HL Deb 21 July 1926 vol 65 cc113-24

Order of the Day for the Second Reading read.

THE EARL OF HALSBURY

My Lords, I rise with the greatest diffidence for the first time to address your Lordships' House well knowing that there are others very much more competent to move the Second Reading of this Bill. This is a Bill which is designed to remove an anomaly which has grown up in our law. It is a Bill which started as a Private Member's Bill in the House of Commons. I do not want to exaggerate the case for the Bill in any shape or form. I think I can prove to your Lordships that it did not encounter any hostility from His Majesty's Government; indeed, I can even go further without exaggeration and say that it met with approval from His Majesty's Government. It passed through its last stage in another place on June 18 of this year.

Your Lordships must be aware that the general idea of prison discipline has grown up, broadly, on two lines. One is a discipline which was suggested by a short and sharp sentence which might meet certain offences. Another system of discipline grew up, that of penal servitude, which was designed for long sentences. Again I say I do not want to exaggerate my case in the least. During recent years these two systems have grown very much together. Thirty or forty years ago it was considered that a sentence of two years hard labour in a local prison was sufficient to break a man both physically and mentally, and the Courts shrank from imposing such a sentence. They shrank still further from imposing a longer sentence than two years. That has entirely altered now. The Secretary of State for the Home Department, in another place, pointed out that the whole system had changed in the last thirty or forty years, but nevertheless the two systems never can be the same.

There are one or two reasons, which I will point out to your Lordships, why they never can be the same. This dual system has worked very well on the whole, but there is one case with which it does not deal, and that is the case of a man who has been guilty of a series of offences and has lived a persistent life of crime. It is obvious, I think, that in some of these cases a short sentence would be quite inadequate for the offences that he has committed. Then comes this dilemma: How are you going to treat him? If, as you can according to the present law, you sentence him (as in fact you must sentence him) for each crime, if you make those sentences consecutive he is going to get a long term of imprisonment under conditions which are not proper for a long term of imprisonment. If, on the other hand, you shrink from doing that, you sentence him to a term which is totally inadequate for the crimes he has committed. If he has been guilty of crimes which are punishable by penal servitude the system works well enough. If it is thought he must be sentenced to a long term of imprisonment, he will endure that sentence under conditions which are framed for a long term of imprisonment. The question, therefore, would not arise in that case. That course was followed in a certain rather famous case, that of the Tichborne claimant, who got two consecutive sentences of seven years penal servitude. Whether that was too long or not does not touch this point, as he served fourteen years under discipline which was framed for a long term sentence.

But now we come to a case in which a man has been guilty of a number of crimes for which he can only be sentenced to terms of imprisonment, with or without hard labour. There is very little difference in practice whether he is sentenced to imprisonment with hard labour or without hard labour, but he is then kept in a local gaol and that is most unsatisfactory. A case arose a short time ago, as your Lordships are aware, of a man of considerable wealth and position, who was leading a life in which he had committed a number of outrages on young children. He was convicted on a number of counts. He was sentenced to two years imprisonment with hard labour to be followed by one year's imprisonment without hard labour. That sentence was considered by the Court of Criminal Appeal. On the whole the Court of Criminal Appeal were of opinion that it was a proper sentence in the circumstances, but nobody suggested that it was a really satisfactory sentence.

I should like to quote from a speech made by the Secretary of State for the Home Department when he was speaking on this Bill in another place. He said: The question has arisen out of a case which came before the Lord Chief Justice, and the Government are bound to take note of the statement of the Lord Chief Justice when he quite definitely said: 'It could only be hoped that before a case of this dimension should come again for trial the Legislature would have removed a blemish from penal legislation, and have given a discretion where a multiplicity of offences of a certain kind had been committed, to impose a sentence of penal servitude.' The last impression that I wish to give is that this Bill is being introduced merely because of that case. It is quite true that some of the most flagrant cases that will come up and will have to be considered if this Bill becomes an Act of Parliament are sexual cases, but it is by no means to deal merely with sexual cases that this Bill has been introduced. There are many others.

One of the commonest is the case of a man who has been preying on the commercial community for years; and then there are cases of obtaining credit by fraud, and cases; perhaps, of carrying out a particular system of fraud by offences under the Bankruptcy Act, of any one of which a man can be convicted and, if convicted, sentenced to imprisonment for two years with hard labour. I hope that I can convince your Lordships that it would be more convenient and more proper that, instead of having a number of consecutive sentences, he should be given a sentence of penal servitude. Consecutive sentences to imprisonment are not common, and I think that one of the reasons is that the view has grown up among His Majesty's Judges that a sentence of imprisonment is a very terrible sentence. But this, as the Secretary of State for the Home Department pointed out in another place, is no longer the fact. To some extent it is still the fact, since, owing to the way in which the organisation of local prisons and penal establishments is conducted, you cannot get the same conditions in both.

