§ Read 3a (according to Order), with the Amendments.
§ Clause 18 [Detention in a detention centre]:
THE LORD CHANCELLORMy Lords, I am sorry that there are so many Amendments but I think they are nearly all drafting or, in substance, drafting, except perhaps the first one. If I may take the first group of Amendments, which are to Clause 18, together, I will tell your Lordships how they come about. The idea of detention centres, if and when they are established, is that they shall be places to which young persons can be sent, and the clause provides that you cannot send a person to such a centre for a shorter period than three months. In exceptional cases you can send him for as long as six months. The magistrates of the London juvenile courts—and they have great experience in this matter—have been to see the Home Secretary and have pointed out to him that in regard 361 to young offenders, children of compulsory school age, children of fourteen or fifteen, three months may be too long because it means a considerable break in the child's school life. They think that in respect of those particular children (they do not want to have short sentences for others up to the age of twenty-one) it would be desirable to confer on courts the right to send them to these centres for as short a time as one month. I think there is substance in that point. Indeed, I think that anything which the magistrates of the juvenile courts of London may say must be regarded as having great substance in it. That is the reason why we have put down this Amendment to Clause 18. I beg to move.
§
Amendment moved—
Page 21, line 24, after ("shall") insert ("(except as provided by paragraph (c) of this proviso)").—(The Lord Chancellor.)
§ LORD LLEWELLINMy Lords, if I may say so, I agree with the Lord Chancellor that, except for this group, nearly all the Amendments on the Paper, so far as I can see, are drafting Amendments. With regard to this particular group, I am glad that the Government have accepted the suggestion from the London juvenile courts magistrates. I must say that I had rather overlooked the fact that under the Bill a shorter term at a detention centre than that of three months could not be imposed. In many cases, that would clearly be too long, especially for boys or girls—I suppose the offenders would mostly be boys—who are at school. I understand that those who advise the Home Office on these matters, particularly those who may be likely to have charge of some of these detention centres, think that the period of one month would, in normal cases, be too short. The view is that for about a fortnight the boy would feel himself rather entertained in his new surroundings, and during the next fortnight he would just be thinking of getting out of them. Therefore, those who advise the Home Office do not think that they will be able to do much good unless they have a longer period than one month—they want at least three months in the case of the older delinquents. That is the opinion of the people who will have to run these places and, naturally, their views are entitled to a great deal of consideration. These detention 362 centres will, after all, be new places. If, later on, it is found that sentences of less than three months would be all right for the older well as the younger delinquents, then I think will be the time, rather than now, to amend this particular provision. I certainly welcome it in regard to the younger offenders.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 21, line 26, leave out ("and").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§
Page 21, line 34, at end insert—
("and
(c) if the offender is of compulsory school age and the court is of opinion that a term of detention of three months, or equal to the maximum term of imprisonment aforesaid, would be excessive, the term for which he is ordered to be detained as aforesaid may be any teem of not less than one month and not more than three months or the maximum term of imprisonment aforesaid.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 22, line 14, at end insert ("and the expression 'compulsory school age' has the meaning assigned to it by section thirty-five of the Education Act, 1944:
Provided that section eight of the Education Act, 1946 (which provides that a person attains a particular age during a school term shall be deemed not to have attained that age until the end of the term) shall not apply.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 20 [Borstal Training]:
§
THE LORD CHANCELLOR moved, in paragraph (a) of subsection (4), after "London" to insert
or for a borough not having a separate court of quarter sessions
The noble and learned Viscount said: My Lords, we made an error here. We forgot that there are in this country many boroughs—over 100 I believe—which
363
have their own petty sessional divisions but not their own Quarter Sessions. Clearly, in those cases, we must provide for committal to the appeal committee of Quarter Sessions of the county in which the borough is situated. This applies to Borstal sentences and also to extending leave to appeal, where that is granted. There has clearly been an omission here which we must put right.
§
Amendment moved—
Page 24, line 40, after ("London") insert ("or for a borough not having a separate court of quarter sessions").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 24, line 42, at end insert ("or for the county in which that borough is situated, as the case may be").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 29 [Committal for sentence in respect of indictable offences tried summarily]:
§
Amendment moved—
Page 35, line 17, after ("London") insert ("or for a borough not having a separate court of quarter sessions").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 35, line 19, at end insert ("or for the county in which that borough is situated, as the case may be").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 35 [Challenge of juries and separation of juries]:
THE LORD CHANCELLORMy Lords, this Amendment has been suggested to me by the noble Viscount, Lord Simon. The Amendment permits an accused person to challenge any juror for cause. I beg to move.
