brought cinema clubs within the laws on indecency? Could not clauses from that Bill be included in this Bill?
§ Sir M. Havers
The 1973 Bill was going through the House when there was a General Election. It was based on a different principle, and cinemas were to be licensed. This is a rather different, because all the cinemas would be subject to the 1959 Act. In our view it does not matter how this is effected as long as something is done now. It is absolutely ridiculous that indecent films can be shown virtually publicly all over London and elsewhere without there being any power for dealing with them save this curious offence, which has come into being only since the war.
§ Mr. Fairbairn
I hesitate to interfere in the English law of conspiracy, but should we not be cautious about attempting to replace the common law of conspiracy by making it a statutory offence? From my reading of Clause 1, it is clear that any defence lawyer could, in any case, except any act from conspiracy on the basis of its definition, and I believe that there is no statutory definition that will get over that defence. The words in the clause are:if the agreement is carried out in accordance with their intentions".A defendant needs the difference of only the flick of an eyelid from their intentions to be not guilty.
§ Sir M. Havers
I had sought to avoid detail because this is such a wide Bill, but the point made by my hon. and learned Friend has been drawn to my attention and we shall look at it carefully in Committee. It is obviously the intention of us all to get the right answer if possible.
The provisions relating to squatting will be a welcome relief to house occupiers and I am grateful to the Home Secretary for saying that the door was 261 not closed on extending them further. Squatting is unfair because it occupies accommodation that has either been used by someone else or is often about to be taken over by a new occupier. He is excluded from the Bill even though he suffers almost, if not quite, the same amount of loss, discomfort and anguish as a current occupier.
If local authority housing is excluded and squatters move into a local authority house that is being built, converted or improved before a new tenant designated by the local authority moves in, the new tenant has no protection under the Bill and tenants further down the council waiting list will suffer because he may have to be housed elsewhere and they will lose their turn in the list. Equally, those who have bought a house and intend to move in after redecorating or rewiring it are not protected.
§ Mr. Alexander W. Lyon (York)
The hon. and learned Gentleman keeps using the words "not protected" although he qualified them at one point by saying that someone was not protected by the Bill. I am told, however, that until the Kamara case this was a civil offence and protection was exercised by the civil court. Is there anything deleterious in going back to that position, as advocated by many people?
§ Sir M. Havers
One of the problems is the time involved, and another is that if people are turned out as a result of an order from a civil court the local authority has the problem of rehousing them. There is also the loss of income to the local authority which, if squatting takes place on a large scale, can be considerable.
§ Sir M. Havers
That may happen, but I do not know of any instances. One of the problems is the security that is given to tenants. My son has taken over the house of a friend who will be working in France for three years. The friend trusted my son to surrender the house when he returns to this country and I know that my son will do so, but there 262 are great difficulties about letting a house if one is away for a short time.
It is a problem that we shall have to consider carefully, and it is one of the reasons why houses are kept empty while owners are away for a short time.
§ Mr. Hooson
Is not the answer to the important point raised by the hon. Member for York (Mr. Lyon) that in some, though by no means all, cases squatting is an offence against the community as a whole rather than against an individual?
§ Sir M. Havers
Yes. The difficulty of identifying the person who would be able to bring proceedings under the Bill—the would-be occupier—instead of the immediately displaced tenant could be resolved perhaps by giving the power to ask the police to deal with the matter to the local authority or the owner at that time.
One of the problems faced by the Law Commission was when contracts had been exchanged, but the conveyancing had not been completed. I am sure that there is a way round this, and we shall want to discuss it further in Committee to see whether the provisions should not be extended to those who are left out at the moment.
Part III of the original Bill would have posed the biggest problem for the Home Secretary, particularly with its £20 limit in Theft Act cases. Happily, that has gone and I understand that there is no intention to replace it. I am pleased to see the Home Secretary nodding his assent.
The intention of the Bill to set up three types of cases is sensible, although it is inevitable that there will be differences of opinion about the categories and they will need further discussion. For example, I still think that burglary is extremely serious and I wonder whether that is in the right category. On the other hand, in order to ensure that the proposal to make Crown courts more efficient and less overworked is effective, a number of concessions, including some on driving cases, must be made.
I wonder whether the creation of the offence of causing death by reckless driving is not so near as to make no difference to the old offence of motoring manslaughter, and I wonder how the distinction will be drawn. 263 We are also concerned with the category of homosexual importuning under Section 32 of the Sexual Offences Act 1956 for the same reason as we would have opposed the £20 limit on theft cases. In cases of homosexual importuning, convictions can have devastating results. A man's career and home may be destroyed and the evidence on which he is convicted can be easily provided and misinterpreted. A wise old member of the Bar said some years ago that he would rather urinate in the street than risk being put in great difficulty by going into some public urinals that were used for importuning by homosexuals. This should be one of the offences that can be tried either way.
I am grateful to the Minister of State, Home Office for his letter in reply to my request for details about convictions under Section 32 of the 1956 Act. It is difficult to say who had elected to go for trial at the Crown court because there were cases in which the prosecution could have elected to do so. On the assumption that the majority of defendants in Section 32 cases had elected to go for trial, the Minister's letter produced some interesting statistics. In 1973, 36 cases were committed to the Crown court for trial. In 1974 the figure was 42, and in 1975, it was 59. As long as the progression does not increase at a much faster rate, it is not possible to claim that the Crown courts cannot deal with these cases while benefiting from the general proposals of the Bill. In 1975, 77 per cent. of the men who pleaded not guilty to Section 32 offences were acquitted at magistrates' courts. At the Crown courts, where 17 men pleaded not guilty, 61 per cent. were acquitted.
However, one should not regard comparative figures between the magistrates' courts and the Crown courts as absolutely safe. Many people believe that their cases are sufficiently sound for them to be left to the magistrates. Those who elect to go to the Crown court may know that the evidence against them is strong and they may, therefore, choose trial by jury. It may be that the cases at the Crown courts are regarded as more serious by the defendant. He may be more likely to be found guilty, so a comparison of the figures is probably unsafe.
I had hoped that the Home Secretary would use the Bill to implement the 264 recommendations of the Criminal Law Revision Committee about Section 16 of the Theft Act 1967. This involves the offence that has been described as a judicial nightmare—obtaining pecuniary advantage by deception. It has also brought into the criminal net a number of people who were not intended to be brought into it by that Act. It is also a good lesson to the House that Section 16 was added during the Bill's passage through the House. It was not part of the Criminal Law Revision Committee's original draft Bill. Perhaps we can learn from that. There has been great pressure to correct it.
There are only four non-contentious clauses. They will not take much time in Committee or fundamentally delay the Bill. I hope that the Home Secretary will either table amendments or not oppose us if we table amendments to implement the Committee's recommendations.
The right hon. Gentleman did not say anything about the proposal to abolish Section 3 of the 1961 Act. I hope that there will be no attempt to replace it. It is one of the most ridiculous provisions of which I have ever heard. The voting list in the House of Lords was interesting, particularly when one bears in mind those who voted for it in 1961 but who now regret doing so.
I shall give the House an example of what could happen. Three young men aged 20, 21 and 22, all with bad characters, commit a number of serious offences, but not offences which, bearing in mind their background, will justify a sentence of three years or more. The three young men are identical in outlook and background. The court might think that they should get 21 months' imprisonment. But unless the 20-year-old has been to borstal he can only be sentenced to six months. In those circumstances, a humane judge would find it unreasonable to sentence the two other young men to 18 months or 21 months since that would lead to apparent injustice for the other two. It is time that that provision was ended. There are many good reasons for doing that, and judicial opinion is strong.
§ Mr. Kilroy-Silk
I understood that the Government were to put back Section 3. I hope that the Home Secretary will not 265 allow the Opposition to run away with the idea that that suggestion will not be opposed in Committee.
§ Mr. Merlyn Rees
I did not wish to interrupt the hon. and learned Gentleman, but I am happy to confirm what my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) has said.
§ Sir M. Havers
That is sad news, but we shall put a brave face on it.
There is a minor matter of long-standing injustice involving licensees or publicans who stand to be charged with the absolute offence of serving liquor to people under the age of 18. It is difficult these days to tell the age, and sometimes the sex, of a young person.
§ Sir M. Havers
I agree; it may be a sign of age. In such cases, knowledge or intent should be proved against the publican. How is a publican to react if a young man comes into his bar and he challenges him about his age? The young man might say that he is 19. Is the publican to ask him for his birth certificate? The young man might be 19. There are young-looking 19-year-olds and old-looking 16-year-olds. That can be shown by cases involving unlawful sexual intercourse with young girls. Sometimes girls go out on the kill with their hair-dos and make-up and look much older than they are.
§ Mr. Fairbairn
In a brewers' publication circulated today there are 10 photographs of girls. One is asked to say which girl one would ban from a bar. I passed the photographs round my typing pool. I got the highest score with four right. The next highest was one, and everyone else was wrong.
§ Sir M. Havers
That proves that we were wrong in saying that it was a sign of age.
One of the problems we are facing in the courts is the misuse of the peremptory challenge. This is a right that every defendant has through his lawyer to seven challenges of members of the jury for no reason at all. I was asked recently by a friend who had been called to jury service at the Old Bailey how long he would have to be there. I said that I 266 hoped he would not get involved in a long trial. He asked me what was the best way of getting off a trial. I told him that he should go along with a bowler hat, a stiff collar, a copy of the Daily Telegraph and a rolled umberella. When I spoke to him a few days later, he told me that he had been challenged. We should consider that problem.
§ Mr. John Lee (Birmingham, Handsworth)
Is the hon. and learned Member saying that the right of peremptory challenge should go altogether, or that it should be limited to a smaller number?
§ Sir M. Havers
The number might be reduced to three. There is pressure to do away with it altogether, but a challenge with cause should remain. I hope that we may discuss that in Committee.
When I was Solicitor-General, as a result of pressure from both sides of the House I raised the question of the passing of information to a defendant in a magistrates' court before the case began so that he could judge his position. I am delighted that the Bill makes provision for rules which will provide that details of the evidence against an accused person may be given—but only in cases that can be tried either way. We are told that it is too expensive for summary trials and that it might cost £4 million.
The Minister of State, Home Office (Mr. Brynmor John)
It is the Government's intention to table an amendment which will widen the provision to summary offences as well as to offences that are triable either way.
§ Sir M. Havers
I am grateful for that intervention. There are advantages, because, in cases where there can be an election for trial, if information is provided in time the accused may well elect for a summary trial. There are many cases where, if evidence is known, a lawyer will be able to advise an accused person to plead guilty.
In a number of courts information is passed informally between prosecuting solicitors or counsel and defending lawyers. It is a great help as it enables one to say exactly what the case will be. An accused person, once he knows the evidence against him, might say that he will accept it and plead guilty. In such 267 instances, a great deal of time is saved and double hearings are avoided.
I shall now have to strike a less friendly note about the offence of terrorism. The House will be aware that we have for some time held the view that the time has come for a new offence of terrorism. It would apply throughout the United Kingdom—it is important to avoid having different criminal legislation for Northern Ireland—and it would embrace all acts of terrorism and all persons taking part. It would embrace those who make the preparations or the bombs, through to those who help the getaway and give succour and shelter to the terrorists. It would avoid the complications of charges of murder and charges under the Acts dealing with firearms and explosives. It would ensure that terrorists could be put on trial for the real evil of which they stand accused. It would ensure that if they were convicted the court could impose the appropriate punishment both on the facts of the case and on the degree of involvement of each of the participants.
A bomb-making factory, when conspiracy is involved, now involves a maximum penalty of 14 years' imprisonment. I welcome the increased penalty under the provisions of the Bill. In addition to the learned judge that the Home Secretary quoted, there was another judge in another bomb-making case at the Old Bailey not long ago who expressed exactly the same view of regret that in a very serious case involving a bomb factory the punishment was limited to 14 years' imprisonment.
The Government, unfortunately, have rejected all our suggestions. The Attorney-General went so far as to say that our proposals would serve the purpose of the terrorists by giving them special status. The Government refuse, apparently, to recognise that the opposite would be the result. Far from gaining any special status, those convicted of terrorism would be put, as my hon. Friend the Member for Abingdon (Mr. Neave), has said, with all the other thugs whose stock-in-trade is terror. We shall seek to raise this clause in Committee.
§ Mr. Merlyn Rees
As the hon. and learned Gentleman will know, I was heavily involved in this matter in 268 Northern Ireland, arising out of the Gardiner Report. I should not like any feeling to arise here that when the Government oppose this they are not against terrorism. All I can tell the hon. and learned Gentleman is that the advice that we have and the advice that we get from talking to the police is against what he is saying. It is not a matter, therefore, of being hoity-toity about it on our part. It is strong advice, particularly about those who organise crime—this does not apply to this side of the water—that what we lack is evidence. Whatever changes we make in the law, evidence is required to deal with it, and that is what is lacking in Northern Ireland.
§ Sir M. Havers
I hear what the right hon. Gentleman says, as does the House. I notice that it is not what the Attorney-General has said, but I am grateful to the right hon. Gentleman.
This is a huge Bill of considerable importance. It is impossible to do justice to it in the time available today. With the reservations that I have expressed, we welcome the Bill. We shall do all that we can to improve it further and speed its progress through to the statute book.
§ 5.22 p.m.
§ Mr. Alexander W. Lyon (York)
A Criminal Law Bill is always a ragbag of various issues that have come to the surface at any given moment. It is difficult to have a real Second Reading debate in the sense of discussing coherent principles behind the Bill. However, there are some principles in the Bill. Before turning to those principles, I should like to add a note about things that I am sorry have been left out of the Bill, as one can now say that on Second Reading and hope to put the matters right in Committee.
I think that along with the ragbag we might have done more to reduce the prison population by de-penalising a number of offences. I think that the case now for at least de-penalising and, perhaps, even de-criminalising drunkenness offences is overwhelming. The same is probably true of some of the vagrancy offences. I hope that in Committee we take the opportunity of doing that, and possibly also of removing the penalty of imprisonment for non-payment of maintenance, which removal has long been 269 advocated and ought now to be implemented.
I must have some reservations about the arguments about soliciting, both male and female, and about cannabis. However, my present inclination is that the case has been made out for de-penalising both offences. I look forward to discussion in Committee about them.
§ Mr. Lyon
The Bill fails to take the opportunity, which it ought to have taken, of at least beginning the process of erecting a public prosecution service in this country. It seems to me that in relation both to the problem discussed in the Law Commission's report on conspiracy and to the problem discussed in the James Report in relation to the allocation of business the establishment of a public prosecutor service would have been of immense help in getting us out of the difficulties into which we have now got ourselves.
A public prosecution service would have ensured that there was a certain legal oversight of the way in which prosecutions are mounted. That would have helped on the conspiracy matter and in the kind of evidence that is available before a prosecution is initiated, which would have helped on the James part of the Bill. James noted—it is interesting that so little comment has been advanced about this—that one-third of criminal trials at the higher courts are stopped before they get to the jury, precisely because there is no adequate evidence to go to the jury. Half of that is because new evidence has come to light during the prosecution's case, but half of it is because there never was satisfactory evidence to go to the jury in the first place. Therefore, the case ought not to have been committed and, indeed, no one should have been put in jeopardy by a prosecution in the first place. 270 A public prosecutor service would have helped to deal with that matter.
§ Mr. Fairbairn
This is an interesting matter. In Scotland, of course, we have a public prosecution service. All prosecutions are initiated by the Lord Advocate and his officers. I think that the hon. Gentleman used the words "this country". I presume that he means England but, as I understand it, "this country" is still Britain, and the Bill applies to all parts of it. Scotland has such a service and I think that it is one of the immense benefits that we have over England. The Home Secretary should study it and follow what the hon. Gentleman suggests.
§ Mr. Lyon
I am grateful to the hon. and learned Gentleman. When I was talking about "this country" I meant specifically England. My concern has been to get the Scottish procurator fiscal system into this country. We should have had it during the period that I was a Minister if we had not had the Association of Chief Police Officers. What I hope is that the Association is listening to the hon. and learned Gentleman as it did not listen to me.
On the question of peremptory challenge, I agree almost entirely with what was said by the hon. and learned Member for Wimbledon (Sir M. Havers). I personally think that the suggestion that we should simply reduce the number of peremptory challenges is beside the point. The argument is whether we should have them. There is always a challenge for cause. The present situation in London, particularly at the Bailey, among a certain class of defending counsel seems to have created a situation that is as much a disgrace as some of the cases that go for trial, and frequently wastes as much time.
I cannot see any good reason why we should not go for cause, provided that cause is widened a little, perhaps, in judicial interpretation. For instance, I think that it is right that an accused woman should be allowed to ensure that there are a number of women on the jury, and that if the accused is a black person, he or she should be allowed to ensure that a number of black people are on the jury. I think that that is a cause, and we should not need peremptory challenges for that. However, to object to people because they look as though 271 they might be intelligent enough to understand the evidence seems to me to be a disgraceful situation.
I come to the Bill's central theme, which arises out of the two reports. On conspiracy, the fundamental question—which is not often asked—is whether there ought to be a law of conspiracy at all. In fact, that question was asked in the Law Commission's report, and the Commission discussed it in one of the earlier working party reports. The reason why the Commission agreed that there should be such an offence is that it is obviously necessary that we have some kind of offence against the preparation of a criminal offence, so that we do not have to wait until the actual commission of the offence before we can deal with it and to avoid the position of a substantive offence being absolutely essential in our law.
The question is whether one extends attempted offence to a position in which no actual act has been done but preparation has been made in the sense of some agreement having been brought about. In English law one has actually to be within the approximate act of committing an offence before one can be guilty of an attempt to commit it. Therefore, it is necessary to have the offences both of incitement and of conspiracy in order to fill the gap.
The question really was whether we altered "attempt" or continued with conspiracy. I agree with the Law Commission that it was necessary to continue with conspiracy. I know that because of Part II and the Shrewsbury picket case it is now part of the theology of some parts of the Labour Party, and some to the Left of the party, that conspiracy relates only to industrial situations. Of course, it does not.
I have tried to get the figures from the Home Office. Unfortunately, they cannot be extracted from the statistics. However, offences of conspiracy each year are considerable in number and most have nothing to do with the industrial situation but are simply conspiracy to commit perfectly ordinary criminal offences, such as dishonesty and burglary.
At any rate, offences of conspiracy are necessary for the reasons indicated by the hon. and learned Member for Wimbledon 272 —that it may be necessary to use them against people who have not taken part in the actual act which is the substantive offence but have been responsible for the planning, and perhaps the most important figures in the whole case, the "Mr. Bigs" of the situation. It is important to have it for that reason as for others.
However, there is no doubt that prosecuting counsel in the past have abused the whole business of conspiracy and have put it in when substantive offences were clearly available on the evidence and there was no reason to put in a conspiracy charge, but they have put it in because they can get in hearsay evidence which otherwise would not be admissible and because it tends to magnify the possibility of punishment and to get the case into the higher courts at a much more serious level.
The Bill does away with one part of that mischief. It removes the threat of getting a heavier penalty for committing a conspiracy to commit a substantive offence than would have been received for the commission of the substantive offence. I disagree with the proposition that we should have accepted the Law Commission's original suggestion that a conspiracy to commit more than one indictable offence of the same nature should carry a maximum penalty of twice that provided for the substantive offence. A number of substantive offences may be committed and the penalty is always available for each substantive offence. I would not allow the offence of conspiracy to be charged in such circumstances.
The Law Commission recognises in its report that there should be a practice rule to prevent the count of conspiracy being placed in the indictment when there is evidence of the substantive offence. I am rather scared about practice directions. They are given by the judges and interpreted by the judges, and there may be concern about the possibility of largesse. In Committee it might be necessary to introduce amendments so that this part of the mischief is removed and we do not have conspiracy cases that are totally unnecessary.
I plead with my hon. Friends to recognise that conspiracy is a valuable offence in the criminal code and has a relevance far beyond the industrial situation, which is their major concern. Apart from that, Part I is probably acceptable to most 273 people. It is in respect of Part II that concern has been expressed.
Until the case of Kamara, which was largely directed by an ex-Lord Chancellor who had been arguing for years that there should be a criminal trespass offence, there was not, by and large, a criminal offence on the statute book in respect of forcible entry. It was dealt with as a civil matter. All that is being argued in respect of Part II is whether we should return to that position, whether we should allow trespass to be dealt with by the civil courts, or whether there are circumstances in which a criminal offence should be created.
It is important to recognise that the case of Kamara created a catch-all offence that covers all the five offences in Part II plus many more. Therefore, it is a reform by diminishing the scope of criminal intrusion. I hope that that will be recognised when the Bill is discussed in Committee. There is an improvement in the Commission's proposals, because the ambit of the criminal law is not so wide.
The real question is whether it is necessary even to have the five offences, or whether we could return to the pre-Kamara position. The point has been taken that there may be a situation in which the social consequences of some trespassings are so great that we should create a criminal offence. I do not accept that.
I believe that by and large—I had some reservations—Part II is a proper balance between what should be criminal and what should be civil. I believe that the balance has been struck as well as it could be by the Law Commissioners.
The argument is still perfectly respectable. We could return to Kamara and not have any of the offences in Part II. My hon. Friends have a case that they could argue with respectability. It is not a matter that can be lightly brushed aside.
The first offence is the one of violent trespass upon property in which someone else is in occupation. It applies to residential premises and industrial premises. It is in this area alone that there is danger for industrial sit-ins. This may well be a cause of legitimate concern.
First, there is the definition of violence. I cannot understand why the Law Commissioners thought it necessary to 274 include damage to property in the definition of violence. They argued that it is unnecessary to go wider than the clause because they do not want to have to deal with ordinary squatting on premises as a criminal offence, namely, squatting that does not cause violence and does not offend anyone on the premises.
