§ LORD SNELL had the following Notice on the Paper—
§ To ask His Majesty's Government:
§ Whether any approximate estimate can be given of the cost to the State of the conveyance to and maintenance in prison of persons committed for non-payment of (1) maintenance and affiliation orders; (2) of civil debts and also (3) for the non-payment of fines;
§ whether His Majesty's Government proposes to amend the law under which each of the above classes is imprisoned, specially as to (1) the imposition in all 202 cases of a test of means; (2) the power of courts of summary jurisdiction to reduce and cancel arrears; and (3) bringing persons fined before the court a second time on their failure to pay;
§ and whether in the interests of national economy as well as of the persons concerned, it is not desirable that all possible steps shall be taken at once to reduce the number of persons committed under the above heads;
§ and to move for Papers.
§ The noble Lord said: My Lords, I hesitated for a long time before venturing to trouble your Lordships with the Question which in the end I decided to put upon the Paper of your Lordships' House. The matter with which it deals is undeniably important, but fear lest it should be thought that I, who am neither lawyer nor magistrate, was meddling with a matter beyond my own personal experience, caused me to delay putting the Question before you until the present time. The knowledge, however, that many of your Lordships are magistrates and therefore are sympathetic to the purpose which I have in view, encouraged me at length to put the matter before you. My noble friends on these Benches are associated with me in this matter, which is, however, by no means a Party question, and I am hoping to have the sympathy of many of your Lordships who, unhappily, do not share my political opinions. The terms of the Question on the Order Paper are such that, if His Majesty's Government are willing, will give to your Lordships much desired information.
I had better say what I ask for, and it is:
Whether any approximate estimate can be given of the cost to the State of the conveyance to and maintenance in prison of persons committed for non-payment of (1) maintenance and affiliation orders; (2) of civil debts and also (3) for the non-payment of fines.
My interest in this matter, my Lords, is of long standing. When, as a young man, I was an officer of the Charity Organisation Society, I saw at close quarters the distress that is always associated with imprisonment, and I arrived at the conclusion that imprisonment should be restricted to definite breaches of the law and, perhaps, also to defiance of the orders of the court. I am especially concerned at the present time, because
my studies suggest that the peaks of imprisonment for debt always coincide with times of industrial depression, and it is very much on my mind that men should be imprisoned for debts which they would have paid had they been in work, but which unemployment, for which they are not responsible, prevents them from meeting. So we need to remember how some of these debts are contracted. Touts get people to sign a paper to pay so much per week and then unemployment comes upon them and they are unable to meet the payments, and in the end are imprisoned for debt. Since this Question has been on the Notice Paper of the House I have had letters from people giving particulars of their own cases which heat my ordinarily well-controlled blood.
§ In the first place, I will endeavour to place the numbers of those who are imprisoned for debt under their appropriate headings, with a preliminary word upon the magnitude of the general problem. The total number of debtor prisoners in 1930 in England and Wales was round about 13,000, and the debtor prisoners, I believe, at the present time are actually more than those in prison for fines. The first section that I desire to call your attention to comprises those fined for offences against the law, but imprisoned in default of specific payment. In 1930, 12,497 persons were imprisoned in default of fines, a number which was an increase of 918 over 1929. Of these 483–464 males and 19 females—were actually under 21 years of age. We have to remember that the device of fining instead of imprisoning is in itself a merciful development of our criminal procedure. Through the use of that device our prison population has been greatly reduced. Thus, in 1930, out of 521,789 convictions in police courts 496,139 were dealt with by fines. As compared with the number of fines imposed the number of imprisonments in default was only 2.5 per cent., but that is a very large percentage of those who are actually received into prison. In 1930 these amounted to 53,063 men and 6,873 women, making a total of 20 per cent.
§ Then there are those who are sent to prison in default of payment of arrears under affiliation orders and orders for the maintenance of wives and children. In 1930, the last year for which these statistics are avail- 204 able, 6,849 were so imprisoned, 71 under Poor Law maintenance orders, 2,540 under arrears for illegitimate children, and 4,238 for wife and children maintenance orders. Then there are those imprisoned for the non-payment of local rates, and these number 2,032, or actually about one-sixth of those who are classified as non-criminal prisoners. There are also those who are sent to prison for the non-payment of civil debts, and in 1930, 3,810 were so sentenced by County Courts and 18 by the High Courts, and these figures included 88 who were sentenced for the non-payment of Income Tax.
§ If you contrast these figures with those of the prison population generally, they show some cause for anxiety. The number of prisons has actually been reduced from 56 in 1913, to 29 in 1930, and the daily average of prisoners has fallen from 14,000 to about 8,000, and the Prison Commissioners say that the total receptions on conviction per 100,000 of the population numbered about 540.3 per annum in the years 1908 and 1909 and only 93.2 per cent. in the year 1929. Those figures unhappily do not represent an equal reduction in crime, but rather suggest that the old method of dealing with the cases by imprisonment was modified and a great many of them were dealt with by probation and by fines; but nevertheless the figures relating to those who are sentenced to prison for debt are altogether disturbing. In regard to the cases known as "civil process prisoners," which include those in prison for maintenance and affiliation orders and civil debts, the situation is, as I say, disturbing. Mr. Claud Mullins, the well-known Metropolitan Magistrate, has stated that "there has been a fall since 1913 of about 1,150 per annum, but an increase of nearly the same number since 1924," and the Prison Commissioners in their Annual Report for 1929 state that "between 1913 and 1929 there has been a substantial decline in the number of prisoners committed to prison by County Courts (all civil debts) but there has been a large increase in the numbers committed for failure to comply with wife maintenance and affiliation orders."
