HL Deb 23 May 1946 vol 141 cc443-9

1. Any person who contravenes any provision of any order made under this Act shall be liable on summary conviction to imprisonment for not more than three months or to a fine not exceeding whichever is the highest of the following amounts—

  1. (a) one hundred pounds; or
  2. (b) the amount of any money borrowed or raised by the transaction in question; or
  3. (c) the nominal or market value, whichever is the greater, of any securities to the issue, sale or other disposal of which (whether actual or projected) the transaction in question relates,
or to both such imprisonment and such fine.

THE EARL OF MUNSTER moved, in paragraph 1, to leave out "three months" and insert "one month." The noble Earl said: We on this side of the House attach very important considerations to the two Amendments which stand in my name on the Paper. I trust therefore that His Majesty's Government will be able to concede what we are asking. We feel that it is not really desirable that courts of summary jurisdiction should have the vast unlimited powers of punishment set out in Paragraph 1 of the Schedule. It is quite true that very strong powers were taken by the Government in the Defence Regulations, powers which, of course, it was never intended should be made permanent, but I venture to think that there was every justification for the Government, during the war, taking the action which they did take. After all, it was the duty of every man and indeed of every woman to direct all their efforts to one object and one object only, and that was to win the war. I myself agree that if legislation is passed the Government have every reason to ask Parliament to give them heavy powers of punishment. But in cases such as those which might arise under this Bill, as I see it, there are bound to be considerable legal complexities involved, and I suggest that it is unwise that a body of magistrates, who may be and probably are most worthy men and women, but who have had very little training in the law, should by the procedure which is outlined in the Schedule have power in addition to giving the offender imprisonment to impose a fine which may run into thousands of pounds.

I do not know offhand—I am not very skilful in the law—of any other Acts of Parliament where penalties of such a nature to be imposed by a court of summary jurisdiction are provided. My Amendment therefore is put forward with the suggestion to His Majesty's Government that they should limit the penalties on summary conviction to not more than one month's imprisonment and a fine not exceeding one hundred pounds. They will, under my second Amendment, have power to prosecute in the more deliberate cases on indictment, and then sub-paragraphs (a), (b) and (c) of paragraph 1 of the Schedule still remain. I think—though I speak subject to correction—that when grave offences are alleged the person accused should have the right of being tried by a judge and jury. Indeed that, so far as I am aware, is the inherent right which is even possessed by a common burglar. I do not think I need say any more than I have already said to your Lordships on this point, but I do hope that His Majesty's Government will agree that as the Schedule is drafted at the moment it requires amendment, and that they will accept the two Amendments which I have placed on the Paper. I beg to move.

Amendment moved— Page 6, line 5, leave out ("three months") and insert ("one month").—(The Earl of Munster.)

LORD SALTOUN

I should like to say a few words in support of my noble friend's Amendment. I have already pointed out that offences under this measure when it becomes law may be inadvertent. The general scope of the Act will be known, but the precise Treasury Regulations will not be known throughout the country. I should like to cut out imprisonment altogether, but I refrained from moving an amendment in the hope that His Majesty's Government would accept that of my noble friend, the Earl of Munster. It would be very unfortunate if a man were sent to prison for an offence against this Act which was committed quite inadvertently and unconsciously. There is another point and a very important one. Most of the evidence in cases under this Bill will be accountancy evidence. Now accountancy evidence is very often very difficult for untrained people to master. I have no doubt that I am suffering under a delusion, but I have sometimes thought that His Majesty's Judges themselves were a little confused by accountancy evidence. I certainly think that a court of summary jurisdiction is not the best court before which to try most of the cases which must arise under this I therefore do very warmly beg His Majesty's Government to accept the Amendment of my noble friend.

5.1 p.m.

VISCOUNT SIMON

Might I be allowed to add just one word in support of what has been proposed. The language is necessarily a little technical, but the actual situation can be very simply stated. Your Lordships will have noticed that as the Schedule stands, the provision is that an offender under this Act is liable on summary conviction to imprisonment for not more than three months. I have no doubt that that provision of three months was deliberately inserted—for this reason. If the imprisonment to which you may be exposed when you are brought before the magistrates is imprisonment for more than three months, the magistrates are bound to tell you, even before the case starts, that you have the right, if you prefer it, not to be tried by them but to be tried by a judge and jury. That is the general law which operates in courts of summary jurisdiction. I can imagine deliberate cases of the breach of what is proposed, which might very well deserve more than three months, and this proviso has been put in for the express purpose of making sure that magistrates, courts of summary jurisdiction, shall be the only people who can ever have to deal with this class of offence. The size of the fine does not matter.

The test which is provided by the law is this. Is the maximum imprisonment to which the accused might be exposed more than three months? If it is, you must tell him, and he will then have the choice as to how he will be tried. He can be tried by a higher court. If it is not more than a three months' maximum, he has no right to make that claim, and the magistrates are the only body which will try him.

I commend this Amendment, or something in the same spirit, to the House, for this reason. Cases under this Bill will not all be of equal gravity. Those who have the responsibility of prosecuting will have a pretty shrewd idea how grave is the case they have. If it is a case which ought to be prosecuted, but which is a comparatively small matter, it would seem quite right to me that magistrates, the ordinary courts of summary jurisdiction, should deal with it as they deal with many other cases of small crime.