§
Amendment moved—
Page 38, line 3, at end insert ("and any juror or jurors for cause").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
364
§
Amendment moved—
Page 38, line 4, leave out ("In any criminal proceeding") and insert ("Upon the trial of any person for an offence on indictment").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 36 [Appeals from courts of summary jurisdiction to quarter sessions]:
§
THE LORD CHANCELLOR moved, after subsection (1) to insert:
(2) For the purpose of the last foregoing subsection the expression 'sentence' includes any order made on conviction by a court of summary jurisdiction, not being—
The noble and learned Viscount said: My Lords, Sir David Maxwell Fyfe and several other people are very anxious that we should make it quite plain that there is always an appeal against the decision of a magistrate: for instance, such matters as the endorsement of a driving licence or anything of that sort, where there is no other punishment, should be treated as a sentence. We commit ourselves to the absolute principle that there is always an appeal, except in the three instances of the Amendment. In the case of (a) there can be no appeal because a probation order presupposes consent. There can be an appeal against a conviction on which the probation order is based. There can be no appeal against an order for payment of costs. There never has been, there is not now, and it is undesirable that there should be, litigation on costs before the courts, and the exception (b) keeps the law as it is to-day. Exception (c) provides there can be no appeal against an order under the Protection of Animals Act, 1911. This refers to cases where animals are diseased or destroyed. Obviously, there can be no question of appeal there, where it is necessary to have an animal destroyed. With these three exceptions, we have committed ourselves to the principle that a sentence includes any order made by a court of summary jurisdiction, and that there shall be the right to appeal against these orders. I beg to move.
§
Amendment moved—
Page 38, line 26, at end insert the said subsection.—(The Lord Chancellor.)
§ LORD LLEWELLINMy Lords, I would like to ask one question on paragraph (c). If I have a dog condemned as savage, does that come under this clause? I think there is an appeal against that.
THE LORD CHANCELLORThat does not come under this clause. It deals with diseased or destroyed animals.
§ LORD CHORLEYMy Lords, there is a separate Act for dogs.
§ On Question, Amendment agreed to.
§ Amendment moved—
§
Page 39, line 14, at end insert—
("(b) in the case of quarter sessions for a borough, by the recorder or any deputy recorder;").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved to insert at the end of subsection (5):
and may be exercised either within or outside the county or borough for which the quarter sessions are held
The noble and learned Viscount said: My Lords, this provision is thought desirable, where the case is not to be heard by Quarter Sessions but by a Judge or Recorder. For instance, a Recorder may have his chambers in the Temple and the person who seeks bail may go to him at his rooms in the Temple, which may be altogether outside the area for which he sits as Recorder. This was a lacuna which we are now filling in. I beg to move.
§
Amendment moved—
Page 39, line 23, at end insert the said words.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 37 [Bail on appeal, case stated or application for certiorari]:
§ Amendment moved—
§
Page 41, line 21, at end insert—
("(b) in the case of quarter sessions for a borough, by the recorder or any deputy recorder").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
366THE LORD CHANCELLORMy Lords, I beg to move.
Page 41, line 30, at end insert ("and may be exercised either within or outside the county or borough for which the quarter sessions are held").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 39 [Amendment of Criminal Appeal Act 1907]:
§
THE LORD CHANCELLOR moved, after subsection (4) to insert:
(5) The Court of Criminal Appeal may, when they dismiss an appeal or application for leave to appeal order the appellant or applicant as the case may be to pay the whole or any part of the costs of the appeal or application, including The cost of any transcript of the shorthand notes of the proceedings at the trial made in accordance with a direction given by the registrar under section sixteen of the Criminal Appeal Act, 1907; and any order under this subsection may be enforced by the person to whom the costs are ordered to be paid in the same manner as an order for the payment of costs made by the High Court in civil proceedings
The noble and learned Viscount said: My Lords, this clause, which has been agreed by the Lord Chief Justice, takes the place of the existing Clause 35 and expands it by making it plain that the cost of the transcription of the shorthand notes is part of the costs. I beg to move.
§
Amendment moved—
Page 43, line 40, at end insert the said subsection.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 43 [Order of Speeches]:
§
Amendment moved—
Page 47, line 6, leave out ("prosecution") and insert ("prosecutor").—(The Lord Chancellor.)
§ In Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved to add to the clause:
(3) The provision of the last foregoing subsection shall not apply to proceedings before examining justices
The noble and learned Viscount said: My Lords, this Amendment is necessary because the procedure about proceedings before examining justices is already carefully set out in the Criminal Justice Act, 1905. Later we shall amend the appropriate Schedule to bring it into conformity with the present system. I beg to move.
§
Amendment moved—
page 47, line 7, at end insert the said subsection.—(The Lord Chancellor.)
