§ Mr. Dewar
I beg to move amendment No. 121, in page 39, line 39, leave out clause 59.
1161 In different circumstances, this amendment would be the foundation of a wide-ranging debate, but I recognise that now it might strain the patience of hon. Members. I have grave doubts—they are shared by many of my right hon. and hon. Friends—about clause 59. I do not believe for a moment that we shall be fortunate enough to persuade the Solicitor-General to do with clause 59 what he has just done with clause 57, although it would be simple for him to say that he is prepared to accept the amendment.
The basis of our disquiet is that this is a preventive offence—of being a convicted thief in possession of tools with which it may be reasonably inferred that one intended to commit theft or had committed theft. It is debris left on the statute book by the repeal of the Vagrancy Act 1824 and the general agreement that we can do without the sus law. It is a case of lack of courage. The Government have agreed that sus should go and have taken section 4 of the Vagrancy Act 1824 off the statute book in Scotland. However, they have left causes 58 and 59 which, at least in spirit, are very much like the sus law.
I dislike especially the fact that clause 59 creates an offence which is an offence only if the person concerned has previous convictions. It will not be possible to charge a man with no previous convictions who is walking along the street with tools in his possession. If, however, he has been in trouble before, it will be possible to charge him under the clause. Once charged, he is in the unenviable position of having to discharge the onus of proving his innocence against the presumption, which seems to me dangerous, that he is guilty—a guilt assumed because of his previous record. I do not think that this is a good offence. It should not be retained on the statute book.
It is perhaps overstating the case, but it gives a flavour to the argument to say that the Solicitor-General would have been horrified if a new clause had been proposed that it should be possible to pray in aid at a trial the previous convictions of the accused in order to help the jury or the sheriff to reach a decision on his credibility. People would say that it was an abhorrent principle which struck at the whole basis of the assumption of innocence until proved guilty. Yet we are getting into the same area by creating an offence that is chargeable only if the person concerned has two previous convictions.
There are many other attacks that I could make upon the clause. Many are common to clause 58. They will be familiar to anyone who has read the Home Affairs Select Committee report of 1978–79 which led to the abolition of the sus laws. It is not right to put upon the statute book contrived offences based upon situations and actings that fall far short even of the Scottish law of attempt. We are in the position of saying, "We think you did it. Perhaps you have not got round to it or even got round to something that could be described as an attempt, but we still believe that the intent, as distinct from the attempt, was present, and we will do you under these surviving preventive offences". This seems to me a flawed and dangerous position. That is why the amendment has been moved.
I have presented what I believe to be an almost insultingly brief and telescoped résumé of the argument. It is, however, important to have that argument on the record. People occasionally read Hansard when they do not read reports of Standing Committees. I am perhaps according the Solicitor-General too much credit in believing that he may have some sympathy with the 1162 argument. The preventive offences in the Bill will be defended presumably on the grounds that crime prevention is important.
The real principle and working practice should be that the law punishes men, severely, if necessary, for offences that they have committed and offences that can be proved according to the normal standard of criminal law of Scotland. If that is not possible, we should not try to erect contrived and artificial situations that do no credit to the law. At the end of the day, they infringe the reputation of justice in the criminal courts. Clause 59 falls into that category. I would like to think, even at the eleventh hour and fifty-fifth minute, that the Solicitor-General might be prepared to abandon the clause.
§ Mr. Gordon Wilson
I support the hon. Member for Glasgow, Garscadden (Mr. Dewar). We have always enjoyed the principle in the courts, with one or two exceptions, that a person is innocent until proved guilty, and the onus for so doing is on the Crown. It would amount to lazy prosecution to produce previous convictions to a court to secure a conviction which might not otherwise be obtained. I believe that it has been agreed that the sus offences are to be eliminated. It is a pity that that principle has not been accepted by the Solicitor-General and the Government. I have no doubt that within a year or two a criminal justice Bill will be brought before the House which will strike clause 59 if not 58 out of the Civil Government (Scotland) Bill. Legal opinion is that that offence can no longer be justified, and that civil rights cannot be invaded by such a law.
I am sure that the Solicitor-General accepts that the onus is on the Crown to prove guilt, and it should be done by the means that apply in most cases. All citizens are presumed to be innocent until they are found guilty. Many people who will be prosecuted under clause 59 may well be guilty of the offence with which they are charged. That assumption might apply to many other offences, but Parliament has ensured that the rules of natural justice should apply. Our judicial system is established on the principle that innocence is assumed.
