CRIMINAL JUSTICE BILL. (Hansard, 3 June 1948)

HL Deb 03 June 1948 vol 156 cc257-323 257

§ 6.12 p.m.

§ House again in Committee (according to Order).

§ [The EARL OF DROGHEDA in the Chair]

§ Clause 4:

§ Probation.

§ (2) A probation order shall name the petty sessional division in which the offender resides or will reside; and the offender shall (subject to the provisions of the First Schedule to this Act relating to probationers who change their residence) be required to be under the supervision of a probation officer appointed for or assigned to that division.

§ (5) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsection (3) or subsection (4) of this section or under the next following section) and that if he fails to comply therewith or commits another offence he will be liable to be sentenced for the original offence; and if the offender appears to the court to be not less than fourteen years of age the court shall not make the order unless he expresses his willingness to comply with the requirements thereof.

§ THE LORD CHANCELLOR
This is a drafting Amendment. We shall have it several times. Its purpose is to get rid of a rather cumbrous phrase: for which the court has power, or would but for section seventeen of this Act have power, to pass a sentence of imprisonment, or for which the court has power to impose a fine, by substituting the much shorter phrase: not being an offence the sentence for which is fixed by law. I beg to move.

§ Amendment moved— Page 3, line 9, leave out from ("offence") to ("is") in line 12 and insert ("not being an offence the sentence for which is fixed by law").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ LORD RAGLAN moved to add to subsection (2): who shall be named in the order. The noble Lord said: An Amendment to this effect has been suggested by the Association of Probation Officers. They consider that their work would be facilitated if personal relationship were set up from the very start of the probation, and that it is desirable to have the name of 258 the probation officer inserted in the order instead of merely a reference to an anonymous official. I beg to move.

§ Amendment moved— Page 3, line 24, at end insert ("who shall be named in the order").—(Lord Raglan.)

§ THE EARL OF MUNSTER
I should like to say just a word in support of this Amendment. I have little to add to what my noble friend Lord Raglan has said, except that I think it is essential to keep that personal relationship between probationer and probation officer. I would, however, make this suggestion. I have a similar Amendment at page 75 of the Bill. My Amendment is to insert a new sub-paragraph in paragraph 4 of the Fifth Schedule, which deals with the selection of the probation officers. I venture to think that that Amendment would meet the purpose better than that of my noble friend, but if the noble Lord opposite accepts either my noble friend's Amendment or mine I shall be satisfied.

§ LORD CHORLEY
I regret that I shall not be able to satisfy either of the noble Lords. I think that the noble Lord who has moved this Amendment has done so under a misapprehension. The change which is made by the Bill carries out a recommendation of the Social Services Committee. Its purpose is to overcome a very real difficulty which may arise at the present time, in the event of a probation officer dying or going away, or in some other manner becoming unable to carry out his duties, The noble Lord is under a misapprehension, I think, if he imagines that the object of this clause in the Bill is to impair the personal relationship between the probation officer and the person who has been put on probation.

LORD RAGLAN
I do not suggest that that is the object, but that is the effect.

§ LORD CHORLEY
No; the clause does not have that effect. The personal relationship will continue much as it has done in the past. The reason the name of the probation officer is left out of the order—and it is confined to the petty sessional division—is that if a probation officer dies or goes away, or otherwise becomes unable to carry out his duties, a complicated situation arises. Application has to be made to the court, and if the lad or the man on probation should go to another area that involves further complication elsewhere. In the past, this 259 has given rise to considerable difficulties. The administrative arrangements to be introduced under the Bill will work in exactly the same way as the present arrangements work; that is to say, the probation officer who takes up a case in the first instance will continue to deal with it throughout the probation period, so far as that is practicable. If it has not been taken up when the case comes before the court, a probation officer will be appointed who will continue to be in charge of that particular case, so long as is reasonably practicable. But if he should die or cease to be a probation officer a new man can be appointed, without the necessity of going back to the court. The necessity for going to the court in case of movement to some other part of the country will also be avoided. I think the noble Lord will realise that the object of this is really to obtain elasticity and to loosen up difficult working which has led to considerable complications in the past. In view of what I have said, I hope that the noble Lord will see his way to withdrawing the Amendment.

LORD RAGLAN
I will withdraw the Amendment in the form in which I have moved it, but I should like to ask if it would be possible for the noble Lord to consider an Amendment—perhaps to insert, after the name of the first probation officer appointed to deal with the case some such words as: or such other probation officer as may be appointed.

§ LORD CHORLEY
I would not like to commit myself on that now. I shall, however, be glad to have the noble Lord's proposal looked into, and to consider whether it would get over a difficulty. I would not like to pronounce any judgment upon it at this moment.

§ THE EARL OF MUNSTER
I take it that the remarks of the noble Lord Chorley on this Amendment also apply to the Amendment which I have down to the Fifth Schedule?

§ THE LORD CHANCELLOR
Yes, that is so. I hope that the noble Lords will have a look at the Report of the Departmental Committee on Social Services. In paragraph 77 they will find that there are clear reasons for the form of the Bill 260 at this point and for the arguments which my noble friend Lord Chorley has just advanced.

§ Amendment, by leave, withdrawn.

§ VISCOUNT TEMPLEWOOD moved, in subsection (5), to omit "if the offender appears to the court to be not less than fourteen years of age." The noble Viscount said: This Amendment raises an important question with reference to probation. Under the clause, before a probation order is made, the offender has to express his willingness to co-operate. An exception is made in this general provision—namely, that young persons under fourteen would not have to give an undertaking. It may be said that a young offender under fourteen is not in a position to give an undertaking of that kind. I own I have always had an open mind on this question until I heard more than one discussion upon this question at meetings of the Magistrates' Association. In those meetings it was forcibly put that magistrates attached importance to whether the young offender under fourteen gave an undertaking that he would co-operate with the probation officer. More than one very experienced magistrate said that this undertaking added to the formality of the occasion and it was a good opportunity for impressing upon a young offender the gravity of his position. After one or two discussions, the Magistrates' Association came to the view that it was useful that an undertaking of this kind should always be expected from offenders and no exception should be made for under-fourteens. On that acount, I venture to move this Amendment and to hope that the Government will take this view, which was expressed by a great many experienced magistrates, including one or two stipendiary magistrates who had a great deal of experience in juvenile courts.

§ Amendment moved— Page 4, line 12, leave out from ("and") to the second ("the") in line 13.—(Viscount Templewood.)

§ THE LORD CHANCELLOR
I agree up to a point with the noble Viscount who has just spoken—that is to say, I think that the essential condition of success in probation is that the person should assent and co-operate. For my part, if I were dealing with children of tender years, I should always try to get the child to agree and I would explain to him simply that the whole thing would 261 be a failure if he did not play his part. That can easily be explained even to a small child. My objection to the Amendment is that I do not want to make it an absolutely sine qua non in all cases. One may find some little reprobate who is stubborn enough to say that he will not co-operate. If that happens I do not want it to be said that the child cannot be placed on probation because he will not co-operate. I should be sorry to have the Bill so drafted that in such a case we could not use the system of probation.

§ VISCOUNT TEMPLEWOOD
I wonder whether it is worth making a statutory exception in a hard case of that kind. What impressed me when I discussed it with experienced magistrates was that none of them suggested that there had ever been a difficulty of that kind. It seems to me to be a pity to take an action that runs counter to the whole principle of probation. Therefore, in spite of what the noble and learned Viscount says, I hope he will look into this matter again and see whether, in view of actual experience, it is really worth while making an exception.

LORD MERTHYR
There is a lot to be said for obtaining the consent of the probationer and there is something to be said to the opposite effect—that orders should be capable of being made without obtaining that consent. A large number of people, magistrates in particular, cannot see any reason for the age distinction. Either the one thing or the other is right. Why it should be right under fourteen and wrong over fourteen perplexes a large number of people. It should be made the same for all ages. I should like to say that in support of the Amendment.

§ THE LORD CHANCELLOR
I am surprised to hear that objection raised. Surely the reason is that you cannot treat a child like an older person. The age is reached, whether under fourteen or under ten, or even under eight, when a child is not really in a position to consider the proposition at all. Then you must apply a different principle. I very much hope that even in those cases, it will always be possible in practice to get the cooperation of the child.

§ VISCOUNT TEMPLEWOOD
Would the noble and learned Viscount the Lord 262 Chancellor look into the question I have asked him? Has there been any complaint from any direction that there is a necessity for words of this kind? I have not heard of any, and I have discussed probation questions with a great many experienced magistrates and probation officers. If there is such a case as the noble and learned Viscount mentioned, or several such cases, then obviously I should not dispute with him words of this kind, but if there is no established need for a distinction, then it is a mistake to make a change in a system of probation that depends on the willingness of the offender to co-operate.

§ LORD ROCHE
I suggest to the noble and learned Viscount the Lord Chancellor that we all agree that there should be this expression of willingness and, as the noble and learned Viscount has said, we should try to get it whether the child is under fourteen or over. I confess I have a certain sympathy with the point that the present drafting would tend towards not trying to get the child under fourteen to make a promise. In 99 cases out of 100 the child can quite well make a promise. Per contra, we may get a stupid boy of fifteen or sixteen who ought to be bound over and is not in a disposition to make a promise. Probably the proper procedure would be to adjourn the case until he was, but that is not always possible. So that both cases could be met, would it be possible for the noble and learned Viscount to make a further amendment and let it read: Save in special circumstances the Court shall not give the order unless the offender expresses his willingness, or some such words, perhaps in better language, to meet both the point of age and exceptional cases of older boys and girls who do not make a promise?

§ THE LORD CHANCELLOR
I shall certainly look at this matter again, but frankly, as at present advised, I am most reluctant to depart from the clause as it is. I do not know whether there have been cases of these naughty children, but it is obvious that there might be. I think it is right that we should differentiate between small children and older ones. With regard to the older ones, I am most anxious not to impinge on the principle that co-operation is a fundamental of probation. I hesitate to lock into the suggestion of the noble Lord, Lord Roche, 263 that magistrates should be given power in exceptional circumstances, even though the child is over fourteen, not to exact a promise. But while looking into the whole matter, I will bear in mind what has been said.

§ VISCOUNT SIMON
May I suggest to the noble and learned Viscount the Lord Chancellor another form which the Amendment might take which seems to me worth considering? I gather from what he says that he and his advisers think that the words not less than fourteen years of age should appear in the clause. There is one thing which the noble and learned Viscount said he would regard as essential which does not appear in the clause; that is to say, that in the case of a child under fourteen years of age the court should do its utmost to persuade the child to accept the proposal. I do not think the clause, as it stands, says that at all, even as a pointer. I should have thought that might be considered, even though the Lord Chancellor thinks he must stick to his "not less than fourteen years of age," to make it read: and if the offender appears to the court to be not less than fourteen years of age the court shall not make the order"—

§ THE LORD CHANCELLOR
It must be put the other way round.

§ VISCOUNT SIMON
You see what I mean?

§ THE LORD CHANCELLOR
Yes.

§ VISCOUNT SIMON
The court should not make the order in that case until they have done their utmost to persuade the child to consent to the course proposed. It seems to me that that would be an indication to the juvenile courts as to what is the proper procedure.

§ VISCOUNT TEMPLEWOOD
I hope the noble and learned Viscount will look into this question again, with a view to finding some form of words to show that for the under-fourteens, as well as for the rest of the offenders, we insist, whenever it is possible, upon co-operation as the very foundation of the judgment of the court. Upon that understanding, I am willing to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

264

§ THE LORD CHANCELLOR
This is in the nature of a drafting Amendment. The explanation is this. If your Lordships will turn to Clause 77 you will see the provision about age. Subsection (3) says: Where the age of any person at any time is material for the purposes of any provision of this Act, or of any Order in Council made thereunder, regulating the powers of a court, his age at the material time shall be deemed to be or to have been that which appears to the court to be or to have been his age at that time. I am proposing later to insert in Clause 77 the words: after considering any available evidence, to make it plain that they have to come to the conclusion on the evidence. That being so, I can now use the verb "is," because his age is that which it appears to the magistrate to be, having regard to all the available evidence. I beg to move.

§ Amendment moved— Page 4, line 12, leave out from ("offender") to ("not") in line 13 and insert ("is").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ LORD GODDARD moved, in subsection (5), after the second "not" to insert: save as hereinafter provided. The noble and learned Lord said: I move in this case to insert the words, "save as hereinafter provided." This is linked up with the next Amendment which I propose to move with regard to Clause 5. The point is this. Under Clause 4, which we have just been discussing, an offender has to show his willingness to co-operate, and the conditions can be inserted in the Order only with his consent. Can that really apply to cases under Clause 5, where the reason for making the Order is that the child is mentally deficient? I do not use the words "mentally deficient" in the technical sense. Let us see what it is: Where the court is satisfied, on the evidence of a duly qualified medical practitioner appearing to the court to be experienced in the diagnosis of mental disorders, that the mental condition of an offender is such as requires and as may be susceptible to treatment but is not such as to justify his being certified as a person of unsound mind…or as a defective…the court may, if it makes a probation order, include therein a requirement that the offender shall submit for such period.… 265 and so on. Subsection (2) sets out the sort of treatment he is to have. If you look at subsection (8) on the next page, your Lordships will find there a provision for the parents of the child to call rebutting evidence as to his mental condition. It seems to me rather a curious thing, if a court is to make an order because a young person is thought to be of unstable and unbalanced mind, though he may not be actually certifiable, that the person is to be asked to consent to the order. If he is of unbalanced mind, surely one cannot ask him for his consent. I thought it was something that had been overlooked in the Bill. I beg to move that the words, "save as hereinafter provided," should be inserted in Clause 4. Later I propose to move an Amendment to Clause 5 to make it clear that when you are making an order for the mental condition of the patient you can put in a condition as to his residence, and so forth, without his consent.