§ These figures make one anxious regarding the whole question of the present law and its administration in regard to imprisonment for debt. As it stands at 205 present, the person may have, or he may not have, committed an offence against the criminal law, but he is sent to prison because he cannot, or, it may be, because he will not, pay a sum of money to retain, or even to regain his freedom. I am not suggesting that imprisonment for debt should be entirely abolished, but I do hope that His Majesty's Government, in the reply which will be made this afternoon, will indicate that some inquiry into the operation of the present law will be undertaken, and that possibly new regulations respecting its administration will be made. It is right that I should explain that in obtaining these facts and statistics I have drawn freely on a series of articles published in the Justice of the Peace in April and May last, written by Mr. Claud Mullins, the Metropolitan Police Court Magistrate. I personally believe that a great public service is rendered when Judges and magistrates on suitable occasions draw the attention of the public to improvements that their experience suggests might be made in the administration of the law. I have seen it suggested that such comments should be discouraged. I think comments of that kind were made at the time of the death of the late Sir William Clarke Hall, who was not only a great magistrate, but also a pioneer in the movement for children's courts and probation. Mr. Claud Mullins has, I believe, made extensive studies on this question of imprisonment for debt, and if the results of studies of men of like experience is discouraged, the public will in the end be the losers.
In this connection I venture to quote the comments made by Mr. Justice du Parcq when speaking at the annual meeting of the Brixton Prisoners' Aid Society in August, 1931. He said:
I am astonished to learn that in Brixton prison last year there were over 3,000 prisoners committed for debt. One knows that the theory is that no man is merely imprisoned for debt; he is, or ought to he, committed for contempt of court, in that, being able to pay a debt which the court has ordered him to pay, he has contumaciously refused to do so. From the secretary's report it seems that many of the people therein referred to are in for debts which are physically impossible for them to pay.
Thus we have an experienced Judge of the High Court expressing his astonish-
ment that in one year as many as 3,000 persons were committed for debt to Brixton Prison, and that many of them went to prison for debts which it was quite impossible for them to pay. That fact alone should satisfy your Lordships that an inquiry into this grave matter is long overdue.
Sir Edward Parry, at the end of a long and honourable judicial career has stated that:
… we have retained an ancient system of imprisonment for debt which other civilized countries have long ago abolished. We retain it only for the poor. Wealthy men who run into debt are never imprisoned. They file a petition, receive a coat of legal whitewash, and, assoiled of all their debts, live happily on the savings which they have thriftily invested 'in the wife's name.' Abolish imprisonment for debt; persuade the Treasury to forgo the fees that it obtains in the somewhat inglorious capacity of bum-bailiff in the mean streets; and you will clear your County Courts for higher and better tasks.
One of the chief difficulties of the present system is the difficulty that magistrates have in determining the ability of a person to pay. A magistrate may be confronted with conflicting statements, possibly even by false swearing, and undue leniency on his part would be wrong to the creditors, many of whom may be as poor as the debtor himself, and some of wham may actually be his own wife and children. On the other hand, no doubt, severity means merely to inflict a period of futile imprisonment upon a person which leaves both the debtor and the creditor in a worse position than before.
§ I would also draw your Lordships' attention to the fact that delay in the payment of debts is not something that is peculiar to the poor people of this country. Most people defer paying their debts until the very last moment when it is safe to do so, and I believe that it is almost considered bad form to pay your Income Tax on the first demand. Therefore, the poor should not be specially penalised because they share in a common human failing. If one thinks of what might be done, I would suggest that the magistrates might be assisted in ascertaining the means of the person before them before they impose conditions upon a debtor. I have seen it suggested by Mr. Claud Mullins that the public assistance committees should be used for this 207 purpose, and there seems a good deal to be said for that. If a man must submit to a means test to prove that he has not 2s. 6d. between himself and starvation, he ought to be protected by a means test from being sent to prison for not paying what he is often quite unable to pay. I would also like to say that except in cases where a man's conscience is deeply engaged mere wilful disobedience of an order of the court deserves no sympathy at all, but the law should make it quite clear that a man's failure to comply is wilful and not due to inability.
I believe, too,—although, as I said when I began, I am not a lawyer— that the discretion of the magistrate is harmfully restricted by Section 13 of the Act of 1914 under which there can be no committal to prison for less than five days. Mr. Methuen, an Assistant Commissioner of Police, has said that
if the offender does not pay the police automatically use the committal warrant. It is suggested that in all such cases the offender should be brought before the court again before the committal.
A further improvement would be the universal adoption of the metropolitan method of officially notifying persons fined in their absence. Some offenders, says Mr. Methuen, may be quite unaware that a fine has been imposed until a committal is executed. The police do all they possibly can to avoid taking a person to prison, but in the end they are hound to administer the warrant. Magistrates, too, increasingly use the powers conferred upon them by Section 12 of the Criminal Justice Administration Act, 1914, whereby they may detain the debtor within the precincts of the court for that particular day, and one feels that this discretion might be much more freely used. There is also the device of giving a debtor time to pay, which has been a great blessing in thousands of cases, but in 1930, in only 4,434 of the 12,492 cases of imprisonment for the nonpayment of fines, was time to pay allowed. Those figures suggest to one the need for inquiry into what is being done.
The question finally resolves itself into whether more cannot be done to secure that the amount of the fines should be in accordance with the ability of the offender to pay. The annual report of the Brixton Prisoners' Aid Society, 1931, states that:
We notice again this year that many of the men here for wife maintenance have been ordered to pay an amount which is quite impossible, even should they he earning full wages at their particular occupations. This gives a man no encouragement to try, as in any case he could not pay the whole. It does appear that sonic form of court or tribunal is needed where these matrimonial cases could be gone into more fully than a busy magistrate, with all the burden of other cases on his time, can [go into them], and they appear to need much more frequent review than can be arranged at present.
I respectfully commend that suggestion to your Lordships' notice.
