§ Amendments reported (according to Order).
§ Clause 1:
§ Negligent driving resulting in death or bodily injury.
§ 1. Any driver of a motor vehicle who, owing to his negligence, kills any person, shall be liable on conviction to imprisonment for a period not exceeding two years; and any person driving a motor vehicle who, by his negligence, causes bodily injury to any person, shall be liable on conviction to imprisonment for a period not exceeding one year or to a fine not exceeding one hundred pounds, or to both, and in both of the cases referred to in this section the person driving the motor vehicle shall on conviction as mentioned above be disqualified from holding or obtaining a licence for such period as the court thinks fit, but not less than twelve months from the expiration of his term of imprisonment, if any, or, where no term of imprisonment is imposed, from the date of conviction.
§ THE EARL OF HALSBURY moved, after "above", to insert "unless the Court for special reasons think fit to order otherwise." The noble Earl said: My Lords, in the regrettable absence of Lord Atkin I beg to move this Amendment which stands on the Paper in his name. The words which it is proposed to insert are no new words. They have been used 3 in other Acts of Parliament. What they mean in effect is that there shall not be an absolute hard and fast penalty which in no circumstances whatsoever can be altered. Those of us who have had to deal with Courts of Law know that every Court, whether composed of Judges, magistrates or juries, is human, and there is a general feeling in all Courts of dislike of bringing in a verdict of guilty when it is known that there is no sort of elasticity in what may happen to the accused person. Therefore these words have been put in many other Acts of Parliament. For these reasons I ask your Lordships to adopt the words here and I beg to move the Amendment on the Paper.
Clause 1, page 1, line 15, after ("above") insert ("unless the Court for special reasons think fit to order otherwise").—(The Earl of Halsbury.)
§ LORD BUCKMASTER
My Lords, the real defect in the noble Earl's argument lies in this: that he assumes that we are satisfied with existing legislation. We are not. We think it has failed. We think it is essential that punishment should be certain and should be severe, and that unless that happens we shall have no mitigation of the terrible accidents that disgrace our roads. That is our view. None the less I understand that the noble Earl and some others who think with him would like to have this elasticity—of which I must say I do not approve—introduced into the Bill. I have no desire to occupy your Lordships' time by entering into what would be nothing but an unprofitable discussion, and so, if the noble Earl wishes to insist on the Amendment, I shall not oppose it.
§ On Question, Amendment agreed to.
LORD DARLING moved to add to the clause:
Provided that it shall be a good defence to any such charge if it shall be proved in evidence that the person killed or injured owing partly to the negligence of the accused was himself guilty of contributory negligence without which the death or injury, respectively, would not have occurred. But no person shall be deemed to be guilty of such contributory negligence who has not at the time of the accident attained the age of twelve years.
The noble Lord said: My Lords, I beg to move the Amendment standing in my name on the Paper. It is simply designed to apply the doctrine of contri-
butory negligence as defence to this newly-constituted crime. This Bill establishes a new criminal offence. My Amendment is intended to make that a defence which would be a defence if there were an action in the Civil Court in which the same circumstances could arise. Clause 1 of the Bill says:
Any driver of a motor vehicle who, owing to his negligence, kills any person
or causes bodily injury to any person shall be guilty of various offences which are set out. At present such a person would not be guilty if he killed or injured any person when he was driving a motor vehicle unless he was guilty of much more than mere negligence. The law of manslaughter is well-known in this country. For hundreds of years Judges have directed juries in terms something like this: that mere negligence, if proved, will not justify a verdict of guilty. In order to justify a verdict of guilty there must be what the jury consider criminal negligence. Criminal negligence is absolute carelessness as to consequences of negligence; it means that the person must be so negligent that he really does not care whether he injures another or not.
This Bill is going to alter all that. It is going to say that if the driver of the vehicle is guilty of negligence—such as would support a claim for damages—that shall justify finding him guilty of a crime. It seems to me that there is injustice in the Bill as it stands, and if a law looks unjust and those who administer it come to the conclusion that it is unfair, we all know what happens. The words I want to put in are these:
Provided that it shall be a good defence to any such charge if it shall be proved in evidence that the person killed or injured owing partly to the negligence of the accused was himself guilty of contributory negligence"—
that is a term well-known to the law—
without which the death or injury, respectively, would not have occurred. But no person shall be deemed to be guilty of such contributory negligence who has not at the time of the accident attained the age of twelve years.