§ Amendment moved— Page 4, line 14, after ("not") insert ("save as hereinafter provided").—(Lord Goddard.)

§ LORD DARWEN
I should like to support this Amendment, because I think it is quite an important one. A man in court may well refuse medical treatment of this kind, but a really skilled psychiatrist might be able to win his consent. It is obvious that no treatment can be effective without his consent, and I think that consent might be won by a properly qualified person after the court proceedings much more easily than it will be won in the court.

§ THE LORD CHANCELLOR
This matter has been the subject of very careful consideration, in which the Home Secretary has had the advice of skilled persons. Odd though it may seem, I really believe it to be the fact that in cases of mental treatment, perhaps more than in any other form of treatment, it is essential to have the co-operation of the person who is treated. I quite agree that the dilemma arises. If there had not been a dilemma, the noble and learned Lord would not have raised the point. I quite see that there may be cases in which, by reason of his mental condition, the prospective probationer withholds his consent for treatment which otherwise would be good for him, just because he has this instability of mind. 266 That is a real risk, but I think it is the lesser of two risks. The other risk is that you say with regard to these people: "You can do it without their consent." We are not dealing with a case of a person who is certifiable, or mentally defective. We are dealing, very often, with some case where there is a wide range of mental conditions which are short of that, Yet in many cases the probationer would be well able to understand that his cooperation is sought, and would be willing to give his co-operation.
I think modern treatment on this matter has realised that if you are dealing even with those who are certifiable, it is very desirable to keep them in a place where you say to them: "Look here, if you want to go out, you can." Your Lordships probably know that there was an institution near London. The fact that the people there had that element of responsibility meant that a large number of them did not want to go out; but the fact that they felt they had the right to go out was in itself a factor which told in favour of their recovery. I dare say your Lordships know that that theory is very much relied upon by the doctors in charge. Therefore, I say this to my noble and learned friend: although I quite realise the force of his point, although I quite realise that there will be some case where—perhaps because of this mental instability—there is a refusal which renders probation impossible, yet there will be a considerable number of cases where I think it desirable that we should insist on co-operation, even for this mental treatment. That being so, we have looked into this matter very carefully and have gone into it with the experts. On balance, I think we should be well advised not to accept this Amendment.

§ LORD GODDARD
My province is really the practical working of this matter for the magistrates. The noble Lord opposite has given a good reason why he thinks that even if the unruly boy will not co-operate at first, he may do so afterwards. I want to know what the court is to do if the boy will not co-operate. So far as I can make out, the only thing to do is to send him to an approved school. To send a mentally un-stable boy to an approved school seems to me undesirable for the boy and un-desirable for the other boys at the school. 267 I should have thought that if ever there was a case when you should allow the court to say: "We must send you to one of these homes because of your mental instability, whether you consent or not," this is it. It is almost unanswerable. I do not know what you can do with them, except send them to a home. As the noble Lord opposite said, they might take up an obstinate stand in court, but when you get them to one of these homes they will be dealt with by skilled psychiatrists where different considerations may arise, and they may be perfectly willing.

§ VISCOUNT SAMUEL
It seems to me that that point requires an answer. You may have a case of a boy over the age of fourteen who is not certifiable as insane; he cannot be certified as a defective under the Mental Deficiency Act. He is clearly not suited for an ordinary school, because of his mental deficiency, and if he stubbornly refuses to sign anything or promise any co-operation, what is to happen to him?

§ THE LORD CHANCELLOR
He is like any other probationer who will not consent—he cannot be placed on probation.

§ LORD GODDARD
Then he must go to an approved school.

§ THE LORD CHANCELLOR
He must go to an approved school, or whatever else may be done. I think that even in these cases it is desirable not to depart from the basic principle of probation, which is consent.

§ VISCOUNT SAMUEL
But in any other case, where it is not a borderline mental case, the boy can be dealt with as though there were no Probation Act at all. He can be sent to an ordinary school; but boys in cases like these cannot.

§ LORD DU PARCQ
I have often heard doctors say that the mental age of a boy of perhaps sixteen or seventeen was twelve. As the child who is twelve need not consent, why should the person whose mental age is twelve consent?

§ THE LORD CHANCELLOR
Because, in my belief, it will do away with this fundamental doctrine of consent. You are striking a serious blow at the whole system.

268

§ VISCOUNT TEMPLEWOOD
I must point out that what the Lord Chancellor has said seems to cut across what he said upon my earlier Amendment. I am not now arguing about the merits of this particular case, except to say that the noble Lord, Lord du Parcq, is quite right. the kind of case with which we are dealing now is where the mental age may be eight, nine or ten. If, therefore, the argument of the Lord Chancellor is right in the case of the Amendment that I moved just now, how much more right would it be to accept this Amendment?

§ THE LORD CHANCELLOR
Do I understand that the noble Viscount is pressing me to accept this Amendment?

§ VISCOUNT TEMPLEWOOD
Yes.

§ THE LORD CHANCELLOR
I am not authorised to do so at all, and all my instincts are against it. But in view of the fact that I receive the request from various quarters of the House, I will discuss it with the Home Secretary and see what he says.

§ LORD GODDARD
In view of what the Lord Chancellor says, I will not press this Amendment or the next, but I do hope that something will be done. Otherwise, the magistrates' courts are going to be in great difficulty.

§ Amendment, by leave, withdrawn.

§ Clause 4, as amended, agreed to.

§ 6.45 p.m.

§ Clause 5:

§ Probation orders requiring treatment for mental condition.

§ (3) A court shall not make a probation order containing such a requirement as afore-said unless it is satisfied that arrangements have been made for the treatment intended to be specified in the order, and, if the offender is to be treated as a voluntary patient or as a resident patient as aforesaid, for his reception.

§ LORD RAGLAN moved, in subsection (3), to leave out "have been" and insert "can be." The noble Lord said: Your Lordships will see that in the clause as it is now drawn an order cannot be made unless arrangements for treatment have been made. These arrangements obviously cannot be made until the offender has been tried and, therefore, the effect of this wording is that there must always be an adjournment. This may 269 not be a serious matter in the case of a court which is sitting continuously, but in the case of Quarter Sessions of a small county who finish their business within the day, are they to remand the offender in custody for three months or are they to hold a special sitting of the court in order to receive the doctor's report? Either of those courses would obviously cause a great deal of inconvenience, and it seems to me sufficient if the doctor assures the court that he could make the necessary arrangements. I beg to move.

§ Amendment moved—

§ Page 5, line 26, leave out ("have been") and insert ("can be").—(Lord Raglan.)

§ LORD CHORLEY
There is a good deal of force in the argument which the noble Lord has put before your Lordships. The noble Lord will appreciate the extreme importance of these arrangements being properly made, and of the court not making the order without that being certain. That is the reason why this rather extreme form of words is in the clause. Logically, the noble Lord's contention is obviously quite right, and provided that the court really conscientiously directs its mind to the need for seeing that these arrangements are made, that is sufficient. It has been suggested to me by my noble and learned friend that possibly the words "or can be" would be better. Perhaps the noble Lord could accept it on that basis.

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

§ Amendment, by leave, withdrawn.

§ Amendment moved— Page 5, line 26, after ("been") insert ("or can be").—(Lord Raglan.)

§ On Question, Amendment agreed to.

§ Clause 5, as amended, agreed to.

§ Clause 6 agreed to.

§ Clause 7:

§ Breach of requirement of probation order.

§ (6) The commission of an offence of which a probationer is convicted shall not be treated for the purposes of this Act as a breach of any requirement of the probation order and a probationer who is required by the probation order to submit to treatment for his mental condition shall not be treated for the purpose of this Act as having failed to comply with that requirement on the ground only that he has refused to undergo any surgical, electrical or other 270 treatment if, in the opinion of the court, his refusal was reasonable having regard to all the circumstances.

§ LORD RAGLAN moved, in subsection (6), to omit all words from the beginning down to and including "probation order and." The noble Lord said: I am moving to leave out the first few words of subsection (6) because I do not understand them. What they suggest to me is that, if a probationer were to commit a murder, he would still remain on probation. That may be entirely the wrong interpretation, but I would suggest to your Lordships that these words have to be interpreted by people—if I may say so without vanity—more stupid than I am myself, and the words are certainly not clear to me. I beg to move.

§ Amendment moved— Page 8, leave out from the beginning of line 34 to the second ("a") in line 36.—(Lord Raglan.)

§ LORD CHORLEY
I would not myself have thought that there was this difficulty. On the face of it, the Amendment does strike at an important principle which is to keep the question of the breach of the probation order separate from the subsequent offence. In Clause 7 the procedure for dealing with the case of the breach of the requirements under the probation order is dealt with, and in Clause 9 the procedure in the case of the commission of a further offence. As the law stands at the present time, the further offence is a breach of the probation order. The two matters are dealt with at the same time. The object of this is that these two matters shall be kept apart, and that the breach of the conditions the probation order shall be dealt with by the imposition of a fine up to £10 and that the subsequent offence shall be effectively dealt with by the court which has jurisdiction over it and on the basis on which the new offence is in fact dealt with. It is regarded as very important that these two matters should in fact be kept separate and dealt with in that way. The noble Lord's Amendment would continue the practice of mixing them up, which it is thought has not been altogether successful in the past. In these circumstances I hope the noble Lord will withdraw his Amendment.

§ LORD LLEWELLIN
If a boy is placed on probation and commits another offence and is convicted of it, is not that a breach 271 of the probation order? Is it not a condition of the probation order that he should be on good behaviour?

§ LORD CHORLEY
Of course it is, but I think the difficulty is that the lad very often does not appreciate that there are two quite separate things. The view which has been arrived at after very careful consideration is that the probation order aspect of the matter should be dealt with by the court which imposed the conditions in the first instance; and it should be pointed out to the lad that he has broken the terms on which he was put on probation and that he will be dealt with, possibly fined, for that breach of his probation order. Then he may be dealt with by the court within the jurisdiction of which the new offence falls, on the basis of his breach of the law. This other court will deal with him as it thinks fit in the circumstances. The view is that these two things should be kept apart.

§ LORD GODDARD
I feel the same as the noble Lord, Lord Raglan, does on this matter. I cannot understand what this means. It has to be interpreted by magistrates in Petty Sessions: The commission of an offence of which a probationer is convicted shall not be treated for the purposes of this Act as the breach of any requirement of the probation order… If it is not a breach of a probation order, what is it? Of course it is a breach of the order. I cannot understand this clause and my sympathies go out to the courts of summary jurisdiction who will have to interpret it. Some day it will come up to the Divisional Court, I suppose, and then I do not think I shall be able to interpret it.

§ LORD ROCHE
I agree with what has just been said. If a lad has committed an offence, he has broken his probation order and ought to be brought up. It is the duty of the probation officer, if he learns that a person under his charge has committed another offence somewhere else, to bring him up. That does not impinge on the principle that the court who made the probation order should, on the information of their probation officer, deal with him for his breach of the condition. I submit that what is required is either acceptance of this Amendment or further careful consideration.

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§ THE LORD CHANCELLOR
One thing has become plain, having regard to the eminent people who cannot understand this clause, and that is that it is not very simple. For my own part, having looked at these clauses, I found them so difficult that I thought the noble Lord, Lord Chorley, had better explain them. We will see what we can do to make them plainer, but I can perhaps reassure noble Lords to some extent. The breach of condition may or may not be an offence. A condition may be, for instance, that a man shall not go into a public house. If he goes into a public house, that is not a criminal offence, but it is a breach of the probation order. The idea of these clauses is to have, as it were, two codes— Clause 7 and Clause 9. If an offence is committed, it is dealt with under Clause 9. If a breach of conditions of probation is being dealt with, that comes under Clause 7. In the instance put forward by the noble Lord, Lord Raglan, what would happen would be that the offender could be sentenced for the crime committed after the probation order had been made, or for the original crime. That would come under Clause 9. Your Lordships will see that the offender ceases to be on probation by reason of Clause 6, subsection (4) on page 7, which says: Where, under the following provisions of this Part of this Act, a probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect. He would be sentenced under Clause 9.

LORD RAGLAN
We were concerned with subsequent offences.

§ THE LORD CHANCELLOR
He can be sentenced for the original offence or for the new offence. The new offence may be a less serious one than the original, and therefore you can, if you like, sentence him for the original offence. The machinery for that is in Clause 9. The endeavour here is to differentiate between a mere breach of the conditions of an order on the one hand—Clause 7—or a criminal offence which is also a breach of the probation order. If a probation order contains a term that the offender shall be of good behaviour, then it is obvious that machinery is provided. These are the two codes: Clauses 7 and 9; and if your Lordships look at it from that point of view I think you will find it is not quite so 273 obscure. But it is obvious that the drafting needs to be a little more plain, and I will see what I can do about it. I do not think there is anything in the substance to which noble Lords object.