The mischief that the Commissioners are aiming at is violence to an individual. If that is the mischief at which they are aiming, why is it necessary for them to define violence in terms of damage to property though they accept that it is not anything more than force?
The Commissioners argue that to break and enter by using some tools to get through a door is not violence to property within their definition. They say that violence to property is something that alarms the individual inside, for example, by breaking down a door in such a way that he is put in fear. That is an unfortunate and unnecessary addition to their general thesis. I shall be content with Clause 6 if we remove from the definition of violence the reference to damage to property and leave it as threats to the person.
I note that many of the documents that are circulating suggest that the argument advanced by the Commissioners is based on some recent decisions. However, there must be a collection of people who are behaving in such a way that they are threatening to the person who is being intimidated because of their manner and demeanour. It is not enough that a group of people want to sit in in their own factory and thereby come into possession of the factory. They must act in such a manner that from their demeanour and the way in which they are acting it is apparent that they are going to cause violence to the individual who is present and trying to keep them out.
It is legitimate to say that that should be a criminal offence but it is arguable that it is already in the sense that it is an assault even though there has been no battery.
§ Mr. Hooson
I cannot follow the hon. Gentleman's reasoning. If about 20 people smashed down a door and there was someone inside, for example, an old lady in bed or, if the premises were industrial, a nervous clerk in an office, and they did not intend any harm to that person but 275 the result was that they terrified him or her, the test that the hon. Gentleman is suggesting, namely, that they should offer violence to the person, is not adequate.
§ Mr. Lyon
If there is no intention, in my opinion there should be no criminal offence. I have long argued that there should be no such thing as an absolute statutory offence. If there is no intention to put fear into the person behind the door, even if they know that they are doing so, it is not right that a criminal offence should be established. I draw the line at that point.
§ Mr. Neville Sandelson (Hayes and Harlington)
Would not that be the natural consequence of the act?
§ Mrs. Wise
Does my hon. Friend agree that there is a good deal of imagination being exercised in the way that these points are being raised? In my judgment, the nervous clerk who has been mentioned is, nowadays, very likely to be one of those attempting to sit in. Is it not a possibility that the managing director, who does not regard the building as being the factory of those who are seeking to sit in, could profess himself to be intimidated? In those circumstances, would there not be a difficult area of proof?
§ Mr. Lyon
I should like to leave that matter until Committee stage. If I go on discussing these Committee points at length, I shall be penalised by Mr. Speaker.
The balance of Clause 7, the residential clause, is about right. No one would seek to justify squatting in the circumstances there set out. The argument must be that 276 Clause 7 is unnecessary because there are very few such cases, and possibly none. But even that argument does not appeal, because we all accept that if anyone started to do this, the police should be able to put them out quickly. That is a fair case.
Where I would take issue with the hon. and learned Member for Wimbledon and some other hon. Gentlemen is over the suggested extension of Clause 7 to other cases. In all the circumstances which have been suggested—even the local authority housing which someone enters just before the tenant does—what we need is a civil procedure which is expeditious. We should concentrate on that rather than make into criminals people who take over houses in such circumstances.
I have some concern over Clause 8, about offensive weapons. Is it necessary to make anything to fill the gap created by the case of Robinson, referred to in the Law Commission Report? After all, if one actually picks up any weapon and uses it, that is a criminal offence. If one threatens to use it in a way which causes fear in the person being intimidated, that is a criminal offence.
The only loophole is a case like Robinson. In that case, tools had been collected which might have been capable of being used as weapons. An arsenal had been collected, but nothing had been done with it. It was a private place, so the existing offence of possessing an offensive weapon could not be applied.
It is not necessary to go that far. The literature, which is now abundant, with all kinds of hypothetical cases, shows what might be the danger of legislating in this area and giving the police a power. However, I am prepared to be persuaded by the Government on that. On the other two clauses in Part II I need make no comment now.
As for Part III, in relation to the distribution of business, I was never a great fan of the idea of appointing the James Committee to do this job in the first place. What is necessary is that everybody should be able to go to the court of his choice in order to get the kind of justice he wants, so that justice is seen to be done. If the higher courts are now overcrowded, the real solution is to provide more courts and not to cut down the rights of the accused. 277 However, recognising the reality that we are in a period of restraint on public expenditure, recognising that the present situation in the higher courts, particularly in the South-East, is unsatisfactory and recognising that this report has now been made, I have to ask myself whether the balance struck by the James Committee and reflected in Part III is bad.
On the whole, with the exception of the petty theft provision, which has now gone, I can accept most of the suggestions. We can perhaps discuss them in Committee, but I should have no great alarm if they all went through.
The one thing that I find it difficult to understand is why the Government have decided not to act on the recommendation that assault on the police should be triable by juries. This has long been a case of great concern to many people. Many young people, particularly black young people, find it unacceptable that they are charged by the police with an assault on the police in a police court where they are frequently prosecuted by the police. In that sort of circumstance they do not feel that they have had justice. They want to be able to go for trial by jury even if the consequential sentence, if they are convicted, may be greater. They should be given the right to do so.
The Government's explanations so far of this omission are most unsatisfactory, which again shows the influence of the Police Department in decisions taken within the Home Office. I do not think that the suggestion that these cases would overburden the higher courts is justified, particularly when they are getting rid of so much else. I hope that the Committee will change that clause.
I come finally to the question of the disclosure to the defence of the prosecution case. So many people who practise in the courts know that this is essential and long overdue that one wonders why it has not come. All that I can do is give my own experience. When I was in the Department we circulated a document to all the interested parties suggesting that this should be done voluntarily, and asking for comments. Those which were forthcoming were the most nit-picking comments that I ever saw in my two years as a Minister. There is no real argument against doing this and we should do it.
The suggestion that the proposal will cost £4 million leaves me flabbergasted. 278 All that is necessary is the addition of another carbon copy in the typewriter when the statements are prepared for whoever will conduct the prosecution. If anyone is to conduct the prosecution, he has to have a statement, and all that is required is a further copy, which can then be given to the defence. It cannot conceivably cost £4 million to do that.
It might cost a good deal of money if, in cases prosecuted by the police officer from his own notebook when giving evidence in the box, that process were formalised by the preparation of statements. However, initially at any rate, it might not be necessary to go that far.
If we had a rule that when statements are prepared for the prosecution a copy should be disclosed to the defence before the trial, that would cover the matter and would not cost £4 million.
§ Mr. Christopher Price
Might it not save money? It might concentrate the prosecution's mind in some cases and persuade those conducting the prosecution—even before we get the public prosecuting service for which my hon. Friend has called—that their case is so flimsy that it should not be proceeded with.
§ Mr. Lyon
I take that point, but I see even more the force of the argument in the James Report that the provision of the case for the prosecution might actually deter the defence from going for trial and that that might save as much as any of the other recommendations. Therefore, even if the cost of £4 million were incurred—I do not believe that it would be—it could be recouped by savings in other ways, as my hon. Friend says.
I will trespass no longer on the time of the House. I give my wholehearted support to the general nature of the Bill.
§ 5.47 p.m.
§ Sir Peter Rawlinson (Epsom and Ewell)
Any changes in the criminal law are important not only because they affect many people—those who come before the courts as defendants, those who decide innocence or guilt as members of juries, and those concerned with the administration of the police and the courts. Such changes are important also because the criminal law reflects the public attitude towards human conduct in any society. Therefore, changes in 279 the criminal law are matters of great importance.
It has always concerned me that the law-making method is perhaps the weakest part of Parliament. Parliament has an efficient and able rôle to play in general debates on policy and matters of great moment and the questioning of Ministers, but I sometimes wonder about the way in which we actually deal with the law. I see that we shall soon have presented to Parliament the Acts of Parliament (Correction of Mistakes) Bill. It is a significant comment on our system that we shall have to consider such a Bill.
This Second Reading debate has consisted mainly of Committee points. I should prefer a Standing Committee whose duty it would be to consider law reform, changes of the law, both the criminal law and the civil law. It could be conducted by Members of the House of Commons sitting in the normal way on a Standing Committee with compulsory provision of time to consider their conclusions in the House.
It is no reflection on the Home Secretary, whom, within the limits of political partisanship, I respect, to say that it is he who has introduced a Bill of such great legal technicality. Complaint will be made that a lot of lawyers will want to participate in the debate. As I said, it is no reflection on the Home Secretary, but on the system, under which the criminal law is in the hands of the Home Office while the ordinary civil law is in the hands of the Lord Chancellor. There is no complete rationale for this, but I believe that the Home Office would consider it a matter of considerable regret, and perhaps the Lord Chancellor would consider it in the same way, if all changes in the law were dealt with by the Department of the Lord Chancellor.
I would have preferred a Criminal Justice Bill to a Criminal Law Bill. The last substantial Criminal Justice Bill was in 1967. It was introduced by Mr. Roy Jenkins the then Home Secretary, assisted by the present Lord Chancellor. My noble Friend Lord Hailsham, Sir John Hobson and myself were the speakers for the Opposition. That Bill saw the introduction of majority verdicts—a concept 280 that was pursued by Mr. Jenkins and criticised and opposed by me. I accept fully that Mr. Jenkins was totally right and I was wrong.
That Bill also introduced formal committal for trial, something that now needs considerable reconsideation. One of the consequences of this which has been shown in an answer by the Attorney-General recently is that too many cases are now wrongly being committed for trial and thus taking up the time of the Crown courts. Many of these are cases which, in no circumstances, should ever have been committed for trial. That should be looked into. The James Committee made some proposals about formal committal. If we want to make sure that the courts deal only with cases that they should deal with we shall have to look at this again. The Home Office should consider whether it would be worth while introducing the James proposal into this Bill.
We must generally consider this Bill in the context of the framework of the administration of the courts, the system of prosecuting authorities and modes of trial in this country. The Courts Act 1971, which was conceived by Lord Gardiner and introduced by my noble Friend Lord Hailsham, has now been in operation for six years. Of course, nowadays a great many more cases have come before the courts than previously, but I wonder about some of the workings of that Act. I am concerned about the greater number of staff needed for handling the work formerly done by the smaller staffs in the Assize courts. I appreciate that things have changed considerably. When I first began practising after the war at the Central Criminal Court there was a red judge, the Recorder, the Common Serjeant and one other judge. Now there are more than 20 judges—such is the volume of business that has accumulated in the generation since I have been a Member of this House.
§ Mr. Hooson
The Courts Act 1971 surely illustrates the danger of legislating for the whole country on the basis of what is happening in London and other major metropolitan areas. The enormous cost is reflected in the point that the right hon. and learned Member for Epsom and Ewell (Sir P. Rawlinson) has made. The 281 old assize system worked adequately outside London and other metropolitan areas.
§ Sir P. Rawlinson
I accept some of that. I am not sure that the assize system as it was would have been able to contain the great increase in the volume of cases coming forward. However, I accept the hon. and learned Member's knowledge as a former leader of the Welsh circuit, and I as the present leader of the Western Circuit claim that the assize system had many great virtues and many strengths. I must bear some of the responsibility as I was a member of the Government which introduced the Courts Act, supported as it was by the present Lord Chancellor. This is where a Standing Committee could look into the working of the Courts Act and the application of the law and could thus do a great deal in assisting a very important part of the life of our nation.
We must also look at the Bill in the context of the system of the conduct of prosecutions. I agree with some of the comments of the hon. Member for York (Mr. Lyon). The present rôle of the Director of Public Prosecutions is not, in my view, satisfactory. This is no reflection on the present very distinguished holder of that office. It is a reflection on the fact that we have not yet really decided on the rôle of a public prosecutor. We have county prosecuting solicitors, but there are 11 areas in which there is none, and the Director of Public Prosecutions is either doing too little or too much. We have the alternatives facing us in criminal prosecutions that either the rôle of the Director should be reduced, so that he is dealing with only the gravest cases or those in which there is considerable public interest, or alternatively, we should move towards the establishment of a nation-wide system.
With great respect to my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn), there are different problems on prosecutions facing Scotland because of the much greater size of England and Wales. Nevertheless, there should be a move towards the development of the Director of Public Prosecutions having responsibility for the whole of the prosecuting authority inside the country.
Again, we must look at the Bill in the context of practice and procedure within 282 the context of criminal trial. The development of pre-trial procedures should continue. Cases that are estimated to last longer than three days should have proper pre-trial procedure, and this is now being developed.
The jury trial, from which many cases are being removed by the Bill, is a very important right. In 1963, as Solicitor-General, I visited the late Robert Kennedy, who was the United States Attorney-General, and I remember being taunted in a pleasant way because of the few criminal cases in this country that are decided by jury. That is perfectly true. Well over 90 per cent. of criminal cases in this country are tried by a bench of magistrates, and under the Bill that number will be increased. We must appreciate the very great importance attached not only by Members of Parliament but by the country generally to the maintenance of the system of trial by jury.
With a system of trial by jury, together with presumption of innocence and burden of proof, there are certain limitations to speeding pp trials. If a trial is to be fair it must be thorough, and if it is thorough it must take time. There must be a properly arranged system in order to ensure that persons are fairly and properly tried. I would not like to think that we are thought to be switching more kinds of cases away from juries to magistrates merely as a matter of administrative convenience. It would be a serious step indeed if we were to take that course.
§ Mr. John
Is that not a matter to which the James Committee directed its attention, and is it not a fact that as a point of principle the Committee decided that henceforward there should be three such categories? Was that judgment based not on administrative costs but on the merits of particular cases?
§ Sir P. Rawlinson
The Minister is right. I am prefacing my remarks on this subject by emphasising the importance still to be attached to trial by jury. I appreciate that a switch is to be adopted only where there are good and valid reasons for so doing.
I have some sympathy with those who have already today suggested that some cases should not be tried by magistrates. I share the view that in cases of assault 283 on a police officer or in cases involving importuning, where a man's career and reputation may be at stake, there should be a right of trial by jury.
But I certainly believe that improvements could be made in the system of jury trials. I am emphatic in my view that the present system of challenge should not be maintained where it gives the right to challenge seven potential jurors without cause. The whole idea of jury trial involves random selection, producing a random collection of people who will examine and consider the evidence and render a verdict. If that system is to be distorted or perverted by the rigging of a jury who will favour an accused that is perverting the whole principle of trial by jury.
§ Sir P. Rawlinson
I am prepared to examine the system of standby for the Crown. There are certain reasons for using it, although the system of standby for the Crown is rarely used. It should be employed only when something is known about a particular juror which might render him unsuitable for that trial. It should be possible to challenge a juror who is unable to hear, or unable to read—which happens on occasion—and that should be regarded as sufficient cause for challenge. However, the present manipulation of juries in certain courts negates the system of trial by jury.
In the United States selection of a jury is regarded as an important part of a trial. It is said that in the United Kingdom a criminal trial begins when the jury has been selected, whereas in the United States the case ends when the jury has been selected. They have the system of voix dire and it takes an inordinate length of time to complete.
I believe that a balanced decision on the switch to magistrate court trial has generally been reached in the provisions of the Bill, with the exceptions to which I have referred, but perhaps I could ask the Home Office, through the Minister of State, whether sufficient facilities will be afforded in the magistrates' courts to 284 deal with these cases. Does the Lord Chancellor propose to appoint many more justices, because certainly more justices will be needed to deal with these cases? I understand that a total of 6,000 such cases is expected to be switched in this way. How many justices will be in post to deal with these cases as soon as the Bill becomes law?
There are a number of nonsenses in criminal trials and I should like to see them altered. We should carefully consider the rules under which the prosecution cannot refer to the fact that an accused has not given evidence, a practice which goes back many years. I believe that juries are often surprised that prosecuting counsel make no reference to that topic.
I consider that the order in which speeches are taken in criminal trials should be re-examined. In a long criminal trial the final speech by the prosecution is often followed by defence speeches lasting several days. An extra burden is imposed on the learned judge, who then has to bring the jury's mind back to a recollection of the prosecution's case. That surely distorts the rôle of the judge. These matters should be more evenly balanced between the prosecution and the defence so that the judge's rôle is less concerned, in the interests of justice, in trying to restate the prosecution's case after many days.
Part II of the Bill deals with trespass, and recent incidents have made many members of the public consider the present law totally unacceptable. My hon. and learned Friend the Member for Wimbledon (Sir M. Havers) believes that the definition of "displaced residential occupier" is too narrow. I agree. We should examine the right of somebody who is in occupation and that matter should be covered in the Bill. I believe that the point relating to trespass and violence is adequately covered by the Bill and is correct.
I wish now to deal with the subject of conspiracy. Complaint has arisen because there has been too great a use of the count of conspiracy by prosecuting counsel—principally, one must add, in London. Obviously there are cases in which a count of conspiracy must be included. I particularly remember the case of the London bombers in 1973. Clearly that was a classic case of conspiracy in 285 which each person involved had a part to play in the conspiracy leading to the bombing, but there are too many cases in which prosecuting counsel have included a count of conspiracy, and that has caused disquiet and criticism. That practice has overloaded trials with too many counts in indictments and, indeed, has included too many persons in indictments. If the practice had been used in the past with greater discretion perhaps we should not now be facing such disquiet among the public about crimes of conspiracy. I must add that conspiracy is a serious crime which has to be dealt with by strict sentencing.
I read carefully the proceedings in another place on this Bill. I should like to add that we should thank heaven for the existence of the other place, where they spent 11 days discussing 200 amendments. What a mess we would be in without the other place doing so much work on a Bill such as this.
Finally, I am concerned at the language used in seeking to define the common law on conspiracy in Clause 1. I appreciate that this has imposed great difficulties on the skilful parliamentary draftsmen, but I believe that loopholes may be created by the wording of Clause 1(1), which refers toa course of conduct…which will necessarily amount to or involve the commission of any offence".That may well cause great difficulties as to what can be proved when a court is dealing with a clear case of conspiracy. That is a consequence of this attempt at codification.
I am glad that this Bill has come before the House, because on the whole it will, undoubtedly, improve the criminal law. However, I am sure that a great deal more consideration must be accorded to these matters in Committee and I should like the Home Office to consider very gravely some of the points mentioned by my hon. and learned Friend the Member for Wimbledon.
§ Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
The House ought to know that there are 19 Back Bench Members who are endeavouring to catch my eye. There would appear to be about three hours in which to fit them all in.
§ 6.10 p.m.
§ Mr. Joseph Dean (Leeds West)
I hesitate to throw my hat into the ring with so many hon. and learned Members present who will obviously speak in the debate. So far the debate has been somewhat monopolised by lawyers, and that is to be expected. Nevertheless, even with a very complex legal Bill of this type, there are points to which sometimes Back Benchers without legal training like to address their minds in order to see how they would affect people.
It has been said by hon. Members from both sides of the House that this is a very complex Bill, and it has already been somewhat drastically altered during its passage through another place. Looking at the size of the Bill and the complexity of the clauses in it, and having heard from the previous speakers in the debate their different views on what is in the Bill, what they would like to do with parts of it, and what is not in the Bill that ought to be in the Bill, I have no doubt at all that it will be altered somewhat dramatically or substantially in some respects during its Committee stage.
I should like to respond to your appeal. Mr. Deputy Speaker, to be very brief, because I would not attempt to clash in great detail on this Bill with such legal giants as there are in the Chamber at present. But I should like to direct the minds of hon. Members for a moment to the clause dealing with trespass on property.
The hon. and learned Member for Wimbledon (Sir M. Havers), opening for the Opposition, referred to municipal tenancies, and there was an interjection from my hon. Friend the Member for Coventry, South-West (Mrs. Wise) concerning municipal tenancies and the size of this problem. There are literally thousands of properties empty. Sometimes it is due to bad management. In certain cases one can see that squatting, although it may be illegal, may have some moral justification.
Before I was elected to this House, I was heavily involved in a very large local authority with a very big housing stock. We have to get this question of empty municipal tenancies into perspective. It must be realised that at present the municipal authorities are by far the 287 biggest landlords. There are some 6 million municipal tenancies. Among them quite a considerable percentage of properties are sometimes difficult to let because of their age, or because they have not been improved as rapidly as some local authorities would like, owing to local government expenditure cuts by previous Governments, and also owing to the economic climate in which the present Government have to operate.
I am not saying that all local authorities are blameless in this respect, but very few of those properties in my experience are those to which some of the squatters go. Squatting is not as unorganised as hon. Members think. There are some facets of squatting that are very well organised indeed, and very deliberate.
I had occasion to experience a heartbreaking situation. There were 30 new houses ready to be handed over in a particular city. The tenancies had been given out and the tenants had actually been into the houses in order to measure up for their own fittings. But, lo and behold, when they went to move in, they found that the houses had been occupied by squatters. That is not an isolated incident, because some of the squatters who do this sort of thing are very, very choosy as to the kinds of houses in which they go to squat. When a person has lived in a slum clearance area all his life and has had his dreams shattered overnight by the ill-considered action of somebody else, as in the case I have just mentioned, that is not an action that anybody could reasonably condone.
Up to about two years ago—I stand, perhaps to be corrected here—the local authorities when applying for eviction used to have recourse to legislation relating to small tenancies. That was a very expeditious way of dealing with existing tenants, but I do not think that that law is any longer available, and it is therefore not used. Most local authorities, for the purposes of eviction, have to go to the county court, and that is a very long winded procedure.
It was said earlier in the debate that what was needed was a more expeditious way of dealing with these things as civil matters, but having studied the subject as far as I can, I should not like to see squatting made a criminal offence. I do not believe that it belongs in that cate 288 gory. That would be the wrong way to deal with it. But the Bill requires examination in order to see whether something can be included to give some muscle to local authorities which have substantial house-building programmes and find themselves victims of organised squatting.
