HL Deb 24 March 1870 vol 200 cc563-71

inquired of Her Majesty's Government, Whether they intend to bring in, during the course of the present Session, an amending Bill to the Habitual Criminals Act of last year? He wished to have some explanation of the progess that had been made in its administration, for as it had passed through Parliament, it had not been improved. A variety of clauses in the Act were so altered, mainly in the House of Commons, as to make the Act quite impracticable in parts. He would point out some of these clauses. The last clause but one—the 16th—enacted that the provisions of the Industrial Schools Act of 1861 should apply to all children under this Act; but, it appeared that the Act of 1861 had been repealed, and that the only Industrial Schools Act in existence was one of 1866, and therefore the section was nugatory. In Clause 14, there was a very similar defect. That clause provides that certain forms set forth in the second Schedule should be used in all such matters as such forms referred to; but, if the Schedule was referred to, it would be found that the forms were contained not in the second, but in the third Schedule, and therefore this clause also was inoperative. Again, Clause 11 contained provisions in reference to receivers of stolen goods, to the effect that where any person who should have been convicted of previous offences involving fraud or dishonesty was found in possession of stolen property, the burden of proof should be cast upon him. As the Bill left their Lordships' House, the clause provided that the prisoner should be deemed to have known that such goods were stolen, unless he should prove to the contrary, and that seven days' notice should be given him to enable him to do so. These last words were originally contained in the enacting part of the clause; but in the House of Commons, they were omitted from the enacting part of the clause, whilst the words he had previously referred to were left in the form of notice which was to be given to the prisoner. The consequence was that, when the clause was brought under the notice of Mr. Justice Keating, he held that it was inoperative, being contained simply in the notice. Now, surely it was the duty of the Government to have taken care that the clause was so worded as to be workable. In the last paragraph of the 8th clause, though there was not an actual fault, the words were, at all events, so loosely put together that the meaning was very ambiguous. It was provided that the convict who had been sentenced to penal servitude should not, during the time that he was at large under any licence, be deemed, for the purpose of this section, to be undergoing his punishment. This seemed to have been drawn in the circumlocution office, and it was very difficult to assign any distinct meaning to it. What he understood it to mean was this—that the time that the convict should be at large should not be reckoned in the time for which he was sentenced to penal servitude; but if so, it was very circuitously expressed. As to the provision in the 11th clause that seven days' notice should be given to a prisoner who was charged with receiving stolen goods, that proof was intended to be given of previous convictions against him: now, the practice was this—Almost all these prosecutions were conducted by the clerks of the divisional benches, and, as a rule, the briefs to counsel were not handed, in until the day before the trial; and the result was that, even if the provision had been in the enacting part of the statute, it would still remain inoperative in consequence of the practice in delivering briefs. These were some of the defects to which he wished to draw attention, so that they might be dealt with in any amending Act; but he would also ask what was the progress made in establishing the machinery proposed to be set up by this statute. He was afraid, from all he could see, that there were some local difficulties which stood in the way. There were difficulties in the counties from the variety of jurisdictions contained in them; there was also want of concert between the chief authorities of the different counties, though it was obvious that communication and co-operation between them was essential to the efficient working of the legislative system, independently of the fact that internal arrangements in some counties were sometimes an obstacle, for the police had their beats changed as often as once a month, and therefore they had not time to become acquainted with suspected persons. The whole scope of the Act was contained in the clauses which provided machinery for the identification of offenders who had been previously convicted; and yet he feared that as yet there had been no concert, communication, or common system to make the records of one county available in another. He would suggest whether it would not be desirable to photograph prisoners who were suspected of being habitual criminals, in their own dress, before trial and before their hair had been cut. The usual practice was to photograph the prisoners in their prison dress and after their hair had been cut, so that in nine cases out of ten the photographs were almost useless. On these points the county authorities would naturally look for assistance to the Central Registration Office in London, but from what he had heard, he was afraid that department had not yet been thoroughly organized. There were powers in the Act which enabled the Government to place this office under the control of a person who should not be the Commissioner of the Metropolitan Police; but it had, in fact, been put under the control of the Commissioner, who, being engrossed with the subject of the cabs of London, had not probably been able to devote much attention to it. In the 6th clause there was a provision that certain Returns should be made to the Registration Office, and he should be glad to know whether they had been made, or whether they were forthcoming; for upon them the whole registration was based, and until they were made the Act would remain very much a dead letter. In the 4th section there was a paragraph that a certain section was repealed, meaning that which said that the holder of a ticket-of-leave should not be called on to report himself monthly to the police; and he should like to know what substitute had been provided so as to insure supervision. The 8th clause said that a person who had been twice convicted of felony should be subject to supervision, and certain grave disabilities were imposed upon such persons by that clause. He supposed that some steps had been taken that the convicts should be informed on their discharge what these disabilities were; for it seemed to him only fair and reasonable that this should be done, so that they might know exactly what was expected of them and of the penalties for disobedience. He much preferred the Bill as originally drawn, to the shape in which it came back from the House of Commons; and he particularly regretted the omission of the compulsory penalty of seven years' penal servitude upon the third conviction for felony—not that he laid any special stress upon the third conviction, but because he maintained that after a certain number of offences mercy to the criminal and the interests of society alike required that the term of punishment should be considerably extended. A succession of short sentences were neither reforming nor deterrent, and were very detrimental to society. It might appear objectionable to fetter the discretion of Judges as much with regard to the minimum as to the maximum punishment; but he believed the majority of them would welcome some limit, if it were not so rigorous as to allow of relaxation in exceptional eases. It might, for example, be provided that after a certain number of convictions a certain punishment should be imposed, unless the Judge recorded, in some way, his reasons for mitigating it, or at least the fact that he had mitigated it. The Habitual Criminals' Act was of so much importance to the country that he had felt it his duty to point out the errors that had crept into it, and he hoped that the Government would think it their duty to remedy them at the earliest date.