§ I am as convinced as I am about anything that the average police court is not the place to which poor persons, or indeed anybody, should be compelled to go in cases of domestic trouble, for relief; and in another place I on several occasions introduced a Bill to provide for courts of domestic relations where people might obtain advice from properly trained and specially selected and sympathetic judges, under conditions where social as well as legal evidence would be admissible. I have examined the workings of such courts in the United States of America, and I feel that the principle upon which they are based, not necessarily the methods adopted, would be an advantage to our own country, and some day I shall take the courage to introduce such a Bill in your Lordships' House.
The position to-day seems to be deplorable. Seven thousand men are imprisoned annually under orders for arrears of maintenance of wives and children or of illegitimate children. No means test is applied, and I am informed that it has been decided that evidence of means is not required to give justices jurisdiction to make an order. Sir Edward Parry, after thirty-four years as a County Court Judge, has said:
There is on the civil side of our law no fouler abomination and no more unclean relic of barbarism than the legal procedure by which we exploit the terror of prison to screw money out of the poor … our imprisonment for debt to-day is not only a relic of slavery … The bulk of the burden of debt which hangs round the neck of the poor would never have been incurred but for Section 5 of the Debtors Act of 1869.
Your Lordships will notice that I am allowing the lawyers, with my usual caution, the use of the strong language that is being brought into this matter.
§ Finally, I do with all sincerity suggest to your Lordships that at this time, when we all desire to reduce expenditure, we have in this matter one of those rare opportunities when a reduction of public expenditure on prisons and prison vans would at the same time do something to remove what is a reproach to us among the nations of the world. I therefore ask His Majesty's Government the Question have put on the Paper, and I move for Papers.
My Lords, the noble Lord, Lord Snell, has made an extremely interesting statement on a question which is really of some importance. My excuse for intervening in this debate is that for the best twenty years of my life I was in charge of the prisons of Scotland and had to give a great deal of attention to this subject of prison reform. All prison reformers, I think, admit that Lie best prison reform is to reduce the number of persons sent to prison, and our object and aim for many years past has always been to keep down that number to as a low a figure as possible. I thankfully recognise that a very great deal has been accomplished in that direction, and a good deal of it is due to wise legislation and the careful carrying out of that law. In the year 1909, when I first went into prison administration, the Lumber in Scotland was over 50,000. Last year it was only 15,000; so that there has been a great reduction. But I, for one, still think that there is room for further improvement.
The noble Lord, Lord Snell, has dealt with the matter under three headings. First, there is the question of maintenance arid affiliation orders, and that is, perhaps, the most difficult of all. Our procedure in Scotland is different and we get very few husbands committed to prison for failing to maintain their wives. The procedure is not, as a rule, by maintenance order. From time to time, however, public assistance committees, who have had to support the wife and children, find it necessary to prosecute a man for failing to maintain his wife and family. As a member of a public assistance committee I know that that is done with great reluctance. At our last meeting, for example, a member suggested that we should prosecute a man who had accompanied the hunger marchers to this City and left his wife and children be- 210 hind. That suggestion was negatived and it was decided to wait and see what he did when he came back. It does sometimes occur, however, that a man deliberately goes away and finds work elsewhere, leaving his wife and children. In such cases imprisonment, or the threat of imprisonment, is found effective. The total number in Scotland was only 224 during the last year for which figures are available.
Then we have the equivalent of bastardy cases—we call them in Scotland aliment cases. Persons committed under that head are treated as civil prisoners. The number last year was 190, which is, of course, equivalent on a fair proportion to eight or ten times that number in England. Therefore, it is not at all a negligible quantity. They are committed to prison for refusing to pay under an order for maintenance of art illegitimate child. I confess that I feel considerable hesitation in dealing with this question because we must be very careful to do nothing which would make it more difficult for an unfortunate woman or girl to receive that which is really due to her for the maintenance of a child. The responsibility of the father ought to be brought home to him. I do not know that very much can be done in this direction. I have, however, not infrequently come across cases of men imprisoned who refused to pay because they stoutly maintained their innocence and said that they were not in any way responsible. It is quite possible that there may have been a miscarriage of justice in some of these cases where it is very difficult to obtain the requisite evidence.
When we come to the question of imprisonment for debt we are in a different position in Scotland altogether. In Scot land imprisonment for debt was abolished under the Debtors (Scotland) Act, in the year 1880, so that for fifty-two years we have gone without any imprisonment for debt except in certain very modified forms. No one, I think, will suggest—we certainly do not claim—that we are more honest in Scotland in paying out debts. No one would suggest that Scotsmen are readier to part with their money and pay what is due than are people in England. Moreover, I do not think it can be suggested that tradesmen in Scotland are sufferers because they cannot get an order for committal to prison for non- 211 payment of money due to them. It may be that they are more chary in giving credit. That possibly may not be a bad thing. It is no kindness to go on giving credit beyond a certain point when it may only involve a debtor deeper and deeper in the bog from which he cannot extricate himself. Imprisonment for debt in Scotland was abolished by that Act except for non-payment of Imperial taxes and of rates. Last year there were only three persons imprisoned under each of those heads, six in all.
Although we have no direct experience in Scotland of imprisonment for debt, I do know something of the practice in England. It may operate exceedingly hardly when persons are really quite unable to pay, but it does seem to be effective because I notice from judicial statistics that a very large number of orders to pay were made in the year 1930 —127,081—and 3,800 persons went to prison in default. I can only suggest that the fear of imprisonment leads friends and relatives to come forward and somehow or other the debt is paid. All the same, the fact remains that a large number of people go to prison. The noble Lord, Lord Snell, gave us figures under certain headings. The matter, I know, has received attention in England from time to time. In the year 1923 the late Sir Maurice Waller, then Chairman of the Prison Commissioners for England, wrote to me on the subject and asked about our procedure. The matter was being carefully considered at that time, I understand, by the Home Office, but nothing has followed. In France, in Germany, and in other countries abroad there is no imprisonment for debt. We are apt to think that we lead the way in matters of penal administration, but T am afraid that that is not so in a good many respects. Other countries are ahead of us.