Hon. Members have no doubt received circulars from various ad hoc housing organisations pointing out what they regard as defects in the Bill, and I am the first to pay my respects to some of these organisations, which perform very good services indeed outside the normal housing agencies. But I do not believe that it is accidental when a squatting exercise is carried out in a big city in brand new houses. Somebody has certainly directed people to the place where the houses are being built. They know of the completion of the houses, when they are available, and when the doors are openable.
I do not think that certain people are as blameless in this respect as they ought to be. But I repeat that I should like to see, if possible—if it cannot be done in this Bill, perhaps it could be done in a subsequent housing Bill, because I know the subect is under review—some method by which local authorities could deal with this type of situation.
There was a reference earlier to the fact that London has a rather special problem. I accept that squatting in London—often related to properties which have been vacated by people away on business or on holiday—is rather more prevalent than elsewhere. That is why I have confined my remarks to the local authority aspect.
§ Mr. Bowden
The hon. Gentleman might be interested to know that the Greater London Council estimates that there are 1,800 people on its waiting list of 9,000 who are being deprived of accommodation by unauthorised and undeserving squatters.
§ Mr. Dean
I do not dispute the figures. Indeed, I said that London had a rather special problem in this respect. A figure of nearly 2,000 squatters in a population of some 10 million people is still a significant number.
I concede that it is certainly a matter of great importance to those who are being denied their right to the tenancy 289 of such properties. One cannot condone, as I said earlier, squatting of this type, where it is done at the expense of people who have waited a long time for housing, only to see their hopes destroyed and with no recourse to anyone to help them.
It is true that there are literally thousands of properties up and down the country, managed and owned by local authorities, which are empty, and I have already said that some of them are not the best of properties. In fact, some authorities are already demolishing properties built just pre-war and just post-war which are almost unlettable and, I may say, unsquattable, because these are not the types of properties that attract squatters. I should like this problem to be examined. If it cannot be done during the passage of the Bill, perhaps it can be done in some way in relation to housing law.
I now turn to the part of the Bill referring to the effect on industrial premises. Over the past few years we we have seen a new development in industrial relations when workers have been threatened with unannounced closures, without any proper discussion with management about their jobs or their company's future. There has been the new technique of industrial squatting and sit-ins, and in some cases some very successful work-ins.
The trade union movement considers that that type of activity may be at risk. It does not condone it wholeheartedly, but it sees that it could become a criminal offence under the Bill if a person was deemed to be acting in a violent manner, with the evidence of a policeman being either accepted or discounted.
I believe that this part of the Bill will have to be examined carefully before it can be accepted by a good many hon. Members—certainly on this side of the House. When they have occupied premises, in many cases the workers have done it almost out of despair in extreme circumstances such as we have witnessed during the past few years, with jobs going, no chance of renewal, and normal procedures of no use.
It should be remembered that the official side of trade unions can enter into negotiations only on the basis of what a company will do best for the trade unionists. The final answer may well be that the 290 factory must close, and conditions for redundancy will be negotiated. But in the main that is not what such workers have wanted when they have had recourse to sit-ins and work-ins.
I hope, therefore, that the part of the Bill dealing with that aspect of the matter will be carefully examined in Committee. It must have the backing of responsible trade unionists and trade union leaders. Whatever comes out of the Bill which applies to them will have to have their backing. Otherwise, I am sure that it will be of little use in the long run.
I said that I should be as brief as possible, and I have done my best to make the points which I had in mind. I am sure that during the long debates in Committee there will be some changes in the Bill, and perhaps even some new provisions inserted.
§ 6.22 p.m.
§ Mr. Emlyn Hooson (Montgomery)
The hon. Member for Leeds, West (Mr. Dean) apologised for taking part in the debate, but he had no need whatever to do so. He made a valuable contribution on Part II and showed how necessary it is for the House to take some action.
It is clear that certain squatting activities are anti-community. In my view, we should look at the relevant provisions very carefully in Committee to ensure that there is no injustice, but, considering that it is an offence not to send one's child to school, for example, and it is an offence to drive a motor vehicle without due care and attention, where indiscriminate squatting occurs it is necessary for the criminal law to be invoked. There can be no doubt about that.
At the start of his speech, the right hon. and learned Member for Epsom and Ewell (Sir P. Rawlinson) said that our capacity and system in the House for reviewing the law was one of its weakest points. I am surprised to hear that view expressed. Perhaps it is a criticism of the rest of what we do, but I regard it as one of the House of Commons' strongest points.
The right hon. and learned Gentleman spoke of the valuable work done by the House of Lords, which had 11 sitting days on the Bill. I agree about that. I think that the other place is at its best 291 when considering a Bill of this kind. Perhaps it highlights our weaknesses in dealing with economic and social problems, but I happen to think that we deal rather better with some legal matters than we deal with other issues.
It is tempting on a Bill such as this to suggest all kinds of matters which should be in it but which have been omitted, but I shall confine myself to discussing one or two important principles which I see as arising in this context. I found it salutary to read the Second Reading debate in the other place. Since we are, in a sense, codifying the law relating to conspiracy, for example, I was pleased to read the illuminating speech by Lord Morris of Borth-y-Gest, in which he illustrated the importance of the common law by referring to the analogy of a mixed economy. We constantly speak with approval of a mixed economy, and Lord Morris suggested that mixed approval of statute law and common law was not a bad attitude for this country to adopt.
I remember being involved some years ago in an important prosecution when we had to determine the appropriate offence. In the end we resurrected an offence known to the common law, the offence of misbehaviour in a public office. The Minister of State knows of the case to which I am referring. That offence had not been used for a prosecution since the eighteenth century, but it was fished out for that case in Wales. It was the only offence we found which absolutely fitted the circumstances, and, as I recall it, the right hon. and learned Member for Epsom and Ewell, who was Attorney-General at the time, eventually had to approve what was done.
Since the Bill is an attempt to codify the law of conspiracy, it ought to contain a comprehensive statement of that law. But it does not. As it stands at present, there is a remarkable silence on, for example, the question of mens rea in conspiracy, that is, the necessary intent in one conspirator.
For instance, where a conspiracy results in the killing of a person but one party to the conspiracy never intended that the conduct should go beyond the infliction of some harm and did not take part in the actual infliction of serious harm, is he to be liable for conspiracy 292 to assault or conspiracy to do grievous bodily harm, or is it the intention to render him liable to conspiracy to murder?
The Law Commission recommended that liability for conspiracy should be restricted to the specific intentions of the conspirators, and that recommendation would have been implemented by the original Clause 1(2) as introduced in the other place. However, that provision was removed in Committee and has nowhere been replaced. I have expressed appreciation of the attention which the other place gave to the Bill, but I think that one or two of its decisions, of which that is one, should be reversed by this House during the passage of the Bill.
A related issue on the question of intention seems to me to be the extent to which a conspiracy can be committed where a party to it never intends that it should be carried through but nevertheless agrees to the course of conduct, going along with it and encouraging it. The best example, of course, is the police informer or informant. In such a case the informer cannot be said truly to be in agreement with the other party or parties. The Bill should therefore include provision that no one should be convicted of conspiracy where it is found that, though he conspired with another, he never intended that the agreement should be carried out.
Much of the criticism in academic circles about the use of the charge of conspiracy arose from the Irish cases in the last century and has centred on that type of case where the police informant or informer had gone along with the conspirator and eventually gave evidence with regard to the matter. It is essential to clear up anomalies of that sort. I shall not take time by going into detail as to how it could be done. Plainly, it should be dealt with in Committee. All I say is that, since we are virtually codifying the law of conspiracy, it is essential that we examine the anomalies in the law which have been pointed out over the years and make a thorough job of it.
There was criticism expressed by a remote voice from Scotland, that of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn), who referred to the drafting of Clause 1(1) and suggested that a coach and horses could 293 be driven through it. That also requires careful examination, since otherwise we shall be likely to fulfil the prophecy which was certainly hinted at, if not expressly stated, by Lord Morris of Borth-y-Gest—that we could very well leave the Bill in such a state that we had virtually made a mess of the law and removed the safety net or fall-back position.
I share the view that the conspiracy which is retained, that is, conspiracy against public morals, should be abolished. There is at present a gap in the law, and I am inclined to think that the best way of dealing with that matter, if possible, is to abolish the charge of conspiracy where it is really a conspiracy to commit no offence known to the law. It is the conspiracy which in another capacity has been stated by the other place to be the offence at common law.
The Government ought to be very astute when dealing with this problem. There is clearly a case for dealing with matters of obscenity that are at present so affecting our lives. What many people object to more than anything else is the offence to public taste and public displays. The Government ought to bring forward proposals to deal with these matters. But I take the point suggested by the hon. Member for Pontypool (Mr. Abse)—that we should get rid of this conspiracy offence now and leave the Government to suggest something in its place.
I want to turn to the second point of principle which is the provision of advance information to the defence in magistrates' courts. The amendment inserted by the other place was certainly a step in the right direction. But it was only a tentative step. I am glad to hear the Minister confirm today an undertaking that was given in another place, namely, that provision would be made during the course of the Bill through this House for extending the rules dealing with offences triable either by jury or magistrates' courts to provide for advance information for the defence in cases that are purely to be tried by the magistrates' court.
The danger of advancing economic reasons against this highly desirable reform is that one tends to advance the reasons when we are in a period of economic stringency but by the time the Bill actually becomes law and operative the economic situation has perhaps changed 294 and we have deprived ourselves of the opportuinty of extending very desirable reforms on economic grounds. I think it is a very important principle that there should be advance information to the defence in magistrates' courts. I do not think there is any economic reason why it should not be carried out.
I cannot believe that it would cost £4 million to carry out the provision that arises out of the amendment passed by the other place. When I investigated this with the Home Office I was told that its best estimate was £4 million, but that this was due to the requirement of formalising the matter. Those of us who have been engaged in prosecutions know that often notice of additional evidence has been served to the other side in handwriting for the following day.
There is no reason why a summary of the case cannot be made in handwriting. The suggestion has been made that there should be an additional typewritten copy or a photostat copy of the statement. The only real difficulty arises when the matter is enclosed in a police officer's notebook, but surely photostat machines can deal with that situation. Provided there is some evidence that advance information has been served on the defence, that is all that is required.
That would be a great advance in our law. It is grossly unfair to any accused person to have to go to a magistrates' court and not know what the case against him is. A senior solicitor, counsel, or QC always manages to see it. I have made rare visits to the magistrates' court during my professional career, but I have always managed to see the statement advanced against the client. That should be true in every single case. I therefore do not accept that there is a case for not having this much-needed reform in our procedure.
Arising out of that and other issues there is the question of trial by jury, which was dealt with by the James Committee. The magistrates' court system has already come in for a great deal of scrutiny and criticism during the Bill's passage. Figures have been presented by the Government in the other place suggesting that the accused's chances are, if anything, somewhat statistically better in a magistrates' court than in the Crown court. Yet there is seemingly a fervent and jealous defence of the right to trial 295 by jury on some relatively minor matters, or so it would appear from the statistical evidence. As the hon. and learned Member for Wimbledon (Sir M. Havers) pointed out, it is very misleading to compare these two sets of statistics. We all know why.
But we ought to look at the source of distrust which arises from the suggestion that certain offences should be tried by the magistrates with no advance notice given of the kind of case which has been levelled against the defendant. I think that arises not from the rôle of the magistrates as such but from the rôle of the police, who prepare all the evidence and themselves decide to prosecute. There is a certain range of offences, some of which have been referred to, such as assault on a police officer, where the right to trial by jury is still not granted. Nine times out of 10, the issue turns on the police evidence alone against that of the defendant. Then we are in a very difficult situation.
For example, offences such as those at public meetings and against public order, assaults on the police and solicitation by a male person have all been referred to. The Bill provides the opportunity to consider the reform of prosecuting procedures in England and Wales and to bring them into line with the rest of Western Europe, where the police no longer prosecute.
The system along the lines of that operated in Scotland commends itself. I am told by those who know about these things that the criminal law in Scotland is considerably more barbaric than our own. I do not know whether that is right, but but I am told that it is alleviated by the rôle of the procurator fiscal, who is a skilled and qualified official. He decides the question of evidence and whether to proceed in the most minor of cases.
Such a figure operates in each region, thereby taking the prosecuting out of the hands of the police. That no doubt alleviates the considerable burden that we throw on the shoulders of an already considerably overworked force. At each stage further up in the scale of offences in Scotland there is an appointed official to determine the question of proceeding against any individual under the overall guidance of the Lord Advocate. If such a system were to be introduced in England and Wales, much of the objec 296 tion to summary trials, and perhaps even some of the ill-feeling between the police and defendants in certain classes of cases, would disappear. I would suggest that that be done.
I finally want to discuss what is in many ways a very delicate matter. That is the penalty for possession or cultivation of a Class B drug. In the House of Lords considerable discussion ranged around the problem of whether the possession of cannabis should, when tried summarily or tried at all, carry a prison sentence on conviction. What is the option to a prison sentence? Various statistics were given in the course of the debate in the House of Lords which suggested, for example, that about three years ago about 500 people were fined on summary conviction and only one sent to prison. Nevertheless, I concede the value of the argument that while society disapproves the use of cannabis, it is right that the view of society should be reflected in the available sentences additional to those which may be imposed.
Various countries have, of course, dealt in different ways with this problem. I myself have never been convinced that it would be a good thing to legalise the use of cannabis. But I have listened to many young people argue that the one common factor that drives the users of cannabis into company with the users of hard drugs, which are clearly very harmful, is solely the fact that the use of cannabis is illegal. The argument goes on that they both have to resort to a pedlar in order to obtain these drugs, and therefore those on cannabis come into contact with the pedlars of hard drugs as well as of soft drugs. The argument adds that tobacco and alcohol are equally addictive and are social evils when used to excess, but that we do not ban them.
I appreciate that that is the argument of young people on these matters who ask "You do not make the taking of alcohol or tobacco in excess an offence, so why do so with cannabis, which, after all the research, has not been proved deleterious?" My reply is that if society had known, when Sir Walter Raleigh first brought tobacco over here, what its effects were going to be, it might have banned it from the start, thus taking an action which we have taken towards cannabis in our own generation. 297 Therefore, I am not in favour of legalising the taking of cannabis, but a clear distinction must be made between the pedlar of cannabis and the user. In my experience, that distinction is drawn by the courts. In Committee we should consider again the question, which was discussed at length in the House of Lords, whether in a summary trial of a first offender it is appropriate to retain a prison sentence, or whether the only sentence should be a fine. We should consider that aspect with great care. The statistics show, I believe, that 500 people were imprisoned in 1975 for possession as opposed to the peddling of cannabis.
§ Mr. Abse
Yes, but if the hon. and learned Gentleman's suggestion, which I understand to be well-intentioned, were taken up, judging by the last figures available it is unlikely that more than three people a year out of that 500 would be affected, because the figures reveal that first offences constitute about half the number. Therefore, if over the last few years it was wrong that we should have been tackling this problem by putting people in prison for taking cannabis, his proposal would be a most peripheral way of dealing with the problem.
§ Mr. Hooson
The hon. Gentleman is quite right. I am not suggesting that we can deal with that problem in the Bill. But five States of the United States now take the view that if the amount of cannabis in a person's possession is not more than one ounce, the offence is not punishable by imprisonment, however often the offender has been convicted before. That is surely the way to deal with it. In Scandinavian countries and Holland the law is much the same as it is here, but it is not enforced, and I do not think we should get into that situation.
All I am saying is that in Committee it will be necessary to look carefully at this matter, and the arguments should be rehearsed. There is a considerable gap between the view of the younger generation and that of the older generation on this subject, and it behoves us not to be too prejudiced.
At the same time, I have yet to come across a case of anyone involved with hard drugs who did not start off with soft drugs. But the argument there runs "No doubt he was also addicted to 298 alcohol and tobacco. How do you know that it was not they who encouraged him to go for hard drugs?" I do not know the answer. But I repeat that in my experience I have never known a case where the addict to hard drugs did not start off with soft drugs. This is why I adopt a cautious approach, although, I hope, not entirely an unenlightened one.
§ 6.45 p.m.
§ Mr. Robert Kilroy-Silk (Ormskirk)
In Kirby, in my constituency, is one of the co-operatives set up by the Government. It came into being after a successful sit-in at the former Fisher-Bendix factory. I am therefore concerned about the conspiracy and trespass aspects of the Bill, and although I shall leave it to some of my hon. Friends to deal with I believe that we must examine it closely in Committee. As I understand it, if parts of the Bill had been in operation during 1974—or, indeed, were in operation today, when the Plessey factory in my constituency is also being subjected to a work-in—it might well have been the case that the very successful co-operative established at the former Fisher-Bendix works would not have been established and that a co-operative could not be established at the Plessey works.
I wish to concentrate on Part III of the Bill. I greatly regret that it should be a Labour Government who are, in a real sense, attacking our essential liberties by this onslaught on the jury system. Juries have a proud record of advancing civil liberties under successive Governments. It would be a pity if the House were to allow the Government to slur their reputation for being in the vanguard of the advance towards increasing civil liberties by allowing them to go ahead with proposals further to restrict the right to a jury.
The jury is properly regarded as one of the safeguards of our liberties. The Morris Committee pointed out, in paragraph 6 of its report, that there is a fundamental conviction in the minds of the public that the jury is, in a real sense, a safeguard of our liberties. We have already witnessed in previous years a gradual erosion of trial by jury. The right has declined to the extent that it is almost non-existent now in civil cases. In Northern Ireland there was the creation of internment and non-jury 299 courts. There was the introduction of majority verdicts under the Criminal Justice Act 1967. This Bill accelerates the process. To me, it exemplifies the bending of the knee by the Government to the strictures of Sir Robert Mark, who constantly complained that guilty men were let off by perverse juries which were helped, aided and abetted in the process by what he called "crooked lawyers".
§ Mr. Kilroy-Silk
I did not say that it had had such an effect. I pointed out that we have had a steady and factual erosion of jury trial in this country. There is no disputing that. I said that the Bill accelerates the process of gradually dispensing with jury trial, a process we have seen in civil cases, in Northern Ireland and, although to a more limited extent, in the introduction of majority verdicts.
§ Mr. Jim Marshall (Leicester, South)
My hon. Friend will recall that in 1972 the property qualification for jury service was removed, which led to a greater enfranchisement of those eligible for jury service. I bear out what he is saying by recalling also that in 1973 Sir Robert Mark said that too many people were getting off in trial by jury, and as a consequence the then Lord Chancellor, Lord Hailsham, and the then Home Secretary, Mr. Robert Carr, hastily brought to the House proposals to set up a committee to look at the areas in which trial by jury could be eliminated. Therefore, in a very real sense, what my hon. Friend is saying is true. This is intended to reduce the liberty of individuals in certain circumstances.
§ Mr. Kilroy-Silk
It is ironical that at a time when we are extending the categories of people who can serve on juries we are restricting the right to jury trial for a range of delicate and sensitive offences.
We are abolishing the right to trial by jury for offences under the Public Meeting Act, the Public Order Act, the Theatres Act, the Sexual Offences Act, 300 the Police Act and many others, and at the same time we are increasing the penalties in some cases. As my right hon. Friend the Home Secretary pointed out, these proposals have their origin, ostensibly at least, in the James Report. The Government seem to have accepted the worst parts of that report and ignored the best parts.
The James Committee said that it was categorising offences on the criterion of seriousness, but the report did not spell out what it regarded as the criterion of seriousness, nor did it indicate how members of the Committee went about defining one offence as serious compared with another.
I submit that the fact that a person can be imprisoned for a particular offence is an indication of its seriousness. If an alleged offence carries a potential sentence of imprisonment, it must carry with it the right to trial by jury. I have Lord Devlin to call in support of that submission.
Under the Bill, certain sensitive offences will no longer carry the right to trial by jury. One example is that of assault or alleged assault on the police. Surely no one could maintain that this is regarded in most people's minds as an unserious offence. Surely a violent assault on a police officer in the execution of his duty is a serious offence. It is serious enough to involve a potential term of imprisonment. Lord Justice Lawton made clear in the Coleman case in 1975 that it was a serious offence and that such an offence should be followed by immediate imprisonment.
§ Mr. Roger Sims (Chislehurst)
Does not the hon. Gentleman accept that knocking off a policeman's hat could attract a charge of assault on the police but that violent offences against policemen would attract a far more serious charge which would carry with it the right to jury trial?
§ Mr. Kilroy-Silk
That is one difficulty which I shall come to.
Here we have a direct conflict of evidence between the police and the defendant, a conflict that I believe can best be evaluated by a jury. The James Committee's report states in para 156:Where the case is contested there is often a straight conflict between the evidence of the defendant and that of the police; if there is 301 such a conflict, it can be said that the prosecution has a special involvement in the case and that therefore it is particularly suitable for resolution by a jury.I do not know why the Government have seen fit to ignore the recommendation of the James Committee. Clearly there is a direct conflict of evidence between that given by a policeman who is also prosecuting and that which may be given by a defendant.
Often magistrates, whether we like it or not—I do not wish to cast a slur on them—regard it as their duty to support the police. They regard it as a social duty and responsibility to support the police and not to cast aspersions on the truthfulness of the police by rejecting their evidence. There are many magistrates who know police constables intimately and who have often heard them give evidence and meet them in the same court and often in the same locality. It is not for nothing that magistrates' courts were previously known as police courts. The magistrates are often case-hardened.