It is an absolutely unheard of thing that the magistrates of this country, that is, two J.P.'s, men or women—most excellent people, but not especially trained in the law—should have the power, and the sole power, to impose enormous financial penalties. Indeed, as your Lordships know, there is a sort of scale between imprisonment on the one hand, and a fine on the other. In some cases, if a man is fined a certain amount by the magistrates, and he deliberately refuses to pay the fine, he may go to prison instead. If you are told to pay a fine of £20, and you deliberately refuse to pay, you may go to prison for two months. I think that is right. The same parallel occurs between a £30 fine and three months. But here, you have the most extraordinary pair of alternative penalties. Imprisonment cannot be more than three months, and therefore the magistrates will be the only people who can deal with it. But the fine may be as much as "the nominal or market value, whichever is the greater, of any securities to the issue, sale or other disposal of which … the transaction relates."

Nobody imagines that the magistrates would fine anybody £1,000,000, but if the issue, or proposed issue, was £1,000,000 worth of shares, it would be possible. That is manifestly a bad arrangement, and the Amendment proposes, that while smaller cases would still be dealt with in the magistrates' courts—which is right—the really serious cases would have to be dealt with on indictment. I would only add one other thing. I am persuaded that the noble Lord, the Lord Chancellor, will not think that this is an unreasonable contention of ours, whatever may be the precise form in which it is made. Having carefully studied the debates on this subject in another place, I personally am satisfied that there was a certain amount of confusion—it is excusable—as to how these matters stood. I exonerate any lawyer who is not perfectly familiar with our summary jurisdiction code. A great many of us are not, because our practice is laid in other departments.

But it is unfortunate that in the Committee of the Commons, the spokesman for the Government should; have laboured under one or two temporary delusions. For example, he pointed out that most of the cases would arise in the City of London, and would therefore come before stipendiary magistrates. I think our City Fathers would be astonished to hear that. There is no stipendiary in the City of London; cases are dealt with by an Alderman. That was just a slip. In the same way it was quite a mistake, as was said in the other House, to say, "Look at Customs offences. They can be dealt with by benches of magistrates, who may impose fines up to three times the value of the goods." So far that is quite correct.

What does not seem to have been observed is that the maximum imprisonment which may be inflicted for a Customs offence is two years. Since two years is more than three months, anybody charged with a Customs offence, has a right to choose to be tried by a Higher Court. Under this Bill, since three months is not more than three months, nobody will have that opportunity. Therefore, my respectful suggestion to the Government is that my noble friend is quite right in endeavouring to differentiate between the smaller offences and the grosser offences, and that cases in which bigger penalties ought to be imposed should be dealt with by a Higher Court. Whether this is done exactly in the words here, or by some similar words, is very largely a matter for the advice of the noble Lord, the Lord Chancellor. I must tell your Lordships, without any prejudice at all, that I think the present provision is quite impossible to defend, and that there must have been some misapprehension when it was thought to be all right when it reached your Lordships' House.

5.8 p.m.

LORD PAKENHAM

I have had an opportunity of consulting with the Lord Chancellor on these matters, and with his usual generosity he has promised to throw me a boathook if and when I disappear under the waters of legal disputation for the third time. In the meantime, I will say that the Government are grateful to the noble Earl, Lord Munster, and the noble Lord, Lord Saltoun, for raising this point, and for providing the opportunity for further meditation. I have not a very definite statement to make to-day on the matter, but the Government will certainly look at it again. And there will, of course, be further opportunity for discussion when the Third Reading is reached. It is quite true that, as the Schedule now stands, there is a theoretical possibility that a court of summary jurisdiction might inflict an immensely heavy financial penalty. It is a theoretical possibility which, as the noble Viscount, Lord Simon, rightly stressed, ought to be guarded against, if in fact it does involve a departure from the best principle of British law.

VISCOUNT SIMON

One thousand pounds.

LORD PAKENHAM

It might be—

VISCOUNT SIMON

Magistrates, at this moment, are the sole Court for imposing a fine of one thousand pounds.

LORD PAKENHAM

It is a theoretical possibility. I have taken the trouble to look into the cases that have actually come before the courts during the war. I understand that there have been some nine cases altogether. In one case a fine of, I think, £5,000 was inflicted. In the other cases, or in most of the other cases, the fines were very small. Undoubtedly, we are confronted with a class of offence which may be trivial, which may arise mainly from negligence, or, on the other hand, might be a grave and deliberate defiance of the law. Therefore, speaking for the Government, I can say we shall certainly look into the matter to see if we can distinguish between the two classes of case, to see whether we can provide that the less grave kind of offence is taken before a summary court with some maximum penalty that will not seem excessive in the eyes of noble Lords who have spoken. On the other hand I am bound to say (and I think here we have the noble Viscount, Lord Simon with us) that we are determined to mark the gravity of a class of offence that may occur under this Act, and, if in fact, we divide the classes of case and take some on indictment, then we should probably feel bound to raise the penalty in those cases considerably above three months.

VISCOUNT SIMON

The maximum.

LORD PAKENHAM

The maximum penalty considerably above three months. I understand that would have the approval of the noble Viscount, Lord Simon. In view of what I have said, I will ask the noble Earl, Lord Munster, and the noble Lord, Lord Saltoun, whether they will not allow time for reconsideration of the matter before discussion at the next stage.

THE EARL OF MUNSTER

I am grateful to the noble Lord for his kindness in telling me that the Government intend to look into this question again. I hope that they will bring forward an amendment at the next stage of the Bill. There will now of course be a Report Stage of the Bill. May 1, at the same time, ask the noble Lord, Lord Pakenham, and the noble and learned Lord on the Woolsack to look at paragraph 5 of this Schedule, lines 3 and 4, which may require amendment? I need say no more. I thank the noble Lord again for his reply, and I ask leave to withdraw the Amendment.

LORD SALTOUN

I should also like to thank the noble Lord, Lord Pakenham, for his reply.

Amendment, by leave, withdrawn.

Schedule agreed to.