§ LORD LLEWELLINMy Lords, is the term "examining justices" a term of general use? It is not contained in the definition clause.
THE LORD CHANCELLORIt is borrowed from The Criminal Justice Act, 1925, Section 12, the section we are amending.
§ On Question, Amendment agreed to.
§ Clause 45 [Payment of costs of defence on acquittal, etc.]:
THE LORD CHANCELLORMy Lords, this Amendment is to remove a subsection which we have already replaced by an earlier Amendment. I beg to move.
§
Amendment moved—
Page 48, line 41, leave out subsection (8).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 51 [Acquisition of land for prisons, and other institutions]:
THE LORD CHANCELLORMy Lords, This Amendment is necessary because we may get an existing building that we can adapt and there may be no need to build at all. I beg to move.
§ Amendment moved—
§ Page 52, line 44, leave out ("building") and insert ("establishing").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 68 [Arrest on failure to surrender to bail before courts of summary jurisdiction]:
THE LORD CHANCELLORMy Lords, this Amendment is necessary because otherwise the court might have power wide enough to include even witnesses. Obviously we mean the person who has been convicted of an offence. I beg to move.
§
Amendment moved—
Page 63, line 12, leave out ("has entered") and insert ("charged with or convicted of an offence has been released upon entering").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Eighth Schedule [Transitory Provisions]:
THE LORD CHANCELLORMy Lords, this is the first of a group of 368 Amendments in the Eighth Schedule dealing with the same question. Unfortunately, there are some people who have escaped from prison or Borstal and at the time of the passing of this Act will be at large, though they ought not to be. As the Bill has been drafted, we have not brought these people within our net, and it is obvious that we ought to bring them in. I beg to move.
§
Amendment moved—
Page 89, line 42, leave out ("Any person who, having") and insert ("Where a person has").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 89, line 43, leave out ("is") and insert ("then if").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 89, line 44, after ("Act") insert ("he is or ought to be").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 89, line 46, leave out ("then").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 89, line 48, after ("Act") insert ("he").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Ninth Schedule [Consequential and Minor Amendments]:
THE LORD CHANCELLORMy Lords, this Amendment is consequential on the provision already made in regard to costs. I beg to move.
§ Amendment moved—
§
Page 95, line 16, column 2, at beginning insert—
("In section thirteen, at the end of subsection (1) there shall be added the words 'except as otherwise provided by section thirty-seven or section forty-three of the Criminal Justice Act, 1948'").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
369THE LORD CHANCELLORMy Lords, this Amendment gives a single Judge, before whom application for leave to appeal goes, power to order the payment of costs if he thinks it a proper case. He can, of course, adjourn the case to the full court. I beg to move.
§
Amendment moved—
page 95, line 26, column 2, after ("1948") insert ("or to make orders for the payment of costs under subsection (5) of that section").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 7.1 p.m.
THE LORD CHANCELLORMy Lords, you will see that this Amendment refers to that part of the Schedule which deals with the Criminal Justice Act, 1925. It is the Criminal Justice Act, 1925, and Section 12 in particular, which uses that phrase "examining justices," of which I did not know until this morning—I am glad the noble Lord did not know it either—and sets out the complete code. Therefore, we have to write these words into that Act in order to make the matter right. I beg to move.
§ Amendment moved—
§
Page 97, line 8, column 2, at beginning insert—
("In section twelve, in subsection (5) for the second and third paragraphs there should be substituted the following paragraphs—
'If the accused in answer to the question states that he wishes to give evidence or to call witnesses, or both to give evidence and to call witnesses, the justices shall proceed to take the evidence of the accused if he wishes to give evidence himself, and of any witnesses called by him who know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.
Where the accused is represented by counsel or a solicitor, his counsel or solicitor shall be heard on his behalf, either before or after the said evidence is taken, at his discretion, and may, if the accused gives evidence himself and calls witnesses, be heard on his behalf with the leave of the justices both before and after the evidence is taken:
Provided that where counsel or a solicitor is so heard both before and after the evidence is taken, counsel or the solicitor for the prosecution shall be entitled to be heard in reply.'").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
THE LORD CHANCELLORMy Lords, the next Amendment is consequential on Amendments we made dealing with borough recorders. I beg to move.
§
Amendment moved—
Page 100, line 20, column 2, leave out from ("additional") to end of line 25.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
THE LORD CHANCELLORMy Lords, I beg to move that the Bill do now pass. I will just say a few words on this Bill. It has been subjected, as these Bills always are, to very careful consideration by your Lordships. It has been amended in not a few respects. I think it has been greatly improved. We have inserted a clause giving the Court of Criminal Appeal power to order a new trial, and I hope and believe that we have safeguarded that power. We have inserted a clause enabling persons in our employment abroad, in Embassies, and so on, who misbehave themselves, to be tried here. Your Lordships have taken a different view from the view the Government took in regard to judicial whipping. As the Bill now stands, birching remains, though whipping with the cat o'nine tails has gone.