The objection to allowing the right of jury trial for the defendant comes from the police and no one else. It is the police to whom the Government have bent their knee, as on other occasions cited by my hon. Friends. If the Government have not bent their knee to Sir Robert Mark on this occasion, they have at least done so to the Police Federation, as was made clear in another place by my noble Friend the Minister of State.
Of course the police always want to play at home, but there is naturally, as my hon. Friend the Member for York (Mr. Lyon) pointed out, a further dimension. With the difficult relations that already exist between our coloured fellow citizens and the police, the likely exacerbation of conflict and the likely erosion of their confidence in the police, it seems crucial in this area above all that they should be able to believe that they will get a fair trial. They do not believe this if they are being prosecuted by a white policeman whom they regard, rightly or wrongly, as their oppressor. Their belief that they are getting a fair trial is less than if they prosecuted by one of their fellow citizens.
This is extremely important for the future and is another reason why we should retain and enhance the right of jury trial for those alleged to have committed 302 assaults on the police. I am sure that hon. Members know from experience of cases where, if a substantive charge fails, the police resort to allegations of assault on the police in order to put the person into court. The House would not be diligent in its duty if it did not retain the right to trial by jury in such cases
Another type of case is that of soliciting by homosexuals. This cannot but be defined as a serious offence. It is not a trivial or minor offence, first because the allegation is extremely damaging to the reputation of the person concerned, his family links, his social life and to his job, in addition to having to face what might be prejudiced magistrates. The offence is serious enough to warrant trial by jury. Whether we like it or not, there is still a stigma attached to being homosexual. The majority of people do not live in Hampstead or Chelsea, and they take a different attitude to those whom they may consider to be homosexuals.
This cannot but be regarded as a serious offence. There is a great deal of evidence indicating that the police deliberately have a blitz on certain areas from time to time. The Opposition spokesman today mentioned one case where the police swept a particular area. Innocent men have been caught in the past, and often the activities of the police amount to entrapment. Here again the police are acting as prosecutor, and there is a conflict of evidence between what they say and what the defendant may attest in his defence. Therefore, the same kind of strictures as the James Committee mentioned with regard to assaults on the police would seem to apply in these cases.
The police often seek out an offence and prosecute, but they do not bring the men who have been solicited into court to give evidence about whether they have been solicited. They do not produce witnesses but rely largely on police evidence. The fact that only 59 cases went to the Crown courts for trial in 1976 is itself an argument against the Government's case that trial by jury in these cases would be expensive.
Similar considerations apply to offences under the Public Meeting Act, the Public Order Act and the Theatres Act. These offences can be serious offences. By increasing penalties under the Theatres Act, what the Government are doing is a form of backdoor censorship. I do not 303 believe that magistrates are the appropriate tribunal to determine blasphemy, obscenity or whatever else may be charged under the Theatres Act and for which there will not be the right of trial by jury. There should be a right to trial by jury in these cases. It seems that it is largely street theatre that will be charged, and offences which have a distinctly political flavour. The offence is serious, although perhaps less serious than assaults on the police or homosexual soliciting. It is important enough to warrant jury trial.
In the Public Order and Public Meeting Acts the case for the prosecution often revolves around identification. That can be extremely difficult, particularly in crowd situations. Again, the evidence is given by the police and the same kind of reservations as the James Committee had on cases of assault against the police apply.
Why do the Government want to erode the "fundamental freedom", as it was referred to in the Morris Report, of jury trial? The reasons that we have so far been given are not sufficient. The main reason is delays, which the Home Secretary admitted related almost exclusively to London and the South-East. The way to deal with delays is not to have a blanket remedy that would deny justice to many people and mean that many more innocent people will be convicted in future than now but to provide more courts and more resources. The solution to delays, if they exist, and on a larger scale than they occur now in magistrates' courts, is not to deny justice but to increase the available resources.
The delays in magistrates' courts in some counties are greater and longer than in the Crown courts, particularly if cases have been adjourned from one day to another. If these cases go to the magistrates' courts, we shall need more magistrates' courts and more magistrates or the delays will build up there.
However, that argument does not hold water. We are talking about 6,000 cases. Is it important enough to start whittling away at the jury trial system for 6,000 cases which cannot possibly cost the amount about which the Government have been talking? Cost is the Government's second argument. I believe that 304 the cost is minimal, especially now that minor thefts have been left out. As an aside, I suggest that, if a minor theft was serious enough for those alleged to have committed such an offence to have the right of jury trial, it is equally important that those alleged to have assaulted the police or to have solicited for homosexual purposes should have the right to jury trial. I do not believe that we can put a price on a proper and respected legal system in which people have pride and the belief that they are getting a fair trial.
The Minister of State and the Home Secretary have made great play about the acquittal rate in magistrates' courts. We are concerned not about getting the guilty acquitted but about getting a fair trial. We are not bandying the merits of the acquittal rates of the guilty in one court as opposed to another. We are concerned to ensure that those who are charged with serious offences—I accept that that is a matter of judgment—should have the right to jury trial which they possess now.
§ Mr. John
We have discussed this matter many times, but my hon. Friend does not yet understand the argument adduced from the statistics. If magistrates are casehardened, prejudiced and prone to accept police evidence, surely that would show up in greater conviction rates. The fact that acquittal rates are about the same, to put it neutrally, suggests that what my hon. Friend is saying about a fair trial and its denial in the magistrates' courts is an unfair slur on magistrates.
§ Mr. Kilroy-Silk
My hon. Friend must get away from that case. It has already been destroyed many times today by the hon. and learned Member for Wimbledon (Sir H. Havers) and my hon. Friend the Member for York.
Many cases which come before magistrates' courts are trivial and, therefore, easily dealt with. Many of the more serious cases go to the Crown courts, even when the accused know that they will not get off, for the chance of a jury trial. That is why the acquittal rate in magistrates' courts is higher than in the Crown courts.
My hon. Friend referred to magistrates not being case-hardened. Of course they are, or they ought to be. They have experience of hearing cases over many 305 years. They are more case-hardened than any jury which is comprised of people coming for one specific case. My hon. Friend should not read emotive connotations into words which describe facts
It is a matter of judgment as to what is regarded as serious. Unfortunately, the James Committee was of no help in that respect. I submit that the offences to which I have referred are serious and warrant a jury trial. Such cases are serious to the people who are charged. If imprisonment follows, prima facie the offence is serious.
Lord Devlin, writing in The Guardian on 10th June 1974, stated:Lay magistrates are invaluable, but the office (and perhaps also the training to which they are now subjected) separates them from the ordinary man. Jurymen have no time to get separated. They emerge from the mass to which they return, having spoken once or twice with the authentic voice of the ruled. By their verdict they are saying: 'We, the governed, declare that your right to liberty is forfeit.'For me, this is the essence of freedom, so much so that I should like to see depending upon it every sentence of imprisonment and every fine large enough to cripple.That puts the case for the seriousness of the offences about which we have been talking and the fact that they should be tried by juries.
I accept that it is a matter of judgment whether we have a belief in the value of juries. It may be that some people do not believe that juries are valuable. That may be a tenable view. I have already quoted from the Morris Committee on the value of juries. Perhaps I may be permitted to quote Lord Devlin again from the same source:The real service which trial by jury gives to the community is the insurance that the criminal law will neither in its content nor in its application to a particular case be repugnant to the ordinary citizen.The fact is that people believe in the fairness of juries.
If it is right and proper for us to retain the right of jury trial for the bank robber and the rapist, is it not equally right and proper and appropriate to retain that same right for the ordinary citizen who is charged with a homosexual offence, an assault on the police or an offence connected with a political demonstration or under the Theatres Act? If it is right 306 for hardened, professional criminals, it is also right for the people whom I have been describing.
The Bill is yet another incursion by the State into the basic rights of individual citizens. Indeed, the President of the Law Society, in a letter to The Times on 12th January 1977, said:This is a further step in an all too familiar direction. Once again, expediency becomes a substitute for justice and freedom dies another death.We may as well go to the logical conclusion of having on-the-spot fines or administrative courts. I hope that this House will be far more jealous of the liberties of the individual than the Government have indicated that they are by presenting the Bill to us today.
§ Several Hon. Members rose—
§ Mr. Deputy Sneaker (Sir Myer Galpern)
I wish to reinforce the appeal for brevity which has already been made. If hon. Members are going to take 20 minutes each—it is up to them to decide; there is no control from the Chair—they will not require the aid of an electronic calculator to ascertain how many will be able to sneak between now and 9 o'clock. It is up to hon. Members.
§ 7.8 p.m.
§ Sir John Langford-Holt (Shrewsbury)
Much of what I was proposing to say has already been said. Therefore, Mr. Deputy Speaker, I shall abide by what you have just said and avoid those issues completely.
The duty of Parliament is to provide a fabric of justice—justice within human limits—which is as cheap and swift as possible for the citizen. The law's delays are not justice; they are the reverse. A week's delay is a week's injustice.
I should like to consider Part III, Clause 14 in particular, not dwelling on the many matters which have already been discussed. The hon. Member for Ormskirk (Mr. Kilroy-Silk) rather overcooked his omelette as far as I was concerned. However, I had much sympathy with many of the points he was trying to make.
If we abolish the jury system for certain categories of offence, we shall be in danger of replacing delays in the Crown courts with delays in the magistrates' courts. That is a risk that we are running and one that we must at all costs 307 avoid. The hon. Member for York (Mr. Lyon) made a Freudian slip when he talked—I am not sure whether in his capacity as a solicitor or as a former Minister—about the distribution of business. I am not a lawyer, but I am alarmed when I hear anyone talking about justice as the distribution of business.
Clause 14 of the Bill worries me. I shall not enlarge on its provisions in all its three categories—and it deals with 14 Acts of Parliament—but I should like to deal briefly with the application of the clause to drinking and driving. At present there are four types of drinking and driving offences. In general in drinking and driving cases there is an entitlement to trial by jury, but that is now being transferred to trial by summary jurisdiction. One remarkable thing about drinking and driving cases is that nobody—no hon. Member, for example—in having two, three or maybe four drinks can know whether he is breaking the law. That has always struck me as a regrettable and dangerous part of the law. Also, there has over the year been almost a veil of secrecy surrounding the acquisition and use of the breathalyser.
Drinking and driving is the only type of offence—I am liable to correction by any lawyer—in which there is a minimum penalty unless the miscreant can prove to the satisfaction of the magistrate that he is a special case. I take the point made by the hon. Member for Ormskirk about magistrates being case-hardened. I do not necessarily agree, but the hon. Member was right in saying that magistrates, particularly stipendary magistrates, listen to the same kinds of cases repeatedly and daily.
I do not wish to dwell on this matter for long, but I can remember the surprise shown by a stipendary magistrate when I appeared before him for having parked my car in the wrong place. For a whole quarter of an hour he listened to the police office convincing him that I had done so. He was surprised when, after that, I was able to show simply and successfully that my car had been parked in a place where there were no parking restrictions. I had employed a barrister and a solicitor, I had been to the place three times and I had taken photographs. Costs were awarded against 308 the police and I received £5 for my trouble.
Trial by jury is not a procedure but a principle that should not be lightly overthrown. The Automobile Association has made a compromise suggestion that where a defendant, after receiving legal advice, has pleaded not guilty to the charge and has maintained his innocence of the charge against him, if he should be convicted by the magistrates Parliament should provide a right of appeal to the Crown court with a jury. I hope that the Government will consider that suggestion seriously.
I do not wish to over-emphasise the point, but the extent to which a person found guilty of drinking and driving charges is damaged is less than the damage done to a man convicted of solicitation. However, it does damage when a man is convicted of being under the influence or of having more than the 80-milligram limit of alcohol in his blood while driving. It does damage to his moral stature and to society's attitude to him. In many cases it can damage his livelihood.
Drinking and driving cases are the only ones in which there is a minimum penalty and in which the person found guilty must prove why he should not be given a mandatory penalty. The law is imprecise, because a person cannot know at what point he has committed an offence. There are countries in which it is an offence to drive a car when one has had anything to drink. In many ways that has much to commend it, because under the present system one cannot know whether one is committing an offence. That situation should never have been introduced into the law, and it should be taken out of the law of the land as soon as possible. I hope that the Home Secretary and his Department will consider these points and look at them again.
§ 7.15 p.m.
§ Mr. Edward Lyons (Bradford, West)
The changes that are proposed in the law of conspiracy are welcome but they should not be overstated. The basic changes proposed are twofold in terms of treatment and practical effect. It will no longer be possible to charge more than one person with conspiracy to do something that is not criminal when done by one person. That must be welcome. 309 The other basic change is that, generally speaking, it will not be possible to impose a sentence for conspiring to commit an offence in excess of the sentence that could be imposed for the substantive offence.
There is, however, a curious anomaly, because if the sentence for the substantive offence is less than 12 months' imprisonment, on a conviction for conspiracy to commit that offence a maximum of 12 months' imprisonment could be imposed. I shall require some convincing in Committee—if I have the good fortune to be on the Committee—that is is right to sentence someone to 12 months' imprisonment for conspiring to commit an offence for which the maximum sentence is six months. However, the rule must be inviolate that should the maximum sentence for an offence be, for example, two years' imprisonment, the sentence for conspiracy for that offence must not be in excess of two years. There should be consistency.
§ Mr. Alexander W. Lyon
The reason is in the Law Commission's report. It recommends that conspiracy should remain an indictable offence and that it should not be tried summarily. If there were a maximum sentence of six months for conspiracy, it would be a summary offence. I appreciate the force of my hon. and learned Friend's point, and I felt that way myself, but it was for that reason that we decided that the minimum sentence must be 12 months' imprisonment.
§ Mr. Lyons
I am obliged to my hon. Friend. He has explained why, for procedural reasons relating to indictable and non-indictable offences, there must be a minimum sentence of 12 months' imprisonment. However, an individual caught as a result of that procedure might, notwithstanding, feel a sense of injustice.
The law of conspiracy generally has been made into a great legal bogyman. There is nothing in the Bill to prevent the use of conspiracy charges in the same circumstances as those in which they were used previously. The reasons why conspiracy charges have been used in place of substantive charges normally have nothing to do with achieving a bigger sentence. The reasons for recommending a conspiracy charge rather than a substantive charge have to do with the facts 310 in the case, the ease of the summing-up and such matters. Sometimes evidence can be adduced for a conspiracy charge that could not be adduced if one proceeded on a substantive event.
All these matters will still be relevant after the passage of the Bill. On the other hand, it is fair to say that conspiracy does less harm when used in place of a substantive offence than is usually believed. For example. in the case of the Shrewsbury pickets there were 42 charges, 39 substantive and three general. Because the judge and the lawyers took no cognisance of the fact that they were dealing with potential political dynamite, they looked at the matter in the normal way and decided that summing-up on 39 charges would be difficult and that it would be easier for the jury to comprehend matters at the end of a long trial if there were only three charges. The effect of that, as we now know, was a burning issue. It is generally believed that if conspiracy charges are used one is somehow seeking to pervert the course of justice in a legal way. That was not one of those occasions, although it had the bad result that the sentences imposed were greater than could be imposed after the Bill becomes law.
The sentence for consipracy to intimidate could not be more than 12 months' imprisonment under the Bill, but sentences of two and three years were imposed on the pickets. There was much wrong with the sentences in that case, but conspiracy charges could be used again in similar circumstances after the Bill has become law if the lawyers and the judge do not look at the case as a political matter—and they are not supposed to have regard to the political consequences of what they do. I am not sure whether that is sensible. It may be that the Attorney-General should have jurisdiction in such cases to prevent or authorise prosecutions.
It will not be possible when conspiracy charges are made in future, as they undoubtedly will be, to say that their purpose is to achieve greater sentences than would otherwise be possible. All sorts of arguments were used about the Shrewsbury pickets, but the basic objection of many people was that they should not have been prosecuted at all. There is 311 nothing in the Bill that would affect a similar case in future.
If we want to lessen the use of conspiracy charges, we shall have to put something in the Bill such as a legal provision for a choice to be made by the judge about whether a conspiracy charge should be used. I oppose such a provision. It was suggested in the House of Lords that one way of dealing with the problem would be for the Lord Chief Justice to issue a practice direction or to make it an essential part of the pre-trial review that the judge should decide whether it was proper to proceed on a consipracy charge rather than on the substantive charge.
§ Mr. Lyons
I am delighted to hear that. It may have a greater effect than anything in the Bill in reducing the use of conspiracy charges that add enormously to the length of trials.
The Bill attempts to reduce expenditure by making certain offences triable only summarily. I recognise that there may be other reasons for the proposal. I am a great supporter of the jury system, but although it may be suggested that barristers have a vested interest in supporting jury trials I have noticed that in certain types of case the system has become less satisfactory.
The longer a trial is envisaged to last, the poorer will be the quality of the jury. A courteous judge will say to a jury when it is being empanelled that a case may last for eight weeks and that prospective jurors who would have great difficulty in staying away from their businesses and jobs for eight weeks should let him know before they are sworn in. There then follows an afternoon in which four out of every five jurors say that they cannot take that much time off work. If a man is in business on his own, that is regarded as a good reason for his not serving on the jury. If he is an accountant, that is also a good reason.
Most long trials tend to be fraud cases, and people on social security, housewives with no commercial experience and people with experience of only low-paid 312 manual jobs have to judge them because people with responsible jobs cannot afford to give up the time. This results in the more complex cases being tried by juries of an inferior calibre.
§ Mr. Ivan Lawrence (Burton)
Does the hon. and learned Gentleman think that if the Shrewsbury pickets had been tried on 39 substantive counts instead of on the conspiracy charges the trial would have been shorter?
§ Mr. Lyons
I had left that point, but I do not think that that case would have been shorter. The hon. Gentleman and I are probably the only hon. Members who have taken the trouble to read the 1,800-page transcript of the trial. If the conspiracy charges had also been tried as individual counts, the trial would have been lengthy whatever had happened. I was simply pointing out before the hon. Gentleman's intervention that long trials tend to produce low-quality juries, and this is very unsatisfactory. However, I see no way of altering that situation.
If I am on the Committee that considers the Bill, I shall look carefully at any attempt to transfer for summary trial matters that are at present triable in some, if not all, circumstances in the Crown court. The arguments are not one-sided. I am a recorder and am acutely conscious that in trying breathalyser cases the issue is not whether the accused was over the limit. That is generally accepted, and the arguments centre on whether the policeman used a proper form of words, whether the sergeant at the police station used the proper form of words or whether there was cause to think that a moving traffic offence had been committed. A man may have had twice the legal limit of alcohol, but it is not relevant to him where he should be tried because he does not know that he has gone over the limit.
In breathalyser cases that are brought to Crown courts by election, we are dealing with a series of technicalities. The accused person has often believed that he was guilty until he saw his lawyer. He knows after he has taken the breathalyser test that he was over the limit, but he believes that he may have more sympathy from a jury on the arguments over a series of technical points than from magistrates. 313 I have to bear in mind that, if the law enables technical points to be taken, the citizen is able to take advantage of them. Although this is an irritant and the summing-up in such cases is a minefield, the answer is to alter the law. The Blennerhassett Committee may do this.
The changes in the law relating to soliciting will have to be scrutinised carefully in Committee. We are saying that, because a man may suffer considerably from a soliciting charge, we should allow him to continue to elect to go for trial. That is a powerful argument, but we are not always consistent. I am mindful of the fact that as a result of a recent Private Member's Bill a man charged with rape will remain anonymous until convicted, but the name of a man charged with soliciting can appear in the newspapers.
My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) will know that we have reached a situation in which a man charged with a lesser species of sexual offence can have his name published in the newspapers but a man charged with rape must remain anonymous. I refer to the hon. Member for Islington, South and Finsbury only in the context that he knows a good deal about the Act which enshrined that piece of legislation.
We welcome the increase in fines for a number of offences. However, we must not delude ourselves about the effect of the increases. The upper limits are seldom used, and they will not be used in the future. What will happen is that some magistrates will take a more serious view of certain offences because the maximum punishment is greater. That might produce heavier fines or prison sentences, but broadly the increases in fines will have little effect. They will reassure the public that something is being done. One often finds—it is not surprising—that people who are brought before criminal courts, particularly the magistrates' courts, do not have any money. They certainly do not have £1,000, which is to be the new maximum fine for a series of offences. There is nothing that one can do.
I am always astonished that more people do not elect for jury trial—when they are on supplementary benefit, for instance—if they know that an offence does not carry a prison sentence. They have nothing to lose. There are people 314 —I have tried them myself—who are charged with an important offence and who are on supplementary benefit. Such people might as well go to the Crown court and spend three days there.
The increase in fines can have a deterrent effect only on people who have money. It is a limited weapon. Most judges say that an increase in the maximum penalty will make little difference. They will be confronted with the same basic problems of sentences as they were before.
§ Mr. Abse
My hon. and learned Friend says that it will have no effect. Is it not clear from statistics that the effect will be that many more people will go to prison for non-payment of fines? In 1975, 54 per cent. of fine defaulters served over 80 per cent. of their sentences. About 2,500 people convicted of drunkenness and of sleeping rough were sent to prison in default. The possible effect of increasing these fines will be to make our choked prisons still more choked.
§ Mr. Lyons
I am indebted for that contribution. One should not impose fines which a defendant is not able to pay. My hon. Friend the Member for Pontypool (Mr. Abse) was referring to cases from the magistrates' courts where fines are often imposed blindly. Sometimes magistrates are so full of resentment that they can do nothing that they impose a fine when there is no capacity to pay. If the result is that which my hon. Friend suggested, it is unfortunate. My hon. Friend might be right.