These offences are a flaw in our legal system, which should be removed. The Solicitor-General and the Government have an opportunity to do so by accepting this amendment, which removes those objectionable offences and relies upon the normal rules of evidence to secure conviction. Many people prosecuted under clauses 58 and 59 may be guilty, but many others will be convicted who are not guilty of the offence with which they are charged. They will be convicted because at some time in the past they had committed some other criminal offence. Under our system, once one has committed a crime, been convicted and served a sentence, that is the end of the matter. It is wrong that a conviction should be used to buttress what might be an uncertain prosecution where conviction could not be secured under the normal rules of evidence.
§ The Solicitor-General for Scotland
In Committee we had a fairly detailed discussion about this group of offences. We considered in detail the law of attempt in Scotland. One of the points that has to be made at the outset is, that there are, as the hon. Member for Glasgow, Garscadden (Mr. Dewar) would recognise, more extensive powers under the Burgh Police (Scotland) Act 1892. 1163 Clause 59 is a considerably curtailed replacement for the existing powers. The aim of clause 59 is to help crime prevention, but important safeguards are included.
We are seeking to catch those people with previous convictions for theft who are in possession of burglary tools. From such possession it may reasonably be inferred that such a person intends to commit theft. Section 409 of the Burgh Police (Scotland) Act 1892, covers both known and reputed thieves. We believe that it is justified to penalise those people with previous convictions who are in possession of burglary tools. We do not believe that it is so in the case of an individual who has no previous criminal record.
I was surprised by the hon. Gentleman's argument. I recognise in totality that he does not like the idea of these preventive offences, but I should have thought that he would welcome the restriction of their application to those instances where the persons who could be charged with them have a record of previous convictions not across the board but only for convictions of theft. That is why we have dropped the reference to "associates" and replaced the pejorative term "known or reputed thief" with the provision in subsection (4) applying the offence to those who have two or more extant convictions for theft. I am sure that the hon. Gentleman has noticed the later amendment proposed.
I understand why there is unease about clause 59 applying to convicted thieves, but for the provisions to apply to any person would be unacceptably wide. They should be restricted to people with a record of crimes of theft, given the crime prevention aims of the clause. Amendment No. 123 will further restrict the clause to people with convictions for theft. It should also be remembered that the person has to have two or more previous convictions and that the clause will not apply to a first-time offender.
I also stress the important safeguards. The mere possession of tools is not sufficient. The circumstances of the possession must be such that it may reasonably be inferred by the constable in the first instance and ultimately by the court that the person intended to commit theft or had committed theft.
Because the provision applies only to a person with previous convictions for theft, the hon. Gentleman suggests that it is to be inferred that the possession by him of the tools is sufficient to indicate that he intends to commit a theft. If he looks at the clause he will see that that is not right. The circumstances must be considered to see whether it can reasonably be inferred that the person charged intended to commit a theft.
§ Mr. Gordon Wilson
The Solicitor-General is right to point out the conditions in the clause that weaken the offences in the Burgh Police (Scotland) Act 1892. But in itemising each of the relaxations that the Government have put forward he has given no reason why an objectionable offence is to be continued on the statute book. I hope that he will say why the Government seek to keep one of the sus laws on the statute book.
§ The Solicitor-General for Scotland
We see this as an important crime prevention measure. The issue was carefully considered by the working party. It agreed with the views of a large number of hon. Members that other 1164 offences should properly be deleted, but the working party and the police considered that this offence should be retained.
The aim is crime prevention, but the provision is nothing like as wide as it was originally. I am pointing out how it is circumscribed, in contradistinction to the provisions in the 1892 Act.
The person charged will have every opportunity to demonstrate that the possession was not for the purposes of committing theft. It is only if he is not able to do so to the satisfaction of the court that he will be guilty of an offence. I therefore make it clear that I do not see this as a draconian provision. A convicted thief is not liable to an offence under the clause simply because he is in possession of burglar tools. It has to be clear that he intends to commit theft, and has no satisfactory explanation.
I am sorry that the earlier agreement by me to delete a clause from the Bill should have excited the hon. Member's hopes that I would follow on with a deletion in this clause. Possibly his hopes were not particularly high, and in that case he accurately assessed my position.