While perhaps it is too much to hope that England may in this respect follow the lead of Scotland—Scotland has to follow the lead of England in many matters of penal administration—I think that for once the preponderant partner in that happy union which exists between us might take a leaf out of the book of the small country to the North and at all events find out what can be done in this matter. There is a very limited kind of imprisonment for debt, known as 212 ad factum praestandum. Those are cases in which action is taken against persons who have bought things under the hire purchase system and are called upon to return things which they have probably pawned. Under that heading a small number of persons—about 80 last year—are sent to prison. That number will be still further limited by a very recent Act of Parliament passed after inquiry had been made into the matter by a committee. The number is always limited by the fact that the creditor has to pay for the maintenance of the prisoner while in prison. Before I retired from the prison service, I began to get a little anxious because a large and wealthy firm took to committing its debtors to prison, and they of course were able to pay; but the number under that heading is very limited.
Let me pass to the third of Lord Snell's points: imprisonment in default of payment of fines. I am afraid that in Scotland we are in a worse position than you are in England, proportionately. It is not easy to compare the figures because of the different way in which the statistics are compiled, but out of the total number of persons committed to prison last year in Scotland, which was some 15,503, I find that no fewer than 8,258 were imprisoned in default of payment of fines as compared with 4,407 who were sentenced to imprisonment without the option of a fine. Your Lordships see that that accounts for very considerably more than half our prisoners, and I am convinced that there is a great deal of hardship in this connection. As your Lordships know, prisoners can be liberated on part payment of fines after they are imprisoned. The amount required to liberate them is calculated according to the number of days imprisonment to which they were sentenced and the amount of the fine. Saturday is the favourite day on which poor relatives and wives come up with the money to ask at the prison office: "How much is required to get my man out?" It is a pitiable thing. Saturday counts as two days, because, Sunday being a dies non, you can pay on Saturday the fine which would be payable on Sunday and therefore they score two days by paying their fine on that day.
The number is large. What is the remedy? I think there are several. I think a good deal can be done, perhaps 213 even without legislation, but, as it is now, undoubtedly very many of the wrong people go to prison because they have not the money wherewith to pay. I do not agree with the suggestion hinted at by the noble Lord opposite, that the limitation of imprisonment to five days as the shortest Sentence ought to be changed. When the Criminal Justice Administration Act of 1914 was under consideration many of us were anxious that the minimum period should be not less than seven days. Five days was fixed upon because I think all who are interested in this question are agreed that short sentences are to be deprecated in the strongest possible language. They are not long enough to act as a deterrent: they are not long enough to admit of the adoption of any training or instructional methods in prison: they only familiarise with prison life the prisoner who does not find it particularly hard to be incarcerated under modern conditions for five days. Hard or brutal treatment in prison would not be tolerated nowadays, and the consequence is that a short sentence only makes the man who undergoes it feel that prison is not such a bad place after all, and he is not afraid if he gets a longer sentence.
When we are considering this question of fines, I would emphasise the danger of the inequality of the sentence. It is true that the courts ate directed to consider the means of the offender. But just think of a practice, which I fear is not altogether uncommon, of a court adopting a standard fine for a standard offence. For example, you will find a court inflicting a line of five shillings on everyone who rides a bicycle on a footpath or who rides a bicycle without a light. If I am caught doing such a thing, the five shillings is nothing to me; but it may mean a great deal to the butcher's boy who is doing the same thing on the same day. Perhaps on the face of it nothing seems more just than to say: "We impose the same penalty on rich and poor alike, five shillings in every case." If I remember rightly, in Scotland, a court pronouncing on motoring offences such as exceeding the speed limit, which was once an offence, would say: "That costs three guineas." The three guineas may be nothing at all to some motorists; it may mean a great deal 214 to the working man who is riding home from his work on a more or less dilapidated motor bicycle. The apparent equality may, and very often does, result in real inequality.
The Criminal Justice Administration Act of 1914 does already prescribe that the means of a person are to be taken into account. Section 5 says:A court of summary jurisdiction in fixing the amount of any fine… shall take into consideration, amongst other things, the means of the offender so far as they appear or are known to the court.I cannot help thinking that if that direction were emphasised by circular or otherwise, the courts would take steps to ascertain the means of the person whom they are about to fine. I see no reason why they should not do so either through the public assistance committee, as suggested by the noble Lord opposite, or in some other way. Indeed in many cases the means must be very well known to the court, judging by the occupation and usual remuneration of the person who is before them.
Time to pay has greatly reduced the number of persons going to prison. I think that that, more than anything else, has contributed to the great reduction to which I alluded before. But even so there is room for improvement in the legislation, I think. The Act prescribes that time to pay, if asked for, shall be given, unless the prisoner fails to satisfy the court that he has a fixed abode within its jurisdiction. I cannot help thinking that in these days of telephones it might be quite possible, very often, for a court, through the police in attendance, to ascertain from perhaps a neighbouring police force whether the man before them was a respectable man who had a fixed abode in a neighbouring jurisdiction. I, myself, have seen cases of respectable men in prison who had been brought before the court in the City of Glasgow and who had a residence outside that jurisdiction but not far off. It would have been quite easy to ascertain in a short time, through the police, who are connected with each other by telephone, whether the man had a fixed residence or not. I think a little extension of the law in that direction would be a valuable provision.