It is quite true that at the present time the food is largely the same and that a considerable amount of the work done in the penal establishment is also done in the local prison. But the converse is not true. In penal establishments like Dart-moor and Parkhurst you do not have the necessity of keeping the men, the whole time that they are going through their sentence, within the four walls of the prison. They can get out from time to time, and that is much more apt when you are dealing with a prisoner who is undergoing a long sentence. Again, it is true that the present rules regarding conversation among prisoners are theoretically the same, but in a penal establishment the prisoners do get an opportunity of working in gangs and there is much more intercourse in practice, though not in theory, than takes place in the various local prisons. Those are two points that make a difference. There is a third point which is not to be ignored. Under a term of penal servitude, if a man is of good behaviour he can get off one-quarter of his sentence. Under a term of imprisonment, he can get off only one-sixth.

Another matter that has to be taken into consideration, quite apart from the point of view of the prisoner, is the question of organisation and administration. It is undoubtedly easier and better to have the people who are serving long terms of imprisonment in an organisation that is organised for long terms, and it is inconvenient to have them in local prisons where, in fact, most of the prisoners are in for short periods. They cannot be in for longer than two years on any one crime, and in practice most of them are in prison for not more than three months. It is highly inconvenient, if, for instance, a man is sentenced to three terms of two years to run consecutively, that you should have a six-year prisoner in an organisation that was organised for short term prisoners. For that reason again I suggest that this Bill is a convenience.

There is one point about the Bill that I entirely dislike. I say quite frankly that I think the title of this Bill is the most unhappy one that was ever invented. This is said to be— An Act to increase and extend the powers of the court to inflict punishment in the case of certain crimes. It does nothing of the kind. In terms the Bill says that no prisoner can be deprived of his liberty for longer than is possible under the present state of the law. All the Bill says is that, if it is thought proper that he should be sentenced to a long term of imprisonment, a term to which he can be sentenced at the present time, then that imprisonment should take place under the discipline appropriate to the longer sentence and not under the discipline appropriate to the shorter sentence. I hope that, if your Lordships see fit to give this Bill a Second Reading, when we come to a later stage the title may come under amendment.

That shortly, is the scope of the Bill. There is only one other point about which I might say a word, and that is subsection (2) of Clause 1. It was thought, I understand, by the friends of the noble and learned Viscount sitting opposite that it would be well if it were made quite clear that—to use what is an inaccurate term but a comprehensive one—political crimes were not included in this Bill. I cannot quite conceive how any of these political crimes ever would, under a sensible Judge, be brought within the ambit of this Bill, because it is a discretionary Bill and, furthermore, it is a little difficult to see how a person can be living a life of crime by carrying on secret riot or anything of that kind. One would think that all the types of crime referred to in subsection (2) would be found out at once and that the question would not arise. However that may be, if the noble and learned Viscount desires to keep these types of crime quite clear of the Bill—though I might point out that this will leave to the worst cases a rather harder punishment than would come to the criminal if he were left under the Bill—there is no reason why this should not be done.

VISCOUNT HALDANE

May I ask the noble and learned Earl a question? To whom is he referring? I have expressed not the slightest opinion about this clause, nor has my noble and learned friend beside me (Lord Parmoor).

THE EARL OF HALSBURY

I shall probably have to apologise to your Lordships for my ignorance of procedure. I had made certain inquiries and found that certain events had occurred in another place. Perhaps I had no right to refer to them, and if that is so I must apologise to the House. I understood it was the desire of the friends of the noble and learned Viscount that this clause should come in.

VISCOUNT HALDANE

I said nothing about it.

THE EARL OF HALSBURY

I will leave it at that. That is all there is to be said on this Bill, except this one thing, that it is clear that in the passage I have read the Lord Chief Justice of England, who is head of the administration of the Criminal Law, has asked for these powers from Parliament, and, again without desiring at all to overstate my case, I think I am entitled to say to your Lordships that you would not do well to refuse to give the powers which the Lord Chief Justice has specially asked for. I beg to move.

Moved, That the Bill be now read 2ª.—(The Earl of Halsbury.)

LORD DESBOROUGH

My Lords, perhaps it would be to the convenience of the House if I were at once to state the view of the Home Office on this matter. The Home Office regard this Bill from a position of benevolent neutrality, and they propose to watch its progress through Committee, to prevent the insertion of any objectionable Amendments and to ensure that it shall be capable of being worked with ease and clearness.