§ LORD GODDARD
I cannot help thinking that, as it reads, the commission of an offence will not be a breach of a probation order at all. If a boy on probation commits another offence, can he be brought up for a breach of the probation order?

§ THE LORD CHANCELLOR
If your Lordships will look at Clause 9 you will see that it says: If it appears to a judge or justice of the peace on whom jurisdiction is hereinafter conferred that a person in whose case a probation order or an order for conditional discharge has been made has been convicted by a court in any part of Great Britain of an offence committed during the probation period or during the period of conditional discharge, and has been dealt with in respect of that offence, the judge or justice may issue a summons… The substance of this is that he may be dealt with for the original offence. If he has been convicted of this later offence, that is a breach of the probation order, which comes under Clause 7.

§ LORD GODDARD
Although the commission of the offence is said in the clause not to be a breach of the probation order?

§ THE LORD CHANCELLOR
The thing stands on its own legs. You treat it as an offence but not as a breach of the probation order. You can punish the probationer for that offence, and in addition to that, under Clause 9, you can bring him up and, if you like, punish him for the original offence for which he was placed on probation.

§ LORD LLEWELLIN
It works in an extraordinary way. A boy placed on probation commits a series of burglaries; so far as the probation order is concerned that is all to be disregarded and he is to be taken as still being of good behaviour. That is what it says.

§ THE LORD CHANCELLOR
It comes under Clause 9. There, he may be prosecuted and sent to prison for the burglary and then, that having been done, he can be dealt with for the original offence for which he was placed on probation. We want to try to get a dichotomy between those cases which are breaches of probation conditions and those which are offences. 274 There is not a clear dividing line, because you may get many cases which are both; So the effect of those words is to allocate all cases of crime to Clause 9, leaving the other cases only to Clause 7.

§ LORD LLEWELLIN
What we are really at cross purposes about is the meaning of the words: "shall be treated" It depends whether they mean "shall be treated by a court" or "shall be taken to be an offence."

§ THE LORD CHANCELLOR
"Dealt with as though."

§ LORD LLEWELLIN
"Dealt with as though." It seems to me to exclude all those things. Although we know that the fellow is a blackguard and is breaking into houses and stealing, if we leave these words in he still has to be treated as not being in breach of his recognisance, even though it is a recognisance to be of good behaviour.

§ THE LORD CHANCELLOR
I will look at it.

§ LORD LLEWELLIN
If I were appearing for the defence in a case and somebody tried to treat the defendant as being in breach of a recognisance, I should rely very strongly upon these words, if they were in the Statute, and say "You cannot do it. It is to be disregarded. Look at Clause 7." I hope that the noble and learned Viscount will look into this point.

§ THE LORD CHANCELLOR
I do not appreciate the difficulty which the noble Lord has raised but I can see that there are other difficulties. Therefore, I will try to put right the wording of the clause.

§ Amendment, by leave, withdrawn.

§ Clause 7 agreed to.

§ Clause 8 [Absolute and conditional discharge]:

§ THE LORD CHANCELLOR
This is a drafting Amendment.

§ I beg to move.

§ Amendment moved— Page 8, line 45, leave out from ("offence") to ("is") in page 9, line 1, and insert ("not being an offence the sentence for which is fixed by law").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 8, as amended, agreed to.

275

§ Clause 9 [Commission of further offence]:

§ THE EARL OF MUNSTER moved, after subsection (6) to insert as a new subsection: (7) If a person in whose case a Probation Order or an Order for conditional discharge has been made by a Court of Summary Jurisdiction is convicted by another Court of Summary Jurisdiction of any offence committed during the probation period, or during the period of conditional discharge, that Court may, with the consent of the Court which made the order or, in the case of a probation order with the consent of that Court, or of the Supervising Court, deal with him for the offence for which the Order was made, in any manner in which the Court could deal with him if it had just convicted him of that offence. The noble Earl said: I do not want to delay your Lordships' Committee as we have so much work to get through, but I formally beg to move the Amendment in the hope that the noble and learned Viscount will accept it. I beg to move.

§ Amendment moved— Page 11, line 19, at end insert the said subsection.—(The Earl of Munster.)

§ THE LORD CHANCELLOR
The object of this Amendment. if I understand it aright, is that, where a court of summary jurisdiction sentences a probationer on conviction of a new offence, the necessity of bringing him up before the original court or the supervising court to have his probation terminated should be done away with. It seems a good idea and, so far as I am concerned, I am prepared to accept the Amendment.

§ On Question, Amendment agreed to.

§ Clause 9, as amended, agreed to.

§ Clause 10 agreed to.

§ Clause 11 [Scottish probation orders relating to persons residing in. England]:

§ THE LORD CHANCELLOR
This is a drafting Amendment. I beg to move.

§ Amendment moved— Page 14, line 3, leave out ("was") and insert ("were").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 11, as amended, agreed to.

§ Clause 12:

§ Supplementary provisions as to probation and discharge.

§ 12.—(1) A conviction of an offence for which the offender is placed on probation or discharged absolutely or for which an order for 276 conditional discharge is made, and the offence of which he is convicted, shall be disregarded—

(a) for the purposes of any enactment (including any enactment in its application to Scotland) by or under which any disqualification or disability is or may be imposed upon convicted persons; and
(b) except as hereinafter provided, for all other purposes whatsoever:

§ Provided that paragraph (b) of this subsection shall not affect—

(i) the revesting or restoration of any property in consequence of the conviction; or
(ii) any power of the court by or before which the offender is convicted to make any order for the payment of costs or for or in connection with the restitution or delivery of property to the owner; or
(iii) any right of the offender to appeal against his conviction; or
(iv) any power of a court under this Act to deal with the offender in respect of the offence;

and if the offender was not less than seventeen years of age at the time of his conviction and is subsequently sentenced under this Act for the offence, the said paragraph (b) shall cease to apply to the conviction and offence.

§ THE LORD CHANCELLOR moved to omit subsection (1). The noble and learned Viscount said: This is a complicated and difficult matter. Your Lordships will remember that under the existing law a court of summary jurisdiction, when it makes a probation order, does so without proceeding to conviction, whereas a court of Assize or a court of Quarter Sessions convicts first and then places on probation. To deal with the reality and the logic of this question I think it is very difficult to see how one can actually contemplate that a court of summary jurisdiction can impose upon a defendant all these pains and penalities and so on, without having convicted him. I think it is unreal to say that he has not been convicted. On the other hand, I think we all want this: that, if the probationist makes good and pulls round, then the conviction should never thereafter be held up against him. Therefore we want, as it were, restrospectively to wipe out that which he did on the basis that he is behaving well. This is the clause which tries to do that. We provide that the conviction which preceded the probation order shall not be deemed to be a conviction once the probation order is made unless the offender is subsequently sentenced for the original offence and, if he is seventeen or under when the probation order is made, the conviction will 277 still be deemed not to be a conviction even if he is so subsequently sentenced. It has been a most difficult matter to draft this clause, but I think and I hope that, on the whole, we have managed to combine the two principles which I have indicated. I hope that the new clause which I shall move after this Amendment will commend itself to your Lordships. I beg to move.

§ Amendment moved— Page 15, line 31, leave out subsection (1).—(The Lord Chancellor.)

§ VISCOUNT TEMPLEWOOD
The noble and learned Viscount is quite right when he says that this is a clause which raises a definite division of opinion. On the one hand, there are many experienced people who say that probation works better without a conviction at all. On the other hand, there are people who say that probation has been apt, anyhow in some places, to degenerate into being nothing more than discharge. It is very necessary to register the conviction if probation is to be taken seriously. I own myself to waver between these two opinions. However, on the whole, I have come to the view that it is better to register the conviction, provided that no disqualification of any kind follows afterwards if the probationer makes good and carries out the probation order. So far as I can see, the proposal of the noble and learned Viscount the Lord Chancellor meets my point so far as the United Kingdom is concerned. I think that the effect of this clause would be that, in the case of a probationer who makes good, he would not be disqualified in this country, provided, as I say, that he has carried out the order. However, a question does arise with reference to foreign countries. When I was Home Secretary, I well remember the point being made: What happens in the case of a young man who wishes to emigrate, and entry into the particular country depends upon there having been no conviction? I should like to ask the noble and learned Viscount the Lord Chancellor what is the effect of the new proposal upon the Paper as far as a foreign country is concerned? Would it be possible, under these proposals, for an intending emigrant to state, when he is going for instance, through Ellis Island, that there is no conviction against him? It is an important point. Unless some action of that kind is taken, I think that the probationer who makes good after the 278 conviction has been registered will be at a grave disadvantage.
There is a further point connected with the Fighting Services. Am I light in thinking that, under these proposals, no probationer who has made good will be disqualified in any way from entering into the three Fighting Services? Some years ago, the mere registration of a conviction would have disqualified a young man. It is important to have it clearly stated that under these proposals disqualification is removed. Provided that those two points are met—namely, that with reference to the Fighting Services in this country and that with reference to cases of emigration, whether to foreign countries or to the British Dominions—I think, on the whole, the Lord Chancellor's new proposal should be supported.

§ VISCOUNT SAMUEL
Has this point been considered in the deliberations that have preceded the preparation of this Bill? There are two valid arguments here which seem to conflict, the one with the other; and we must try to reconcile them. One is that if a conviction is not recorded, the offender is put upon probation; he is put under the supervision of the probation officer for a certain time and he hears nothing more about it; he is, in fact, let off. On the other hand, if a conviction is recorded then, even if his conduct on probation has been perfectly satisfactory, if he happens to be charged with another offence later, or if he is an emigrant and is asked the question: "Has any conviction been recorded against you in the country from which you have come?"—if he is conscientious he will be bound to say: "Yes, it has been recorded against me, but the law also provides that there shall be no disability to follow from it." Has the suggestion been considered that when the probation order is made the conviction should be recorded, but that if the probation order is discharged the conviction should be expunged? I have not heard this suggestion discussed, but it seems to me there would be no impropriety in this because, after all, probation is probation. It is not a sentence; it means that a person is placed under certain conditions. If the conditions have been discharged, then—and only then—should the original proceedings also be discharged and made void. I suggest that for your Lordships' consideration as a means of reconciling these two conflicting circumstances.

279

§ LORD KERSHAW
I think there is another aspect of this problem that ought to be considered. As things are, it often happens that if a court has a person before it who appears to need probation, or for whom it appears that probation would be good, one finds that magistrates are not so particular as they should be in finding the man guilty of the offence for which he appears before them. I think it is very important that before magistrates put a man on probation (whatever that may mean to the boy or man), they should make quite sure that the offence for which he is before them has been proved. I feel sure that has not always been the case.

§ THE LORD CHANCELLOR
Again, I will certainly look at the words. This clause was the subject of a great deal of consideration, and it was expressly designed to enable a man going abroad to say "I have not been convicted." That is what the clause is designed to do, and I hope it does it. But I can conceive the question being put in various ways, to some of which a scrupulously truthful person would have to answer "Well, I do not know." On the other hand, it does rather depend on how the question is put. Your Lordships will see the form of the words: …a conviction of an offence for which an order is made…placing the offender on probation…shall be deemed not to be a conviction for any purpose other than for the purposes of the proceedings in which the order is made. With regard to the question relating to disqualification on entry into the Services, that is expressly provided for, and there is no longer any disqualification or any disability whatever. I think, therefore, we have dealt both with the case of a foreign country and with that of the Services, and I will certainly look at the suggestion made by the noble Viscount, Lord Samuel. But I must point out that a great deal of ingenuity, care, thought and discussion have been used to try to hammer out this clause. Though it is possible that we can improve on it now, for my part I think it rather unlikely. We all want the same thing, and any suggestions on this matter will certainly be looked at.

§ VISCOUNT SAMUEL
I would like to add this one consideration. If the law were as I suggested it might be, there would be an additional and a very 280 strong inducement to the person put upon probation to behave himself, because he would be told "There is this conviction against you; you understand that. If you behave well and fulfil these conditions it will be wiped out and you will be perfectly clear in your future life, wherever you go. There will be no conviction standing against you." That would be a very strong argument indeed.

§ VISCOUNT SIMON
This is, of course, a matter upon which many of us have had occasion to exercise our own thoughts. I see very clearly the arguments in favour of the principle which the Lord Chancellor has endeavoured to put in the clause. I think I also see the point made by the noble Lord behind him. The difficulty really arises in a slightly more practical form. There is, first, the matter of a man going abroad. In the last few days, I have had to fill up an extremely elaborate green form which is issued to people going to America, and which is part of the material upon which the authorities there will decide whether or not they let a person into their country. I have an appointment to go there. One of the questions that was asked on the form was: "Have you ever been convicted?" I was in a most fortunate position because I was able to say that I never have been convicted. But if I had to try and deal with that question honestly, and I were one of those people who had been convicted and wished to be taken as not convicted "for any purpose other than the purposes of the present proceedings," I think I would either have to go for the substance of the thing and care nothing for the question, or else be rather skilful in explaining what I was doing. I think my noble friend Lord Samuel said the other day that when the law says something is "deemed to be" so and so, it means that it is not so.
The other case which I should have thought is frequently a matter of difficulty is the inquiry that is made in this country of a young man or woman who is seeking employment. Again, one does not want to make it easier for the unscrupulous and more difficult for the scrupulous. I must confess that I am rather alarmed at what this clause might mean, because the provision is necessarily elaborate and, of course, the ordinary person applying for a situation would not be able to follow it. On the 281 other hand, there is something in what has been said about people being put on probation although they are not found by the court to be guilty of the charge. It is equivalent to saying that the court may improve on their morals without first of all finding that the charge against them is proved. I am therefore in a state of uncertainty. I think it is right that the other side of the matter should be mentioned, because it seems to me to be a practical one, and there may be some real difficulties arising. I am sorry not to be more definite, but it is only because I feel so concerned about the whole question.