May I just direct attention for a moment to one other provision in that same Act of 1914, Section 1, subsection (3). That is a provision that: 215Where a person so allowed time for payment as aforesaid appears to the court to be not less than 16 nor more than 21 years of age, the court may, if it thinks fit, and subject to any rules made under this Act, order that he be placed under the supervision of such person as may be appointed by the court until the sum adjudged to be paid is paid, and in such case before issuing a warrant committing the offender to prison in respect of non-payment of the sum a court of summary jurisdiction shall consider any report as to the conduct and means of the offender, which may be made by the person under whose supervision the offender has been placed.It is within my knowledge that, when that clause was passed, Sir Evelyn Ruggles Brise, the distinguished chairman of the English Prisons Commission at that time, had very great hopes that it would reduce enormously the number of young persons committed to prison. I am afraid that hope has not been justified. That section of the Act has been very little used.
I do not know whether any rules have been made for its use in England, but both in England and Scotland it has been to a large extent a dead letter. When we have such an extension in the number of probation officers available much greater use might be made of that provision, and I do not see why it should be limited to those under twenty-one. A great deal could be done to prevent the committal to prison if inquiry were duly made and the facts reported to the court before a warrant was issued. I cannot help thinking that in many cases wider use of probation would be better than imposing fines. Fines are not always satisfactory. Take the well-known case of fining for prostitution. There we have had great difficulty. I have known again and again of very undesirable people coming to the prison gate and paying the fine of a girl in prison where their motives were not of the best. They wished to get the prisoner into their power and keep her there, and we could not refuse to let such a person out even though the character of the one who applied might be perfectly well known. Again, a fine may operate very hardly upon a family. You may get a lazy man committing some offence and being fined, and the wife will starve herself and may be the children as well in order to scrape together the money to get him out of prison. In many such cases it would be better if he were placed under supervision and, before being sent to 216 prison, every effort made to get him to work, if work were obtainable, and to behave properly.
I must not detain your Lordships longer, but I venture to hope that His Majesty's Government will take into consideration the proposals of the noble Lord opposite, which, as he rightly said, are no Party questions, and that they will consider the whole subject very carefully along with other matters in penal administration which have been dealt with in the very able Report recently issued on persistent offenders. I hope that ere long we may see further legislative proposals introduced in order that we may make progress in this exceedingly difficult matter. The question of money undoubtedly enters into it, but it is not the greater part of the question; the major question is undoubtedly what is the wisest, most humane and most satisfactory method of dealing with offences against the law.
§ LORD AMULREE
My Lords, I agree with my noble friends Lord Snell and Lord Polwarth that the time has come when the whole of this question should be re-examined. Most of it dates from over one hundred years ago and the whole influence of prison administration is now working on a different line from that which we started over a hundred years ago. I do not intend to take up time by dealing with the parts of Lord Snell's Question relating to civil debts and the non-payment of fines, but I do wish to say a few words on behalf of those 7,000 persons committed to prison from time to time in respect of maintenance and affiliation orders. Lord Snell told us that last year 7,000 persons were committed for breaches of those orders. I submit that in respect of those orders we are dealing with a matter which is really a relic of the past. From early time the payment of the poor rate was enforced in the same way as those maintenance orders and affiliation orders are to-day. If a person was summoned for non-payment of poor rate and had no means to pay, the magistrates, without further ado, were required to commit him to prison for a period not exceeding three months. That remained the law until recent times.
When the Bastardy Act was passed and the question came to he considered of how an affiliation order was to be enforced, the analogy or precedent of the 217 enforcement of the payment of poor rate was accepted, with the result that the person is sent to prison if he neglects to pay. The result is that we have a large number taken from their families and when the breadwinner, if a married man, is sent to prison the wife and family fall back upon poor relief. The next step in the procedure was in the case of the maintenance orders under the Summary Jurisdiction (Married Women) Act, 1895. Where in a police court a married woman might get a separation the Act provided that in default of payment under the maintenance order it was to be enforced in the same way as an affiliation order—that is to say, in default of payment and means to pay the defendant was sent to prison for a period not exceeding three months.
The procedure for enforcing the payment of local rates is anomalous, You find with regard to rates raised, for example, by an urban authority, to meet the expense of public health administration (that is, the general district rate), the defaulter, if brought before the magistrates and it is proved he has no means to pay, escapes further supervision, the amount being regarded as a civil debt. You therefore have this position. A person might he summoned for non-payment of the poor rate and of the general district rate on the same day before the same bench of magistrates. In the case of the poor rate if the defendant had no means to pay he was sent to prison, but in the case of the general district rate, if he had no means to pay, he was discharged. That remained the law with regard to the poor rate down to the Rating and Valuation Act, 1925, when an important amendment was made. The magistrates still have power to commit persons to prison, but the law was modified by the provision that no warrant of commitment could be made against a defaulting ratepayer if he showed to the satisfaction of the magistrates that his inability to pay was due to circumstances beyond his control. In that event the magistrates would have no power to commit to prison, but I gather from what the noble Lord, Lord Snell, has said, that notwithstanding that, provision a considerable number of persons have been, and are still being, committed to prison for non-payment of poor rate.
218 The whole question should be fully reexamined and all these local rates and all orders made by magistrates for the payment of money should be put on the same footing. It seems to me that the provision with regard to the general district rate is sound, non-payment being regarded as a civil debt. Arrears arising from the non-payment of poor rate should be regarded as a civil debt and arrears under maintenance and affiliation orders should also be regarded as a civil debt. That would put the matter on an entirely simple basis. At the present moment it is extremely confusing, and no person other than a lawyer can possibly follow the various provisions. In these circumstances I urge the Government to take the matter into consideration, and either by legislation or some form of inquiry bring about some change in the law.
§ THE LORD CHANCELLOR (VISCOUNT SANKEY)
My Lords, I am sure this House will be grateful to the noble Lord, Lord Snell, for raising this Question, and I am sure also that his anxiety and his sympathy upon this matter will be shared by every member of your Lordships' House. The Government also desire to thank the noble Lord for the suggestions he has made in the course of his speech, which certainly shall receive most sympathetic consideration. We also desire to thank Lord Polwarth for giving us the experience of Scotland. I was particularly struck with his views upon the question of fine instead of imprisonment. It is perfectly right to say, as Lord Snell said, that the object of that measure was a merciful one, that where someone had committed an offence you gave him the option of paying a fine to prevent his going to prison and suffering the stigma of prison.