§ Amendment negatived.
§ The Solicitor-General for Scotland
I beg to move amendment No. 123, in page 40, line 24, leave out from 'convictions' to end of line 26.
Mr. Deputy Speaker
With this it will be convenient to take amendment No. 124, in page 40, line 26, at end insert—'(4A) Without prejudice to subsection (4) above no appearance before a children's panel shall be taken into account in deciding that this section applies to any person'.
§ The Solicitor-General for Scotland
As I have said, in terms of clause 59, it is an offence for a person with two or more convictions for theft to have in his possession burglar tools, from the possession of which it may reasonably be inferred that he intends to commit, or has committed, theft, provided that that person is unable to give satisfactory explanation of his possession. Under subsection (4) convictions are defined in terms of section 1(4) and section 3 of the Rehabilitation of Offenders Act 1974.
In Committee my hon. Friend the Member for Dumfries (Sir H. Monro) and the hon. Member for Glasgow, Garscadden (Mr. Dewar) expressed some concern over this definition, particularly with regard to children under 16 who have been referred to a children's hearing on the grounds that the child has committed an offence. That would fall within the ambit of clause 59.
I accept that that would be inappropriate and contrary to the philosophy of the children's hearing system, and the amendment is designed to ensure that only those children over 16 with a conviction proper for theft fall within the scope of clause 59. It does this by removing the reference to the extended definition of conviction in the 1974 Act and leaving "conviction" to be read in its normal sense. The Government amendment therefore achieves what the hon. Gentleman's amendment seeks to do.
The amendment means that only those who have two or more convictions for theft are liable to be subject to clause 59. I imagine that the amendment will be welcome on both sides.
§ Mr. Dewar
The Solicitor-General is right in thinking that the amendment will be welcome. It is an interesting example of what happens when one asks naive questions 1165 in Committee. I did not imagine that a children's panel appearance, the acceptance of grounds of referral before a children's panel, or the establishment by the sheriff as a result of a denial of grounds for the children's panel would count as a conviction or a qualifying mark that might lead to prosecution under clause 59. I asked that question in Committee, not maliciously but because it occurred to me, and when such questions occur one pops them out.
It is well worth doing that because the Minister made it clear that appearance before the panel was a conviction in terms of clause 59. I am pleased that, as a result of the pressure that was put on the Minister from both sides of the Committee, the Minister has come up with his version, which overcomes the problem.
It is a matter of some importance because this is a sensitive question. A large number of us take the view that the whole relationship of the children's panel system to the Rehabilitation of Offenders Act 1974 is in need of re-assessment. I had a quite lengthy correspondence with the hon. Member for Renfrewshire, East (Mr. Stewart) in his short interregnum when he was in charge of social work. He flashed through the social work world leaving hardly a trace behind him, except for a few letters in my files. Some of those letters deal with the importance of whether a children's panel appearance and the acceptance of grounds of referral should be a conviction in terms of the Rehabilitation of Offenders Act 1974 and whether it should be covered by section 3 of the 1974 Act.
In a number of lengthy letters—I make no complaint about that because the matter is worthy of proper consideration—the Minister took the view that it would be an anomaly if we treated a juvenile offender in Scotland on a different basis from a juvenile offender in England. If a 15-year-old child in England is involved in a theft, he goes to the juvenile court, whereas in Scotland he would go to the children's panel. The Minister seemed to think that common justice should ensure that both should be treated in the same way, as they were both convictions under the Rehabilitation of Offenders Act.
The logic of that argument is flawed, because there is every reason why a distinction should be made. That is the point of the reform introduced after the Kilbrandon report. Scotland has taken the child in trouble out of the criminal system. The children's panel is a means of mobilising help. It is a disposal agency. It is not part of the criminal courts. There should be no question of an appearance before the children's penal being counted as a criminal offence and a previous conviction.
That wide-ranging point gives piquancy to this debate. I am glad that the Minister has at least accepted the logic of our arguments. I hope that he will try to persuade his colleagues that we should look again at the whole problem of the Rehabilitation of Offenders Act. As that Act covers children's panel disposals, there are a number of important areas of employment where it is necessary to disclose such an appearance as though it were a previous conviction.
