§ Order of the Day for the Second Reading read.
§ THE LORD CHANCELLOR (VISCOUNT HALDANE)
My Lords, I have risen to move the Second Reading of the Criminal Justice Bill. In a material respect it resembles another Bill relating to justice, the Second Reading of which your Lordships passed last week. It is a Bill which, like the last, stands for continuity. It is the work of more than one occupant of the Woolsack, and to-day, in this Bill, there are many provisions which I have inherited from Lord Cave, and some which I have added and of which, I hope, he will not disapprove.
To me the most important Part of the Bill is the first Part, which deals with probation of offenders. The proposal of the Government is to make the probation system effective, and for that purpose to expend on it a moderate sum of public money. I know how careful we have always to be about any demand on the public purse, but I have said before now, and I shall say it again, that we must always remember there are two sides to every account. There is that other side of the account in which you have a great-deal of expenditure that would not be necessary if you had an adequate machinery of justice, and which you hope to save by making your machinery adequate. To-day there are a vast number of young persons, first offenders in circumstances which are very extenuating, who are consigned to gaol because there is no other way of dealing with them. That is a very bad thing, if it can be avoided. It means not only cost to the public in paying for persons in gaol, but it means, in too many cases, degradation and the commencement of a criminal career on the part of those who have lived a life which may have been almost blameless up to that date and who are consigned to prison.
304 The purport of the probation system v. as to obviate that. The person now found guilty, if he is very young and, if it is a first offence, or if there are special extenuating circumstances, is now bound over under recognisances which compel him to come up again for trial and receive his full sentence, if necessary. But in the meantime, and in the hope that you may reform him, he is put under the observation of the probation officer—on leave, so to speak—and if he behaves himself he is reported on, and in the end discharged. That is the system which, in a small degree, indeed far too small a degree, is working at the present time. I do not speak on this matter merely from instructions. I have been connected with the Magistrates' Association of England and Wales, and we have had this question under our close consideration for some time. I have been pressed by magistrates in all parts of the country as to the desirability of extending this probation system. I am convinced that the probation system, properly administered, will diminish the number not only of our present criminals but of our habitual criminals, and will thus save the State substantial sums of money in the end.
But if the probation system is to be of any value there must be properly-qualified probation officers. The purpose of the early Part of the Bill is to effect this, and to extend the powers and numbers of the probation officers and avoid what has been the cause of the system being largely inoperative at the present time. In the year 1907 the Probation of Offenders Act was passed. It was a very good Act but for one thing. The State said: "Let there be probation officers," but it did not propose to assist their employment. It left this for the rates. Public spirited men and women came forward and assisted in this direction but not in sufficient numbers, and, as for the rates, in some cases local authorities acted up to the spirit of the Statute while in other cases they said they could not bear the cost. In these circumstances the State has determined to come to the rescue and make a liberal contribution towards the upkeep of these probation officers. If your Lordships will look at subsection (3) of Clause 3 you will find that it is contemplated that Parliament should provide the money, 305 in the shape of a Grant-in-aid, to assist substantially in making the probation system real and effective. That is all I need say about this Part of the Bill. I submit that this should have been done long ago and that it is good it should be done now.
There are other things in this Bill of quite a different order. The administration of criminal justice was deficient in material particulars, and in order to get the best advice we could on the subject Committees were appointed in, the days of my predecessors. They were very powerful Committees. One was presided over by Mr. Justice Horridge, the second by Mr. Justice Avory, which considered the responsibility of a wife for crimes committed under the coercion of her husband, and the third Committee, under the Chairmanship of the Director of Public Prosecutions, considered alterations in criminal procedure (indictable offences). These Committees have all presented Reports. The proposals which they have made have been carefully considered by the Government and embodied in the Bill which is now before your Lordships.
There were also certain other things connected with the recommendations of these Committees, all of which have been the subject of investigation, and I can tell your Lordships what they are in a very few sentences. Clause 9 of the Bill proposes that certain offences which are now tried only at assizes shall be tried at quarter sessions. If they are serious enough they can be sent to assizes, but there is no reason why quarter sessions should not dispose of them, and accordingly there are enumerated those offences which may be dealt with in this manner. Clause 10 says that certain offences which are now only triable at assizes or quarter sessions may be dealt with summarily by magistrates. There are many of these offences, and where the person tried is willing that his case shall be dealt with by the magistrates, then the Bill provides that it can be disposed of summarily. Clause 15 enables justices before whom a person is charged, instead of committing him for trial at assizes or quarter sessions for the county or borough, to commit him to be tried at any other convenient assizes or quarter sessions, with a view to expediting the trial or saving expense. It may be that there is no assize or quarter sessions sitting in the county for 306 some time and that it is more convenient the person should be tried at some other assize which is most convenient. Care has been taken to safeguard the interests of the accused in this case.