I do not desire to be bound by the word twelve, but by the law as it stands children, on account of their youth, are not supposed to be capable of so deciding what is the right or the wrong thing to do as to be guilty of negligence or contributory negligence. To preserve the
law in that matter I have put in those words. I beg to move.
Page 1, line 20, at end insert the said proviso.—(Lord Darling.)
§ LORD BUCKMASTER
My Lords, it is a wise and well-established rule of your Lordships' House that only one speech is allowed on the Report stage of a Bill. For that reason I paused before answering the noble Lord since it would be obviously impossible for me to reply to arguments which I have not heard. As no other arguments have been advanced I assume that if there be any noble Lords who support Lord Darling, his arguments will cover their views. In order to deal with this Amendment it is necessary to call attention for a moment to the situation that led to the introduction of this Bill. It was found that at the present time conviction for killing or maiming a man upon the high road could only be obtained if the person charged was found guilty of negligence of such a gross degree that it was assumed to be criminal negligence, but no one in the Courts or in your Lordships' House has ever ventured to give a definition of what that gross and criminal negligence may be. Some Judges have said that it was a great crime against the State and others have used equally solemn language, but no one can lay down the definition. That being so, and juries being left to decide as between two classes of negligence, they invariably selected the lower class and let the man go free.
I have submitted to your Lordships and I still submit that the result of that mistimed leniency has been reflected in the terrible toll of accidents on the road. It was for that reason that, I introduced my Bill, which sought to prevent distinction between the two classes of negligence on a criminal charge of killing or maiming. Your Lordships accepted the principle on Second Reading, but modified it in Committee at the instance of Lord Danesfort, whose Amendment I did not oppose, and who, instead of making the ordinary killing by negligence manslaughter has made it a criminal offence subject to certain distinct and independent penalties. If, therefore, the Bill passes as it stands there would be two classes of negligence. There would be the gross criminal negligence for which a man might get any sentence of imprisonment 6 up to imprisonment for life and there would remain the conviction for causing death or injury by negligence, and for that this modified penalty is to apply. The Amendment is to introduce into the latter a principle wholly unknown to the other. On the one charge the defence of contributory negligence is not open; the charge is simply, aye or no, did this man cause the death by the negligence which you call criminal? If the Amendment is introduced the result will be that on a criminal trial for death by negligence, as to half the charge evidence would be admitted which as to the other half it would not, and you would have to split the trial into two or you would be in a position of embarrassment from which the most highly skilled intellect could not rescue you.
The noble Lord says that this doctrine of contributory negligence has been in our Courts for centuries. I think if he had said a century and a half he would have been right. "Been in our Courts," yes; but have you any notion of the confusion it has caused? Although that doctrine has been argued and re-argued through every tribunal in the land, again and again, it is only a few months back that the matter came before us, sitting here in our judicial capacity, and we had once more to consider what was the proper thing you were to say to a jury when the charge of negligence was answered by a charge of contributory negligence. After we had settled that, as I thought once and for ever, it has come up again in the last few weeks, and I venture to say that the spectre of contributory negligence has not been set at rest. If you want to administer the law properly you would abolish the plea of contributory negligence in civil cases, and leave to the jury the question "Aye or no, was it the negligence of the defendant which caused the accident?" and in answering that every circumstance must be taken into consideration.
If this Amendment is introduced, the chaos and confusion which exists at the present moment in the Civil Law would be introduced into the Criminal Law, where above all things clearness and certainty are required. If the Bill is passed as it now stands there will be one thing, and one thing only, for the jury to consider. "In the light of everything you have heard, was that man killed by the negligence of the man in the dock? 7 If 'Yes,' your verdict must be guilty, and if No,' then you must acquit him. "I beg your Lordships not to allow the Criminal Law to get into the state of confusion which must arise if this Amendment is passed.