That is offensive to the spirit of the panel system, and has caused much anxiety to many of those who work hard to keep the system going. I am sure that all hon. Members agree that those people are doing valuable work.
I was pleased to discover in Committee that many Conservative Members were appreciative of the children's panel system and the way in which it had developed. I 1166 referred to the fact that the Tory candidate in Coatbridge and Airdrie had made a campaign point of the success of the panels and said that Scotland was fortunate to have them. That is an important sea change in Conservative opinion, which I welcome because at best Conservative Members have been extremely grudging in the past.
I hope that this good will will be translated into action and that the Minister will continue in the spirit of amendment No. 123 by looking at the wider issues to which I have referred.
§ Mr. Robin F. Cook (Edinburgh, Central)
I also welcome the amendment and warmly support the remarks of my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) about the Rehabilitation of Offenders Act.
I am privileged to have in my constituency the headquarters of the Lothian children's panel, and I have regularly met the reporter and some of its members. I am well aware from my discussions with them that they are deeply concerned that the children's hearing system should have become entrammelled with the Rehabilitation of Offenders Act.
It was never intended that an appearance before the children's hearing should constitute a conviction, and for the first three years of the system there was no question of such an appearance constituting a conviction. The question of a conviction arising became possible only with the passage of the Rehabilitation of Offenders Act.
It is worth recalling that the insertion of the passage relating to the children's hearing system in Scotland occurred on Report, without any consultation with the children's panels, and the debate was perfunctory and consisted of two columns in Hansard on a Friday morning.
I believe that on that occasion the House committed a fundamental error. There is no prosecution before a children's hearing, and it therefore logically follows that there can be no conviction.
I have also seen the correspondence from the former Minister who had responsibility for social work in Scotland. The Minister claimed in that correspondence that it is fair to treat such an appearance as a conviction because an appearance can occur only when there is an admitted offence. An appearance before a children's panel does not necessarily mean that the child has admitted an offence. All it means is that the child has accepted that there are grounds for referral.
The matter is well set out in a letter that I have seen from the chairman of the chairmen's group of the children's panel. He said:As a result of this change it is now the case that a child may incur a conviction without benefit of Scottish court procedure, rules of evidence, opportunity for defence and the decisions of a judge or a sheriff, but may incur that conviction merely by accepting the grounds of referral drawn up by a reporter, not necessarily a lawyer, who considered that child in need of compulsory measures of care, possibly because of deficiencies in his family".I find it offensive that such an acceptance of grounds of referral should constitute a conviction.
There is a second reason why I believe that the confusion between the children's panel system and the Rehabilitation of offenders Act is inappropriate. That Act necessarily involves a tariff of gravity of offence. That tariff of gravity is wholly irrelevant to the children's hearing process. The primary reason why a child may be brought before a children's hearing is not the gravity of the offence but the nature of the home background, and 1167 whether the child needs a supervision order. It is perfectly possible in the case of a child who has committed a trivial offence for the reporter to decide that that child should have a referral to the children's hearing because of the nature of the child's home background, and that background dictates the care for a supervision order.
Conversely, it is possible where a child has committed a serious offence for the reporter to believe that there are no grounds for a supervision order, and where the matter can be dealt with himself, without the formality of a referral to a children's hearing. The effect of the Rehabilitation of Offenders Act is that the former case, which stands on a trivial offence, becomes a conviction, but the latter case, which may turn on a more serious offence, does not become a conviction. I find that offensive, because the only difference between the two cases may well be the assessment of the home background from which the child came.
In my view, the House has committed a profound mistake in that addition to the Rehabilitation of Offenders Act. We have confused a system of offence—which the Act necessarily recognises—with a system of welfare, on 1168 which the children's hearing system turns. It would have been better if, during our proceedings on this Bill, we had had the opportunity to remedy the basic problem by accepting new clause 9, to which my hon. Friend the Member for Garscadden and I have attached our names. That new clause has not been selected, for reasons that I well understand. Nevertheless, although we shall not have the opportunity on this occasion to remedy that error, I am glad that at least we shall not compound that error by widening the scope of conviction under the Rehabilitation of Offenders Act, with the effect that what is recognised as not a real conviction but a notional conviction in front of the children's hearing, may become the basis of future real convictions under this clause.
I therefore welcome the amendment, but I hope that the Government will look at the basic problem from which the amendment stems on a future occasion.
§ Amendment agreed to.