I need not trouble your Lordships with Clause 19, which provides for the trial of a corporation which is said to have neither a body to be kicked nor a soul to be damned. Still it has to be tried sometimes and, accordingly, procedure has to be provided for the purpose. Clause 20 gives the right of appeal against sentence imposed by a court of summary jurisdicdiction on a person pleading "guilty." Sometimes a man pleads "guilty" and finds to his surprise that a heavy sentence is inflicted. If this Bill is passed he will be able to appeal. It is proposed also to abolish the grand jury at quarter sessions—not at assizes. During the war, as your Lordships know, there were no grand juries, simply because we could not get them, but now we are dealing with the situation as it is to-day, and the proposition will, I think, commend itself to your Lordships.
I turn now to Clause 37. Under the law as it now stands, the Common Law of England, if a wife is indicted for an offence which she has committed along with her husband, there arises a presumption of law, so powerful that there is no getting behind it, that she acted under the coercion of her husband. Sometimes I am afraid that it is the other way, and I imagine that in some cases the husband acts under the coercion of his wife, However that may be, there is no presumption in his favour, while there remains this powerful presumption in favour of the wife. There was a well-known trial not very long ago, in which a lady escaped punishment in circumstances which led the Judge to make some comments. We have investigated the point and it has been reported upon by a Committee. As a result, we think that the clause, in the form in which it appears in the Bill, will commend itself. The presumption, as a presumption of law, disappears, but the wife will still have the benefit of any defence which she can set up to the satisfaction of the jury that she was acting under the coercion of her husband. It thus becomes a question of fact and not a question of law.
307 The only other clauses which I think I need mention are Clauses 35 and 36. Clause 35 has been inserted with a view to meeting the point raised by my noble friend Lord Russell. It provides thatAny person who is drunk while in charge on any highway or other public place of any motor car … shall…be liable in respect of each offence to imprisonment for a period not exceeding three months or to a fine not exceeding fifty pounds, or to both such imprisonment and fine.Clause 36 provides that people who attempt to take photographs in Court, without the consent of the Judge, shall be subject to penalties. One reason is that this practice is often very hard upon the prisoner, who is very much misrepresented by the photograph in the eyes of the public. At any rate, we have put this matter to some extent under the control of the Judge, who looks after the order of the Court. I think that the clauses I have mentioned are all the material clauses upon which your Lordships will desire information. This Bill is an attempt to bring matters up to standards which appear to be demanded to-day, and I now beg to move that it be read a second time.
§ Moved, That the Bill be now read 2a.—(The. Lord Chancellor.)
§ VISCOUNT CAVE
My Lords, as my noble and learned friend has said, the greater part of this Bill was contained in the Bill which your Lordships passed through all its stages last year, and as to that part I have nothing to say. The new portion of the Bill consists mainly of Part I, dealing with the extension of the system of probation of offenders. I need not say that I welcome that proposal also, for it is one of those mentioned in the gracious Speech delivered at the commencement of this Session for which my friends and I were responsible. All those of your Lordships who, like myself, have taken part in the administration of justice at petty sessions and quarter sessions will know how valuable the probation officer is; how useful it is to have some one who can be put in charge of a prisoner who has committed an offence, or who can confer with a prisoner who is accused of an offence : and in how many cases that simple process has made it 308 unnecessary to administer punishment such as we are all reluctant to inflict. It is the fact, as my noble and learned friend has said, that in some places the authorities have been reluctant to make use of that system mainly because they are unwilling, I think unfortunately unwilling, to expend money in the process. I feel sure that the proposal that some help shall be given by the State towards the payment of expenses will be a useful proposal, and I hope it will commend itself to your Lordships. I have pleasure in supporting the Second Reading of this Bill.
§ LORD SUMNER
My Lords, there is one point to which I should like to call the attention of the Lord Chancellor. It refers to Part I, which, as he has justly said, is probably the Part which will most interest the House and provides, I think, the greatest hope of considerable results. I am sure that everybody who has been associated with administration of criminal justice will wish it well. It is the Part which relates to the payment and the functions of probation officers. I think it must be manifest to everybody, certainly to everybody who has had any experience upon the point, that everything depends upon the character, the tact, the diligence and the sympathy of the probation officer appointed. A probation officer who is perfunctory, a probation officer who is tactless, a probation officer who is stupid, is a probation officer who does harm and not good, and therefore the pivot upon which the success or failure of this portion of the Bill would probably turn is the selection of the probation officer, his qualifications, and the means of keeping him up to his work, or getting rid of him if he proves to be a failure.
