HL Deb 23 March 1938 vol 108 cc367-74

4. Offences under Section fifty-seven and Section sixty of the Offences Against the Person Act, 1861.

LORD ROCHE moved to leave out paragraph 4. The noble and learned Lord said: If your Lordships will look at the First Schedule you will see that paragraph 4 mentions "offences under Section fifty-seven and Section sixty of the Offences against the Person Act, 1861." The First Schedule is a Schedule of the additional offences which will become triable at Quarter Sessions when they have a legally appointed Chairman. The offences dealt with in paragraph 4 are the offences of bigamy and concealment of birth. I am moving the omission of that paragraph because I think it is most unnecessary and undesirable. It is unnecessary for the reason that although the crime of bigamy is not rare its trial does not take very long. This is in essence a Relief of Assizes Bill. Bigamy, when it is found out, is found out, and in nine cases out of ten the plea is "Guilty." Therefore the determination of the matter is short, but the question of sentence is all important. These observations apply in equal degree to the offence of concealment of birth. No class of case needs more discrimination in sentence than these two, and there is no class of case which needs more uniformity of treatment.

Bigamy varies from cases where the sentence should be nothing to cases where the sentence should be five years penal servitude. I have myself given such a sentence in a case in which there were five offences of bigamy committed by the same person in sequence. Cases of bigamy include cases of fraud on women in order to secure money, and there are other cases of what has sometimes been called "rape by fraud." I have the greatest admiration for Recorders, of whom there are many in this country, but I do not think that to depute to some hundred Recorders, of sometimes small boroughs, the determination of the proper sentence to be inflicted in these varying classes of bigamy is desirable. I think it most undesirable as a result of such experience as it has been my fortune to have in the trial of crime. The same thing applies to cases of concealment of birth. That is a crime which varies from cases where, as a result of natural shame and modesty which is almost praiseworthy, there has been some concealment of a dead body, to cases where by craft or by the natural action of decomposition a result has been achieved which hardly disguises child murder. The charge of concealment of birth is the only available one because the evidence of the greater guilt has been by these means removed. The cases are not numerous, but equally with bigamy they are cases where the greatest discrimination in sentence and uniformity of treatment are eminently desirable.

I would only make this additional observation. I know that there has been a difference of opinion about this matter and one considerable authority suggested that this discrimination should be made by magistrates in petty sessions, committing the serious cases to Assizes and letting the less serious ones go to Quarter Sessions. All I can say is I think that is quite impossible. The petty sessions have not the knowledge of character available for them to determine any such matter when they commit for trial. For those reasons I beg to move.

Amendment moved— Page 13, leave out lines 11 and 12.—(Lord Roche).

THE LORD CHANCELLOR

I am in a position to some extent to meet the argument put forward by my noble and learned friend. In so far as the Amendment relates to bigamy, I am prepared to accept it. My reasons for that are largely what he himself has given. Bigamy may, of course, as he has pointed out, be a most serious crime, and I think it is desirable that people who commit this crime should be tried with all the solemnity which is incident to an Assize, and that the public should know what a serious thing it is, particularly in the case of a man who marries an unfortunate woman who believes that he is able to contract a marriage whereas he is not. Therefore I will, as I say, accept this omission with regard to bigamy, which will mean omitting the reference to Section 57 of the Offences against the Person Act.

But when it comes to the question of concealment of birth, great as is my respect for the knowledge and experience of my noble and learned friend, I am here able to confront him with the contrary view of a number—and, after all, numbers must be reckoned with to some extent—of very experienced persons who joined in the Report of the Quarter Sessions Committee presided over by Sir Archibald Bodkin. There was not only that gentleman, the Chairman, who is admitted to be a past master of these matters, but there were also Sir Edward Tindal Atkinson, the late Sir Henry Curtis Bennett, Mr. Justice Travers Humphreys, and others. They considered this question of concealment of birth, which, of course, is a misdemeanour, and they came to this conclusion: These cases are generally pathetic in their circumstances and imprisonment is rarely ordered on conviction. Any question of murder or infanticide will have been excluded on the investigation by examining justices, if the committal for trial is for this misdemeanour only. We think that the offence is one which is entirely suitable for Quarter Sessions to deal with. Your Lordships will remember that this misdemeanour relates to the secret disposition of the dead body of a child in order to try to conceal the birth, whether the child died before, after or at the birth. The unfortunate women who are concerned in such cases are often women to whom may be applied the considerations with which we were dealing in this House yesterday on the suggestion of the noble Viscount who happens to be an eminent doctor.