The Bill is so divided into compartments that, as the House of Lords discovered, cohesive Second Reading speeches are not easy to make. It is basically a Committee stage Bill, and it will have to be studied carefully in Committee. Meanwhile, one can welcome parts of the Bill. It provides an opportunity to examine certain branches of the law with a view to changing them. We do not often have that opportunity.
I produced a Bill on Section 3 of the 1961 Act. The hon. and learned Member for Runcorn (Mr. Carlisle) was then Minister of State at the Home Office. In Committee he sank it. That same provision is in this Bill. I give thanks for that.
§ 7.35 p.m.
§ Mr. Mark Carlisle (Runcorn)
Like the hon. and learned Member for Bradford, West (Mr. Lyons) I have managed to take part in the last three Bills concerned with criminal law—the 1967 Bill, the 1972 Bill and now today's legislation. Both the 1967 and 1972 measures were substantial. The 1967 legislation provided for majority verdicts, the introduction of the parole system and suspended sentences. The 1972 Bill provided for alternatives to prison and for community service. In comparison, this measure is a miscellaneous provisions Bill. It is really a Committee stage Bill. While I accept that many of the proposals are admirable, many are minimal and will have little effect on the major issues of crime, juvenile delinquency and penal application.
I shall disillusion the hon. and learned Member for Bradford, West about the apparent end of Section 3 of the 1961 Act. As someone who was involved in the setting up of the James Committee, I totally and absolutely refute what the hon. Member for Leicester, South (Mr. Marshall) said about the purpose of setting up that Committee.
§ Mr. Jim Marshall
The hon. and learned Member may refute the implicit cause behind the facts that I brought to the House. He cannot deny the three main facts that I mentioned—namely, the wider enfranchisement for jury service, the comments of Sir Robert Mark on the acquittal rates at jury trials, and the joint statement by the Lord Chancellor and the Home Secretary.
§ Mr. Carlisle
I refute the assertion that the statement from Sir Robert Mark had anything to do with the appointment of the James Committee. The Committee was set up because of continual pressure on the Crown courts, which were being cluttered with trivial offences. Sir Robert's remarks had nothing whatsoever to do with the acquittal rates. If the hon. Member for Leicester, South looks back, he will find that from the Dispatch Box I cast many doubts on the remarks that were being made at that time about acquittal rates in the Crown courts.
I share the view of the hon. Member for Ormskirk (Mr. Kilroy-Silk) that one of the reasons was delay. But delay in the Crown courts is not a justification 316 for moving the jurisdiction of any particular offence from the Crown courts to the lower courts. The delay is very much a London problem which is based mainly at the Old Bailey and the London Sessions courts. There is little delay in courts outside London.
I have often said that a simpler answer might be to look at the hours that the London courts sit and perhaps add half an hour somewhere in the day. That would be better than changing the rights of trial by jury for people throughout the country. In any event, there is absolutely no doubt that today there is, equally, delay in the magistrates' courts.
Therefore, although I believe that there may be justification certainly for the simplification put forward by the James Committee and, indeed, for many of its original recommendations, I do not think that it can honestly be justified simply on the argument of delay.
The hon. Member for Ormskirk is now absent from the Chamber, but perhaps I may say that I do not think that the argument about assaults on the police is quite as clear-cut as he seems to think. The fact is that at present there is no right to elect trial for assaults on the police. The hon. Gentleman was arguing for that right to be given for the first time and not, as he implied, against the removal of a hallowed right. Any form of common assault, if it happens to be on a police officer, is always charged as an assault on the police. Therefore, the matter is not as simple as the hon. Gentleman suggested.
There is one other point with regard to driving offences. While I accept the argument about the breathalyser offence, it seems to me somewhat unusual that it should be proposed that there should be no right to trial for driving offences of, for example, being unfit to drive through drink, and yet there should be a right to trial for what formerly was dangerous driving and will now be reckless driving. I find that slightly inconsistent.
I turn to the conspiracy part of the Bill. Again, frankly I do not believe that turning conspiracy into a statutory offence will have very much effect at all. What would really have an effect, and what I understood we were now hearing from the Minister, would be if we were 317 getting a substantial reduction in the number of conspiracy trials. The fact is that conspiracy charges are brought and laid in indictments far too often when there would be adequate substantive counts, with the result that they are a major cause of the cost and the delay of many long trials today.
I should have thought, with respect, that it was not so much for the Lord Chief Justice but for the new Director of Public Prosecutions to decide whether he thinks it wise that so many cases that could be dealt with on substantive counts are instead indicted with charges of conspiracy. It would have a much more major effect if one could reduce the number of charges of conspiracy, rather than moving it from common law to statutory offence.
Concerning the provisions on squatting, I take the point made by the hon. Member for York (Mr. Lyon). If we could get an easy manner of dealing quickly with these matters through the civil courts, it might be that there would be no justification for that part of the Bill at all. What I cannot see, if we make it an offence, is what on earth is the difference in principle that justifies making it an offence when a person has been living in a property, moves out and wants to come back, when this does not equally apply to the council house which is remaining vacant for a tenant about to move in or, indeed, to a purchaser who has bought a house and who is about to move next day to his new home.
Those people are equally affected in regard to their rights of property. If someone goes to live in a council house to which he has no right, he is depriving another family, perhaps in a very depressed area and when, after many years of waiting, they have come to the top of the waiting list, of their right to possession of that house. If we are to have these provisions, they should be made wider.
§ Mr. Carlisle
I hope that the hon. Gentleman will not mind if I do not give way. I have promised that my speech will not be long.
Concerning lines, it is all very well increasing the maximum, but has any 318 thought been given to enforcement of the payment of fines? I think that imprisonment is a necessary final deterrent, but surely what we ought to be doing—I hope that we shall do it in Committee—is making alternatives to imprisonment for dealing with non-payment of fines. I suggest that one matter that the Home Office should examine is making community service a possible deterrent penalty for non-payment of fines. Alternatively, we could look at the question of making the wilful non-payment of a fine a separate offence. However, if the effect is merely to raise the amount of money outstanding at any moment and then to send people to prison for short sentences because they fail to pay their fines, we would not gain very much merely by increasing fines.
My final point relates to Section 3 of the Criminal Justice Act 1961. I was required, in many ways, to defend what one might call the indefensible. As the hon. and learned Member for Bradford, West knows—he even brought in a Bill the purpose of which was to do away with that Section 3—the argument that we gave for resisting his Bill was that at that time the whole matter was under review by the Younger Committee, which was about to report. That committee reported. The effect of the report, among other things, would be to remove Section 3 of the Criminal Justice Act. As three years later the Government have not acted—regrettably, I think—on the main proposals of the Younger Report, I do not believe that they now have any argument against removing Section 3 of the Criminal Justice Act, the section that limits the power of courts to send anyone to prison other than for a term not exceeding six months or for six months or more than three years if he is under 21 and has not been to borstal. I believe that this is the provision in the law that is most generally resented by the whole of the judiciary. It is for this reason that it believes that on occasions it does injustice, as it requires the judges to send a person to prison for a longer term than they would otherwise have chosen.
When the Lord Chancellor's Department, by circular, even goes so far as to countermand the undertaking that I was authorised at the time to give to the hon. and learned Member for Bradford, West that the courts should indicate the 319 length of sentence they would have given had they been free to give determinate sentences, so much the greater is the case for removing Section 3 of the Criminal Justice Act.
I am delighted that the House of Lords has removed that section in the Bill, but their Lordships did that against the wishes of the Government, and now, if I understand him aright, the Home Secretary will be inviting the House to put it back. However, he will have difficulty in that matter in Committee.
§ 7.49 p.m.
§ Mr. Stan Crowther (Rotherham)
I shall find myself in some difficulty because, as I understand it, a vote on Second Reading is supposed to be about the principle of a Bill. This Bill contains so many different principles that I shall not be able to vote for it, and there is certainly one principle for which I am inclined to fight to the death. I shall come to that shortly. However, first I want to turn to Clause 1(1). I was very pleased that the Home Secretary was able to tell me that this will be looked at again.
The clause does not define "conspiracy" as an agreement to commit an offence. It defines it as an agreementthat a course of conduct shall be pursued which will necessarily…involve the commission of any offence".Those are two totally different things. It is not difficult to visualise many circumstances in which two people have agreed on a course of conduct that will necessarily involve the commission of an offence—for example, the use of an uninsured car—without one of them knowing that it will so involve an offence. There is no element of guilty knowledge written into Clause 1(1). The only defence provided in the absence of guilty knowledge in Clause 1(2) is an absence of such knowledge on the part of the person who commits the offence and not of his alleged fellow conspirator. We shall really have to look at this matter again.
What I simply cannot support is the reduction of the right of people to be tried by a jury. Before I came to this place I spent 30 years as a working journalist. On average, I spent two or three days each week covering criminal courts. I am bound to say that the proportion of unfair 320 and unjust decisions reached in magistrates' courts is very much higher than in courts where the decisions are made by a jury with the benefit of direction by one of Her Majesty's judges or recorders. In those courts juries receive direction on the law and a proper summing-up. Surely there can be no comparison between the procedures in the two levels of court.
I will not support any reduction in the right to go for trial. My contribution is not intended to be a general criticism of magistrates. They are mostly sincere and hardworking people who are doing their best in a thankless job. However, they are human and have human prejudices and preconceptions. They are always working in a place where the police witnesses have the great inbuilt benefit of being on their home ground. The defendant does not enjoy any such advantage.
Nine times out of ten, the police witnesses are known very well by the magistrates. They see them every week. With the best will in the world, a JP is almost bound to start off, even subconsciously, with a presumption of guilt rather than a presumption of innocence.
Another major difference is that the advice that magistrates receive from their clerks is invariably given in private. When a judge gives a faulty summing-up or direction it is automatically a ground for appeal, but no one knows what the clerk tells the JP in his private room. The clerk may well be misdirecting him. I have suggested in the past that clerks' advice should be given in public so that those representing the defence may know what he is saying. Nothing has happened about that. I am not able to welcome the schedule.
I was glad that the hon. and learned Member for Wimbledon (Sir M. Havers) drew attention to the danger of reading too much into percentages of acquittals. It is a fact that genuinely innocent people are more likely to assume that they will get a fair trial and decision in the magistrates' courts while the guilty "wide" boys will almost invariably elect trial by jury.
I am not impressed by the alleged saving of £2 million. I do not believe for a minute that it will be saved. In any case, neither economy nor expediency provides 321 an adequate reason for depriving citizens of a right that they have had for centuries.
§ 7.54 p.m.
§ Mr. Stephen Hastings (Mid-Bedfordshire)
I am concerned with one small aspect of the Bill. I make no apology for that, because so many of my right hon. and hon. Friends who are far more in structed in the law than I have said that it is especially difficult to make a Second Reading speech when the Bill covers so many different aspects of the law.
I am concerned with the relevance and effectiveness of the Bill in respect of certain offences in the countryside in circumstances which, perhaps, are only clear to those who live in these areas. I am concerned with Part II, which relates to the entering of premises and the removal of property.
There is a range of legitimate and legal sports and sporting activities in the countryside that is now under constant threat of violent attack. These attacks are frequently, though not necessarily always, supposed to be based on protests about field sports. Now, I have no doubt that the great majority of the members of the League Against Cruel Sports, for example, are sincere if, to my way of thinking, totally misguided and misinformed. They have as good a right to hold and defend their views as those who seek to defend their country sports, just so long as they remain within the law.
Those who are guilty of these attacks—I am sure that it is a small minority—are neither demonstrators nor protestors, but violent criminals. Their aim is violence for the sake of violence. There is evidence that some of their leaders are politically motivated. Motivated by a political extremism, which I am sure no hon. Member on either side of the House would accept. They believe that their cause will be served by the destruction of authority and by the provocation of violence.
In the open countryside, where there are no concentrations of people and where the task of the police is particularly difficult, the people to whom I have referred have many opportunities.
Let me give some examples. The headquarters of the British Field Sports Society has been broken into three times recently with considerable violence. Much wilful damage was done. 322 There have been a number of instances of destruction of equipment, saddlery and tackle in the countryside at different places. There have been a number of examples of intimidation and violence against inoffensive individuals or small groups of people. There has been grievous hurt to animals. Finally, there has been the destruction of tentage and equipment erected for point-to-point meetings. I refer to the North Warwickshire point-to-point on 19th March last.
Anyone who has been to a point-to-point will know that such events are in the finest possible tradition of amateur sport. Many hundreds of thousands of people—not all of them from the countryside—enjoy them every season.
Some of these offences can and should perhaps he dealt with under other Acts or under different aspects of this Bill. I am concerned particularly, about the adequacy of punishment, of the penalties and about the vulnerability of temporary installations and tentage used for point-to-point meetings and agricultural shows, for example. I hope that in Committee these matters will be examined and suitable amendments tabled.
Clause 6 (1) deals with entry with violence. But there is the proviso that there must be someone on the premisesat the time who is opposed to the entry which the violence is intended to secure; and(b) the person using or threatening the violence knows that that is the case.That is inadequate in the cases that I am describing. We cannot reasonably expect 20 or 30 people to stay up all night in the fields helping the police who are also up all night, to protect point-to-point courses so that they may enjoy their meeting the next day, and that is what has been happening.
Clause 12 (6) states:References in this part of the Act to premises include references to any movable structure…designed…for human habitation.But it then states:But in sections 6 and 8 above 'premises' does not include land unless it is adjacent to and used (or intended for use) in connection with the occupation of any building, of any movable structure…other than a movable one.This indicates that it must be something which is inhabited and it seems to exclude the sort of equipment and installations 323 necessary for a point-to-point or a country show.
I hope that the Home Secretary will examine this whole area of attacks and offences in the countryside. We live in an overwhelmingly urban society—in my view we are neither the stronger nor the healthier for that—and that cannot now be altered. It means that it is all the more important that the activities and the lives of those who live and work in the countryside are understood and properly protected by the law. Failure to do that will lay up a store of bitterness that could become a serious tragedy for us all.
For all the Bill's important achievements—I am sure that it contains many—there are certain grave defects in the area to which I have drawn attention. In Committee I hope that amendments on the lines that I have indicated will be taken seriously and considered carefully by the Home Secretary.
§ 7.59 p.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
As one who has been in actve practice at the Bar for well over 50 years, I think I can claim to have considerable experience of the working of our legal system. I am glad to have the opportunity of taking part in the debate.
In another place, Lord Morris, an eminent and distinguished Law Lord, spoke of the common law tradition. Like him. I was brought up in that tradition. I believe that we have a great heritage in it that has been developed over the centuries. I pay tribute to the code that the judges have evolved in our standards of fairness and justice in the common law of England.
I have seen many changes. I view with regret some of those changes from my early days at the Bar when the two great branches were the common law and the statute law.
I suppose that there is considerable justification for a Law Commission which examines our rights and duties and which sets out on the task of bringing our law up to date and in keeping with modern trends. It seeks to enact in precise terms in statutes what those rights and duties are and the up-to-date penalties for their infringement. However, we must ensure that the case we make out for what we 324 seek to abolish or to change and put in its place is clearly justified.
Over many years our jury system and the right to elect for trial by jury has rightly been regarded as a bastion in our constitution, a safeguard for the individual and an essential feature of our free society. That right is being gradually whittled away. In my early days there was a right to a jury—a common jury or, in difficult cases, a special jury—in most civil actions. That has now gone, except in certain specified cases—cases of libel and slander, for instance. But the right to a jury in criminal cases, the right of the individual to be judged by his fellows, remained.
That right is being whittled away, and it surely behoves us to consider the position carefully before acceding to this step. It is true that the James Committee gave careful consideration to this question. I pay tribute to its work. However, it is surely the duty of this House, as the other place did in its careful and detailed consideration of the Bill, to look with the greatest circumspection into its provisions to see how far they are justified.
The other House did so particularly with regard to the provision that the crime of theft under the sum of £20 should be tried summarily, without right to trial by jury. That is obviously a crime which, whatever the amount, might spell ruin for the defendant the loss of his employment and possibly of pension rights. I am glad that the Government yielded to that pressure and have now omitted that provision.
I hope that the House will exercise pressure, equally successfully, with regard to other provisions. I want to refer to one or two instances which involve important principles. Assault of a police constable in the execution of his duty, motoring offences involving disqualification and perhaps the loss of employment, homosexual soliciting, which may seriously affect the future of the individual charged, criminal damage, carrying an offensive weapon in a public place where political views may be involved—all are instances in which we should seriously question whether the right to trial by jury should go.
The main reason for the change appears to be to save costs or to save delay. I understand that figures are not available 325 to support the suggestion that £1 million will be saved, but I view with apprehension a provision which so seriously affects the right of the individual. I do not take the view which my hon. Friend the Member for Rotherham (Mr. Crowther) took in opposing the Bill, but we certainly should look at it carefully and a stronger case must be made out.
§ Mr. George Cunningham
Will not that saving be enormously decreased if we eventually get around to paying an attendance allowance to magistrates, as at some time we almost inevitably shall?
§ Mr. Weitzman
I shall not now go into the question of attendance allowances for magistrates, although there may be a good deal to be said for the idea.
I recognise that there is much to be said for the proposed triple division into indictable offences, intermediate offences with trial either way, and offences triable only summarily. However, here, too, the list should be looked at carefully. For example, I do not understand why, against the unanimous recommendation of the James Committee, bigamy, a very serious offence, is placed in the "either way" list. We now have divorce by post in certain cases and apparently in some instances bigamy will be triable in a magistrates' court. Everyone recognises the valuable work done by magistrates, but we should hesitate before adding to their burdens, particularly when the right hitherto held by the individual is affected.
It is in every case a matter of vital importance that the accused should know the case that he has to meet. I am glad to see that the Government have now agreed that rules will be made in cases triable summarily as well as in other cases. I hope that that will be done speedily, because at present it is merely a pledge that the question of rules will be considered and that they may be made.
I welcome the decision, as provided for in Part I, to restrict the offence of conspiracy to agreements to commit a criminal offence and to limit the maximum penalty to the penalty for the offence itself. Practitioners know that for far too long the prosecution has added a charge of conspiracy where there is evidence that a substantive offence has been committed. In many cases that has been unfair to the defence and has led 326 to cases taking a long time, sometimes many months.
That difficulty remains, The Government have resisted attempts to deal with it and merely rest on the promise that it will be dealt with by a practice direction. I am not sure that that is wholly satisfactory, but at any rate it is a step forward and, whether it is satisfactory may be considered at a later stage.
However, I do not understand why the common law offences of conspiracy to corrupt morals and conspiracy to outrage public decency have been specifically retained. I heard what the Home Secretary said, but, after all, the law Commission recommended the abolition of those offences. I do not know how much another committee may add by further consideration. As I understand it, another committee is to go into the matter, and there is bound to be delay. We have had a recommendation about this matter and 11 or 14 years will have passed before anything is done about it.
Part II creates five new offences. Over recent years considerable concern has been caused by occupation of property by squatters. I agree that this poses a problem for councils, particularly those with long and heavy housing lists, for residents, and for buyers of property who have not yet taken up residence. The problem is serious, but it can be dealt with satisfactorily only by alleviating the housing problem.
I recognise that some action may be needed, as civil proceedings to recover such property involve considerable delay, but the new enactments will mean that persons are now to be treated as criminals, even though almost all the offences are already covered under existing criminal law. There is also grave danger that the creation of these new offences will aggravate feelings and result in greater tension in community relations. We must study them carefully in Committee before accepting these provisions.
I have made considerable criticism of some parts of the Bill. The work of the Law Commission and of the James Committee has led to this Bill, which in the main contains valuable provisions of a practical and useful nature. But just as another place has spent many hours in discussion and has brought about considerable changes to the Bill as originally 327 drafted, I hope that this House will perform a similar necessary service in Committee. I support the Second Reading.
§ 8.10 p.m.
§ Mr. Andrew Bowden (Brighton, Kemptown)
I have no legal qualifications, but my late father was a solicitor and to some extent his interest in the profession has rubbed off on me.
The Bill has been widely welcomed in large parts by the House as a whole but, clearly, substantial changes and amendments will be needed in Committee. There are many areas that must be strengthened greatly.
I listened with great interest to the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman), whose experience in legal affairs is very wide. I share his anxiety about the position in relation to trial by jury. It is deeply embedded in the people of this country that if they are involved in a court case, they feel instinctively that they have the right to trial by their peers. Many people who have never appeared in court in their lives and probably will never do so, instinctively feel that, if by some mischance it occurred, they would have the opportunity, if they choose, to trial by jury. This is a fundamental right that has grown up over many hundreds of years and one which this House must not discard without thinking hard and long.
There is no argument for discarding it on financial grounds. The fact is that the chance of acquittal before a magistrate is pretty small, and in many cases the effect on person's life is very considerable and in some circumstances almost catastrophic. If a person has been tried by magistrates and has not had the opportunity of going before a jury, in many circumstances he will nurse a sense of grievance which will stay with him all his life. He will feel that the rightly world-famous British justice has not given him a fair deal, a fair crack of the whip.
Certainly in some of the offences listed in Schedule 1 the case for the right to choose whether to go before a magistrate or a jury must remain. To eliminate that choice needs a very strong argument which, with great respect to the Home Secretary, I have not heard today.
One of the offences on which I must spend a few minutes—because of the fact 328 that it does not go before a jury and because of the level of fines and sentencing for it—is assault upon a police officer. In Sussex alone in 1976 218 police officers were assaulted—some with sticks, others with cut-throat razors and in one instance even with a sword. Is it really sensible that we should put this type of offence on the same level as a charge which might involve damage to property of just over £100?