I do not see that there is any definite provision for dealing with this matter. It appears that the probation officers are to be appointed by a Probation Committee and the Probation Committee is to consist of "three or more justices appointed in the prescribed manner by the justices acting in and for that division." The post will be one for which, I have no doubt, there will be a certain amount of candidature, because there is a salary attached to it. It is the duty of the Probation Committee, having 309 appointed the probation officer, to supervise his work, receive his reports, andperform such other duties in connection with the probation of offenders as may be prescribed "—I suppose that is by the justices—or as the Secretary of State may by order direct.Then, finally, under Clause 6—The Secretary of State may make rules for carrying this Part of this Act into effect and in particular—I think that is all that seems to touch upon this point, and I do not see any means of getting rid of the probation officer, if he is a failure.
- " (c) for prescribing the qualification of probation officers and for providing that the appointment of a probation officer shall not, in any case where the Secretary of State so directs, be effective unless confirmed by him."
I am sure, however, that as soon as a little trial shows that a given person is a failure, it would be desirable that he should be superseded by a suitable person. It is left entirely to the Secretary of State to make rules for prescribing the qualifications of probation officers, but I do not think the mere qualifications of a probation officer are quite the whole matter, because I think that, while we might say that the. probation officer was, for example, to be an officer of the constabulary who had served for so many years or should have some experience as a Court missionary or what not, merely prescribing the qualifications of such a person and making the appointment subject to the approval of the Secretary of State does not meet the point. Unless you have somebody who is interested and whose duty it is to find the best man possible for the work, the scheme is not likely to work as it should do. Of course, it can be said that three or more justices, appointed in the prescribed manner by the justices acting in and for that division may be trusted to do this work, but then you must remember that three or more justices appointed by the Lord Chancellor are not always specially qualified for this delicate duty, and I venture, to suggest to the Lord Chancellor, before we come to the Committee stage of this Bill, that the Bill may be made more effective if some provision were made for the points to which I have drawn attention, and if 310 it were not merely left to the Secretary of State to make rules, which, when made, will only be rules and not provide that driving force which is what is really required to make the thing work
My Lords, this Bill seems to me to contain a very large number of miscellaneous provisions, and some changes in the law, which it is difficult to apprehend at the first blush. It ranges in its subjects from cruelty to children, driving motor cars, and probation officers, to a rather technical clause which enables you to perform the feat of committing a corporation for trial. I agree with what the noble and learned Viscount has said with regard to probation, but there are other provisions in the Bill which make changes in the law which are not easy to understand at once. I have no doubt that they have been considered by those who are capable of judging the facts, but I think that probably members of this House would not mind having a little more time in which to look at the Bill before the Committee stage, in order to see whether there are any points to which objections can be taken. I hope the noble and learned Viscount will tell us—I do not know what procedure it is proposed to adopt—whether it is proposed to take the Committee in the Whole House, or to have something in the nature of a Select Committee. If it is to be a Committee of the Whole House I hope that some little time will be given. It is not that I object to the Bill, but I do not quite understand the full force of all its provisions, and perhaps the noble and learned Viscount will enable me to communicate with some of those who have advised him, in order that I may resolve some of the doubts which I have.
The Bill does propose a great many alterations in the law. With regard to the alterations in the law relating to drunken motor car drivers, which the noble and learned Viscount said ought to please me, that was not the object of my Question the other day. Powers seem to me to exist now to deal with such cases, and my only complaint was that they were not sufficiently drastically applied. If we are to dictate to the magistrates, which seems undesirable, or to fix minimum penalties which cannot be reduced, I think something is to be 311 said for making it a necessary condition of a conviction for drunkenness that the licence should be suspended for at least twelve months. It is, I think, a punishment which is remarkably apt to the crime committed, and that it is a penalty which ought to be enforced, but which is enforced much too seldom. I would also say, on this matter, that it seems to me a little unfortunate that you should have one clause in this omnibus Bill amending one section of the Motor Act. A re-casting of the Motor Act, which is long overdue, has been promised by successive Governments, and I think it would be far better that it should be taken in hand as a whole, rather than that a particular section should be dealt with piece-meal. I do not desire to comment on the other provisions of the Bill, because I am not sure that I fully understand them, but I would ask for a little more time in which to consider them.