LORD SALTOUN
I was going to Say what the noble and learned Viscount, Lord Simon, has just said very much better than I could have done. But I suggest that there is a further consideration. The object of probation is to train young people in the ways of truth and honour. I would think it a very unfortunate thing if the Statute law of this country should seem to lend itself to lack of honesty and good faith in the people thus trained. I would far rather see what the noble Viscount, Lord Samuel, has suggested—that there should be conviction and that, later, on a further reference back to the court, the conviction should be quashed. That would answer the whole problem and put matters on a proper basis. It would be a perfectly frank and honourable method and the result of its employment would be a credit to the person affected.

§ LORD GODDARD
I hope that I do not look at this matter too much as a lawyer, but I have never been able to understand how, when a boy is brought before magistrates—say for stealing—and the magistrates, finding the charge proved, put him on probation, it can be said that he has not been convicted. If he has not been convicted what power have the magistrates to put him on probation? If we are going to delude ourselves in this way out of tenderness to the young, just consider what would happen. That boy would be enabled if he goes later to seek employment and the potential employer says to him, "Have you ever been convicted of dishonesty?" to reply, "No." But of course he has been so convicted. It may be unfortunate, but there it is. And I venture to think that you cannot wipe out what has happened by saying at the end of probation, if the boy has 282 behaved himself, that the conviction shall be removed from the register. The effect of its removal from the register, or from the file of the court of summary jurisdiction, would be that if the boy did something wrong again in the future the policeman would not be able to say—unless by chance he had personal knowledge of the previous case—"This boy was once convicted." As I say, if he has been convicted, then he has been convicted.
With regard to the point about going abroad, which was raised by the noble Viscount, Lord Samuel, we cannot legislate for foreign countries. I think it is better to be honest about this. If the individual has been convicted—there it is. If he has been put on probation and has not been dealt with for any breach of the probation, any humane-minded man would take no notice of it; he would merely say: "Well, there was a slip once, and the boy has behaved himself well ever since." I think that it is a very serious thing to let it go out to the world that a person who has in fact been convicted is to be allowed to make it appear that he has not.

LORD RAGLAN
May I say that, "Have you ever been convicted?" is only one form that the question may take. A person who is approached by a boy who has been on probation nay ask: "Have you ever been before the courts?" or "Have you ever been in trouble with the police?" There are various ways in which the question is put.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
I beg to move the next Amendment.

§ Amendment moved— After Clause 12 insert the following new clause:

§ "Effects of Probation and Discharge.

§ —(1) Subject as hereinafter provided, a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Act:

§ Provided that where an offender, being not less than seventeen years of age at the time of his conviction of an offence for which he 283 is placed on probation or conditionally discharged as aforesaid, is subsequently sentenced under this Part of this Act for that offence, the provisions of this subsection shall cease to apply to the conviction.

§ (2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is placed on probation or discharged absolutely or conditionally as aforesaid shall in any event be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability.

§ (3) The foregoing provisions of this section shall not affect—

(a) any right of any such offender as aforesaid to appeal against his conviction, or to rely thereon in bar of any subsequent proceedings for the same offence;
(b) the revesting or restoration of any property in consequence of the conviction of any such offender; or
(c) the operation, in relation to any such offender, of any enactment in force at the commencement of this Act which is expressed to extend to persons dealt with under subsection (1) of section one of the Probation of Offenders Act, 1907, as well as to convicted persons."—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ 7.23 p.m.

§ LORD LLEWELLIN moved, after Clause 12 to insert as a new clause: .A conviction of an offence which the offender committed while under the age of twenty-one years and the offence of which he was convicted shall be disregarded for the purpose of any enactment (including any enactment in its application to Scotland) by or under which any disqualification or disability is or may be imposed upon any convicted person provided that he shall not have been reconvicted of any indictable offence for a period of ten years after the expiry of any sentence passed upon him before he attained the age of twenty-one. The noble Lord said: In framing this Amendment I was faced with this problem. A young man sentenced by a court—it may be to Borstal training or something of that sort—is frequently told, in effect: "There you will have an opportunity of being trained and of starting afresh when you have gone through your training." But despite this, if he is convicted of felony, he would not be allowed to his dying day, however well he had done after passing through his training, to hold a publican's licence, to hold a wine and spirit licence and one or two other matters of that sort.

§ I have knowledge of this because a brother of mine for years has devoted the 284 whole of his time to taking charge of Borstal institutions. He has had several cases in which a boy has done really well since leaving an institution and then, some ten or twenty years afterwards, has been disqualified from taking a job for which no one else would be disqualified. I put down this Amendment before some of the Amendments which now stand in the name of the noble and learned Viscount the Lord Chancellor had been put down. I believe that by this Bill various disqualifications are now repealed. I understand that other Amendments which are down in the Lord Chancellor's name will relate to the selling of beer, cider and wine by retail. So long as we are clearing up all these matters, all these disqualifications, and I can be convinced that my Amendment is completely unnecessary, then my object is attained. I know of quite a number of people who after going through my brother's institutions did extremely well in the war. Many of them obtained commissions. To say, after they have shown so clearly how they have benefited by their institutional training, that they are to be disqualified in respect of civil occupations, seems to me not only discouraging to these young men themselves but a discouragement to the officers at the institutions who are engaged on this great work of reforming. If we can get rid of these disqualifications there is no point in my Amendment, because the need for it will not arise; but I move it hoping that I shall receive the assurance which I am seeking.

§ Amendment moved— After Clause 12 insert the said new clause.—(Lord Llewellin.)

§ THE LORD CHANCELLOR
Of course, the noble Lord is quite right. The really substantial business here is licensing, and we are putting that right by our Amendments to the Ninth Schedule, at page 85 and elsewhere. Theoretically, the following disqualifications and disabilities may result from conviction under the Forfeiture Act of 1870. Section 2 of this Act, as it will be amended by this Bill, provides that a person convicted of felony and sentenced to imprisonment exceeding twelve months forfeits any military or naval office, or any civil office under the Crown, and any pension or superannuation allowance payable out of any public fund. Clause 6 of the Bill gives power for the pension to be restored. So I think we deal 285 adequately with that. Section 2 of the Forfeiture Act further provides that such a person, until he has suffered the punishment to which he has been sentenced, is disqualified from holding any such office or exercising any right of sufferage or other Parliamentary or municipal franchise. The noble Lord's new clause would not prevent the loss of office or pension which may result from these provisions.
Then there is the question of disqualification under the Local Government Act. Section 59 of the Local Government Act, 1933, and Section 33 of the Local Government Act, 1939, disqualify from election to or membership of a local authority any person who five years before the day of election or since his election, has been convicted of an offence and ordered to be imprisoned for not less than three months. As this disqualification ceases to operate five years after the conviction, and Lord Llewellin's clause makes the period after which disqualification would cease to operate ten years, his clause would have no effect upon disqualifications under those Acts. The only other category of disqualifications is that under the Road Traffic Acts. One might, conceivably, have such a clear case of dangerous driving that a man's licence is taken away from him for the rest of his life. I suppose it is possible—though it is unlikely—that that might be done to someone under the age of twenty-one. Under the Road Traffic Act, a person disqualified can apply to the court for the removal of the disqualification at any time after the expiration of six months from his conviction. So, although I sympathise with the noble Lord's intention, I can assure him that I have gone into this matter with a view to seeing that there are left no disqualifications of the sort which he has in mind.

§ LORD LLEWELLIN
I do not want to press my Amendment. The points I had in mind were quite different from the case given and I did not want in the least to deal with disqualification of driving licences. I had in mind the case of respectable men who had been in trouble and had been unable to get a job whereby they would normally make a living. I am completely satisfied with the explanation of the noble and learned Viscount.

§ THE EARL OF MUNSTER
I believe that under the law as it stands at the 286 present moment, if a man who has performed acts of gallantry during active service is found guilty and sentenced by a court, under the prerogative of the Crown he may have all his decorations taken from him. Will that matter be covered by what the noble and learned Viscount the Lord Chancellor has just said?

§ THE LORD CHANCELLOR
Any emoluments, pension, superannuation or allowance may go back, but I do not know whether there is any provision about decorations.

§ VISCOUNT SIMON
Is it not a question of prerogative?

§ THE LORD CHANCELLOR
It is a question of prerogative. It is not a matter of Statute, and the prerogative cannot come into this Bill.

§ LORD LLEWELLIN
I beg leave to withdraw my amendment.

§ Amendment, by leave, withdrawn.

§ [The Sitting was suspended at thirty-two minutes past seven o'clock and resumed at nine o'clock.]

§ Clause 13:

§ Power to fine on conviction of felony on indictment.

§ 13. Courts of assize and quarter sessions shall have power to fine a person convicted on indictment of a felony for which those courts have power to pass a sentence of imprisonment in lieu of dealing with him in any other manner in which those courts have power to deal with him.

§ THE LORD CHANCELLOR
This is a drafting Amendment. The words "not being a felony the sentence for which is fixed by law" are similar to those in the amended Clause 4. I think this will improve the draft.

§ Amendment moved— Page 17, line 15, leave out from the beginning to end of line 17 and insert ("Any court by which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender").—(The Lord Chancellor.)

LORD MERTHYR
If it is not out of order, I should like to ask whether, in line 18, it would not be an improvement, in addition to the words "in lieu of" to have "in addition to."

THE CHAIRMAN OF COMMITTEES
That Amendment will come later.

287

§ LORD GODDARD
I am a little puzzled concerning the question of sentences fixed by law. For example, take burglary. The sentence fixed by law is penal servitude for life, but that does not mean that the judge must pass that sentence. I do not know whether there are any such sentences fixed by law which must be passed.

§ THE LORD CHANCELLOR
The sentence for murder—that is about all.

§ On Question, Amendment agreed to.

§ LORD SALTOUN moved, after "in lieu of" to insert "or in addition to." The noble Lord said: I hope the Government will be able to accept this Amendment. On every side of the House the feeling has been expressed that we want to get rid of long sentences of imprisonment if we can, and this Amendment suggests the best means of doing so.

§ Amendment moved— Page 17, line 18, after ("of") insert ("or in addition to").—(Lord Saltoun.)

§ THE LORD CHANCELLOR
I am prepared to accept this Amendment.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This is a mere drafting Amendment. I beg to move.

§ Amendment moved— Page 17, line 18, leave out ("those courts have") and insert ("the court has").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 13, as amended, agreed to.

§ Clauses 14 to 16 agreed to.

§ Clause 17:

§ Restriction on imprisonment.

§ 17.—(1) A court of summary jurisdiction shall not impose imprisonment on a person under seventeen years of age; and a court of assize or quarter sessions shall not impose imprisonment on a person under fifteen years of age.

§ LORD GODDARD moved to delete subsection (1). The noble and learned Lord said: The reason I raise this question is that I do not know quite what the effect is going to be if no court can pass a sentence of imprisonment upon a boy of sixteen. I quite agree that one should always abstain from passing a sentence on a boy of sixteen if one possibly can, but there are some cases in which 288 I do not know what else could be done. A Borstal sentence would be quite improper in many cases unless it could be shown that he had criminal tendencies or previous convictions. Yet some of these young gangsters of sixteen commit the most shocking offences. A short time ago there was the case of a boy of sixteen raping a little girl in an empty house. If we cannot pass any sentence on them at all, I do not know what is to happen.

§ Amendment moved— Page 20, line 14, leave out subsection (1).—(Lord Goddard.)

§ 9.5 p.m.

§ VISCOUNT TEMPLEWOOD
As the noble and learned Lord, Lord Goddard, has said, this clause raises a very important issue in the Bill. In my view, it is one of the most important of all the provisions of the Bill. I take the view that the essential problem with which we are dealing is the problem of the juvenile offender, and that within that problem is the fact that short terms of imprisonment seem to do him harm rather than good. If there were time, and if anybody wished it, I could give to the House many statistics to support what I am saying. But I assume that it is the general wish of the men and women who are interested in these questions to bring down to a minimum the number of sentences of imprisonment for young offenders. I agree with Lord Goddard that that at once raises the question of alternative punishment. None of us wish the young offender to get off scot-free, and I propose to deal with certain aspects of alternative punishment in the next clause.
Meanwhile, let me say that I approve of the general proposal in the Bill to prohibit and to restrict the imprisonment of the young. What I do not understand, however, is the distinction drawn between courts of summary jurisdiction and Quarter Sessions and courts of Assize. When we considered this question nine years ago, it was the general view that the same conditions should apply in both, and if there was a restriction of age, if there were obligations placed upon courts in the event of their sending young persons to prison, those restrictions and obligations should apply to all courts, whether the higher courts or the lower courts. On that account, we proposed a general provision that would have taken the age of sixteen for all courts—courts of Assize, Quarter Sessions and courts of 289 summary jurisdiction—and we made no difference between them. I look at the criminal statistics—particularly at the criminal statistics of the past two years—and I find (I say this with great deference, in the presence of the Lord Chief Justice and other distinguished Judges present) that what seem to me to have been some of the worst mistakes made in sending young offenders to prison were made in the higher courts.
I do not stop to give your Lordships actual cases and actual details, but if your Lordships will look at the last criminal statistics you will find a sentence there saying that many of the cases that were sentences of imprisonment ought to have had Borstal treatment. Those were cases, obviously, in the higher courts. That being so, I have put down an Amendment that would make the procedure uniform between all courts. It would make the procedure uniform, first of all, in the matter of age. I have taken the age of sixteen for all courts, rather than seventeen for the courts of summary jurisdiction and fifteen for the higher courts. I will not disguise the fact that if any noble Lord suggested that seventeen for both was a better proposal, I would withdraw mine and accept that. But in order not to make too drastic a proposal, I go back to what was actually proposed in 1938—namely, that the uniform age below which no one should be sent to prison should be sixteen. Secondly, I consider that the obligations placed upon the various courts, in the exceptional cases in which it is found necessary to send particularly depraved and unruly young offenders to prison, should be uniform. In every case of that kind, the court should make a written statement about the case. Your Lordships will see that at present that obligation is only imposed upon the courts of summary jurisdiction. I see no reason why it should not be imposed upon all courts.