The Home Secretary himself said that invariably that which was regarded as a serious offence today would not be so regarded in 10 or 20 years' time. It would be tragic for justice in this country if assault upon a police officer were no longer looked upon as very serious. In this respect I shall quote from the report of the Chief Constable of Sussex for 1976:Again we have seen a continuing high level of assaults upon police only making the practical work of the individual officer more difficult. This trend, together with increasing wanton damage, modernly called vandalism, and football hooliganism from which we have suffered, points towards the deplorable lowering of general standards in society.This House has a duty to give the police the maximum help and support in their very difficult task. The Chief Constable goes on, and I commend his words to the Home Secretary, because they are worthy of careful consideration:It can never be forgotten that the public has to rely upon its thin blue line' in a way and for a purpose that does not apply to any other service and this thin blue line has to rely upon the dedication and the effort of the individual police officer. It is what the individual does alone, when faced with the many situations which modern society is creating for him that brings about the good or the bad result. When police officers are assaulted with an increasing frequency, when they are subjected in a way that no other part of society is to a complaints system, when the incentive to advance is being constantly eroded and when they are not at any level being adequately financially rewarded for the pressures placed upon them, then we are beginning to see what the cost of the cut-price policeman is!When this Bill goes into Committee we must think very carefully about the sentences imposed for assaulting a police officer. I firmly believe that for the protection and sake of the police themselves a person who is charged with assaulting a police officer should have the right to go before a jury. If he does not have this right, it will mean that in some cases the individual will feel unfairly treated 329 and feel that he has not had a fair hearing in the magistrates court. He may feel that the case was loaded against him and for the rest of his life he will be anti our judicial system and anti-police.
I turn to the offence of criminal trespass. On 3rd November last year I received a letter from the Minister of State in which he said:In general, trespass is not a criminal offence and the police have no powers in relation to squatters unless they have reason to believe that they have also committed an offence. The police may lawfully assist an owner to eject trespassers, but they have no obligation to do so and, except where a High Court order has been issued, police officers undertaking such a task do not have the protection which attends an officer in the execution of his duty".This places the police in a very difficult situation. There is no doubt that some squatters are genuinely homeless and desperate, but many thousands are nothing short of freeloaders who live off the backs of the homeless and the ratepayers.
In 1975 the GLC estimated that no fewer than 1,800 people on its waiting lists were being deprived of accommodation by unauthorised and undeserving squatters. I suspect that the latest estimates are substantially higher. These squatters have been described as "the smash-and-grabbers". Those are the words used by Sir Reginald Goodwin, Leader of the GLC.
Some organised squatting is being used as an attack on society, and to condone unauthorised squatting is to uphold dishonesty and lower standards of behaviour in this country. Some organised groups seek every possible opportunity for confrontation with the authorities, and they use squatting as a weapon.
My own council in Brighton is seriously concerned about the effect of squatting in the town. I received a letter from the borough secretary of Brighton who urges a major amendment in the Bill to cover "displaced residential occupiers". He said in that letter:The most frequent victims of the activities of squatters could not show that they were 'displaced residential occupiers'. By definition they could never fall within that category and, in any event, the local-authority-owned properties that squatters occupy are invariably empty for one reason or another. Although, therefore, there will seldom be any suggestion that someone has been 'displaced' by a squatter, the frequent effect of squatting is to 330 delay modernisation and improvement schemes on buildings which would be re-let once the schemes have been completed to house waiting-list cases.It is scandalous that 20 per cent. of those on housing waiting lists in the GLC area and a significant number of families in my own town have been denied the right to be rehoused because of the activities of unauthorised and irresponsible squatters. Broadly speaking, the Bill is a step in the right direction because in many areas it will strengthen the law and will give help and support to those who have to uphold the law.
I conclude by quoting the words of the Chief Constable of Sussex:If a different attitude could be forthcoming from the public in their discharge of a citizen's duty, the greater is the likelihood of standards being restored to a more acceptable level so that life becomes more tolerable and pleasant for a greater number.
§ 8.22 p.m.
§ Mr. Arthur Blenkinsop (South Shields)
I wish to intervene on only one issue and that is the subject of the possession of cannabis, to which my right hon. Friend the Secretary of State referred in his opening remarks.
I am a member of the Advisory Council on the Misuse of Drugs, and I was a member of its predecessor, the non-statutory body which existed at the time Lady Wootton of Abinger made her major report. The council has now offered some preliminary advice on the situation, and I hope that we shall be able to discuss this matter at another stage before the Bill leaves this House.
Although I appreciate the difficulties of this matter because of the appeal now pending in the Goodchild case, I hope that we shall not be prevented from discussing this subject, which is of great importance.
I strongly support the general line taken by Lady Wootton in her report, which was written nine years ago. I am glad to some extent that events have followed her advice in the sense that the courts have broadly ensured that, as time has elapsed, fewer first offenders have been sent to prison for the simple possession of cannabis. I believe it is sad that anybody in that category should be sent to prison, but it is very important that, even though the number of cases affected 331 by the kind of amendment which was discussed in the other place is very small indeed—we have been given a figure of five or six such cases in a year—this House should confirm the present position and encourage discussion in terms of further developments at a later stage.
Consequential problems are involved, including recategorisation of those convicted of possession of cannabis, and we must consider whether those cases are properly scheduled as coming within the legislation on the misuse of drugs. That is a matter which can be dealt with under the procedures of the earlier legislation and not necessarily related to this Bill.
It is important to recognise the present situation, for otherwise the law will be held in contempt by many who believe that they are in no sense acting improperly or illegally. We have seen a great deal of evidence from other countries and we have heard the recent views expressed by Dr. Bourne, the recently appointed drugs adviser to the President of the United States. He has made clear his views about the success of the approach adopted in many American States and suggests that fines rather than gaol sentences have proved a more effective and appropriate approach to the problem. I am sure that that view is steadily gaining ground, and it would be sad if we were not able to follow that line of thinking, which is clearly being pursued elsewhere following the implications of the report which was presented nine years ago.
§ 8.26 p.m.
§ Mr. Roger Sims (Chislehurst)
I shall confine my remarks to Parts III and IV of the Bill and to the controversial proposals to transfer certain work to the magistrates' courts. Incidentally, I was surprised to hear the hon. Member for York (Mr. Lyon) refer to them as police courts.
I was concerned at the implications in the suggestion that the quality of justice offered in magistrates' courts is in some way different. I wish to declare my interest as for 12 years before I entered the House I was a lay magistrate. I have continued my association with the magistracy, although I in no way set myself up as its official spokesman. I 332 do not accept the implications of some of the remarks made by hon. Members on both sides of the House, and the attack made by the hon. Member for Ormskirk (Mr. Kilroy-Silk) was most unfair. He suggested that magistrates were case-hardened, which was a most unfair suggestion since that large body of people give their free time to work on the magistrates' bench. Magistrates are lay people who come from similar walks of life to the people who appear before them, but as magistrates they have had some training in their job.
I also thought it a little unjust that my hon. Friend the Member for Brighton, Kemptown (Mr. Bowden) suggested that defendants did not receive a fair deal in magistrates' courts.
§ Mr. Bowden
I suggested that if they felt they had not been given a fair deal in a magistrates' court they might have a grievance if they did not have the right to appear before a jury. I suggested that some people might have a sense of grievance which would affect them all their lives.
§ Mr. Sims
Equally, they may feel that they have not had a fair deal before a Crown court. There are always some people who take the view that they have not been given a fair deal. I should underline the fact that if somebody is convicted by a Crown court he or she can appeal only on a question of law or of fact, whereas a person convicted in a magistrates' court has the right to appeal to the Crown court. I could expand on this, but I appreciate that a number of hon. Members wish to contribute in the short time that we have available.
I make only the further comment that if a man is convicted of certain offences it might be the ruin of his career, but this will apply whether a conviction is in a magistrates' court or in a more senior type of court. Broadly speaking, therefore, while I think that there are points to discuss in Committee on the details of the transfer of business between the Crown court and the magistrates' court, in general I think that the distribution suggested in the Bill is about right.
We must, however, consider the further implications of this, and in particular the financial implications. The Financial Memorandum, at the start of the Bill, 333 quotes various figures which must necessarily be somewhat hypothetical, but one of them in particular suggests an increase of somewhere around £500,000 a year in administrative expenditure. At the foot of page 10 of the memorandum it is made clear that the bulk of this money will be going on additional staff.
I put it to the Home Secretary that it will not be simply staff that will be required. Buildings will be required as well. I refer the right hon. Gentleman to the references in the James Report, in paragraph 254 and subsequent paragraphs, to the importance of accommodation.
I cite my own local court in the London borough of Bromley, where the clerk tells me that unless some additional accommodation is provided for the court in the next year or two it will cease to function effectively, yet no new projects for construction are being considered prior to 1980. We must be sure that this is not another case of the Government proposing legislation without providing the facilities to carry it out.
As to the Bill itself, I welcome Clause 38, which will obviously ease the burden on the Crown courts. I am glad that the Government intend to widen the clause. It simply gives the Home Secretary power to make rules. I wonder whether the Minister of State in reply will give us some idea of how soon after the Bill receives Royal Assent he anticipates that these rules may be made and implemented.
I welcome the part of Schedule 9 concerning the Criminal Justice Act 1967, giving the power to magistrates' courts, when fining, to fix a day on which the defendant must appear before the court if the fine is not paid. It will certainly save the time of the court and staff. I also welcome Clause 43, repealing Section 3 of the Criminal Justice Act 1961, which was an unnecessary restriction on the power of magistrates to impose shorter sentences.
It is absolutely right that fines for various offences such as those connected with hooliganism and vandalism should be increased to realistic levels. I only wish that this realistic approach extended to other means of dealing with offenders. After all, if the chap is unemployed or refuses to pay, how are we to deal with 334 him? One obvious way is by restricting his liberty on the Saturday afternoon and putting him in an attendance centre. I cannot understand why the Government plan to increase the use of junior attendance centres but obstinately refuse any such extension of attendance centres in the 17 to 21 age group, for which there are only two such centres in the country.
With regard to juveniles, the Government accept the realities of the situation, and the juvenile courts will welcome the powers of fine enforcement given in Clause 35, either by requiring the parent to pay or by making an attendance centre order. This proposal serves to emphasise the inconsistency of the Government's policy in making it impossible for the court to carry out similar procedures with older offenders.
Similarly, the juvenile courts will welcome the Home Secretary's intention, to which he referred in his opening speech, to use the Bill to introduce sanctions for the breach of a supervision order. I hope that the Home Office will also take the opportunity to implement some of the other recommendations of the Eleventh Report of the Expenditure Committee on the Children and Young Persons Act.
Some form of secure care order of residential order made by the court is obviously an area that we could look at and take advantage of the Bill to implement. There could also, perhaps, be clarification concerning responsibility for the child who offends and is in the care of a local authority. At any rate, I assure the Minister of State that if he does not feel able to bring forward appropriate amendments in the course of the Committee stage, my hon. and learned Friends and I shall certainly do so.
I suggest, too, that we could use the Bill to enable the courts to make shorter detention centre orders. This proposal was raised in another place. The objection was that very little can be achieved in a detention centre in four to six weeks, but the idea of the short, sharp shock, which was the original idea behind the detention centre scheme, seems to me to have a good deal of merit, and it can be effective in certain types of case.
In my view, the Bill merits support. The Minister will have gathered from what I have said, let alone from what I might have said if there had been more 335 time, that I shall not remain mute in Committee. I consider that here is much in the Bill which can be improved. Meanwhile, however, I hope that the House will give it a Second Reading.
§ 8.35 p.m.
§ Mr. Leo Abse (Pontypool)
I turn, first, to an issue which was raised by the hon. and learned Member for Wimbledon (Sir M. Havers) at the beginning of the debate when he discussed how one could deal with some of the abuses which he felt had arisen in the exhibition of certain films. I think it important that the debate which took place in the other House on the question of conspiracy to corrupt public morals or outrage public decency should be continued in this House, Although we all welcome, as we should. the proposal now to contain the abuses which have occurred in the use of the charge of conspiracy, we should equally deplore the fact that, contrary to the recommendations of the Law Commission, we are failing to deal with conspiracy to corrupt public morals or outrage public decency.
We should be failing as a House of Commons if we did not meet the challenge which the judiciary initially put to us on this issue. For hundreds of years such a charge was hardly ever used. Throughout at least 200 years one can find only about three charges, and then suddenly, after a judicial decision which attracted great notoriety, there were scores of charges of this character.
The abuses to which the Law Commission drew attention arose as the number of these charges began to grow, and this happened precisely because a claim was made by the judiciary that it had a residual power in this branch of the law even though such a power had never been granted to it by the House of Commons.
I give notice, therefore, that in dealing in Committee with the issues raised by the Front Bench spokesman for the Opposition we should take in conjunction, as proposed by the Law Commission, the abolition of the offence of conspiracy to corrupt public morals or outrage public decency and the consequential minuscule lacunae which would arise if we abolished that offence, by treating such matters as the showing of films and live acts in the 336 way which the Law Commission so sensibly recommended, on which it put forward concrete clauses which could be embodied in the Bill.
I turn now from that serious blemish to my main point, which is that there is an air of unreality about our discussions. To be able to discuss in terms of admistration how we can best deal with the charges which are clogging up our courts is one matter, but I hope that we shall never overlook the consequences of what we do. We must never overlook what is happening as a result of all the adjudications in criminal cases in our country.
The truth is that the state of our prisons makes us ashamed. I do not need to adumberate how serious the position is. We have had from Mr. Eric White, the director-general of the Prison Service himself, in his address to the Institute for the Study and Treatment of Delinquency, a damning indictment. As he said, there is no point in beating about the bush. Our prison system now does not have the resources to deal properly with those whom it is currently receiving. The fact that there are some 5,000 living three in a cell, 11,000 living two in a cell, and prisoners being kept 20 hours a day constantly locked up is an indictment of the whole system.
If we are to deal with one aspect of the administration of justice, we should do well not to forget the other aspect—that is, how we can administer our criminal law in order to be able to minimise the consequences of our own failure to tackle the nation's penal problems.
May I put a few suggestions? I refer, first, to the retreat which has taken place on the question whether the theft of property worth £20 or less should or should not be an intermediate offence. In that retreat, we have not only said that it is an offence which can be taken before a jury but we have said that the original proposal of the James Committee—that the maximum penalty for theft of property worth £20 or less should be three months' imprisonment—shall go. We have foolishly retreated from both positions because, when we examine the people who are so convicted, the fact is that a large proportion indeed are people convicted of shoplifting. It is about time that the question was asked "How far do we as a community decide to permit 337 our courts to be used to buttress the irresponsibility of many of our large stores?" The question has to be asked, particularly as it is so often the case that shoplifting offences are carried out by a woman who never steal from an individual, whether the community, by incarcerating women shoplifters, should pay the cost of what are deliberate temptations set up by the salesmen to seduce the shopper and maximise profits.
It is well know that when pilferage is too low some stores become not pleased but apprehensive because they fear that it means insufficient salesmenship and goods are not made tempting enough and sufficiently accessible. I doubt whether the community should collude with the new supermarkets, food halls and vogueish large stores designed to attract the heavy-spending teenagers, which are attracting so many shoplifters. If the stores are determined to increase their sales by ostentatiously displaying goods, and at the same time determined to have as few shop assistants as possible, I do not believe that they are entitled to expect the community to gaol those who have become casualties of the store's recklessness.
The insufficiently-controlled parade of goods is evidently too overwhelming for many women who may be disposed to depression, wrestling with some fetishism or masochism, said to be so often the background to an act of shoplifting. It is too irresistible to the young au pair girls affected by loneliness, relative poverty or social isolation.
The highlighted cases of those who do not fall in this category with lots of money who come from abroad can be dealt with by fines. I do not believe it right that we should be increasing the custodial sentence for shoplifting offences beyond three months' imprisonment. If one is serious in trying to use the Bill to diminish our present failures, while at the same time enabling expression of the community's disapproval about antisocial behaviour, this is certainly the type of offence to which we have to give a great deal more attention than we have done and attempt either to end or at least minimise the sentences of imprisonment that are taking place.
Again, the imprisonment of women for soliciting is harsh and pointless. It happens because those who walk the 338 streets are always the least successful and the most inadequate. They often have a history of mental breakdown, attempted suicide, alcoholism or drug dependence and are frequently burdened with a variety of physical disorders. All the reasons show that people of that type, to whom the sentence of imprisonment is being held out as if it were a deterrent, are not the sort of people who are likely to respond to a deterrent. The more successful, of course, those who are not walking the streets, are people who have been caught up and, unhappily I believe, become part of the general institutionalisation and organisation which takes place as part of night club life of the hotel porters, the landlords and all the other elements in whose service they are now enlisted. But the Governor of Holloway Prison and the social workers in contact with those people think it foolish that we should have a situation in which we imprison them.
The figures are also significant. When one realises that it costs nearly £80 a week to keep these people, quite stupidly and needlessly, in prison, where they can gain little more than advice as to where they can move from one town or another, or further information on how to avoid the law so that they cannot be caught for two subsequent offences which could lead them back to prison, it emphasises that in Committee we must look carefully at the whole question of penalties and imprisonment for soliciting and importuning.
The same arguments must apply to importuning by homosexuals. Surely here again imprisonment and other action that we may be taking is not the right response. Indeed, cases of importuning by males need not necessarily involve any element of male prostitution. The Wolfenden Report pointed out:For the most part, those convicted of importuning are in no sense male prostitutes: they are simply seeking a partner for subsequent homosexual behaviour.Instead of talking about imprisonment for such people, we should place more emphasis on other provisions—for example, prevention. It is well understood that importuning and soliciting may be the result of difficulty of these people in coping with problems.
We should give far more support to the various voluntary bodies which have 339 pioneered informal counselling services—bodies such as GALS and the Soho Project, which seek to make contact and help young people newly arrived in the capital. What is required, in other words, is the speedy development of services for young people at risk. I hope that in Committee we shall be able to examine this problem in depth and consider how we can get rid, as we should be getting rid, of the punishment which at present is the only method we seem to be able to apply in sentencing such women, in particular, to imprisonment.
Nor do I believe that the Committee will be able to dodge the question of unlawful possession of cannabis as distinct from possession with intent to supply. No one in the debate has expressed the opinion that we desire to legalise cannabis. It is one thing to decide, as the Wootton Committee wisely said, not to legalise cannabis, but it is another thing to canvass the view that it is wrong that we should be sending hundreds of people to prison for the simple possession of cannabis.
This situation is seen, understandably, as a generation war. It is seen in such terms by the young people who, unhappily, smoke cannabis and do not, like their parents, smoke tobacco, or are not drinking, at least until recently, as much as their parents. The situation is seen as discriminatory, and it is leading again to needless convictions. It is no answer to suggest that here again we have to wait for Godot, to wait for yet another committee.
The evidence collected by the original Wootton Committee shows that there is an opinion already abroad that the right way to deal with the taking of cannabis is not by imprisoning people but that there should be more boldness by the Government in showing their readiness to try to tackle the problem of the large prison population by increasing the categories of people who should be and can be dealt with in a different manner.
We should be able to do something in real terms and not merely tinker about with administration in a way which will feed the narcissism of lawyers, Crown courts, magistrates and administrators. Faced with the agony of our growing prison population, we should be looking for a way of abolishing imprisonment, for 340 example, for the non-payment of fines as such, and instead create an offence of persistently refusing or neglecting to pay a fine when having the means to do so. That is entirely different from sending people to prison because they have not paid fines in cases where the magistrates have clearly inadequately examined the means of the defendant.
How can it be justified that, in 1975, 2,491 drunkenness offenders and 129 people who were convicted of sleeping rough and begging were sent to prison for defaulting on payment of fines? If offenders were failing to pay fines for reasons other than poverty, one would expect that once they found themselves in prison they would secure their release by paying the fine. Yet thousands of prisoners each year fail to buy their liberty. In 1975, 54 per cent. of fine defaulters served more than 80 per cent. of their sentences.
We should seek to give an alternative so that we do not unnecessarily imprison literally thousands of people as we do now, cramming them into local prisons which are in a disgraceful and disgusting state and which are a blot on any civilised society.
There are other matters on which we could wrestle with the problem of the prison population instead of merely acquiescing and raising our hands in horror at its existence. We should not speak with pride about Clause 35, which allows a parent to be imprisoned for non-payment of a fine originally imposed on a young person. This is quite contrary to the view of the Kilbrandon Report, "Children and Young Persons, Scotland", which rejected the idea of transferring fines to parents to help educate parents about their responsibilities. The report stated:The practice of fining parents for their children's misdemeanours seems to be open to serious objection…The educational value, in relation to the parent, must in the circumstances be highly doubtful".Many young delinquents are at odds with their parents in some way. If relationships are already strained, the resentment resulting from ordering a parent to pay a fine could make family relationships even worse, thus placing the youngster more at risk than ever.
Such ill effects are particularly likely to occur if a parent is imprisoned for non-payment of a fine originally imposed on a 341 child or young person. This would be both unfortunate and unfair if the parent did not commit the original offence, and it could be a disaster for the family. It would also be out of all proportion to the young person's offence, otherwise he would presumably have been given a more serious penalty than a fine in the first place. The clause should therefore specifically exclude the possibility of imprisoning a parent for non-payment of a fine originally imposed on a child or young person.
I am speaking hurriedly because many other hon. Members wish to speak and time is limited. There are other issues which have not in any way been sufficiently scrutinised and which require the most careful scrutiny in Committee. The fact that I have emphasised the blemishes in the Bill does not mean that I do not acknowledge what is good in it, which I concede is a great deal. But I do not believe that we can be satisfied, when discussing the administration of criminal law, that we may be taking action which will add to rather than reduce the prison population.