I cannot help, though I admit I have no personal experience of the way in which these cases are dealt with under the criminal law, being of opinion that the experienced Judges and others who thought that they were eminently cases for Quarter Sessions to deal with, were right. These wretched girls, as they often are, have very seldom, as I think, committed such an offence that they ought to be dragged before an Assize Court and be tried there. The truth may very likely be that their minds have been affected by the circumstances of birth, as was explained to us yesterday in connection with the Infanticide Bill. At any rate I am not prepared on behalf of the Government to assent to the offence of concealment of birth being taken out of this Schedule. I am willing to consent to the Amendment so far as it relates to bigamy, which means that Section 57 of the Offences against the Person Act would be struck out, while the reference to Section 60 would remain.

LORD ROCHE

I am not converted by the opinion of the noble and learned Lord, because I do not agree that this offence is always so slight. I have tried a lady who had done it on two separate occasions, in circumstances which indicated considerable guilt, and I thought it necessary and proper to treat her offence with some severity. It is not a big matter; the bigamy cases are much more important and numerous than the others. I do not think it right to occupy your Lordships' time by dividing the Committee on this Amendment, and I am prepared to accept the suggestion of the noble and learned Lord, the Lord Chancellor, that the reference to Section 57 should be left out and the reference to Section 60 should stay in.

THE LORD CHAIRMAN

Will the noble and learned Lord move in that form?

LORD ROCHE

Yes. I will withdraw my original Amendment and move in that form.

Amendment, by leave, withdrawn.

Amendment moved— Page 13, line 11, leave out ("Section fifty-seven and").—(Lord Roche.)

On Question, Amendment agreed to.

First Schedule, as amended, agreed to.

Second Schedule [Consequential and Minor Amendments]:

THE LORD CHANCELLOR

The first two Amendments are purely consequential on the Amendment to Clause 16.

Amendment moved— Page 17, line 7, after ("may") insert ("within such time as may be prescribed by County Court rules").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— Page 17, line 25, after ("may") insert ("within such time as may be prescribed by County Court rules").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

There are also drafting Amendments, consequential on the Amendment to Clause 1.

Amendment moved—

Page 18, line 38, at end insert: The Middlesex County Council Act, 1934 (24 & 25 Geo. 5. c. lxxxix).—In subsection (8) of Section ninety except so far as it applies to any salaried Chairman or salaried Deputy Chairman appointed before the commencement of this Act for the words 'in pursuance of this section' there shall be substituted the words 'on the termination of his appointment'."—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— The Hertfordshire County Council Act, 1935 (25 & 26 Geo. 5. c. cxiii).—In subsection (8) of Section one hundred and fourteen for the words 'in pursuance of this section' there shall be substituted the words 'on the termination of his appointment'.

On Question, Amendment agreed to.

Second Schedule, as amended, agreed to.

Third Schedule agreed to.

Fourth Schedule [Enactments repealed]:

THE LORD CHANCELLOR

The Amendments to this Schedule are moved to correct drafting which is in some respects defective. They are all really drafting Amendments.

THE LORD CHAIRMAN

As they are all drafting Amendments, perhaps your Lordships will permit me to put them en bloc.