LORD PARMOOR

My Lords, I rather regret to hear what has been said by the noble Lord who represents the Home Office. Surely a Bill of this kind, if it is to take a final form and to find its place upon the Statute Book, ought to be carried through under the authority, and only under the authority, of the Department which deals with questions of this kind—namely, the Home Office. I was certainly hoping to hear Lord Desborough say that the Home Office were prepared to take charge of the Bill and to be responsible for it in its final form, whatever that form may be. I only want to say a few words about what was said by the noble Earl, who addressed your Lordships in such an admirable manner on what he told us was the first occasion that he had spoken in this House. Let me congratulate him most heartily upon his speech. We remember, of course, the name of the noble Earl in this House—a name of great honour—and we hope we shall often hear him in the same eloquent terms as those in which he has addressed the House this afternoon.

My objection to this Bill is not in any sense fundamental, but this is a matter which could have been put right if the Home Office had taken control of the Bill and put in into more formal shape. My experience is a fairly long one in sentencing for criminal offences—twentyfive years as Chairman of Quarter Sessions is a fairly long period—and I agree that it is necessary, as the noble Earl has said, to bear carefully in mind the conditions of imprisonment and penal servitude. I also agree with him, and with the views expressed elsewhere I understand, that if a long term—I think anything exceeding two years myself—is imposed as a punishment for any crime, it should be in the form of penal servitude and not imprisonment. Although, as he states quite rightly—and I am one of those who are very glad that that is so—the conditions of imprisonment have been enormously improved (if one may use that term) of recent years, still the conditions are such that they are not applicable to long periods of detention, and ought not to be used for that purpose. It is quite unnecessary, therefore, to emphasise what the noble Earl has said as regards the distinction between imprisonment and penal servitude and the obvious corollary that for long terms penal servitude is the better.

My objection to the Bill does not go to the root of the measure. It is this. As regards the first clause it is extremely indefinite. As I understand the argument of the noble Earl, it applies to all cases where there has been a repetition of the offence, whatever the character of the offence may be. Agreeing as I do with the noble Earl, that penal servitude is an appropriate punishment for long periods of detention, I think we ought to have some definition, and ought to know the class of crime to which penal servitude would be, and is intended to be, applied under the terms of the Bill. He has given illustrations of two crimes of a very different character. One of them was the occasion of this Bill being brought forward—repetition of sexual offences. I quite agree with what is said about that. The other was repetition of commercial offences of a fraudulent character. I do not know whether there may not be many other crimes capable of repetition to which this Bill would apply. I should like the Home Office to take the Bill in hand and to consider to what kind of offences penal servitude should be applied in substitution for imprisonment. I also think that not too much discretion should be left to juries, but that the crimes themselves should be catalogued to which this new form of punishment should be applicable.

Subsection (2) is a matter for Committee. There again, I do not see how any private individuals are in a position to say that the exceptions in subsection (2) are sufficiently exhaustive. I am not prepared to say that they are not—I have not sufficient knowledge—but I hope that before the Committee stage the Home Office will be able to assure us that, as regards subsection (2), in their view the exceptions are sufficient. I am not satisfied at the present time, but I think it is a matter with which the Department ought to deal. I think the noble Lord will agree with me when I make that statement. Therefore, subject to what I have said as regards the responsibility, in a matter of this kind, of the Home Office—I think it is a very real responsibility—we at any rate do not offer opposition to the Second Reading, and perhaps I may again congratulate the noble Earl on the admirable speech he made.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, it was of course for my noble friend Lord Desborough to state the position of the Government on this Bill, but in consequence of what was said by the noble and learned Lord I would like to say one word from a personal point of view. I think he rather misunderstands the object of the Bill. It is not confined to cases where there has been a repetition of one offence, but rather is directed to cases where there has been a series of offences which may or may not be of the same character. Where this happens, and the man has been convicted of a number of serious crimes, for each of which punishment ought to be indicted, there does occur a very difficult position. He ought, perhaps, to be sent to prison for eighteen months or more for each crime, but if that is done the effect is to send the man to imprisonment, with hard labour, perhaps for three, or four, or five years.

The maximum punishment by way of imprisonment is two years, and for this reason, that imprisonment with hard labour is an extremely trying punishment which tells severely upon a man's physical health. The confinement, the silence, and other attributes of imprisonment, if continued for a long time, are really more than ought to be imposed upon anybody, and in the days when I had sometimes to pass sentences of imprisonment I often felt embarrassed by the position to which the noble Earl referred in his speech. Three years or four years imprisonment is really too long. It is far better, for the man himself, to be sentenced to a term of penal servitude, where conditions are not so trying, and where, as the noble Earl pointed out, there are mitigations which cannot occur in an ordinary prison. So, from a personal point of view, I say that I thoroughly approve of the proposals of this Bill, and I hope that your Lordships will give it a Second Reading.