§ THE EARL OF HALSBURY
I speak subject to correction by the House and not of one noble and learned Lord, but I do not understand why, on the Report stage or any other stage, the noble and learned Lord should assume that nobody else was going to speak.
§ LORD BUCKMASTER
I only assumed it upon this hypothesis, that as I was the only Peer in charge of the Bill, if I was to answer the arguments it was only fair and proper that they should be advanced before I sat down.
§ THE EARL OF HALSBURY
I am extremely glad to hear that the noble Lord is the only noble Lord in favour of this Bill.
§ THE EARL OF HALSBURY
There are certain passages which I do not quite follow in the noble and learned Lord's argument. Apparently he suggests that there has been a large legal argument, going back for some time, into the difference between "negligence" and "gross negligence." The only case that I know of is the leading case in which it is pointed out that the word "gross," in relation to "negligence," is merely a meaningless and vituperative adjective, and does not alter the meaning of negligence in any way whatsoever. As I have always understood, the only proper charge to the jury on the question of negligence is: "Was it negligence or not?" I agree that the next charge, which it has over and over again been said is the proper charge, is: "Did that negligence cause the accident or not, and did it cause the damage or not, or the death or not?" Again, I am perhaps in a little difficulty, because naturally I am not in a position to argue a point of law with a person in the position of the noble and learned Lord, still more as I have been merely brought up in the lax methods of the Common Law, and not in the iron steel bars of equity. But when I read the particular wording of this Bill, which is supposed to give such a perfect exposi- 8 tion that after it is passed there will be no doubt about the law, it strikes me as odd that when dealing with killing it says: "owing to his negligence kills any person" and when dealing with injury goes on in quite a different way and says: "who, by his negligence causes." If it is going to be so simple, why not deal with the two things in the same way? Why in one case say "owing to his negligence," and in the other "by his negligence causes"?
What is the suggestion? The suggestion is that we might put into this what is a defence in any Common Law action if it is a question of getting damages, and that is that it is a good defence if it should be proved in evidence that the person killed was killed owing partly to the negligence of the accused and partly owing to the fact that the person killed was himself guilty of contributory negligence. That is a defence in every civil action. Why are you going to take away that which is a defence in a civil action in order to create a new crime? I ask your Lordships to say that the Amendment is a perfectly reasonable one, and one which should be incorporated in this Bill.
§ VISCOUNT CECIL OF CHELWOOD
I hope your Lordships will not accept this Amendment. I was a little amazed at the opening observations of the noble Earl, when he suggested that there was only one kind of negligence. The whole of this Bill is founded on the well-known doctrine that for the purpose of manslaughter you must have, as the law stands, not only negligence but criminal negligence. I saw it mentioned in a case reported to-day, or yesterday, in which that point was perfectly clearly laid down, and if it were not so there would be no purpose in the Bill at all. However, that does not appear to have much bearing on the rest of the argument put forward. The argument was this, that since contributory negligence is a defence to a civil action it ought to be equally a defence to criminal proceedings. With the greatest respect I do not agree with the noble Earl. You punish a man for a crime because he has done something which is from the point of view of the law reprehensible. It does not matter from that point of view whether the actual event was contributed to by the man who suffered or not.
9 If, in point of fact, it was the motorist's negligence which killed the man, the crime is complete. Whether somebody else, the unhappy victim, also was guilty of negligence and added to the negligence of the motorist in this case is really irrelevant. The point is this: Did the motorist's negligence kill the man? That is the whole issue. If he did not kill him the motorist was not guilty, and if he did kill the man it does not matter that the victim was guilty of contributory negligence. Lord Darling appeared to have been impressed by that consideration, because he said that when a child was killed this doctrine would not apply. Why not? If it relieves the man of criminality because the victim was guilty of negligence, it relieves him whether the victim was a child or a grown-up person. Indeed if you have a different law applying to children and to grown-up men you might have a different state of things—
§ LORD DARLING
I pointed out that the law at present distinguishes between grown-up people and children in this matter, and I desired merely to preserve that.