§ LORD GODDARD
Quarter Sessions as well?

§ VISCOUNT TEMPLEWOOD
I beg the noble Lord's pardon. My proposal would be to make the obligations uniform. I think that the Orders in Council, under which it will be possible in the future to raise the age below which no young offender should be sent to prison, if and when suitable alternative accommodation 290 can be found for there, should affect the higher courts as well as the lower courts. At present, as I read the clause, they relate only to the courts of summary jurisdiction. For these reasons, I hold the view very strongly that this differentiation between the courts is wrong, and that a more uniform treatment would be much more likely to get rid of some of the bad cases to which the criminal statistics refer—cases which certainly should have been sent to Borstal or to some other form of treatment, and not to prison. I do not move my Amendment now, because we are having a general discussion, but at a later stage I will do so.

VISCOUNT ELIBANK
I hesitate to intervene in this debate which is rather a technical one, as indicated by the noble Lord, Lord Goddard, and the noble Viscount, Lord Templewood, but I agree that the age of sixteen is probably the best age to insert in this clause. My reason for saying that is this. Some years ago there came into your Lordships' House a Bill presented by the late Lord Buckmaster, recommending an increase in the age of consent. I happened to sit upon the Select Committee. The age of consent at the time when that Bill was introduced was, so far as I recollect twelve years in the case of a girl and thirteen years in the case of a boy. Obviously, that was contrary to the practice in many other parts of the world which had gone far beyond us. I do not know how long this had existed, but probably for a century or two, and no step had been taken to alter it. We heard all sorts of evidence from different societies and we learnt in the course of the inquiry that the age of consent in Yugoslavia was eighteen, in another European country was seventeen, and so on. Finally we decided, having examined the whole question carefully, that the age should be placed at sixteen in the case of both males and females. It seems to me that that has a bearing on the question which is before us, and that if you place the age of consent at sixteen in the case of a boy, at least he should be subject to such punishment as the courts may wish to mete out to him. I would be prepared to accept what the noble Viscount, Lord Templewood, has said, that the age of sixteen in the case of both the higher and lower courts is the age which would be acceptable to us.

291

§ THE LORD CHANCELLOR
The noble Viscount with great gallantry has taken his little sling and stones in this battle of giants and has made a contribution as useful and interesting as always. But I confess I do not understand what is the "age of consent" for males.

VISCOUNT ELIBANK
Sixteen.

§ THE LORD CHANCELLOR
But consent to what? I really do not know. I have never heard of it before—but I am not an expert on criminal law.

VISCOUNT ELIBANK
If the noble and learned Viscount will translate it into legal language, noble Lords may understand what I have been trying to express.

§ LORD GODDARD
What I think the noble Viscount has in mind is this. Under the Criminal Law Amendment Act, sixteen was the age at which a girl could consent to carnal knowledge. But in 1925 the law was altered to this extent: that consent was no defence to indecent assault on either a boy or a girl under the age of sixteen. It remained after the Criminal Law Amendment Act of 1885 that although consent would be no defence to carnal knowledge between thirteen and sixteen, it was a defence to indecent assault of a girl and also in the case of a boy.

§ THE LORD CHANCELLOR
I did not know. It just shows that the noble Viscount knows much more about this topic than I do. Seeing that I am responsible more than anyone else for the appointment of magistrates' courts, no one will interpret anything I am going to say hereafter as meaning that I have not a profound admiration for the work which the magistrates' courts do. When one thinks of the vast amount of work they do and the extreme efficiency and common sense with which most of it is conducted, one realises that it is a very remarkable tribute to those who carry it out. Equally I must confess that I have a very considerable opinion of and regard for His Majesty's Judges. I do not wish to place one against the other, but I am sure that training in the law tends to make those in the superior courts more likely to be able to cope with the difficult situations than are magistrates, who have had no such training. That Judges make many mistakes I do not doubt; but I think that, due probably 292 to their training and experience and knowledge, they make fewer mistakes than if they had not had that training and knowledge. Therefore I would apply a different canon and a different standard to the superior courts from those which I would apply to the courts of summary jurisdiction.
There is another reason why I would apply a slightly different standard to the superior courts. It is because they are dealing with very serious crimes. After all, the magistrates normally deal with crimes the maximum penalty for which is six months. As the Lord Chief Justice said just now, boys of sixteen may commit the most grievous crimes; unfortunately, we know that to be true. This clause is founded on this basis: that we grant a wider discretion and a wider latitude to the superior courts, both by reason of their training, experience and knowledge, and also because they are dealing with more serious cases. The proposition which I advance to your Lordships is that it is right to have a differing standard, to grant a greater discretion to the superior courts than the discretion which is granted to courts of summary jurisdiction. I hope that no one thinks that I am saying one word against the way in which the courts of summary jurisdiction exercise their discretion. Therefore, we have taken the words of the clause as we have drafted it, and the critical phrase is this: A court of summary jurisdiction shall not impose imprisonment on a person under seventeen years of age; and a court of assize or quarter sessions shall not impose imprisonment on a person under fifteen years of age. If that clause stands as it is, the noble Lord, Lord Goddard, will see that a person of sixteen could, of course, be dealt with, and, if necessary, be sent to prison by a court of Assize.

§ LORD GODDARD
You mean be sent for trial?

§ THE LORD CHANCELLOR
Yes, be sent for trial; whereas he could not be sent to prison by a court of summary jurisdiction. Having said that and tried to explain to your Lordships why I personally think it right that there should be a differentiation between the two cases and why we should have a different standard in the two cases, I say again—and here I entirely agree with the noble Viscount, Lord Templewood—that the 293 sending to prison of a young person of that age, whether by a court of summary jurisdiction, by a court of Quarter Sessions or by a court of Assize, in nine cases out of ten—in fact, in ninety-nine cases out of a hundred—means that the odds are that you will be doing much more harm than good. All Judges of all courts should be, as I have no doubt they are, fully alive to that consideration. I am sure they are. But a case may arise in which a Judge of great experience, who would, I am sure, assent to what I have said, would yet say: "The circumstances of this case are such that there is no course open to me but to do this. The case is not one that is fit for Borstal. The crime is one of such a serious nature that it must be dealt with and therefore I may have to do it."
Whether or not it will be desirable that the duty which is imposed upon a court of Quarter Sessions or a court of summary jurisdiction under subsection (3) should extend to the court of Assize is not a matter I have dealt with. The broad proposition that I advance here is that there is a case for differentiation. Having said that, I am sure that those who have had the experience of sitting as His Majesty's Judges would agree with me when I say again that, save in wholly exceptional cases, it is most undesirable, if it can possibly be avoided, to send a young person to prison. Circumstances may arise when a Judge feels: "I regret to say I have no option but to send this young person to imprisonment." That is the reason why I differentiate, both by reason of the greater experience of the superior courts and also by reason of the greater gravity of the offences with which they have to deal. That is my case, and I think it is a good case, for differentiation.
When we come to the age it is quite true that it is different from that contained in the Bill which Lord Temple-wood introduced. May I say to him and to your Lordships that I naturally pay the greatest attention to anything he says, because I know what care and attention and consideration he has given to all these problems and, if I may say so, I have come to regard myself as a disciple of many of the ideas which he has advanced. We may be wrong in the age we propose. If I remember rightly, under the last Bill his 294 age was sixteen all the way through; we have put the age up to seventeen. I gather from what he has said that he does not mind that so far as courts of summary jurisdiction are concerned; but so far as the superior courts are concerned, for the reasons I have given, we thought it right to bring the age down to fifteen. That is a conclusion which, on the whole, after great consideration, I think I can Commend to your Lordships.

§ VISCOUNT TEMPLEWOOD
I am obliged to the noble and learned Viscount for the conciliatory manner in which he has dealt with my observations. I am not prepared to press my objection upon the point of age, although I would have preferred it to be seventeen all round. I have put no Amendment down upon the subject, but I would ask him, between now and the Report stage to look into the other two questions—first, the reporting of these exceptional cases and, secondly, whether in the future all courts should not be treated alike in the matters of Orders in Council. He has given so impressive a picture of what he believes is the state of affairs now, and of the care that is taken to avoid sending young offenders to prison, that I hardly like to intervene with a single word of caution. However, as I said earlier, when I have examined the statistics the higher courts in recent years appear to have made quite a number of mistakes in not availing themselves of Borstal and other treatment and in sending young offenders to prison. These cases have very much increased in the war years. It may be that war conditions have made it inevitable that they should increase. None the less, I think it would be a wise precaution if, in every case and in every court where a young person within these categories is sent to prison, a written statement were made upon the subject. I hope therefore that the Lord Chancellor will carry out the undertaking he gave just now and will look further into this question between now and the Report stage.

§ LORD GODDARD
After the Lord Chancellor's remarks on this matter, I will withdraw my Amendment. I think the Lord Chancellor gave convincing reasons why there should remain a power in the higher courts. I myself have not come across any cases, either from Quarter Sessions or Assizes, of the nature that Lord Templewood thinks may have 295 occurred. I know, of course, that great difficulties arose during the war. One reason is that there were not enough Borstal institutions. The only thing to do was to send the offenders to Wormwood Scrubs or Wakefield, or to somewhere where one was told there were boys' prisons, or places where boys could be satisfactorily treated. Another reason may have been—at any rate in the cases of boys of sixteen or seventeen—that considerable difficulties arose under the former Act because one could send boys to Borstal only when certain conditions were fulfilled. The boy had to have previous convictions, or had to be shown to be of criminal tendencies, or to be an associate of bad characters. Very often, however, there was no evidence of it. Then something had to be done.
If this matter is to be further considered, or Lord Templewood is to bring up another Amendment on the Report stage, I would venture to say, without in any way magnifying unduly the office of His Majesty's Judges, that I hope they will not be required to make a report of every one of these cases. It is not for me to say whether it is right for courts of summary jurisdiction. Probably some of your Lordships who are Chairmen of Quarter Sessions may have something to say on it. But, as I say, I hope that Judges will not be called upon to make a report on every one of these cases, to tell the Home Secretary what they have done and why they have done it. There are, of course, means of getting to the Court of Criminal Appeal, and I suppose the next thing would be that the Court of Criminal Appeal would be required to report on every one of these cases.

§ Amendment, by leave, withdrawn.

§ Clause 17 agreed to.

§ CLAUSE 18 [Detention in a detention centre]:

§ VISCOUNT TEMPLEWOOD moved to delete Clause 18 and substitute the following new clause:

§ ("Provision of compulsory attendance centres and juvenile compulsory attendance centres.

§ —(1) If the Secretary of State is of opinion either upon consideration of proposals submitted to him by a court of quarter sessions or by the justices for any petty sessional division, or without such proposals, that it is expedient 296 that there should be established attendance centres in accordance with this section,

(a) he may provide places to be called 'compulsory attendance centres' at which offenders of not less than seventeen but under twenty-one years of age may be required to attend on such occasions and at such times as will avoid interference so far as practicable with their working hours and be given under supervision appropriate occupation and instruction;
(b) the council of a county or county borough may with his approval provide places to be called 'juvenile compulsory attendance centres' at which offenders of not less than twelve but under seventeen years of age may be required to attend on such occasions and at such times as will avoid interference so far as practicable with their school hours and working hours and be given under supervision appropriate occupation and instruction; and any two or more councils may combine for the purpose of providing such centres.

§ (2) A court shall not require a person to attend at an attendance centre under this section if he has been previously sentenced to imprisonment or Borstal training.")

§ The noble Viscount said: This is a clause that raises the question of alternative punishments. I am sure every noble Lord will agree that if we are to restrict imprisonment of the young, and if, as I hope, we are going to abolish judicial whipping of the young, we must do our best to find alternative methods of dealing with juvenile delinquents. At a time when juvenile delinquency has increased to such a formidable extent as it has in recent years, it is particularly necessary to find these alternatives, but I admit at once that it is one of the most difficult problems that can face anyone who produces comprehensive proposals of this kind. As things are, and assuming that imprisonment of the young is prohibited or, at any rate, drastically restricted and that judicial whipping of the young comes to an end, the alternatives that under present conditions will remain will be probation, approved schools, and Borstal institutions. It is obvious that there will be offenders for whom these three methods of treatment are not suitable.