§ LORD DARLING
My Lords, I ask for the indulgence of the House in addressing it for the first time, and, seeing how late I have arrived here, it may well be the last time. I would not venture to say a word upon the introduction of this Bill but that it does deal with matters which came before me, as a Judge of the King's Bench, during a very long period of time, and I think perhaps your Lordships might like to hear what I have to say upon one or two points. Possibly, what I say may be of some assistance. I would notice first Clause 9, which goes to extend the jurisdiction of the quarter sessions. For a long time now Bills have been passed rendering it possible for cases to be dealt with at quarter sessions which otherwise could only be dealt with at assizes. This has been, I think, greatly occasioned by the many and exacting duties of the Judges of the King's Bench, who have to get through the work in London—people always complain if it is in the least delayed—and also have to go assizes to every county town in England and Wales.
It is natural, therefore, that cases should be sent to the quarter sessions; but I think before much is done to extend this practice it would be well to consider whether, in all cases, those who preside at quarter sessions are in every way fitted to deal with those cases which are sent before them. No one arrives on 312 the Bench of the King's Bench Division without a very long apprenticeship in the hearing and trial of criminal cases. Those who preside at quarter sessions have not always had the qualifications and the training of a barrister. There are, of course, many Chairmen of Quarter Sessions distinguished by their learning and practice of the law. Unless I am mistaken, the noble and learned Lord President of the Council is, or was, a Chairman of Quarter Sessions.
§ LORD DARLING
And I think the noble and learned Viscount who very lately spoke, and who was lately Lord Chancellor, acted for a long time as Chairman of Quarter Sessions. But these instances do not prove that it is always the case. A Chairman of Quarter Sessions is elected by the justices, and I desired to ask the Lord Chancellor, but I had not the opportunity, whether it is the case that he does not have to agree to their presiding in Criminal Courts, as he does in some other courts where an officer is elected to try very important cases. If the trial of criminal business is to be extended, then it would be well to take definite means to secure that in every case a Chairman exercising criminal jurisdiction at quarter sessions should have had the training and practice of a barrister.
The present position has grown up almost by accident. Chairmen, of course, have the duties to perform, which they do perform most admirably, of county business, but the Chairman for criminal business may well be separate, and I think there would be no difficulty in getting the services of men in large practice at the Bar. I think there would be no difficulty in getting them to give their services, although I think it would be worth while even to remunerate them to some extent, in order that they should preside at the trial of criminal cases at the quarter sessions. I would not have ventured to make these remarks except that, having been, from the time when the Criminal Appeal Court began its work, often a member of that Court, I have naturally seen the summings up and, in fact, the whole proceedings at the trial sent up to that Court from the quarter sessions, when there has been an appeal; and it is not natural to expect that anyone who sits 313 once in three months to try criminal cases should try them—I think I might fairly say—as well as someone who is constantly engaged in that or analogous work.
The difficulty in trying a criminal case is not simply in passing sentence, and, if it were, that would not matter so much, because there is an appeal upon the sentence, and upon the conviction too—an appeal from quarter sessions to the Court of Criminal Appeal. The difficulty is in understanding and applying correctly, and on the moment, the rather complicated but, I think, excellent rules of evidence, as they apply in our Courts, and—most difficult of all—in summing up, summing up so as to present properly and adequately the case for the prosecution and the case for the defence. And there is nothing in which the Court of Criminal Appeal has been more strict than in insisting that both sides shall be fairly put before the jury when the Judge or Chairman of Quarter Sessions sums up a case. It has happened, though we prevent it whenever we can, that, in cases where the prisoner was undoubtedly guilty and had been convicted, the conviction had to be quashed because of some defect, owing merely to inexperience, in putting the defence before the jury as a Judge of Assize would have put it.
A small matter upon which I should like to speak, and to which the Lord Chancellor has already alluded, is the question of sketching and taking photographs in Court. To my mind this practice of publishing in the newspapers sketches of people who happen to be involved in litigation has done a very great deal of harm. Whether the provision in the Bill goes quite far enough in preventing it, I do not know. There was a dreadful case some time ago, in which a photograph was taken at the Old Bailey of a Judge passing sentence of death. That photograph was published—a most shocking thing to have taken, or to have published, dreadful for the Judge, dreadful for everybody concerned in the case. Of course, the Judge knew nothing of it, could not do anything to prevent it, and could not punish the person who had done it. Sketching with a view to publication may require a little consideration, because I well remember a learned counsel who became a Law Officer of the Crown, and I very much doubt whether he would have reached that position if 314 he had not been an almost inimitable draftsman and had not published—in the strict legal sense of the word "publish"—the sketches which he often took in Court, and very often gave to the Judge.