No one who has been into a local prison, a duty that falls to hon. Members as part of our professional duties, can but come out with a feeling of shame and humiliation. Why should this country have more people in prison in relation to its population than any country in Western Europe apart from Western Germany?
The miserable punitive attitudes that show behind this completely sterile way of dealing with the anti-social and the delinquents is something that the House must face up to if it wants to retain its self-respect. I hope that we shall use the Committee stage to make sure that we face up to those responsibilities which have regrettably been ignored all too often in the past in our preoccupation with the minutiae of the law and our concern about the administration of the law. We have too often forgotten the human effects. We are excessively concerned with the machinery of the law and we sometimes ignore the human consequences.
§ 9.0 p.m.
§ Mr. Edward Gardner (South Fylde)
Neither the Law Commission, whose recommendations are implemented in Parts I and II, nor the James Committee, 342 whose proposals form the basis of Part III of the Bill, was invited to deal with one of the most formidable problems of the day—juvenile crime. I have been relieved to read a letter that was written by the Home Secretary to my right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw), which pointed out that at a later stage, as the Home Secretary confirmed today, the Government intend to introduce amendments aimed at this problem.
Year by year the problem of juvenile crime has been growing. It has been stretching the resources of the police, the magistracy and the local authorities beyond anything previously experienced and beyond all tolerable limits.
Eight years ago the Children and Young Persons Act 1969 became law. That Act, in a burst of idealism, provided for the treatment rather than the punishment of young offenders, for the restriction of the powers of the juvenile courts, and for the committal of young offenders into the care of social workers. It is only fair to acknowledge that the problem at that time was regarded as manageable. We even had hopes that the Act would result in the reduction of juvenile crime.
Unhappily, as many predicted, it has done nothing of the kind. Today the law of 1969 still remains unamended, money which was essential to its proper working is unavailable, and I think that both sides of the House would agree that the problem has become unmanageable. It has grown into a monster of a problem, which lives in an atmosphere approaching anarchy and lives on terror, on parental indifference, and on the impotence of the courts, the police and the local authorities. It disports itself on the terraces of football grounds and in the streets of our towns and cities. It brings fear to the elderly, it brings despair to those who care for the proper, orderly and lawful life of our citizens, and it brings shame on any Government, particularly on this Government, who have not done anything approaching effectiveness to stop its ravages.
Proposals were made more than two years ago by the Society of Conservative Lawyers recommending amendments to the 1969 Act. The Eleventh Report of the Expenditure Committee—an all-party committee—made recommendations for the amendment of the 1969 Act. A study 343 group set up by my right hon. Friend the Member for Penrith and The Border recently made similar recommendations for the amendment of the 1969 Act. However, nothing has been done for many years. In another place the Minister of State acknowledged that the Government were profoundly concerned about the problem of juvenile crime. There has been a White Paper on the subject, and the Home Secretary has written letters, but nothing has been done.
I do not for one moment take issue with the Home Secretary for being unable to agree with all the recommendations, but I should expect him at least to adopt and accept some of them. The Daily Mail recently printed excerpts from a book written by a Labour Peer which I believe was called "The Churchill Commandos". It was a fictional account of the backlash that could be expected when a Government have failed to do anything to prevent the growth of juvenile crime and violence. If the growth of juvenile crime is allowed to continue unabated—and that would be wholly divorced from any political party—the facts could well become as frightening as the fiction imagined by that Labour Peer.
The failure of the Government to do anything effective—and I emphasise effective—to deal with mounting juvenile crime in this country is a scandal that should by now have bitten deep into the mind and conscience of the Government and, with respect, into the minds of successive Home Secretaries, including the present one.
I wish to ask a question responsibly because, like the Government, the Opposition are profoundly concerned about what is happening in this matter. What is the Home Secretary going to do about it? In the letter to which I referred before the Home Secretary took his place in the Chamber a moment ago—the letter that the right hon. Gentleman wrote to my right hon. Friend the Member for Penrith and The Border—the right hon. Gentleman was kind enough—and I wish to acknowledge this—to commend the effort that went into the report of the study group that my right hon. Friend set up and to recognise the report as:a serious attempt to examine the difficult question of how to cope with juvenile offenders".344 I am sure that members of the Expenditure Committee who reported on the 1969 Act, members of the study group and I, do not expect the Home Secretary to adopt all the recommendations or to agree with all that has been proposed, but we expect action. The country expects action, and we should like to know what action the Home Secretary will take.
Last week a number of people came into the House to represent anxious opinion in cities and towns throughout the country. The group called itself the Hooliganism and Violence Action Committee. Some of its recommendations did not appeal to the hon. Members who met the group and many of its proposals would not be adopted by the House. However, these people were clearly demonstrating the deep anxiety that they and the country feel about this problem. They wanted to see the Home Secretary to express to him their profound discontent with the present state of affairs, but the right hon. Gentleman declined to see them.
§ Mr. Merlyn Rees
The hon. and learned Gentleman should get his facts right. A lady telephoned me in Leeds and I said that if I were free I would see them, but I was in the House speaking while they were here. The hon. and learned Gentleman is entitled to have his views on the law, but he should not make such statements without getting his facts right. I was in the House doing my duty.
§ Mr. Gardner
I certainly accept the right hon. Gentleman's word. I hope that it will not be thought that I am disputing what he said. I am reporting what I was told by the members of the group.
§ Mr. Gardner
Whether they were right or wrong, I am trying to make clear to the right hon. Gentleman that they represent the anxiety felt by magistrates, police, local authorities and wide sections of public opinion throughout the country.
I note with relief that the Home Secretary has indicated that he will take the 345 opportunity at a later stage of the Bill to introduce amendments to strengthen supervision orders, but I am sure that he will agree that this is only tinkering with the problem. We need something more substantial and more likely to have an effect.
I do not want to take the matter further in this debate, but I suggest that the right hon. Gentleman should contemplate doing what the members of the Expenditure Committee and of the Conservative study group urged upon him, namely, to amend the 1969 Act to give juvenile courts the powers that they clearly need to deal with the hard and persistent young offenders. Without these powers, the consensus is that juvenile courts will remain as impotent as they are today, and the ugly promise is that, instead of diminishing, the disquieting problem of juvenile crime will grow.
I am not over-stating the case or putting it dramatically, but rather stating cold facts when I say that the country is demanding an answer to the problem, and the Government have an opportunity in this Bill of providing a solution.
§ 9.8 p.m.
§ Mr. Patrick Mayhew (Royal Tunbridge Wells)
Our interesting and already valuable debate suggests that we may do as well in our consideration of the Bill as did another place—and that is saying a great deal.
It is difficult not to make a fragmented speech at the end of a debate on a fragmented Bill. We must acknowledge that it is, in essence, a miscellaneous provisions Bill, but the principle on which the miscellany has been compiled is not easy to discern. It is not clear why some provisions are in and others are out.
We know that Part I is based on the Law Commission's thorough work into the law of conspiracy, that Part II is based on the Commission's equally admirable work on trespass, and that Part III includes the bulk of the considerations and recommendations of the James Committee. However, I cannot help feeling that a Criminal Law Bill is a wonderful opportunity to get to grips with a great many other defects in our criminal law and practice.
There is no shortage of defects. They have been identified for a long time. 346 There is no shortage of information about them, but the Bill is silent upon them. For example, one thinks of the report of the Younger Committee on the work of the penal system, which has still not been debated, let alone been the subject of action. One thinks of the Children and Young Persons Act, which was the subject of a powerful and compelling speech by my hon. and learned Friend the Member for South Fylde (Mr. Gardner). The breakdown of that Act has been recognised for many years. It has failed because of a lack of resources and for other important reasons. Despite that, it is only the subject of a White Paper of relatively recent origination.
One thinks of the critical state of the people referred to by the hon. Member for Pontypool (Mr. Abse). There is a case for long prison sentences for the true criminal, but there are categories of people whose present detention in prison serves no useful purpose. We debated this matter on 18th March and there could and should have been some action. We shall return to the issue in Committee.
As the debate has demonstrated, the Bill contains some useful provisions, which we welcome. The Bill has been enhanced in the House of Lords by 200 amendments. We hope that it will contain more by the time it leaves this House.
Perhaps it is handy to follow the order in which the topics appear in the Bill. Before I embark on that task, I wish to raise briefly two issues to which the Home Secretary referred. We welcome the news that he will introduce amendments to deal with the bomb hoaxer. We support what he said about the pravity and mischief done by those who perpetrate these cruel and damaging hoaxes.
We note what the Home Secretary said about the report that is to come on the use and possession of cannabis. We shall listen carefully to the arguments on that subject. In the present state of the drug scene and the present state of public opinion, it is unlikely that we shall think it right to reduce the scope of penalties for the possession of cannabis and similar drugs.
Part I deals with the offence of conspiracy. That is a vital defence for the community in its fight against the criminal. One thinks especially of the 347 speech by the hon. Member for York (Mr. Lyon), who spoke of the vital importance of having an inchoate offence to catch those who are careful not to embark upon the commission of a substantive offence, but who act as the godfather and keep in the background.
Other speakers have dwelt on the importance of such an offence not being abused by prosecutors. I agree with what has been said about that. There have been instances of abuse of the device of conspiracy. That can be dealt with by developing the idea of the pre-trial conference. There is a place for that and it is recognised.
The godfathers, as it were, are the true instigators of the substantive offences. By virtue of the plans they lay and the agreements they make, they are very often guilty of much more culpable conduct than those who actually perpetrate the offences. We believe that it is right that the law should regard their conspiracy as criminal and that the sentences that are ultimately passed upon them should reflect the fact that conspiring is often more culpable than the substantive offence.
We certainly welcome the clear statement that it is no offence to agree to do something which, if one did it on one's own, would be no crime. That appears in the Bill and is an overdue clarification.
We welcome the special provision made about trespass upon diplomatic premises. This releases the law from the ingenious but diverse terms by which the House of Lords upheld the conviction in Kamara's case, perfectly properly, in which students from Sierra Leone invaded and occupied their own High Commission's premises. One of them—I cannot resist mentioning it—was a young man whom I sponsored for the Middle Temple. He is much more distinguished than his sponsor, because he can say that he appeared in a case that went to the House of Lords when a student.
The offence of conspiracy to outrage public morals and decency is retained in the Bill. We recognise that this is contrary to the recommendations of the Law Commission. However, I believe that there should be a place in the criminal law for that. At any rate, it is right to wait, as the Home Secretary has said that he will, for the committee's report into this matter.
348 However, I hope that we shall hear from the Minister of State some comments on the remarks of my hon. and learned Friend the Member for Wimbledon (Sir M. Havers) that, at any rate in the case of cinematographic displays and films, a remedy can be found straight away by taking these within the operation of the Obscene Publications Act 1959. He was absolutely right to say that it is a matter of growing scandal that obscene films should be displayed on such a scale and in such volume here in the capital city of this country.
Next we come to offences relating to entering and remaining on premises, in Part II. The hon. Member for York said that he regarded the Bill as striking a proper balance between what should be criminal and what should be civil, and he supported the provisions of Part II in what was a particularly interesting and impressive speech in that regard.
Many speeches have shown how welcome these proposals are, limited though their scope is. The hon. Member for Leeds, West (Mr. Dean), again in a very impressive speech, based upon personal experience as a member of a housing authority, spoke of the need for local authorities to have more muscle to assist them in getting rid of squatters. This was reflected in speech after speech and, to my particular interest, many of them coming from Labour Members below the Gangway.
The statutes on forcible entry may or may not be dead, but if they are dead they continue to rule us from their graves. They represent a minefield upon which many a dispossessed occupier has blown himself up, and behind which many a trespasser, who may have had no merits at all for his own trespassing occupation of premises, has been able to take up and hold for a long time a position of all-round defence in someone else's house. Even without the rising prevalence of squatting, there was an overwhelming case for bringing the law into line with what most people would regard as common sense, if not justice. We are glad to see the provisions that are made, although they do not go far enough.
The Bill legitimises the use of violence in securing entry if one is a displaced residential occupier, and it makes it an offence to fail to leave a property if one is required to leave it by a displaced 349 residential occupier—who is certain to become known as a "DRO". I should have thought that we would all agree that a DRO should have that protection. The question is, ought only he to have it, or ought it to be extended? Ought it not to be extended to housing authorities or housing associations, or to private developers?
Those are the questions that arise. They have been dealt with in many speeches from Labour Members in which support has come for an extension of the Bill.
The Secretary of State said that the Government had not yet come to a final conclusion and that they would listen to views expressed in both Houses of Parliament. I ought to tell the House—because this is referred to in the Law Commission's report—that it still takes on average up to eight weeks in the county court for possession to be obtained by the civil procedure, and in a very urgent case it can be taken in four weeks, but that is far too long. Therefore, we believe it to be right that the criminal jurisdiction should be invoked. In the manner that is achieved by the Bill, it is not invoked on a sufficiently wide scale.
My hon. Friend the Member for Mid-Bedfordshire (Mr. Hastings) drew attention to the need for similar protection against violent attacks on property and people pursuing entirely lawful occupations and sports in the countryside. That is a matter that will have to be examined in Committee.
The conclusion that we should reach on this aspect of the Bill is that we have to look sensibly and sympathetically at the plight of those who are truly homeless. They often include—we should not forget it—those who have waited loyally and patiently for a council house. They often include those who have taken their place in the waiting list and those who have waited patiently to be allocated a flat, for example, by a housing association. They often include those who have waited for many years to be able to occupy a newly-built house by a private developer.
There have been cases where occupancy has been put back for many months. The hon. Member for Leeds, West spoke of an occasion within his personal knowledge when 30 houses were occupied by 350 squatters when they were on the point of being ready for occupation by those on a council list. The hon. and learned Member for Montgomery (Mr. Hooson) said that squatting in these circumstances was an offence against the community, and with that we completely agree. My hon. Friend the Member for Brighton, Kemptown (Mr. Bowden) said that 1,800 out of 9,000 people on the GLC housing waiting list were denied the right to occupy by reason of squatting. My hon. and learned Friend the Member for Runcorn (Mr. Carlisle) spoke of the council house tenant as being just as much deserving of sympathy as the homeless person who seeks by unauthorised means to get a roof over his head.
We are glad that the Government have indicated that they have an open mind. We believe that this newly created offence should be extended to all residential accommodation.
I now turn to the proposals in Part III to transfer cases from the Crown courts to the magistrates' courts. I am sure that everyone will welcome the simplicity of the proposals for deciding how a case is to be tried. I think that it was in Stalky & Co. that they used to sing the refrain:There's a wonderful text in Galatians Contains ninety-six separate damnations.Under the present law there seem to be almost as many possibilities and procedures for determining how a given criminal case is to be tried. If we start from the premise that the Crown courts are overloaded and should be relieved, we must ensure that we are not merely transferring the delay from the Crown courts to the magistrates' courts. Several hon. Members have made the point that the Government may be doing just that.
My right hon. and learned Friend the Member for Epsom and Ewell (Sir P. Rawlinson) said that we must not imply that a magistrates' court trial was less thorough than a trial at the Crown court and that anything will go at the magistrates' courts. Those with experience of the magistrates' courts will know that that is not the case, but it is important that the point should be made. My right hon. and learned Friend asked what provision has been made for more magistrates. I hope that the Minister of State will be able to help us.
My hon. Friend the Member for Shrewsbury (Sir J. Langford-Holt) said 351 that we must at all costs avoid shifting delay on the magistrates' courts by reason of not giving sufficient resources to those courts to cope with the increased work load. My hon. and learned Friend the Member for Runcorn said that delays are often just as bad in the magistrates' courts, and those with experience of the London magistrates' courts will know that that is right.
If we were to transfer the delay, it would be extremely bad. Indeed, it would be worse than leaving the position as it is. Whereas Crown court delays affect only a small minority of those who come before the criminal courts, further delay in the magistrates' courts must inevitably affect everyone who is party to a criminal trial, namely 1½ million every year. We should have longer delays before hearing dates were reached and longer adjournments with cases part heard. We should have more protracted anguish for defendants and families and worse justice.
We want to know whether the Government are satisfied that they have adequately provided for the increased load in the magistrates' courts. According to the Explanatory and Financial Memorandum, only £500,000 extra has been allocated. One does not get much for that these days. It will hardly pay for an extra waiting room, let alone a new court.
There are already heavy delays in London. If the resources are not there, would it not be better to leave things as they are for the present, bearing in mind that the overcrowding is mainly limited to London and the South-East?
§ Mr. Abse
I do not know why it is continually said that this problem is confined to London and the South-East. Practising in Cardiff, I can assure the hon. and learned Gentleman that the Crown courts are hopelessly overcrowded there and that there is a large amount of work which should be done "downstairs". It is a myth that this is only a metropolitan problem.
§ Mr. Mayhew
I did not say that it was only a metropolitan problem. I said that it was mainly a problem in those areas.
One proposal to which we take exception is that which deprives someone charged with male importuning of the 352 right to jury trial. The arguments which apply here are the same as those, among others, advanced powerfully by the Law Lords in another place for removing the original proposal to deny jury trial to someone charged with theft amounting to less than £20. I am glad that the Government accept the consequence of that defeat.
The guide should be the importance of the case to the defendant, the potential damage, for example, to his reputation. The Secretary of State said that the guide should be the seriousness of the offence in the eyes of society. We disagree: it should be the damage sustained by the defendant. The effect of a conviction for soliciting as a man can be catastrophic.
That is not to say that there are not examples of offences just as disastrous to someone's reputation for which jury trial has never been available. But here the Government are proposing to remove that right, and that is something we oppose.
It has been interesting to hear today, particularly from Labour Members, a passionate defence of the right to jury trial. The hon. Member for Ormskirk (Mr. Kilroy-Silk) spoke of the major safeguard of our liberties that it represented. The hon. and learned Member for Bradford, West (Mr. Lyons) voiced his concern at any proposal to reduce it. The hon. Member for Rotherham (Mr. Crowther) said that he could stomach no reduction in the right to jury trial. The hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) deplored the whittling away of the right.
I am not one of those who deride the British attachment to jury trial. No doubt it sometimes produces absurd and even perverse results. But so can trial by expert. No doubt there are abuses. My hon. and learned Friend the Member for Wimbledon referred to peremptory challenges. The hon. Member for York envisaged their abolition and the expansion of the grounds for challenge for cause.
§ Mr. Kilroy-Silk
Would not the hon. and learned Gentleman agree that the point is not so much whether the trial is fair in the magistrates' court or before a jury, but the fact that most people believe that they will get a fair trial before a jury?
§ Mr. Mayhew
I do not deny that. The point is that at the end of the day, so long as any system of law survives, jury trial is the last bastion against an over-oppressive Executive. Long before the end of the day, it is the best assurance to the accused that his trial will be fair.
I do not say that it provides a better or fairer trial than one gets before lay justices, for whom, like anyone who has personal experience of their work, I have the highest regard. They do their work always well, with exemplary fairness and diligence. But a jury trial provides an assurance that if one is to be convicted, it will be at the hands of one's fellow citizens, holding no office and participating in no way in the Executive—ordinary people for whom the law exists and by whom, along with the defendant, the law has to be observed. That is what a jury trial provides. We cannot provide that right for everybody, but where the consequences of a conviction can be catastrophic—perhaps only for a small minority—we should not alter the law to take away the right of trial by jury.
Drinking and driving have been mentioned in speeches by my hon. Friend the Member for Shrewsbury and the hon. and learned Member for Bradford, West. If we have to reduce the load on Crown courts, I suppose that it is right that this offence—at present tried by the Crown courts and in reality not a criminal offence—should go first. That is what is achieved by the Bill.
However, we must point to the fact that many people represented by motoring organisations are alarmed by the proposal to withdraw the right of jury trial in this case. We want to hear the Government's attitude to representations made by the Automobile Association.
It is a serious point in that lay magistrates are dealing with a conflict of evidence between the police, on the one hand, who say that they have followed scrupulously and honestly, as they must the complicated procedures of the Road Traffic Acts for drinking and driving offences, and the accused, on the other hand, who claims that they have not. We want to know how many Crown court cases the provisions relating to driving are expected to save each year and what proportion of summary convictions are taken to appeal in the Crown court.
354 It is with nostaglia but with acquiescence that we say farewell in this Bill to the offence of dangerous driving, which is being replaced by the offence of driving recklessly. Dangerous driving has never been the same since the comments of Mr. Justice Salmon in the Lewes Assizes when he said:If careless driving gives rise to actual danger it must be dangerous driving even if it were only the result of the driver doing his incompetent best.This was an uncomfortable proposition for a defending advocate to cope with, even doing his competent best.
I wonder whether we need a separate offence of causing death by reckless driving. Surely the test for this will be precisely the test for manslaughter. Why not use manslaughter? I believe that death by reckless driving is a legislative abortion and that it does not bear logical examination.
I turn now from the mode of trial to what happens at the trial. We greatly welcome Clause 38, by which the Lord Chancellor will have the power to make rules for supplying information to defendants. That should happen in virtually every case, whether it is triable either way, or triable summarily. It is an essential prerequisite to a sensible and fair trial.
On sentencing, we are very glad that in another place the provisions of Section 3 of the Criminal Justice Act 1961 were repealed. That is the noblest clause of the whole Bill. We hope and trust that the Government will abide by that amendment, moved by one Law Lord, and supported by two others and a former Lord Chancellor.
To fetter the discretion of a judge so that in the case of a young offender eligible for borstal he may send him to prison only for six months or less, or three years or more, will not reduce the number of such offenders sent to prison. Indeed, it may actually increase them. Certainly it produces injustice between one person convicted and another, and it interferes arbitrarily and unwarrantably with the sentencing discretion of judges. I am not surprised that the Younger Committee recommended its repeal as long ago as 1974.