§ The question then arises how we are to fill the gap and what we are to put in the place of the short-term imprisonment and the whipping to which these offenders might have been liable in the past. In the drafting of the 1938 Bill we took into account a number of expert inquiries—for instance that of the Committee upon Youthful Offenders, in 1927—and we also considered a great variety of alternatives. We came finally to two conclusions. The first was that we needed some new form 297 of quick, sharp, punishment that would not mean a break, or a serious break, in the young offender's life. Secondly, we came to the view that there was a need of residential hostels to which a young offender could be sent, say, for a period of six months, and at which he would have to live under supervision, but would be able to continue his work outside and avoid, in that instance also, a break with his normal life. For the first of these needs we proposed institutions that were called attendance centres. These were intended for the quick, short punishment, say, of the loss of a half-holiday. We had in mind that in certain areas that were suited to the experiment, centres should actually be started. In other cases—in country districts, for instance—it might well be that young offenders would be ordered to attend on Saturday afternoons at the police station and remain in attendance for two or three hours. Our object was to deprive young offenders of a half-holiday, to prevent their going to a football match or a cinema and, perhaps not less important, to make them ridiculous to their friends and relatives. That was the first proposal: putting it in a phrase, the loss of a half-holiday.

§ The second proposal was the residential hostel, but a residential hostel in which the young offender would still be able to go out into the world and do his work. For various reasons, those two proposals have disappeared from the Bill, and in their place is a proposal for what is called detention centres. At this stage I do not wish formally to oppose the proposal for detention centres, but I must say to the noble and learned Viscount the Lord Chancellor that I regard the proposal with very grave apprehension. Moreover, my anxiety is shared by the Magistrates' Association, who have considered this question, and they also take the view that there is a grave risk of these detention centres becoming nothing more than little short-term prisons for the young. Unlike my own proposals, they do not draw a distinction between the younger and older delinquents. I drew a distinction between the fourteens to seventeens and the seventeens to twenty-ones. As I read the proposals for detention centres, all the young offenders from fourteen to twenty-one—a very wide range of age—are to be concentrated. They are to be taken away from their ordinary work. We have been told nothing about what kind of treatment 298 they are to be given and what methods of training are to be used for the variable times of their detention, because the time will vary up to six months for almost every individual sent to a detention centre. I have a grave fear that these centres will simply become little prisons for the young. Whilst at one end we have restricted imprisonment for the young, at the other end we will be re-creating it with these new institution.

§ I am aware that the objection raised against these attendance centres and hostels has been that it would be difficult to staff them. I have the feeling that that objection is exaggerated. I do not envisage a complicated staff, I contemplate something quite simple—some place where the boy or girl could go for a few hours on a Saturday afternoon. Nor do I think that the residential hostels should raise a greater problem of administration than the hostels contemplated in the Bill. I agree also that it may be necessary to start on a small scale and make experiments. In the case of a great many of these methods of dealing with criminals we are moving in the dark, and the more experiments we make the better. If the Government wish to carry out their proposals for detention centres I should like to see experiments made also with attendance centres and with residential hostels. I must warn the noble and learned Viscount, the Lord Chancellor, that I regard the present plan of detention centres to deal with a variety of totally different cases as a very dangerous one. I hope, therefore, without pressing him unduly to-day, that he will think again over this question and that he will bring to the attention of the Home Office what I have said. My views are not merely my individual views, nor the views of someone who regards his own proposals of 1938 as verbally inspired. They are shared by a great many magistrates and administrators in the country and are on the lines which the Magistrates' Association have actually proposed. I beg to move.

§ Amendment moved— Leave out Clause 18 and insert the said new clause.—(Viscount Templewood.)

§ LORD GODDARD
I share with my noble friend Lord Templewood the dislike of Clause 18 as it is at present drawn. It provides a method of dealing with these 299 young offenders whom we do not want to send to prison, but we have to think of the expense of providing these places and the difficulties of manning them. But to my mind, leaving out the question of expense, a more legitimate objection is that this clause provides only for sending boys to these places for three months. I believe the effect of that will be to make boys of this age the victims of short sentences. There is nothing more deplorable among the criminals who come before the courts, week by week and almost day by day, than to find that they are people who have, perhaps, thirty or forty convictions, and who had repeated short sentences passed upon them. If you are going, to send boys to these detention centres, you should give the courts the power to send them for at least twelve months, or something of that sort. In the case of Borstal, the sentence may be for three years, but in these detention centres we might make it less than that, because the younger the boy the shorter the training which might be necessary. But if it is a question of sending boys there for three months it means the beginning of the vicious circle of short sentences, the result of which we see every day.
The noble Viscount, Lord Templewood, has made a suggestion about attendance centres. If we accept that, we shall have at the end of this Bill remand homes, remand centres, detention centres, attendance centres—besides prisons. I have the greatest doubt whether we shall ever get these things going in anything like a reasonable time. May I make one contribution which magistrates might like to consider, of a course that was taken by a Bench of magistrates with whom I used to have the pleasure of sitting every now and again during the war, when I had to live out of London after my house was destroyed? They used to tell these young offenders under sixteen: "We will not send you to an approved school to-day. If we send you to an approved school, you will go there for a long time, and that means being sent away from homes. What we will do instead is to bind you over on condition that you attend at the police station every Saturday afternoon"—say for a month; it might mean four Saturdays running, or it might mean six—"and you will be there from two o'clock until six or seven o'clock"—whatever time the magistrates thought fit, and varying with the time 300 of the year; in the winter they would let them go earlier. "You may take a book with you, if you like, but there you will have to stay as a punishment for what you have done." After all, that is not very much different from keeping them in after school. It had a wonderful effect. The juvenile crime in the district of the Bench of which I am speaking fell greatly.
You do not want any Statute to allow you to do that, because these young offenders are put on probation conditionally on their going to those places. If more use could be made of that method, I do not think we should need to go to the expense at the present time (after all, expense is something at the present time) of setting up special places. I have heard it said—I do not know whether it is correct—that the Home Office think the police would not be able to manage it. If an inspector of police or a station sergeant cannot manage four or five unruly boys on a Saturday afternoon, I should not think much of him as a police officer, I throw out that suggestion. It is a method which has worked, and I can speak of it from personal experience. If magistrates took some course like that, these boys would see that they were not going to "get away with it," and that would be a great thing. They must be made to understand that being put on probation, or being bound over, means something, and that they will get punished for the offences.

§ VISCOUNT BRIDGEMAN
I want to mention only one thing which your Lordships probably already know. It is that in a few days we shall be having the Second Reading of the Employment and Training Bill, dealing with the youth employment service. I mention that now, because the success or failure of that youth employment service will have a great bearing on the welfare of the young persons whose affairs we have been discussing. Therefore, I think we shall have to bear the considerations which have been brought up in this discussion very much in mind when we come to that Bill in a few days' time. I will not say any more, because I shall probably be out of order if I do.

§ LORD ROCHE
May I make one other observation before the Lord Chancellor replies? I remember that when the noble and learned Viscount had his Bill in draft we discussed this point at his invitation, 301 and I told him I was in favour (and I still am) of something like his proposal for "keeping in." After all, the Lord Chief Justice's suggestion is to the same effect. But his suggestion will never get beyond this House to the magistrates unless there is something in the Bill about "keeping in." I am wondering whether, if the Lord Chancellor and the Home Secretary are thinking any more about this matter, there cannot be some combination of these things into one place and one arrangement. That is the suggestion I desire to make.

§ THE LORD CHANCELLOR
My instructions from the Home Office are to oppose this Amendment. Having told your Lordships what are my instructions—which I am going to carry out—I must say that the course of the discussion has rather made me wish that I had a little more latitude than in fact I have. I am attracted by the idea of taking these children to some place and keeping them in on Saturday afternoons when they want to see a football match. The actual Amendment is defective, because it provides for the setting up of these compulsory attendance centres but does not give any power to any court to send anybody to them. But that could easily be put right. The grounds upon which the Objections of the Home Office are based are three-fold; I can summarise them in three ways. First, there is really no chance of finding premises. Let me say, apropos the detention centre, that if it is to be merely a prison under another name, with all the vices, then it will do more harm than good. What we have to try is experimentation; we have to try to devise something which is not a prison, not run like a prison, but which does comply with what the noble Lord, Lord Oaksey, was talking about yesterday after-noon, a short term of rigorous training.
That is the scheme. And the noble Viscount, Lord Templewood, will be glad to know that the detention centres contemplated will be centres which will most certainly differentiate between ages, and will not have one group of people all thrown together. After all, it will be a long time before we can build detention centres, but when we do build a detention centre, I am afraid it will be used all hours of the day and night. The prospect of building anything like a compulsory attendance centre where people will go for Saturday afternoons, is obviously 302 utterly impracticable at the present time. We should have to use some existing building; and that is the first difficulty. The second difficulty is the difficulty with regard to staff. If this plan is to succeed, it has to be well done, and requires trained people. Of course, it is possible that you might get an inspector of police, and no doubt the ordinary inspector of police might keep in awe and subjection some half a dozen small boys. But they would be rather indignant small boys, for they would want to go to their football match. To tell you the honest truth, the difficulty is that on Saturday afternoons the inspector wants to go to the football match as well; and with the police so hard-pressed for men as they are at the present time, it will be difficult to find the really competent people—because we need competent people—to make this scheme a Success.
I must say that if we could get over those difficulties the idea of doing something unpleasant to these small children which does not in any way bring them into contact with the disadvantages of prison, has attractions for me. They may be rather sadistic attractions, but the idea has attractions, because I think it does bring these children "up against it." I confess that I am disturbed at the number of cases in which these naughty children are bound over, time after time, with nothing else done to them. I do think that is becoming a very serious matter. I have made all these observations, but I hope I have not unduly exceeded my instructions and that I shall not be subject to the attacks of the Home Secretary. If I am, I shall come and ask your Lordships to protect me.
The substance of the matter is that I will make a point of telling the Home Secretary that in various quarters of the House there is a good deal of feeling in favour of this idea. I was attracted by what the noble Viscount, Lord Temple-wood, said. Let us start this on a small scale. Let us start it here and there, and see if it works, and learn from experience. I will go back to the Home Secretary and tell him what has been said, and what noble Lords in all parts of the House think, and see what his reaction is. But I must say that the Home Office, who have considered this matter very much since 1938, have come to the conclusion 303 that for the reasons I have indicated this scheme would not be satisfactory. For that reason, I think, the Home Secretary dropped this part of the 1938 plan. But on the lines which the noble Viscount indicated, it might be worth while to start the scheme. I think there is substance in what he said, and I will convey his views and your Lordships' views to the Home Secretary.

§ VISCOUNT SWINTON
I should like to say one or two words, purely as a layman—I think that experts can exhibit too much expertise sometimes. I hope we shall not have an answer with which the Lord Chancellor would have no sympathy: I thought I detected, as the leit motif of his brief, that you cannot send half a dozen unruly boys to a police station to be kept in on a half-holiday afternoon unless you have some highly-trained person to look after them. I cast my mind back a long way, to my school days. I am bound to say that I do not think that at Winchester we were any more or any less unruly than at other schools. As soon as one became a prefect one had to look after forty boys, in what we called "toy time" and what others called "prep" I will not say that these boys were grossly insubordinate, but they were not blessed little lambs. But no "co-pre" worth his salt had any difficulty in keeping order in "toy time" I do not believe it is beyond the wit of any decent man of common sense, whether he be a station sergeant or anyone else, to look after half a dozen boys who have to be kept in on a Saturday afternoon.

§ VISCOUNT TEMPLEWOOD
Once again, I am obliged to the noble and learned Viscount for what he has said. I hope that in this reconsideration he will draw a clear distinction between the idea of stopping half-holidays and the idea of training institutions. I think the fault of the present proposal is that it confuses the two. They really are two totally distinct proposals: on the one hand, keeping the young offender in for a half-holiday; and, on the other hand, some kind of hostel or institution in which he will live and undergo a period of supervision and training. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 18 agreed to.

304

§ 9.58 p.m.

§ Clause 19:

§ Borstal training.

§ (3) Where a person is convicted by a court of summary jurisdiction for an offence for which that court has power, or would but for section seventeen of this Act have power, to pass a sentence of imprisonment, then if on the day of his conviction he is not less than sixteen but under twenty-one years of age, and the court is satisfied of the matters mentioned in subsection (1) of this section, the court may commit him in custody to quarter sessions for sentence in accordance with the following provisions of this section.

§ (5) Where an offender is so committed for sentence as aforesaid, the appeal committee or court of quarter sessions shall inquire into the circumstances of the case and may—

(a) if satisfied of the matters mentioned in the said subsection (1), sentence him to Borstal training; or
(b) in any case deal with him in any manner in which the court of summary jurisdiction might have dealt with him.

§ (6) Before a sentence of Borstal training is passed by a court of assize or quarter sessions or by an appeal committee, and before a person is committed to custody by a court of summary jurisdiction under subsection (3) of this section, the court or committee shall consider any report or representations made by or on behalf of the Prison Commissioners on the offender's physical and mental condition and his suitability for the sentence; and if the court is a court of summary jurisdiction and has not received such a report or representations it shall after conviction remand the offender in custody for such a period or periods, not exceeding three weeks in the case of any single period, as the court thinks necessary to enable the report or representations to be made.