One other matter upon which I should like to say a word is the alteration of the law with regard to the case of a husband and wife jointly charged with a crime. The noble and learned Viscount on the Woolsack mentioned that this had been brought about by a case recently tried. I think—in fact, I feel sure—that he alluded to a case which I myself heard, and in which the point was taken on behalf of the woman that, whatever the evidence might be, whether it did or did not prove the offence, the Judge must not leave the case to the jury, because it is a presumption of law, as distinguished from a presumption of fact, that if a woman commits a crime and her husband is present, she commits it solely by his instigation and under his coercion. Much ridicule has been poured on this rule. I think when it was established, and for a long time, it was a very good rule indeed. Women are not now in the position in which for a long time they were—whether they will regret it in the long run I do not know. But when the rule was made in the middle ages a wife was, in some respects, little better than a chattel belonging to her husband, and it was quite reasonable, having regard to the manners of the time, that if a man was present when a woman took part in a crime or committed it, the law should say: "She shall not be tried; he domineers over her in all the affairs of life, and we must presume that he coerced her by his dominance on this occasion."
And I think perhaps there was another and a softer reason. In those days and, in fact, to the end of the eighteenth century, punishment was dreadfully severe. Capital punishment was awarded for crimes which are now dealt with by the justices, and dealt with very leniently, and I think that the reason why this presumption was not altered long ago was that there was an instinctive dislike—I felt it myself, felt it for years—to punishing a woman at all ; and it was because to punish her as severely as the old law necessitated must have revolted the feelings of the Judges, that this rule remained. But now things are changed and all that this provision would do is this : it. would say that, instead of its being a presumption of law 315 that a woman who participates with her husband in a crime, where he is present, is entitled to instant acquittal, instead of going to the jury, if the point be taken, it shall be a question of fact ; and if all the evidence in the case satisfies the jury that she was not a free agent, or if she can prove that the crime that she committed was a crime dictated to her by her husband, to which she was coerced, then he must be convicted, and she must be acquitted. I apologise for having spoken for so long, but I thought I might fairly bring these points to your notice.
§ THE LORD CHANCELLOR
My Lords, I think I am only expressing the feeling of a large number of your Lordships when I say that we welcome the contribution which one of our newest members, my noble and learned friend who has just spoken, has made to the debate. He has brought to bear a ripe and rich experience, and he has given us an example of the promise and potency of the contribution which he can make to discussions of the law such as from time to time come up in this Chamber. I am glad to think that upon the point upon which he spoke he finds himself, in the main, in agreement with the provisions of this Bill. My noble friend Lord Russell also spoke of some of the provisions of the Bill, and he desired to have time to consider them further. That, I think, is quite reasonable, and I should propose that not less than ten days should elapse between now and the Committee stage—perhaps more, but at least that period.
With regard to a point made by my noble and learned friend Lord Sumner, it is perfectly true that it is very important that we should get the right type of probation officer: and we must get the right type of probation officer. Then comes the question as to how he is to be chosen. He cannot be chosen by the Secretary of State for Home Affairs, or by the Lord Chancellor. They have not the knowledge of the persons concerned, and they would have to act upon recommendation. It is better, I think, that the probation officer should be selected by such persons as the local justices, who should use their local knowledge so as to get the proper man or proper woman for the purpose. There will be disappointments, of course; but we take good care in this Bill to proceed 316 on the principle which has been found successful with the police. If your Lordships look at the Bill you will find that the grant from the State is not an absolute Grant but a Grant-in-Aid ; that is to say, a Grant given on the terms that the work is done efficiently.
The conditions of that Grant may be varied to almost any extent by means of regulations and it would be for the responsible Minister to see that that was effectively done. I think that the real difficulty in the way of the suggestion that was made is this, that it is a local appointment, assisted on the principle of a Grant-in-aid, and that means local selection. You cannot put rules and conditions into a Bill in order to make sure that the right persons are appointed. The only way is to trust the people on the spot, and then to keep your hand over them and to say that they shall not get the money unless they prove that the people they appoint can do the thing they are expected to do. Before we come to the Committee Stage and consider this matter further, I will bear in mind the remarks of my noble friend and make further inquiry. But I thought it right at this stage to indicate to your Lordships the reason why the Grant-in-aid was chosen rather than the system of direct appointment.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.