said, he hoped that as he had himself placed a Notice on the Paper in reference to this subject, he might be permitted to offer a few remarks. The suggestions that occurred to him had arisen out of a case which had been brought before the Bench of magistrates of which he was the chairman. The information charged a publican with knowingly permitting thieves or reputed thieves to assemble in his house. There was a moral conviction on the part of the Bench that these men were reputed thieves, because the policeman that had laid the information and procured the conviction was in court; because the Bench had themselves convicted these men of theft, they had the register of this conviction in court, and lying before them, and the inspector of police was present and ready to give evidence. The solicitor for the defence, however, said what is your legal proof of conviction? He (the Earl of Albemarle) looked into the Act, and there was no provision on the point. The solicitor said that legal proof was necessary; that this was a new and stringent law, and that legal proof must be produced. The magistrates were very much of opinion that legal proof was necessary—but perhaps they were wrong, for he was no lawyer. Would any noble and learned Lord inform him whether legal proof of conviction was necessary under the Act? and if it were necessary he would suggest that a clause should be inserted into any amending Act defining what evidence should be necessary to constitute legal proof of conviction. He was very unwilling at any time to trespass upon the attention of the House, and most of all on questions upon which he might say that he was profoundly ignorant. He was a justice of the peace, and therefore almost necessarily ignorant of the precepts of the law. He went into the library to see if he could settle the question for himself, but he could find nothing satisfactory. At last he recollected that a great legal authority formerly in that House, Lord Campbell, said that Shakespeare was a lawyer; so that he (the Earl of Albemarle) thought he could perhaps find a solution in Shakespeare,and he found this in Dogberry's instructions to his watchmen— If you meet a thief you may suspect him, by virtue of your office, to be no true man: and for such kind of men the less you meddle or make with them why the more is for your honesty. Now, unless they had some definition of what a reputed thief was the magistrates could not "meddle or make with him;" it might be better for their "honesty" that they should not meddle with reputed thieves, but the ends of justice would not be satisfied in this way. If the Bench had been trying the case under the Ale-house Act, 9 Geo.IV. c. 61, the defendant would have been asked to produce his licence; but the solicitor for the defence said that they could not ask him to do anything of the kind under the Habitual Criminals' Act. He should be glad to see all the Acts relating to public-houses superseded by one comprehensive measure so framed as to go on all fours with the Habitual Criminals Act.