The noble Lord certainly made a point which is rather a familiar one with us who have studied the question, about equality—how ridiculous it is, for instance, to fine an errand boy 5s. and a millionaire 5s. for the same offence. It is a difficulty that one does not quite see the way out of, unless you have some means test. May I also remind the noble Lord that if you fix a maximum fine and say that for a certain offence the penalty shall be forty shillings or seven days, you are not catering for the millionaire? The question of imprisonment for debts has long engaged the attention of jurists and 219 philanthropists, and I hope I may be allowed to claim upon this question that jurist and philanthropist are interchangeable terms. Certainly those who have the honour of being His Majesty's Judges are alive to the great difficulty of the question, especially those who find themselves upon Discharged Prisoners' Aid Societies.
I will endeavour to answer all the questions raised by the noble Lord, and make some remarks as I go along. Roughly speaking, and only roughly speaking, the number of people who are imprisoned for non-payment of fines is just half the number of people who are imprisoned for non-payment of debts of other sorts. May I give the latest figures? They are for 1931, and I regret to have to trouble your Lordships with quite a number of figures. In 1931 the numbers were: for non-payment of fines, 11,543; for non-payment of wife's maintenance and under affiliation orders, 6,563; for non-payment of rates, 2,189; and for non-payment of County Court orders, 3,554. We observe, therefore, that the non-payments of fines numbered 11,500 odd, and in respect of other debts the persons sent to prison numbered just over 12,000.
Now let me deal with the various questions that have been addressed to me. First of all, the most important question, whether it is possible to reduce the number of persons sent to prison for failure to pay sums of money, certainly deserves the most careful consideration, not merely because imprisonment is an expensive process to the State, but because, more important still, its effects are liable to be so injurious that the use of this sanction cannot be justified unless it is the only practicable method of enforcing obligations which must be enforced in the public interest.
Let me deal first with the financial questions. The costs of conveyance of prisoners are not completely known. The duties of conveying persons to prison falls upon the police generally, or, in the County Court cases, on the bailiffs. In 1931 the number of persons sent to prison for non-payment of money was 23,849, of whom only 3,554 were County Court cases. The conveyance of these 3,554 cost £ 1,216. At the same rate, and only giving a hypothetical figure here, the conveyance of the whole number of 23,849 would be 220 about £ 8,000, but the exact figures are not available. Now as to the next financial question, that is the cost of maintenance in prison. The daily average of persons in prison resulting from these 23,849 committals was approximately 1,350, so there are 1,350 people, on an average, every day in this country imprisoned for non-payment of debts of some sort or another. The estimated annual cost of a prisoner— that is, the amount expended on staff and maintenance charges, less the estimated value of prison labour—is £ 44 8s. 9d., and therefore the figure that the noble Lord will want is the aggregate cost of 1,350 persons at £ 44 8s. 9d. per year—namely, about £ 60,000.
The financial aspect of this matter is no doubt important, but it is less important in my view than other aspects. If imprisonment is necessary as a, sanction for the purpose of justice, the expense is small compared with the value to the community of a weapon of which the threat is effective in the vast majority of cases; but if imprisonment is used in any cases where the application of so severe a sanction is unnecessary or unwarranted, the resulting charge on public funds, however heavy it may be, is light compared with the burden on the public conscience. The bad effect which imprisonment may have upon a man's character and self-respect, the suffering caused to his family and dependents, and the fact that he is cut off from any possibility of earning while in prison and will probably find it more difficult than ever to secure employment on his release—all these evil results cannot be disputed. If therefore it is possible to reduce the number of persons sent to prison without weakening unduly the necessary legal sanction, everyone will agree that all practical measures ought to be taken for that purpose.
In reviewing this problem the first question is in what proportion of cases is the liability to imprisonment effective in securing payment. Again complete statistics are not available, but such figures as are obtainable show that the number of defaulters sent to prison is very small compared with the number of those who pay. Now for the moment I am not discussing the question, which is rather an ethical question, of the righteousness of the policy—I will use 221 the expression of one noble Lord—of "putting the screw on a man's relations." Personally I feel sure that in many cases where a man, if left to himself, could not pay and would have to go to prison, he gets out of prison because his relatives pay. I am not discussing here or defending the propriety of the contention that that is a proper thing. But the facts are these. The number of fines imposed by the courts of summary jurisdiction in 1931 was 461,709. The number of persons sent to prison in default was 11,593; that is to say— and this is the figure to emphasise—only 2.5 of the total go to prison. This small percentage of defaulters includes a large number of persons whose convictions are for being drunk and disorderly.
There are no statistics showing what number of wife maintenance or affiliation orders are in operation, and the figures that I am about to give to your Lordships may astonish you. Between 17,000 and 18,000 such orders are made in the course of a year, and, as such orders usually operate for many years—because it is so much a week over a period of years—the number of orders in force at any one time must be very large indeed. I am told that the aggregate number is unlikely to be less than 200,000. In 1931 the number of imprisonments under such orders was 6,563. But, just as the figure of those fined who went to prison was only 2.5 per cent., the number of those who go to prison under affiliation amid maintenance orders represents only 3 per cent.