Amendments moved—

Page 22, line 31, at and insert:

'20 & 21 Vict. c. clvii. The Mayor's Court of London Procedure Act, 1857. Sections four eight, nine and ten")

Page 23, line 3, at beginning of the third column insert: In subsection (2) of Section thirty the words 'or in proceedings on the Crown side of the King's Bench Division'; in subsection (2) of Section fifty the words 'or in proceedings on the Crown side of the King's Bench Division'; in subsection (1) of Section seventy-seven the words 'with the concurrence of the Lord Chancellor'; in subsection (1) of Section seventy-eight the words 'by Order in Council'

Page 23, line 5, at end insert: ("and section one hundred and ninety-six")

Page 23, line 15, leave out ("subsection (2) except so far as it applies") and insert ("subsections (2) and (7) except so far as they apply")

Page 23, line 24, after ("4") insert ("7").—(The Lord Chancellor.)

On Question, Amendments agreed to.

LORD STRABOLGI

Before we pass the Fourth Schedule, I hope I may be forgiven, as a layman, for asking the learned Lord Chancellor a question about it. If your Lordships will look at it, you will observe that it repeals parts or the whole of a number of very ancient Statutes, including a part of Magna Carta of Edward I and the whole Act 18 Edward III Statute 1, and so on. I understand that this is the result of the long researches and examination of very learned Judges. But I am a little alarmed when I see how far their repeals go back. On turning up, for example, Magna Carta of Edward I, I find that the words which it is proposed to leave out are "or be outlawed." The actual chapter I have always been told was the foundation of our liberties: No freeman shall be taken, or imprisoned, or be disseised of his freehold, or his liberties, or free customs, or he outlawed, or exiled, or in any other wise destroyed; nor will we pass upon him, nor condemn him (a) unless by the lawful judgment of his peers, or by the law of the land. Why take out "or be outlawed"? Has outlawry ceased to exist?

I am not quite sure. We live in funny times. You refuse people passports. As I pointed out in another place one of the most important provisions of Magna Carta, the right of the citizen to leave the country freely, has been taken away. I am not so sure that you cannot outlaw people, and why take out these words? I will turn to the text one, and I will be brief, because the hour is late and we have had an interesting and illuminating discussion. I have learned more about law than I ever thought I would learn. The Statute of 18 Edward III says that "no Archbishop"—or, as a note says, "no Bishop"—"shall be impeached before our justices because of crime." That has been taken out, and so it goes on, Either these ancient Statutes have a meaning or they have not, and I think we ought to have some small comfort from the Lord Chancellor on this matter. With great respect I would rather have his opinion in this House than that of the Law Officers in another place.

THE LORD CHANCELLOR

I think your Lordships ought to be congratulated that the members of this House carefully scrutinise the Bills which they are asked to pass, and particularly uphold the principles of Magna Carta, whenever they are attacked in any degree. If, however, the noble Lord will look at Clause 12 of the Bill he will see why the Schedule contains that provision. Clause 12 of the Bill, which at present has no Amendment, is dealing with outlawry proceedings and criminal informations (other than informations filed ex officio by His Majesty's Attorney - General) which are hereby abolished. That, at any rate, justifies the statement that the two words in Magna Carta have now become obsolete and ought to be repealed. It is a consequential Amendment, and I am instructed, although I cannot give him precisely the same exact information with regard to the Act of 18 Edward III, that the repeal of the whole of that Act is consequential on one of the clauses of the Bill which have already been passed. However, I shall be very glad to look into that, and tell the noble Lord at a later stage why an interesting relic of our law, in 18 Edward III, is now being repealed.

LORD STRABOLGI

I am very much obliged.

Fourth Schedule, as amended, agreed to.

Title: An Act to amend the law with respect to Assizes and to Quarter Sessions and with respect to proceedings on the Crown side of the King's Bench Division of the High Court; to enable effect to be given to international conventions affecting English Courts; to extend the jurisdiction of County Courts and to amend the Supreme Court of Judicature (Consolidation) Act, 1925, and the County Courts Act, 1934; and for purposes connected with the matters aforesaid.

THE LORD CHANCELLOR moved, after "1934,"to insert "to amend the law relating to appeals from the Mayor's and City of London Court." The noble and learned Lord said: There is here a consequential Amendment, having regard to the new clause which your Lordships have dealt with relating to appeals from the magistrates.

Amendment moved— After ("1934") insert ("to amend the law relating to appeals from the Mayor's and City of London Court").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Title, as amended, agreed to.