said, it was the intention of the Government to bring in a Bill to amend the Habitual Criminals Act, this being necessary, apart from the defects pointed out by the noble Earl, in order to make more explicit provisions as to its working in Scotland, to which it was extended by the other House. These provisions were not so clear as was desirable, and an amending Bill would be brought in in order to render them more clear. On reading the Act carefully, after the noble Earl's Notice of his Question, he discovered several of the defects to which he had called attention—which, it was only fair to this House to say, were attributable to the Amendments made in the other House of Parliament; and, having had charge of the Bill here, he was willing to admit that he was open to a certain amount of censure for not having taken care that these defects were remedied. Some of the Commons' Amendments were improvements in their intention, but were not so fully carried out in subsequent clauses as to make the Bill intelligent and consistent. In the amending Bill these faults would be rectified, and the opportunity would be made available for rendering the Act as efficient as possible. It had produced, he was glad to assure the noble Earl, much good, and was found on the whole to work extremely well. In the metropolis several well-known haunts of thieves had been broken up, and the criminal population placed under much greater restraint. This too, he was informed, was the case in several of the large towns. As regarded supervision, no experience could yet have been obtained of the working of the system, for the criminals sentenced since the passing of the Act had not in general at present been discharged. The noble Earl (the Earl of Carnarvon) had scarcely done justice to the Chief Commissioner of the Metropolitan Police. He (the Earl of Kimberley) had himself been in communication with that officer; for however arduous his other duties might be he had by no means neglected the duty that had been entrusted to him in regard to the supervision of criminals; and a subordinate had been appointed, whose sole duty it would be to carry the registration into effect. 9,609 Returns had been received from the police as to the conviction of criminals, and a large number from governors of gaols. These had been carefully entered in such a form as to be available for use throughout the country when the opportunity arose. The photographic part of the arrangement, which was very important, had not yet been carried out, since it rested partly with the local authorities, and some little time must elapse before any new system could be put in operation; but a circular had been sent to all the gaols requesting that apparatus might be provided for tailing photographs. The Chief Commissioner had also communicated with the police authorities on the best means of effecting the speedy dissemination of registration intelligence throughout the country, so as to insure the detection of persons subject to penalties on account of previous convictions. The Commissioner was fully alive to the great advantages offered by the new system, and no pains would be spared to make the machinery efficient. He was not able to give an immediate answer as to the substitute for the obligation of ticket-of-leave men to report themselves personally to the police, not having been aware that the noble Earl would desire information on the subject; he would, however, obtain the necessary information. With reference to the remarks of the noble Earl behind him (the Earl of Albemarle), no prudent man would venture on a precise interpretation of the words of an Act of Parliament, and it would be even more imprudent to say what evidence would be sufficient to convict a supposed criminal. His difficulty in answering a hypothetical question was, moreover, the greater since he was unluckily comprised in the very honourable class of justices of the peace, and was, therefore, according to his noble Friend, unacquainted with the precepts and practice of the law. There was a definition of theft in Shakespearewhich was at his noble Friend's service if of any advantage to him, for Falstaff, objecting to the word "steal," said, "Convey, the wise it call." Seriously, however, he believed the words in question were adopted from previous Acts, and he apprehended no practical difficulty in carrying out the law if the evidence was sufficient for the purpose.


believed it was Ancient Pistol, and not Falstaff, who said, "Convoy, the wise it call—Steal! foh! a fico for the phrase."


said, that he had in that House recommended the extension of the Act to Scotland, but without success, though subsequently in the other House it was adopted. It had, however, been at present inoperative, and he was glad to hear an amending Bill was to be introduced; for if the law was stringent in one part of the country and lax in another, there would probably be a migration of the criminal population from the former to the latter. There was one class of offences, indeed, in which something of the kind had already occurred, for recent decisions against betting agents had given a great blow to these persons in England, and many of them had betaken themselves to Scotland, where there was either no law which would deal with them, or one wholly inoperative, and where they carried on their operations with impunity. He had taken that opportunity of calling the attention of the Government to the subject, and, although he did not expect to elicit any statement from them at that time, he trusted that they would take the matter into consideration.


said, there could be no objection to extend any now Act which might be passed dealing with habitual criminals to Scotland, provided its clauses were so drawn as to harmonize with the existing laws and institutions of that country. Unless that was properly attended to, we might expect a repetition of the failure he had predicted when clauses as to Scotland were introduced into the present Act at a late stage of its progress. Upon the question whether or not Shakespeare was a lawyer, he was aware that Lord Campbell had written a book discussing the ques- tion whether the great dramatist had been bred in an attorney's office, but not deciding the point; and when he had asked him what his private opinion upon the matter was, the noble Lord had declined to commit himself to an opinion one way or the other.


thought that a sufficient explanation of the imperfections of the Habitual Criminals Act was that it only came up in its amended form to that House from the Commons on the 7th of August, that it was not printed in that form until the 9th, on which day the Amendments were agreed to by a single vote, on the assurance of the noble Lord in charge of the Bill that they were all right, in order that it might receive the Royal Assent on the 1lth of August—the day Parliament was prorogued.

House adjourned at a quarter past Six o'clock, till To-morrow, half past Ten o'clock,