As regards fines, the number of imprisonments as the noble Lord, Lord Snell, pointed cut, was greatly reduced by the Criminal Justice Administration Act, 1914, which compelled the courts to allow time. Before this the courts had the power to allow time, but they seldom used it, and I think I am right in saying, after very careful inquiry, that the cases in which time is not allowed and might properly be allowed are now fortunately very rare. Section 5 of the Act, as the noble Lord, Lord Polwarth, pointed out, requires the court in fixing the amount of the fine to have regard to the means of the offender so far as they appear or are known to the court. In many cases it must be impossible for any reliable information to be obtained upon this point, especially where the defendant is 222 dealt with in his absence, as not infrequently happens in the case of motoring offences; and it is quite certain that in many cases (the noble Lord is quite right) disproportionate fines are imposed by the same court for similar offences by different defendants. May I add my own testimony? It fell to my fortune to be a Judge for a good many years. From time to time I used to preside over inquiries in which people wished to prove that a debtor had means. I do not want to say that there is a great amount of perjury in those cases, but I do say from my personal experience that there arc no cases in which it is so difficult to arrive at the truth.
Between 400 and 500 young persons under twenty-one are committed to prison for non-payment of the fines, but at very few courts is any use made of the provision of Section 1 of the Criminal Justice Administration Act, 1914, empowering a court to place under supervision persons under twenty-one who are given time to pay. Defendants who do not appear and are convicted and fined in their absence sometimes hear nothing of the result of the case till they are suddenly faced with a warrant of distress or commitment. In this matter, as in so many matters, the Statute law is not so much to be blamed as the difficulty of administering the law, and the difficulty in the administration of the law is that it may be—I do not say it is—different in different places. That is a matter of which we have to make the best. I am not for a moment suggesting that the law is not properly administered, but it is the administration of the law that wants looking into. The Home Secretary has advised courts of summary jurisdiction that where a defendant does not appear or write before the date when the summons is returnable, the hearing should be adjourned and notice sent to the defendant that if he does not attend the case will be dealt with in his absence: and that when the case is so dealt with he should be informed of the result, the amount of the fine imposed, the time allowed for payment, and the consequences of failure to pay. It is not known how far this advice is followed, but it is advice which most certainly ought to be followed. The general adoption of the practice would involve some additional trouble and expense to clerks to justices and might lead to demands 223 for an increase of salary. On the other hand, it would remove a grievance which, in the case of some defendants, is a substantial one.
With regard to maintenance and affiliation orders, in making a maintenance order the court may provide for payments by the husband of such sums not exceeding (a) £ 2 a week to the wife and (b) 10s. a week for each child under the age of 16 as the court shall—I would draw the attention of the noble Lord, Lord Snell, to the words now corning—having regard to the means both of the husband and wife, consider reasonable. An affiliation order may be for the payment of a weekly sum not exceeding 20s., and in making the order the court has to have regard to all the circumstances. The means of the defendant are no doubt taken into account when the order is made, but there is no specific requirement to that effect; and certainly, from such experience as I have had in my early days when I used to appear professionally in a police court, I have generally known— and I expect your Lordships who have sat as justices have also known—that these inquiries as a general rule are made. In neither case is there any requirement that the circumstances are to be reviewed by the court before a committal order is made, and no proof of means is required; but—and this is a point which is satisfactory as far as it goes—the small number of committals in comparison with the total number of orders is some evidence that the courts generally are reluctant to commit except as a last resort.
As regards arrears of payments due, the courts have no power to order a reduction or cancellation, though they can in effect do so by ordering the defendant's committal for one day, after which no further commitment can be issued in respect of those arrears. They can, on the application of the defendant, revoke or vary the order, but that does not affect any payments which are already due. Men whose financial circumstances change frequently fail to apply for or to obtain a Variation of the order, and the prison authorities have reported cases of men who come to prison for arrears under orders to pay 15s. a week, though the men are at the time only drawing 15s. 3d. unemployment pay, the 15s. order having been made when the men were 224 in work and not subsequently varied. That is a matter that wants looking into. While the courts of summary jurisdiction, generally speaking, do their best to deal in an equitable and considerate manner with cases which often involve serious difficulties, there are nevertheless some substantial defects both in the law and in the practice of the courts.
The noble Lord, Lord Polwarth, the noble Lord, Lord Amulree, and the noble Lord, Lord Snell, said that they thought the time had conic when an inquiry into this matter would be useful. So do I. In my view a careful inquiry, presided over by a chairman of outstanding legal authority, might show certain ways by which it would be possible to increase the number of cases in which the money is paid and to reduce the number of cases of imprisonment, and my right hon. friend the Home Secretary is thinking of setting up a commitee to make such an inquiry.
I shall have to deal with County Court cases because in some respects they are the most serious of all. Your Lordships are probably aware of Section 5 of the Act of 1869 which the noble Lord, Lord Polwarth, told us does not apply in Scotland. Speaking only personally and not officially I wish England would follow that example. It has well been said that without some system of enforcing payment of debts it would have been impossible for the commerce of the world to have attained its present proportions; for modern commerce is necessarily founded largely on credit and credit could not have existed without the power of enforcing the fulfilment of financial contracts. On the other hand, remedies against a debtor's person are not only inconsistent with the growth of opinion among civilised nations, but in themselves they are worse than futile, inasmuch as they strike at the root of all personal effort on the part of a debtor to retrieve his position and render a return to solvency possible. Here again I am in agreement with those who say that while a man is in prison and not able to earn money to pay his debts the screw should not be put upon the relatives, but there is the necessity of devising some system which is just to creditors while not unduly harsh upon debtors and which will discriminate between involuntary inability to meet obligations and wilful refusal or neglect. After all, when a man is 225 out of work he very often has to go to his small grocer and get goods and to obtain credit, but you have not only to consider his case; you must in justice look at both sides and have regard also to the circumstances of the small grocer who supplies the goods. I only say that lest it should be thought I was unfair in dealing with one side only.