Your Lordships have taken a different view with regard to capital punishment from the one contained in the Bill when it came to us. With regard to that I would like to say this. I was greatly impressed—I am sure all your Lordships were—with a passage in the speech of the most reverend Primate the Archbishop of Canterbury dealing with that matter. He said this:
I believe now that matters have gone as far as this it will be a moral setback simply to revert to the status quo.He expressed the opinion that the sanctity of human life would be best assisted by some modification of our present law. He thinks that that would be
not a concession to weak sentiment, but as a true progress in allowing the Christian law of love to permeate and influence the secular law of protective punishment";and he expressed the hope that it will still be possible so to amend the existing law that we shall mark our sense of the importance of doing everything to strengthen the regard of the sanctity of human life. It has not been possible for us in this House to work out any such Amendment. I still hope, for the reasons which the most reverend Primate so convincingly gave, that it may be possible to find some compromise which has regard to the very deep views which are held by persons in all quarters of the country.371 With those few remarks, and thanking your Lordships for the trouble and attention you have given to this Bill, which, as I have said, is in no sense a Party measure, I beg to move that the Bill do now pass.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ 7.5 p.m.
§ LORD LLEWELLINMy Lords, before this Bill passes, I think your Lordships will expect me to say a few words on the matters which the noble and learned Viscount has just raised, although I had not intended to speak. I myself think we did the right thing in regard to allowing the Court of Criminal Appeal to order new trials, so long as we maintained the right of a man who had been previously acquitted on any count not to be tried again on the count on which he had been acquitted. The clause we passed in regard to foreign jurisdiction is one with which I very much hope the other place will agree fully. I believe it is better than that originally produced, and, as we are assured, it fully meets the point of view of the Foreign Office on that matter. I noticed a distinction in the words used by the Lord Chancellor in saying that this House had disagreed with the view taken by the Government in regard to corporal punishment. On the other hand, we agreed with the view taken by the Government in regard to capital punishment. There is the distinction between those two.
I am one who, as I said in my original speech, has just as much regard for the sanctity of human life as any other member of your Lordships' House. It depends entirely what we mean by "the sanctity of human life," and of which human life. So long as we believe that capital punishment is a deterrent against the unprovoked killing of an innocent person, then, in my view, we are right to maintain that punishment. It is difficult to suggest that capital punishment is a deterrent against killing a policeman, and to suggest at the same time that it is not equally a deterrent against the killing of a householder protecting his goods. I believe that the decision to which this House came on this matter is the right one. It is not a Party decision. I see the noble Lord sitting opposite who, by speech and vote, supported the Amendment which I moved; 372 and, of course, it was a noble Lord opposite who told for me in regard to it. I believe that in taking that decision we have the country very much behind us. I only hope we shall not, by failing to agree on a matter of that sort, endanger the other provisions of this Bill becoming law.
There is a remedy if we cannot agree, because Clause 1 as it was in the Bill when it came to us was not in the Bill when it originally started in the other place. If we cannot come to an agreement between the two Houses on this matter (I believe there have to be two compromises between the Government and some of its own supporters, and a compromise between that compromise and the view this House might take) surely it will be quite simple once again to leave out the clause, and to have a new Bill incorporating a compromise, so that we shall not, by such a disagreement, lose a Bill the main provisions of which have met with complete agreement on both sides, not only in this House, but in another place.
THE MARQUESS OF READINGMy Lords, during its long passage through your Lordships' House this Bill has had the benefit of much diligent consideration, and has had the assistance of many of those best able to contribute knowledge to the solutions of the problems which it raised—not all of them, by any means, lawyers by profession. I think it is right to say that we have, in the course of its passage, improved the Bill, and that there is still the outstanding question remaining—the one which we discussed at such considerable length—which led to the removal of the then Clause I of the Bill. I entirely agree with the noble Lord, Lord Llewellin, that it would be a great pity if the Bill were to be lost owing to an insoluble conflict on that particular question. At the same time, it is a question upon which people feel strongly, not from hardness of heart or prejudice of mind, but from a perfectly sincere conviction as to what is in the public interest. Therefore, whatever one's hopes may be as to the possibility of solving the situation by means of some compromise, one would require to see the form which that compromise is likely to take before expressing any further view.
§ On Question, Bill passed and returned to the Commons.