§ VISCOUNT CECIL OF CHELWOOD
I do not pretend to be a lawyer any longer, and no doubt the noble and learned Lord is perfectly right in saying that the law does make that distinction. If he says so, I accept it, but I am reluctantly of the same opinion as Mr. Bumble. I see no reason for the distinction. And in point of fact just look at what happens. There is a shocking case in this morn
§ ing's newspaper. A lorry went on to the footpath. It killed two children, and it very seriously injured—probably killed—also the father. If my noble friend's Amendment were passed no offence would have been committed in the case of the father if it could' have been shown that he did not jump out of the way quickly enough, or something of that kind. But in the case of the children a complete crime would have been committed, though it was actually the same act. The criminality would have been complete in the case of the children, and not in the case of the grown-up person. That seems to me to be an absurdity when dealing with the Criminal Law; what would be true of the Civil Law I do not know.
§ In this case it is quite clear. If, in point of fact, a man has used his motor car in such a negligent way as to produce the death of a foot passenger, that is a thing Which ought to be punished by the law, and the action of the victim is of no importance, unless it can be shown that it was not the act of the motor car or the motorist which caused the death, but the act of the victim. If that can be shown, then of course that is a complete defence. But if the motorist has caused the death, and caused it by negligence, it surely is quite unnecessary to consider whether the victim was also guilty of negligence at the same time.
§ On Question, Whether the said words shall be there inserted?
§ Their Lordships divided Contents, 27; Not-Contents, 30.11
|Argyll, D.||Bertie of Thame, V.||Fairfax of Cameron, L.|
|Wellington, D.||Churchill, V.||Hay, L. (E. Kinnoull.)|
|Hereford, V.||Luke, L.|
|Bath, M.||Marley, L.|
|Linlithgow, M.||Askwith, L.||Mount Temple, L.|
|Biddulph, L.||Phillimore, L.|
|Halsbury, E. [Teller.]||Clanwilliam, L. (E. Clanwilliam.)||Ponsonby, L. (E. Bessborough.)|
|Mar and Kellie, E.|
|Morton, E.||Darling, L. [Teller.]||Sinclair, L.|
|Peel, E.||Desart, L. (E. Desart.)||Swansea, L.|
|Ellenborough, L.||Wharton, L.|
|Marlborough, D.||Onslow, E.||Lincoln, L. Bp.|
|Salisbury, M.||Amulree, L.|
|Denbigh, E.||Allendale, V.||Banbury of Southam, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.)||Cecil of Chelwood, V. [Teller.]||Buckmaster, L. [Teller.]|
|Chaworth, L. (E. Meath.)|
|Iddesleigh, E.||Mersey, V.||Cranworth, L.|
|Midleton, E.||Ullswater, V.||Danesfort, L.|
|Dickinson, L.||Lamington, L.||Rhayader, L.|
|Dynevor, L.||Meldrum, L. (M. Huntly.)||Snell, L.|
|Gainford, L.||Monckton, L. (V. Galway.)||Stanmore, L.|
|Greville, L.||Monteagle of Brandon, L.||Strachie, L.|
|Howard of Glossop, L.||Moyne, L.||Treowen, L.|
|Jessel, L.||Redesdale, L.|
On Question, Amendment agreed to.
§ Resolved in the negative and Amendment disagreed to accordingly.
§ Clause 2:
§ Penalty for failure to stop, &c., after knowingly causing damage or injury.
§ 2. Any driver of a motor vehicle who has to his knowledge caused damage or injury to any person and who does not stop to render aid and give information, shall be liable on summary conviction to imprisonment for a period not exceeding six months, and shall be disqualified from holding or obtaining a licence for such period as the court thinks fit, but not less than twelve months from the expiration of his term of imprisonment, if any, or, where no term of imprisonment is imposed, from the date of the conviction.
§ THE EARL OF HALSBURY moved, after "shall" ["shall be disqualified"] to insert "unless the Court for special reasons think fit to order otherwise." The noble Earl said: My Lords, this Amendment is consequential on the Amendment which your Lordships agreed to make in Clause 1.
Page 1, line 25, after ("shall") insert ("unless the Court for special reasons think fit to order otherwise").—(The Earl of Halsbury.)