Now I will come to the County Court cases, which are very difficult. In regard to County Court cases there is already what the noble Lord, Lord Snell, has called a means test, and his Question does not seem to be so much directed against them. The County Court statistics for 1931 show that the number of judgment summonses issued was 267,354. There were heard 160,785. I assume, therefore, that a number of people paid or satisfied the demand. The commitment orders made were 127,938, and the number issued was 93,927. Now conies the important figure. The debtors imprisoned under County Court process last year were 3,554 of whom 855 were released before the fall period. The percentage is small of those who actually went to prison. I am not saying it is not a serious thing, but the percentage is small, and it is difficult to see how it can be reduced further. It should be remembered that these men do not stay in prison for long. While I am in entire agreement with the noble Lord, Lord Polwarth, in regard to what he said with respect to their sentences, that is not the point I am on a the present moment. The maximum term under the Act is forty-two days, and it is quite usual for the Judge to commit for a much shorter term, such as twenty-one days or fourteen days. Even so, the debtors are released at once if they pay the debt, and, as pointed opt, 855 were released before their term of imprisonment came to an end last year. The figure I am now about to give your Lordships is striking. There are probably not more than about one hundred County Court debtors in prison at any one time. That is a small number when it is remembered that more than a quarter of a million judgment debtors per annum fail to pay their judgment debts until a judgment summons has been issued against them.
It is also to be remembered, my Lords — because I must endeavour to put both sides of this case—that it is not only the working classes who fail to pay their 226 judgment debts. The richer classes are also compelled to pay their debts by this means, and I am given these figures. There are cases on the records of a retired Army officer living in the West End in a house rented at £ 120 a year, of a clerk in a Government office, of a stockbroker in Brighton employing four servants there and also renting a furnished house in London. I am not so sympathetic with them in their inability or alleged inability to pay their debts. The fact is that there are certain classes of debtors who have placed themselves, or are placed by their relations, in such a position as will defeat all kinds of process except that of the judgment summons procedure. Undischarged bankrupts, persons with bills of sale on their furniture, men who have made marriage settlements covering their furniture, men about town in furnished chambers, widows and unmarried women with property protected by deeds of settlement—all these and many others place themselves in such a legal position that no legal remedy except the process of a judgment summons can reach them. I am afraid my sympathy does not extend very greatly to that class of person. If there were no power in reserve to send to prison in the last resort those who can pay their debts and refuse to do so, it would he opening the door to deliberate fraud and would leave unprotected the tradesmen who give credit with complete justification.
Then again it is found in practice that there are numbers of people of all classes —not the upper classes or the working classes alone—who incur debts which they could pay if they really tried, but, as the noble Lord told us, in some cases it is their practice not to pay until the commitment order has been made. I am told that this curious phenomenon happens in some districts more than in others. I can assure the noble Lord I am not speaking of Scotland— my statistics relate to England—but there is a good deal of evidence that it really occurs. Before a Judge makes a commitment order he has to be satisfied that the debtor either has the means to pay the whole debt or that since the date of the judgment he has had the means to do so. Here comes in the administration of the law once more. Some Judges are 227 very careful to make no commitment orders unless they have convincing evidence that these conditions are fulfilled. In these cases it is not accurate to say that the debtors are committed to prison for debt. They are committed because they can pay and will not, or because they might have paid and would not. I remember a very distinguished County Court Judge in my earlier days who used to say that he thought that every time a debtor went to prison on one of his orders he had made a mistake.
All Judges ought to be scrupulous in their requirement of evidence as to means, and on the whole I think they are. At any rate I have no evidence that they are not, and I may say that there is no evidence that they are not. But whether in any particular case the evidence is convincing or not when the order of commitment is made, it by no means follows that the debtor will go to prison. A practice has sprung up which has now become almost universal of suspending the commitment orders conditionally upon the debtor paying the debt by regular future instalments. Those instalments are cut down to whatever sum the Judge thinks that the debtor can pay. Very often the debtor's own admission is the best evidence as to what he can pay and is accepted, and all County Court Judges take great care not to fix the instalments too high. But that is not all. As the weeks and months roll by before the debt is completely paid the debtor's circumstances may have changed for the better or for the worse. When he fails to pay an instalment there is a further opportunity of considering the matter. The Judge has power to suspend the warrant still further, and the debtor has power to apply for the suspension. Even where he fails to apply, in most County Court circuits the bailiffs have authority from the Judge to report the case either to the Registrar or the Judge if they think that the case is not one where the debtor ought to go to prison. In one way or another the greatest care is taken that the wrong men do not actually go to prison.
I am not saying that the system is perfect—no human system is perfect—but from the experience I have had the greatest possible care is taken to see that it works properly. None the less, some 228 inquiry might well be made to see whether further improvements can be introduced. The system has its critics. Many think that it is weighted too much in favour of the debtors, and others, while supporting the power of committing to prison as a last resource, object to the whole system of suspending the warrant. In all cases, however, there is a test of means before the order is made and there are opportunities for reconsidering the debtor's means before he actually goes to prison. One last case, and that is with regard to arrears. There is power to suspend the original judgment while the instalments under the commitment order are being made; if arrears do pile up there is power to make a fresh order for further instalments; and there is power in effect to make the arrears unenforceable by refusing to commit to prison. Lastly, there is power to bring the debtors before the court a second time before they go to prison. I regret to have detained your Lordships so long and to have given so many statistics, but the question, as the noble Lord pointed out, is really an important one. I hope I have answered all the questions. There are no Papers which I can lay, but I trust that I have adequately put before the noble Lord the position of the Government and the position of affairs at the present moment.
§ LORD SNELL
My Lords, my purpose in putting this Question on the Order Paper was not to make any attack upon the administration of the law or to criticise the police or anything of that kind. It seemed to me that there was a very real human problem involved, especially at a time when there is great unemployment, and I ventured to put the Question in the hope that I should elicit from His Majesty's Government some kind of promise that the matter should be enquired into. I beg to thank the noble and learned Viscount on the Woolsack for the kindness with which he has answered my Question, and I welcome in the fullest degree the promise he has given that the matter will be sympathetically considered, while expressing a renewed hope that some kind of inquiry will be undertaken. I beg to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.