§ THE LORD CHANCELLOR
This is a drafting Amendment, I beg to move.

§ Amendment moved— Page 22, line 14, leave out from ("offence") to end of line 14 and insert ("punishable with").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
This also is a drafting Amendment, I beg to move.

§ Amendment moved— Page 22, line 31, leave out from ("offence") to ("imprisonment") in line 33 and insert ("punishable on summary conviction with").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ LORD SCHUSTER moved, in subsection (3) after "sessions" to insert "or to any court of Assize whichever is the earlier." The noble Lord said: The object 305 of this Amendment is, I think, fairly clear. It is simply to provide that an offender who is in prison or on bail should go to the quickest place of trial, wherever that may be. If there happens to be a court of Assize before there is a court of Quarter Sessions, then he should go to the court of Assize. However, I realise that the Amendment in the form in which I have put it down is defective. All I would ask the noble and learned Viscount the Lord Chancellor to do to-night is to say that he will agree to the principle of the Amendment, and if his expert assistants will put it into proper form I shall be much obliged. The difficulty is that there may, of course, be a notice of appeal given and it may be a notice of appeal to a court of Quarter Sessions. In that event, the matter ought to be dealt with in a court of Quarter Sessions and not in a court of Assize. I beg to move.

§ Amendment moved— Page 22, line 37, after ("sessions") insert ("or to any court of Assize whichever is the earlier ").—(Lord Schuster.)

§ THE LORD CHANCELLOR
I will gladly do that. The trouble, however, is that, as the noble Lord anticipated in what he said, the magistrates may hear a case and realise that it is one in which they ought to send the man for sentence. At that moment of time, they do not know, and they cannot know for several days afterwards, whether the man is going to appeal or not. If he appeals, then, of course, there is no machinery at all for Assize, and therefore it has to be Quarter Sessions. The fact that it may have to be Quarter Sessions makes it difficult to see how this will work, because the magistrates, when they deal with a case., will not know whether there is going to be an appeal or not. Therefore, they cannot do what can be done when the dates of the Assizes are known—find out which is the convenient place to which to send the man. That is the first difficulty.
The second difficulty is this. Since the matters are going to be dealt with by an appeal committee of Quarter Sessions, equally the magistrates will not know the time at which the appeal committee will sit. I hope and believe that the appeal committee will be called back ad hoc to deal with particular cases. The magistrates will not know when the appeal committee is going to sit. On the broad general principle of sending anybody to 306 a convenient place of trial—I mean convenient from the point of view of time—I must confess that I am at one with the noble Lord. Those are the difficulties and I will certainly discuss them with my advisers and see if there is any way out. For the moment, I frankly state that the difficulty about the possibility of appeal and the magistrates not knowing the time or whether there will be an appeal or not, seems to me a formidable obstacle in the way of sending the case to Assize. But I will see whether I can find any way out of that difficulty. However, on the broad general principle which the noble Lord has in mind, of not keeping a man waiting longer than is necessary to know if there is a convenient Assize court nearby to which to send him rather than send him to Quarter Sessions which may mean much delay, the noble Lord and I are at one. But the difficulties are formidable.

§ LORD SCHUSTER
I appreciate the force of the noble and learned Viscount's words, but I do not think that the difficulties are insuperable. However, I do not want to labour the point now. I am grateful for the action which the noble and learned Viscount proposes to take.

§ LORD GODDARD
The noble and learned Viscount the Lord Chancellor said that we do not know when the appeal committees are going to sit. It is not only to appeal committees that these cases go; they go also to Recorders in boroughs. The reason why I was anxious that the noble Lord, Lord Schuster should move the Amendment and initiate this discussion was because of a case that came before the Central Criminal Court in which a most unfortunate state of affairs arose. It was nobody's fault, except possibly that of the Home Office. What happened was this. A boy had been committed for Borstal sentence to the Quarter Sessions for (I think I am right in saying) the Borough of Grantham, and at the tine the Recorder had unfortunately died. The office was vacant. For some strange reason, the Home Office did not fill that Recordership for nine months, and that boy was waiting in prison the whole time. At that time he could rot have been sent to the Assizes because the Assizes were over. He could not be sent to an adjoining Assizes because under the Act of 1925, a person can only be sent to the adjoining 307 Assizes (if it is not out of the county in which the offence is committed) for trial; you cannot send him for sentence to Borstal.
I cannot help thinking that some provision could be made in this Bill under which, if the Assizes are going to take place within one month of the committal and a court has not had notice that the appeal committee or the Quarter Sessions are going to sit within one month, he may be sent to the Assize. No Judge would mind having these boys sent to him for trial. I am sure something should be done to obviate the considerable delay which may take place with the committal of a boy to the Quarter Sessions, when he could quite well be dealt with either at the Assize for the appropriate county or at a neighbouring Assize.

§ Amendment, by leave, withdrawn.

§ LORD RAGLAN moved to add to subsection (3): Provided that a court of summary jurisdiction may pass a sentence of Borstal training if it has before it a certificate of the Prison Commissioners that in their opinion the offender is suitable for such training. The noble Lord said: All those connected with Borstal are agreed that the sooner after conviction a lad begins his Borstal training the better prospect there is that that training will be successful. The Lord Chief Justice has spoken of the delays that arise in sending these lads to Borstal—sometimes very serious delays. Things are much better now than they were a year or two ago; in fact, I think one may say that Borstal has got over the shock it suffered to its system during the war. But even now a lad is sometimes kept up to six months in prison awaiting trial, or awaiting sentence and transfer, and, of course, not only is that time wasted, from his point of view, but he is acquiring the prison mentality, the avoidance of which is the whole point of the Borstal system. Other lads get through their preliminary stages very much more quickly.

§ What happens is this. The Borstal authorities think that in normal cases nine months is the usual period of training required, and that means that it is largely a matter of luck how long a man remains in custody awaiting transfer to the place where he is to be trained. Those who have the worst of the luck not 308 unnaturally have grievances, if they see lads who are convicted long after themselves released before them, although they have behaved quite well while they have been in custody. I do not for a moment suggest that there is any panacea for this state of affairs, but I think there is a possible palliative—namely, to give courts of summary jurisdiction the power to send lads to Borstal. The danger, of course, is that these courts might send to Borstal lads who might more appropriately be given some other form of sentence—probation, for example. But that danger does not apply only to courts of summary jurisdiction.

§ Even Judges and Recorders sometimes impose Borstal sentences which cause considerable surprise to the Borstal authorities. Courts of summary jurisdiction, however, are far more likely to make mistakes than Judges or Recorders, and I think it would be only proper that, if the power to impose Borstal sentences were conferred upon them, some limitation should be placed upon that power. The limit that I have suggested in my Amendment is that they should not be allowed to impose a Borstal sentence unless they have before them a certificate from the Prison Commissioners that the lad is considered suitable for Borstal training. Those of your Lordships who sit at Quarter Sessions will know that this is not an entirely novel procedure. The Prison Commissioners now report to chairmen of Quarter Sessions, before those lads go before them that they might be suitable for Borstal, and I am proposing merely this extension of what is an existing practice. I beg to move.

§ Amendment moved—

§ Page 22, line 38, at end insert the said proviso.—(Lord Raglan.)

§ VISCOUNT TEMPLEWOOD
My noble friend, as the Chairman of a Borstal institution, and also as a Chairman of Quarter Sessions, speaks with great authority upon this question. He has attempted very gallantly to find a solution to a problem which has been the subject of a bitter controversy extending over a great many years. Half the world is in favour of allowing courts of summary jurisdiction to impose Borstal sentences and the other half is strongly against it. Anyone who is Home Secretary or Lord Chancellor, at any given time, is torn between these two views, each of which has a strong argument in its support. I have come to 309 think that a Borstal sentence was too serious a sentence for a court of summary jurisdiction to impose. I think there is rather a tendency to consider Borstal sentences as something not very serious, but to me any sentence that takes a young offender away from his own district and from his family for two or three years is a very serious sentence. That makes me think that we should hesitate to give this power to courts of summary jurisdiction.
At the same time, I am very conscious of the fact that, as things are now, and in view of the lack of remand homes, boys and girls are often sent to prison and remain there for a long time, awaiting the passing of a Borstal sentence at Quarter Sessions. It seems to me, therefore, that the only justification for extending these powers to courts of summary jurisdiction is the shortage of remand homes. If a sufficient number of remand homes become available, then we shall not have these deplorable instances of young offenders remaining in prison, quite often week after week and month after month, awaiting sentence. I can accept the present proposal only on the understanding that the Home Office and the local authorities will proceed vigorously with a programme for building and staffing more remand homes. I am quite sure that if more remand homes are not made available these scandals of boys and girls being kept in prison for weeks and months will go on. If that be so, I shall be driven to the conclusion which is suggested in the Amendment of my noble friend, and shall feel that it is essential, even in face of all objections, to give these powers to courts of summary jurisdiction. In the meanwhile, I would leave things as the Bill proposes. I urge upon the representative of the Government that the key to the question is the provision of remand homes.

§ LORD SCHUSTER
Perhaps I may be allowed, fully realising, as I do, how bitter the controversy has been and how long it has continued, to say a word in support of the Amendment which has been moved by my noble friend Lord Raglan. As Lord Templewood has said, there are not sufficient remand homes, and so far as we can see there is no early prospect of there being sufficient remand homes. If we have to wait until there are enough of these institutions so that 310 boy and girl offenders may be put somewhere, we shall have to wait for a time which we cannot measure, not having the gift of prophecy. As I say, I fully recognise the arguments against this. But, meanwhile, what is the danger? The Prison Commissioners are accustomed, at the present time, to certify to the Chairman of Quarter Session, or to the Bench—I forget which—that "so and so" is fit for Borstal treatment. It is laying no additional burden on them to require them to report to the court of summary jurisdiction. If the court is unable to send a boy or a girl to Borstal unless it has such a certificate, where is the harm, or what great danger is involved? There is a difficulty of a different nature which is purely technical, but on broad merits I submit, and I fully realise the weight of the argument on the other side, that there is a great deal to be said for the Amendment, and it would avoid many cases which, when they do occur, are very troublesome.

§ 10.15 p.m.

§ LORD HAZLERIGG
As one who has sat on a Quarter Sessions and petty sessions for the last forty-five years, I am getting a little tired of people getting up in this House and saying that courts of summary jurisdiction are not competent to do things. I know that the ordinary petty sessions have not the legal eminence of a Recorder or Judge, but the duty of a Lord Lieutenant in choosing magistrates is a very difficult one. After we have chosen magistrates, the Lord Chancellor and his excellent staff put them through a fine sieve and the magistrates who are appointed are people who are, nowadays at any rate, very keen on their work. They do it to the best of their ability, and they are generally advised by excellent clerks. I believe that a court of petty sessions would be able to carry out the provisions of Lord Raglan's Amendment. I believe that with the shortage of remand homes it would be a good thing if we could have something of this kind in future. As I am on my feet, may I say one thing about Borstal? We find a difficulty at our Quarter Sessions, because when we send lads to Borstal, though they are generally sent down for three years they are let out far too soon, and time after time we have people coming back to us who have been let out 311 six months after they went in. I think that is one of the greatest scandals at the present time.

§ LORD GODDARD
I have great sympathy with the proposals of the noble Lord, Lord Raglan, and of the noble Lord, Lord Hazlerigg. I am sure the noble Lord will acquit me of being one of those who attack courts of summary jurisdiction. One difficulty which would certainly have to be provided for is that of appeals. I do not know whether the noble Lord has any idea of the appeals from Borstal sentences that come before the Court of Criminal Appeal at every sitting. There are seldom fewer than six or seven, and in a fair proportion the Court of Criminal Appeal makes some alteration in the sentence, generally because it considers that a sentence of probation should have been imposed. The most common ground of appeal of Borstal boys is that they would rather go to prison than to Borstal, but we do not always oblige them. But if the court of summary jurisdiction has power to pass Borstal sentences, I would point out that to appeal to Quarter Sessions is much more difficult than to appeal to the Court of Criminal Appeal. That is generally simple. The boy writes out something on a piece of paper. He says he does not like Borstal, or he would rather go to prison, or very often that his mother wants him at home. The shorthand note containing everything said in the court below is sent to the Court of Criminal Appeal so that it sees everything. It can all be done without the necessity of legal aid, because it is all done for the boy without expense to him. The court now acts on certain fairly well defined lines.
An appeal to Quarter Sessions from the court of summary jurisdiction is a very different matter. It is a far more difficult matter for an uneducated or friendless person to conduct such an appeal, and there are no means of sending the shorthand notes to the court which is hearing the appeal. No shorthand notes are taken in courts of summary jurisdiction. If this change is made—a change with which I have a good deal of sympathy—there will be a considerable amount of supplementary work to be done in connection with it.

LORD MERTHYR
I support this Amendment. I know that there is a body 312 of opinion which holds the view that summary courts are not competent to discharge this duty of committing direct to Borstal; but the proper remedy for that is to concentrate everything on improving the courts of summary jurisdiction, so that they will be able to assume greater responsibility. I know that this cannot be done all at once, but if it were done over a period of years, by sparing nothing to improve their efficiency, I am confident that they could discharge this responsible duty of committing to Borstal, and it would have the great advantages which have been outlined by the noble Lord, Lord Raglan. I support the Amendment and I agree with everything said by Lord Hazlerigg.