We echo the statements that have been made about fines, but it is not much use 355 raising the level of fines if at the end of the day they cannot be collected.
On custodial sentences, all our discussions must take account of the fact that prisons are grossly overcrowded and that there is no money for new ones. There is growing agreement that in the case of the first custodial sentence it is the custodial nature that stings and deters and not its duration. Is there not now a strong case for a sentence that is suspended in part rather than wholly suspended as is the case at present? The first part of the sentence, fixed by the court, would be served in prison and might well be short. The remainder would be spent on licence, subject to recall. The court could distinguish between the offence and its gravity in the eyes of the community, on the one hand, and the special circumstances of the defendant, on the other.
We should also like to know what the Government think of a suggestion made in the prison debate on 18th March, namely, the inclusion in this Bill of provision for a statutory remission of part of the sentence whenever there is a plea of guilty. At present we all know that most courts give some reduction for a plea, which is often the only mitigation. The difficulty is that it is hardly ever quantified. In other words, the defendant does not know what was remitted, if anything, the result is that many hundreds of hopeless cases are fought, on legal aid and at the public expense, with all the consequences in delay and inconvenience, on the gamble that there may be a muddled or perverse jury.
I believe that by making such remission statutory, one would merely bring into the open what at present is concealed and uncertain. One would save much time and money in the courts and the interests of justice would be served. There would not be much more risk of a plea under duress than there is now. My experience is that the innocent fight like cats anyway.
The speeches we have heard in this debate reflect the deep anxiety in the House and in the country about the rising level of crime, especially among the young. There is anxiety about the sentences and orders which courts can make, about the fetters we impose on their sentencing discretion about the state of the prisons and of the prison service, and about the job which we expect our prison 356 establishments to carry out. There is certainly anxiety about the delay in getting cases tried. The whole armoury of the community's self-defence against the criminal needs updating and making good.
The Bill, piecemeal though it may be, makes a welcome start. Its provisions can be usefully extended, and it is with that purpose that we shall approach it in Committee.
§ 9.37 p.m.
§ The Minister of State, Home Office (Mr. Brymnor John)
On present calculations, I have enough material and questions requiring a reply to last me for the rest of the week. Unfortunately, I have even less time than that taken by the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) in which to reply. I hope that those whose points I do not answer will forgive me, and I can only hope that those matters will be mentioned in Committee.
The Bill comprises a number of distinct parts and does not lend itself to a single coherent theme. I plead guilty to the fact that it does not solve all the problems of the criminal law that the hon. and learned Member for Royal Tunbridge Wells levelled at me. However, I suggest that the Bill tries to bring about a great deal of advance in wide areas of the law. I believe that the Bill will be beneficial, even though it cannot claim to be totally comprehensive. Clearly, although no Bill of this kind can make such a claim, the Bill must be commended.
Today's debate has excited a great deal of passion—passion not of a party political nature but of a nature which seeks to defend what is good in our law and which seeks to improve it wherever possible.
I shall try to deal with as much of the debate as possible, and I begin by dealing with the question of conspiracy, which I shall take under three heads. First, I wish to refer to the criticism involving the frequency of conspiracy charges. The attraction in that respect will be diminished by the penalty clauses and the assimilation provisions in the Bill. The practice direction will also assist in this respect, as was suggested by the Law Commission. Hon. Members who suggest that all these matters should be enshrined in legislation should 357 not ignore that consideration. That is what the Law Commission said should be done.
I believe that there has been a general welcome for the assimilation of sentencing for substantive offences. The hon. and learned Member for Wimbledon (Sir M. Havers) suggested that the appropriate sentence in cases of conspiracy should be twice the sentence for the substantive offence. He paid tribute to the work of the Law Commission, and I echo his words in that respect. He will know that in paragraph 1.96 of its report the Law Commission said that the working partydid not think it right that where an offence is committed by two or more persons acting together it should he possible for the prosecution to secure an increased penalty by charging them with conspiracy instead of with the substantive offence.The majority of those who commented in writing upon the proposals agreed with that view. Included in that majority were the Bar Council, the Law Society and the Society of Public Teachers of Law. Therefore, even if it does not meet with the hon. and learned Gentleman's approval, it has at least a fairly respectable parentage and is not the result of mere quixotic whim.
The third benefit of the present restatement or codification of the law is that the offence of conspiracy cannot now be a conspiracy for an unlawful purpose but will be a conspiracy to commit a substantive crime. My hon. Friend the Member for Rotherham (Mr. Crowther) referred to Clause 1(1) and his interpretation of it and said that he did not think that it bore the interpretation which the Government had put upon it. I should make clear that what is made an offence is an agreement on a course of conduct which will necessarily amount to an offence if the agreement is carried out in accordance with the intentions of the parties to the agreement. Although it will inevitably be subject to detailed scrutiny in Committee, I have no doubt that the effect of the clause will be as the Government intend it to be.
There has been a good deal of discussion about Part II, and it has in great measure concentrated on the anxieties which all hon. Members have as a result of experience at their surgeries, dealing with housing list questions and people wanting homes. Everyone is concerned about squatting and the problem which 358 it may present vis-à-vis the genuine seeker of accommodation who waits in the queue often for many years.
There are two points to be made here. The hon. Member for Isle of Wight (Mr. Ross) has introduced his Bill to deal with homelessness. That Bill has substantial Government support, and it will, I believe, deal with many of the positive or constructive means of tackling the problem of homelessness. It cannot be said, therefore, that all we are doing is seeking to rely on negative measures.
Second, although there has been no reference to it in the debate, there is a category of consensual squatting. Many local authorities which know that they are not able to develop a set of houses for some time will allow squatters to inhabit the dwellings on a short-term basis until they are ready to develop them. That is what I mean by consensual squatting. There is an agreement between the council and the squatter or squatters concerned.
When we speak of squatting in the context of the Bill, therefore, we are speaking of people who in the true sense take a house without the will or permission of the person whose house it is. I believe that Clause 7 as framed has been valuable in that it has focused the debate on the nature and scope of the remedy. The Government said in the other place, and I repeat now, that we have not ceased to listen to the views of hon. Members on this matter.
There have been some powerful expressions of view during the debate—I have in mind here my hon. Friend the Member for Leeds. West (Mr. Dean) and others—about the scope of the Bill and the problems of local authorities which have actually granted tenancies but then find them frustrated by the occupation of the homes by squatters. We shall listen to all these views and come to a conclusion, guided, of course, by the more detailed scrutiny in Committee.
It should be remembered that the occupation of property is a matter not usually for the criminal law, and certainly one upon which those who have to enforce the criminal law tread with great circumspection. They are not keen to enter upon it unless absolutely necessary. In enacting these provisions, the 359 House must decide whether the criminal law is essential for securing a remedy in this matter or whether there is the possibility of further improvement and acceleration of civil procedures which could in themselves right many of the wrongs—for example, the two months which it now takes to recover possession in the county courts.
There has been some reference to Clauses 6 and 8. I repeat that what the Law Commission primarily wanted to do was to examine and modernise the the forcible entry laws, which are of medieval antiquity and have not been re-enacted or brought up to date since the seventeenth century. Nevertheless, they provide for criminal penalties of up to two years' imprisonment. The hon. and learned Member for Royal Tunbridge Wells said that they ruled us from their grave and they they were dead. They are not dead. In fact, 27 cases were brought last year under these Acts. They are something of a live issue and it is high time that we modernised them.
Many of my lion. Friends have expressed anxiety that these offences will be used in order to inhibit peaceful sit-ins or work-ins. I know that my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk), with his experience of the work-in in his constituency, was anxious about this. As my right hon. Friend the Home Secretary has said, we have launched into a series of the most exhaustive discussions about this.
I repeat on behalf of the Government that it is no part of our intention to deal with peaceful sit-ins, peaceful work-ins or peaceful political protest. What these offences are designed to avoid is the spectre of violence which, I believe, has no genuine part in the sort of activities that I have spoken about.
§ Mrs. Wise
Will my hon. Friend accept that some of us are in considerable difficulty because Clause 6 talks about "threatening violence against property"? That does not seem to us to be something which is dealing with violence as most people would understand it. In fact, it would be very easy to use this provision with regard to things which are in essense perfectly peaceful.
§ Mr. John
I do not agree with my hon. Friend about that, but that is precisely 360 what the Committee stage will look at and debate in even more detail than in the limited time that I have at my disposal. I fully understand the anxiety of my hon. Friends, but I would counsel them that I am not so sanguine about some of the literature dispersed among them with apparent accounts of what the effect of this law is. In many cases it seems to be wholly misleading, and I am bound to say that it raises the suspicion that it is deliberately misleading in many particulars.
§ Mrs. Wise rose—
§ Mr. John
I have already given way to my hon. Friend and I have a very short time in which to wind up a long debate. I should be grateful if I were allowed to proceed.
Part III of the Bill relates to the enactment of the James Report. My hon. Friend the Member for Rotherham said that he could not accept this part of the Bill because of its enactment of principle. I remind my hon. Friend that the enactment of principle of the James Report is the different categorisation of how cases should be allocated in the courts in future. In other words, there are six confused and confusing categories to which almost everyone with experience of criminal law can testify. Out of those six categories of where the case is finally heard, and how it arrives at where it is heard, three comprehensive categories will be introduced, namely, those which are tried purely on indictment, those which are tried purely summarily and those which are triable either way.
I believe that that will confer a great benefit upon the accused, who, almost for the first time, will be able to understand what is happening in the disposition of his own case because he can be told clearly and simply how it is that his case is to be allocated. I think that that is the issue of principle. For the rest, we are talking about the allocation of particular cases. If I may, I shall come back to this in more detail.
The right hon. and learned Member for Epsom and Ewell (Sir P. Rawlinson) and the hon. and learned Member for Royal Tunbridge Wells asked whether there would be extra magistrates. I must be careful here because I get into trouble when I quote statistics. My hon. Friend the Member for Ormskirk will no doubt have apoplexy when I quote these. But 361 let us get the matter into perspective. By our reckoning, if all these offences remain the same as they are, we shall be transferring 6,000, much less than 10 per cent., of the existing Crown court load to the magistrates, who deal with just over 2 million cases a year already.
I am told that there are about 600 magistrates' courts—I think that my officials perhaps made that number up in order to make the division easier—so that we are talking about the transfer to each court of 10 extra cases a year. That puts the thing into perspective and points to the fact that it is not more magistrates who may be needed but more staff. That is why the Financial Memorandum makes provision, for example, for an extra £500,000, which we believe to be a genuine and realistic cost of all the extra work thereby caused. If the hon. and learned Member for Royal Tunbridge Wells cannot get a waiting room for £500,000, he must practise in a magistrates' court far removed from the ones that I remember.
Then there is the question of the prosecution process and whether we should have a State prosecution system. I refer the House to the interesting comments by Mr. Michael Zander this week, in which he pointed out that another look is needed at the process but that the prosecution process of itself cannot be isolated from a more general look and cannot he taken in isolation. The Government have sympathy with these aspirations and are listening with keen interest to the debate now being undertaken on the prosecution process.
The next point I should deal with is the question of the information received by the defendant from the prosecution in the magistrates' court. We are taking a new power of a fairly wide kind. Whatever hon. Members may think, and whatever scepticism my hon. Friend the Member for York (Mr. Lyon) may express, the calculation that we have received is that, for offences which are triable either way, if information about the prosecution's case were disseminated it would cost £4 million. It would also take up, I understand, a great deal of manpower. While we concede the principle, there is no realistic prospect, on both manpower and financial grounds, that this can be implemented quickly.
362 But we are not going to waste time. We are entering into discussions before the Summer Recess to hit upon the best scheme of disseminating such information about the prosecution's case. A number of speeches today have revealed differences in emphases upon what sort of scheme should be introduced. That shows that there is not a clear idea wholly about the question of what information should be given.
§ Mr. John
I have learned from the Local Government Act 1972 never to spend anticipated savings in advance of their ever coming about. Although we expect savings, we are not counting on them until they exist. I cannot now break down the figures for which my hon. Friend has asked, but I will make that information available in a suitable form as quickly as possible.
I turn now to the vexed question of magistrates' courts versus the jury. I am not attacking the jury system. It is not part of my brief or any part of my philosophy to attack the jury system. I believe it to be a most valuable and probably the most valuable part of the English law. But neither can I think it necessary to denigrate the magisterial justices system to make a case for juries.
I wish to make several points. The first is that 97 per cent. of all criminal cases tried in this country are tried before magistrates' courts, and we do little service if we impugn the fairness of those courts.
The second point is one to which I shall stick, although my hon. Friend the Member for Ormskirk and I will no doubt battle through the months ahead as we have in past months about the meaning of the figures. Even bearing in mind the comparative complexity of cases that are referred for trial, if magistrates were as case-hardened and as prosecution-minded as is suggested, even allowing for my hon. Friend's remarks about the comparative simplicity of the cases in the magistrates' courts, any such bias would show up in 363 the acquittal figures. In fact, there is a rough parity in the rates for acquittal.
The third point is the myth into which my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) fell that there has been a steady erosion in the number of cases going to juries. We are talking of hybrid offences. My hon. Friend the Member for Ormskirk spoke of cases that do not carry the right of trial at the election of the accused, such as assaults on the police, offences under the Theatres Act and Section 5 of the Public Order Act. These are hybrid offences which go to trial at a higher court only on the election of the prosecution. We are not withdrawing the right in that regard.
There are a number of hybrid offences triable by the higher court only on the instance of the prosecution which the James Committee recommends should be triable either way. Instead of the 6,000 cases that we are removing from jury trial, we are allowing a further 30,000 offences to be capable of jury trial, so that juries will be able to deal with many more cases if the accused elects trial, under the new system than they could under the old. I think that that is sufficient to answer the question of whether this is a steady uninterrupted erosion of the jury system. It is not.
§ The James Committee tried to strike the right balance. We shall have to continue the debate about particular offences in Committee.
§ On soliciting and assaults on the police and offences under the Public Order Act, I believe that a careful debate in Committee will benefit us, but I ask all hon. Members, particularly my hon. Friends, not to sacrifice the very worthwhile principle of the James Report, on the basis of the allocation of a few specified cases, particularly where the James Report, taken in total, allocates to the jury many more cases that cannot be tried by jury at the moment. We have not received any representations from the Automobile Association about automobile offences, but of course we shall consider them if we receive them and deal with them accordingly.
§ Finally, it is no part of the Government's policy to imprison unnecessarily. That is certainly a matter on which a great deal of time will be taken in Committee. The net effect of the Bill is beneficial. That is why the House will support it wholeheartedly this evening.
§ Question put, That the Bill be now read a Second time:—
§ The House divided: Ayes 188, Noes 15.365
|Division No. 119]||AYES||[9.59 p.m.|
|Abse, Leo||Cox, Thomas (Tooting)||Harrison, Walter (Wakefield)|
|Aitken, Jonathan||Craigen, Jim (Maryhill)||Hattersley, Rt Hon Roy|
|Alison, Michael||Crawshaw, Richard||Havers, Sir Michael|
|Allaun, Frank||Cryer, Bob||Healey, Rt Hon Denis|
|Anderson, Donald||Cunningham, Dr J. (Whiteh)||Hodgson, Robin|
|Archer, Peter||Davidson, Arthur||Hooley, Frank|
|Ashton, Joe||Davies, Denzil (Llanelli)||Hooson, Emlyn|
|Atkins, Rt Hon H. (Spelthorne)||Davis, Clinton (Hackney C)||Horam, John|
|Atkins, Ronald (Preston N)||Deakins, Eric||Howell, Rt Hon Denis (B'ham, Sm H)|
|Bagier, Gordon A. T.||Dormand, J. D.||Howells, Geraint (Cardigan)|
|Barnett, Guy (Greenwich)||Douglas-Mann, Bruce||Hunter, Adam|
|Barnett, Rt Hon Joel (Heywood)||Duffy, A. E. P.||Irving, Rt Hon S. (Dartford)|
|Bates, Alf||Dunnett, Jack||Jackson, Miss Margaret (Lincoln)|
|Beith, A. J.||Eadie, Alex||James, David|
|Benn, Rt Hon Anthony Wedgwood||English, Michael||John, Brynmor|
|Bennett, Andrew (Stockport N)||Ewing, Harry (Stirling)||Johnson, James (Hull West)|
|Bishop, E. S.||Fletcher, Ted (Darlington)||Jones, Alec (Rhondda)|
|Blenkinsop, Arthur||Foot, Rt Hon Michael||Jones, Barry (East Flint)|
|Boardman, H.||Ford, Ben||Jones, Dan (Burnley)|
|Booth, Rt Hon Albert||Fowler, Gerald (The Wrekin)||Kaufman, Gerald|
|Boothroyd, Miss Betty||Fraser, John (Lambeth, N'w'd)||Kilroy-Silk, Robert|
|Bowden, A. (Brighton, Kemptown)||Freeson, Reginald||Knox, David|
|Brittan, Leon||Gardner, Edward (S Fylde)||Lamborn, Harry|
|Brown, Hugh D. (Provan)||Garrett, W. E. (Wallsend)||Lamont, Norman|
|Brown, Robert C. (Newcastle W)||Gilbert, Dr John||Lawrence, Ivan|
|Butler, Mrs Joyce (Wood Green)||Golding, John||Lawson, Nigel|
|Callaghan, Rt Hon J. (Cardiff SE)||Goodhew, Victor||Lester, Jim (Beeston)|
|Carlisle, Mark||Gould, Bryan||Lewis, Ron (Carlisle)|
|Carter, Ray||Graham, Ted||Lipton, Marcus|
|Cartwright, John||Grant, George (Morpeth)||Luard, Evan|
|Clark, Alan (Plymouth, Sutton)||Grant, John (Islington C)||Lyon, Alexander (York)|
|Cocks, Rt Hon Michael||Hamilton, James (Bothwell)||Lyons, Edward (Bradford W)|
|Cohen Stanley||Hardy, Peter||McElhone, Frank|
|Coleman, Donald||Harper, Joseph||MacFarquhar, Roderick|
|MacKenzie, Gregor||Ross, Rt Hon W. (Kilmarnock)||Varley, Rt Hon Eric G.|
|Marks, Kenneth||Rowlands, Ted||Wainwright, Edwin (Dearne V)|
|Marshall, Dr Edmund Goole)||Sandelson, Neville||Wainwright, Richard (Colne V)|
|Maudling, Rt Hon Reginald||Shaw, Giles (Pudsey)||Wakeham, John|
|Maxwell-Hyslop, Robin||Sheldon, Rt Hon Robert||Walker, Harold (Doncaster)|
|Mayhew, Patrick||Shore, Rt Hon Peter||Walker, Terry (Kingswood)|
|Meacher, Michael||Silkin, Rt Hon John (Deptford)||Ward, Michael|
|Millan, Rt Hon Bruce||Silkin, Rt Hon S. C. (Dulwich)||Warren, Kenneth|
|Miller, Dr M. S. (E Kilbride)||Sillars, James||Watkins, David|
|Morris, Alfred (Wythenshawe)||Sims, Roger||Watkinson, John|
|Morris, Charles R. (Openshaw)||Small, William||Weatherill, Bernard|
|Moyle, Roland||Smith, Cyril (Rochdale)||Weitzman, David|
|Mulley, Rt Hon Frederick||Smith, John (N Lanarkshire)||Wellbeloved, James|
|Oakes, Gordon||Snape, Peter||White, Frank R. (Bury)|
|Ogden, Eric||Spriggs, Leslie||Whitehead, Phillip|
|Orme, Rt Hon Stanley||Steen, Anthony (Wavertree)||Whitelaw, Rt Hon William|
|Park, George||Stewart, Rt Hon M. (Fulham)||Whitlock, William|
|Parker, John||Stoddart, David||Williams, Rt Hon Alan (Swansea W)|
|Pavitt, Laurie||Stott, Roger||Williams, Alan Lee (Hornch'ch)|
|Percival, Ian||Stradling Thomas, J.||Williams, Rt Hon Shirley (Hertford)|
|Perry, Ernest||Strauss, Rt Hon G. R.||Williams, Sir Thomas (Warrington)|
|Price, C. (Lewisham W)||Summerskill, Hon Or Shirley||Wilson, Alexander (Hamilton)|
|Price, William (Rugby)||Taylor, Mrs Ann (Bolton W)||Woodall, Alec|
|Rawlinson, Rt Hon Sir Peter||Thomas, Jeffrey (Abertillery)||Woof, Robert|
|Rees, Rt Hon Merlyn (Leeds S)||Thomas, Mike (Newcastle E)||Wrigglesworth, Ian|
|Robinson, Geoffrey||Tierney, Sydney||Young, David (Bolton E)|
|Rooker, J. W.||Tomlinson, John|
|Roper, John||Trotter, Neville||TELLERS FOR THE AYES:|
|Rose, Paul B.||Tuck, Raphael||Mr. A. W. Stallard and|
|Ross, Stephen (Isle of Wight)||Urwin, T. W.||Mr. James Tinn.|
|Ellis, John (Brigg & Scun)||Maynard, Miss Joan||Thomas, Ron (Bristol NW)|
|Hoyle, Doug (Nelson)||Parry, Robert||Wise, Mrs Audrey|
|Kerr, Russell||Richardson, Miss Jo|
|Lamond, James||Rodgers, George (Chorley)||TELLERS FOR THE NOES:|
|Latham, Arthur (Paddington)||Selby, Harry||Mr. Jim Marshall and|
|Lee, John||Skinner, Dennis||Mr. Stan Thome|
§ Question accordingly agreed to.
§ Bill read a Second time.
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).