May I add a word about subsection (2) of Clause 1? The noble Earl, by way of using a short expression, spoke of exempting political crimes. I do not think there are such things as political crimes. A crime is a crime, by whatever name it is called, and I have never been able to make a distinction between that species of crime and other offences against the law. It seems to me that to exempt from this Bill those particular offences against the law is to deal very hardly with those who are guilty of those offences, because it really is a benefit to the prisoner that he should come under this Bill, and a hardship to him to be exempted from it. Therefore I hope that no attempt will be made to extend the category of offences in subsection (2). If it were possible, and if it were generally agreed, I think it might be well to consider whether the subsection should not be omitted altogether. It does not much matter, because I agree that it is very unlikely that for an offence of this character a long Imprisonment would be imposed. As regards the title of the Bill, I entirely agree with the noble Earl. May I add an expression of agreement with what my noble and learned friend said, that we are all very glad to hear the voice of the noble Earl in this House, with which his name has been so long and so honourably associated.

LORD DARLING

My Lords, I think there is something in the point to which the noble Lord opposite has called attention. I do not think it is quite clear to what class of crimes this Bill is intended to apply or rather to what circumstances at the trial it is intended to apply, but perhaps the Home Office will look into that. I ought to say, perhaps, that when the noble Lord opposite was sitting as Chairman of Quarter Sessions I was going circuit as Judge of Assize with the noble Earl as my marshal, and that accounts for his extraordinary familiarity with the Criminal Law.

The ordinary case in which one, as Judge, felt the difficulty, was this. It generally happened in sexual cases, where a man was convicted of having committed a great many crimes, generally with regard to young children, and the utmost you could give for each case was two years. It might be that the one case, the first case, in which he was convicted, was a case in which he should, by all right and justice, have had a sentence of two years, but it might be that there were several other cases, and what was the position of the Judge then? Certainly, when I was first a Judge, it was notorious that a sentence of imprisonment with hard labour was a very, very heavy sentence. For the equal period of time it is a far heavier sentence than penal servitude, and what Judges felt was that, even when the law allowed of consecutive sentences, they could not give three or four years imprisonment with hard labour, or ten years, it might be, and so the man received a sentence of two years with hard labour, which everybody in Court felt was far less than he deserved. It was given simply because the Judge could not send him to penal servitude. That is the ordinary case to which I think this Bill will apply.

There are other cases to which the noble Earl has alluded—those cases where a man makes it his business to go about swindling people, or, perhaps, to become bankrupt time and again—a luxury which some people do allow themselves. The difficulty is to know what to do with that sort of person. Two years is not enough, and the kind of imprisonment—the solitary confinement, and so on—makes it inappropriate that he should have three or four years imprisonment, and you cannot give him penal servitude.

One aspect of the matter, into which I hope the Home Office will look, is this. It is a point in regard to which the noble Lord opposite did indicate a difficulty in administration. The words of the Bill are— Where a person is convicted on indictment of two or more offences to which this Act applies. … The indictment would only include crimes which fall into the same category. You would not, for example, put into the same indictment sexual offences and bankruptcy offences or embezzlement. That is where the difficulty may arise. I do not think that under this Bill you could say: "Here is a man who has been convicted several times of sexual offences, and several other times of fraudulent bankruptcies. Two years is not enough for him, I will give him penal servitude." It seems to me that great care must be taken to see that the considerations as to whether he is to have imprisonment or penal servitude must all arise with regard to the same indictment, which ordinarily is, and should be, for the same class of offence, because it is very difficult for a man to defend himself upon an indictment which would charge him with all manner of heterogeneous crimes. I absolutely approve of the Bill, if my approval matters anything, but I do hope that the Home Office will display something more than a benevolent neutrality towards this Bill, and will consider it with some sort of benevolent partiality.

LORD PARMOOR

May I, as a representative of the Home Office is here, say one word in explanation, having regard to what the noble Lord has said? I understood at one period during the discussion that the phrase "convicted on indictment of two or more offences" might mean offences charged on different indictments, and convictions on different indictments. I agree with the noble and learned Lord opposite that you could not deal with criminal matters in that way, nor could you put into the same indictment fraudulent matters and sexual matters. I hope the noble Earl who is promoting the Bill and the Home Office will consider this difficulty.

THE EARL OF HALSBURY

My Lords, I do not feel that I am really entitled to take up your Lordships' time any further, but I appreciate the difficulties that have been mentioned by the noble Lord opposite and also by the noble and learned Lord on this side of the House. What I rather feel about it is this. I cannot at this period appeal to the House, but I think I may respectfully suggest that it is not a matter for Second Reading, but for the Committee stage.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.