§ 10.22 p.m.

§ LORD CHORLEY
This has been the subject of acute controversy for a long time, and the noble Viscount, Lord Templewood, has gone over the history of that. He has said that the world is divided into two halves on this matter. It is my unpleasant duty to inform the mover of this Amendment that the Government are on the side of the opposite half. There is one case in which the court of summary jurisdiction can send the lad to Borstal—namely, in the case of an escape from an approved school or a Home Office school or persistent misbehaviour in the school—but even so it is necessary to obtain the Home Secretary's consent, So long ago as 1927, the Departmental Committee on the Treatment of Young Offenders put forward the same suggestion as the noble Lord, Lord Raglan, and on the ground which he himself has taken to-night—namely, that the lad had to stay in prison until Quarter Sessions were able to deal with his case. Probation under this Bill provides for these remand centres, and in due course, this will get over that difficulty. It would not be right for me to say, however, that there is an immediate prospect of these remand centres being ready within any short time. The Home Secretary is as anxious as anybody that they should be ready as quickly as possible, because a great deal of the validity of the arrangements under this Bill depends on these homes and centres being ready with all speed. But it would be quite wrong if I suggested that they were going to be ready within the next months.
When the earlier Bill was before the House in 1938 it did, in fact, contain a 313 provision of this kind, and when it was debated, there was a great deal of difference of opinion about it. It was made clear that large numbers of magistrates were not anxious to have these powers in courts of summary jurisdiction; indeed, the Magistrates' Association, as your Lordships know, advised against it, and in the light of the discussions in Parliament, and of the advice of that powerful body of magistrates, the Government's policy was changed, as the noble Viscount will remember. When the provisions for the present Bill were submitted to bodies interested, and to the Magistrates' Association, they did not withdraw from the position which they took up on the earlier occasion. Therefore, the Government have decided that, on the whole, the argument is still against the proposal of the noble Lord, Lord Raglan. He has suggested that the difficulty can be overcome by a certificate from the Prison Commissioners which, as he has indicated already, is put before Quarter Sessions before they send a lad to Borstal. But that does not get over the difficulty, as all that a certificate from the Prison Commissioners does is to certify that the lad is physically and mentally fit for Borstal. The Prison Commissioners cannot decide whether it is a proper case for Borstal. That is a decision which can be made only by the magistrates. Therefore, if the noble Lord will permit me to say so, it really does not take him so far as he seems to think.

LORD RAGLAN
May I interrupt the noble Lord? I think the certificate from the Prison Commissioners goes further than that.

§ LORD GODDARD
Surely it is only the certificate which every court receives.

§ LORD CHORLEY
I am obliged to the noble and learned Lord. It really does not take us any further. In the circumstances, the Government find themselves unable to accept the Amendment.

§ On Question, Amendment negatived.

§ LORD CHORLEY
The next Amendment is a drafting Amendment. I beg to move.

§ Amendment moved— Page 23, line 9, after ("of") insert ("a court of").—(Lord Chorley.)

§ THE EARL OF MUNSTER
My noble friend Lord Llewellin is unable to be 314 present to-night, but he asked me to point out that he thinks the English proposed in this Amendment is not so good as that which he is proposing. As a result of this Amendment the sentence will read: being the next practical sitting of a court of that committee. If the noble Lord, Lord Llewellin's, Amendment were accepted, it would read: being the next practical sitting of that committee as a court. My noble friend feels that his Amendment is much better than this, from the point of view of the English language.

§ LORD CHORLEY
I prefer our version to his. The Bill does provide that when the appeal committee is sitting it should be a court.

§ THE EARL OF MUNSTER
Not "a court of a committee."

§ LORD CHORLEY
The Summary Jurisdiction (Appeals) Act, 1933, provides that the appeal committee of Quarter sessions shall act by the court consisting of not less than twelve members of the committee, and that courts so composed may sit for the hearing and determination of appeals. Therefore I suggest that it is perfectly right to make this drafting correction to insert the words, "a court of."

§ LORD GODDARD
How would it read?

§ LORD CHORLEY
The words which the noble Lord, Lord Llewellin, suggests are, "as a court."

§ THE EARL OF MUNSTER
I have no feeling one way or the other about it, but I have no doubt that the noble Lord, with his knowledge of English, has ample opportunity of finding in other Statutes "a court of a committee."

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This is a drafting Amendment. I beg to move.

§ Amendment moved—

§ Page 23, line 12, after ("aforesaid") insert ("the following provisions shall have effect that is to say:— (a)").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This is another drafting Amendment, preliminary to the rather more substantial one that follows. I beg to move.

315

§ Amendment moved— Page 23, line 14, leave out ("the said subsection (1)") and insert ("subsection (1) of this section").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This is also a drafting Amendment of rather a more substantial character. It is really the reorganisation of the clause. It takes subsections (9), (10) and (11) out and puts them into this earlier part of the clause. It also relegates subsection (8) to Clause 26, where it is thought to be more suitably placed. It is just a question of re-organising words that are already there I beg to move.

§ Amendment moved—

§ Page 23, line 18, at end, insert: ("(b) the Poor Prisoners Defence Act, 1930, shall apply as if the offender were committed for trial for an indictable offence, subject to the modifications that in subsection (2) of Section one the words 'after reading the depositions' and in subsection (2) of Section three 'and the costs of a copy of the depositions' shall be omitted; (c) the Costs in Criminal Cases Act, 1908, shall apply in relation to the proceedings before the appeal committee or court of quarter sessions as it applies in relation to the prosecution of an indictable offence before a court of quarter sessions; (d) if the appeal committee or court of quarter sessions passes a sentence of Borstal training, the offender may appeal against the sentence to the Court of Criminal Appeal as if he had been convicted on indictment, and the provisions of the Criminal Appeal Act, 1907, shall apply accordingly; (6) References to a court of quarter sessions or a court in any enactment as applied by the last foregoing subsection, or in any other enactment relating to persons dealt with by quarter sessions (including any such enactment contained in this Act) shall be construed as including references to an appeal committee of quarter sessions by whom an offender is dealt with under that subsection.").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This is a drafting Amendment. I beg to move.

§ Amendment moved— Page 23, line 19, leave out from ("passed") to end of line 20 and insert ("under this section").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This Amendment is also drafting. I beg to move.

316

§ Amendment moved— Page 23, line 21, leave out from ("committed") to ("under") in line 22 and insert ("for sentence").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD RAGLAN moved, in subsection (6), to delete "three" ["three weeks"] and insert "five." The noble Lord said: The point of this Amendment is that under the proposed procedure, if a court of summary jurisdiction calls for a report, unless the report is received within three weeks the court must have the prisoner before it again. There are a great many courts of summary jurisdiction in the country—and I sit on one of them—which sit only once in each calendar month. There are also a great many juvenile courts which sit once in each calendar month. The result is that when any of these courts adopt this procedure they have to hold a special sitting of the court in order to deal with these cases. As noble Lords know, it is a matter of extreme inconvenience, especially in rural areas, to call special meetings of courts of petty sessions. I beg to move.

§ Amendment moved— Page 23, line 29, leave out ("three") and insert ("five").—(Lord Raglan.)

§ LORD CHORLEY
The noble Lord has suggested that there should be a period of five weeks. The view in the Home Office is that five weeks is really too long a period for an offender to be remanded in this way, and that three weeks is ample. If at the end of the three weeks the necessary formalities have not been gone through, further application should be made to the court. The noble Lord has pointed out that there are some places where the court does not normally sit more often than once a month, and that clearly would give rise to a difficulty which my instructions do not cover. I should like to have the opportunity of giving the Department an opportunity to consider that case. If the noble Lord will take the usual course, I will put his observations before those who tell me what to say.

LORD RAGLAN
In those circumstances, I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD CHORLEY
The omission of these subsections is consequential on a previous Amendment which was taken. I beg to move.

317

§ Amendment moved— Page 23, line 37, leave out subsections (8) to (11).—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 19 shall stand part of the Bill?

§ 10.35 p.m.

§ LORD SCHUSTER
This seems to me the only place where one can call attention to a matter which is becoming of considerable concern in some parts of the country: the treatment of persons who have escaped from Borstal. What is happening is this—I will take the Borstal institution at Portland which most affects the part of the country in which I am interested. We have escape after escape. The boys get out; they break into the little locked shops in Portland; they commit five, six, seven or even eight offences; they are apprehended and are brought to the Sessions, which are put in great difficulty. The boy always says: "Don't send me back to Borstal. Send me to prison." That puts the court in some difficulty, because one suspects that if the boy says "Send me to prison" it is probably better for him to be sent to Borstal.
On the other hand, you get a boy who has escaped two or three times from Borstal and you feel you must do something about it; thereupon you give him the only thing you can give him in the circumstances—a somewhat stiff sentence. Again and again, the Prison Commissioners have taken the boy out of prison and sent him back to Borstal, and the vicious circle begins again. The boy escapes again and is brought up, either in the same county as that in which he was previously caught, or elsewhere. He may be sent back to Borstal, or he may be sentenced to prison. If he is sentenced to prison he is later taken out, sent back to Borstal, and so it goes on and on. There is a general desire among several noble Lords that this matter should be brought to the attention of the Committee, through the Committee to the attention of the noble Lord, Lord Chorley, who represents the Home Office here, and through him to the Home Office. We would ask the representatives of the Government here to discuss with the Home Office authorities a cure for this particular evil. It is an evil and it requires a remedy, and I personally do not know what the remedy is. The Home Office have experts; they must have 318 considered the matter; and we should be grateful if we could have some light and leading on the subject.

§ LORD GODDARD
I should like to support what the noble Lord has said. Last year when I was on the South-eastern circuit I was disturbed to find the ease with which boys escaped. I am thinking particularly of the Hollesley Bay colony. They seemed to walk away whenever they wanted to. I sent for the governor and talked to him seriously. He said it was very difficult: apparently the boys just went off when they liked. No doubt the institution was short of officers. In newspapers lately, I have seen that the boys are still walking away from Hollesley Bay colony; I have seen cases only this week. It really is a serious matter for the people who live anywhere near these colonies. In fact, these people are getting into a state, I will not say of panic, but certainly into a state of great resentment at the way their places are broken into by these boys who walk away. A great many do not walk away. I suppose it is the more adventurous, and therefore the more dangerous ones, who do walk away. However, according to reports that I receive, the situation in many parts of the country near Borstal establishments is becoming intolerable.

§ VISCOUNT TEMPLEWOOD
I do not want to underrate the gravity of the question. At the same time I wish to keep it in its proper focus. I do not know whether the noble Lord who is representing the Home Office could give us, as an illustration, the number of inmates at Borstal at the present time and the number of escapes during the year. I do not carry these statistics in my head, but I have the idea that it works out at about one a day. I do not at all wish to underrate the gravity of that figure. At the same time it is a figure against which must be set the number of young men who unquestionably gain by this kind of open institution. That does not mean that I do not think the Home Office and the Borstal authorities should not take further precautions. I have always thought that what was needed was a greater differentiation between the various Borstal institutions. I can quite contemplate an institution established principally to deal with cases of this kind. I would suggest to the Government that that is the wise line of reform, rather than actually to 319 change the basic principles of this class of open training. I should be happier if I felt that the Home Office were dealing actively with this urgent need of having some institution of this kind to which these cases could be sent, the result of which would be that we should be spared the kind of scandal, to which the noble Lord, Lord Schuster, and the noble Lord, Lord Goddard, have just alluded, of boys escaping time after time and apparently no effective punishment being available for them.

§ LORD SCHUSTER
Perhaps, with the Committee's permission, I may be allowed to speak again. I cannot produce statistics but I can produce certain facts. At either the last or the last but one Quarter Sessions at which I sat, we had four separate sets of boys who had escaped from Borstal. I do not want to be pinned to this as an actual statement of fact, because it is only vague memory, but I think that each of them had escaped more than once. Each of them had committed quite a number of shopbreakings in the town of Portland. I am not in any way criticising what the noble Viscount, Lord Templewood, has just said about the necessity for open Borstal. What I was trying to suggest was that it is rather hard on the inhabitants of Portland or the inhabitants of and residents near Hollesley Bay, that they should make this great contribution towards the rehabilitation of these men. In all humility, I am suggesting that some way should be found of dealing with the boys, when they do escape like this, which does not involve them in the same temptation, which has been before them every day and every hour, of walking away when they think fit.

§ THE LORD CHANCELLOR
There is a real matter of grievance here; there is no doubt about that. It has to be carefully considered. One of the headaches which the Prison Commissioners are having at the present time is to know how to cope with the situation. The dilemma is this. You cannot run a Borstal system on prison lines. If you do that then your Borstal experiment is really finished, and if you do not do that there must be this risk of escape. I asked if the Home Office representatives had the figures, but they have not, so I do not know what the figures are. I suspect from my own 320 knowledge, however, that they are pretty high. I do not know what proportion they bear to the whole lot. When a lad is recaptured he may be sent for a time to Wandsworth Prison but, as your Lordships know, the conditions there, so far as training is concerned, are very primitive in character; it is not satisfactory. The boy is then allocated to the appropriate Borstal institution to continue his training. I have not the statistics with me, but I understand that, on the whole, these boys then do fairly well and behave themselves. All I can tell the noble Lord, Lord Schuster, is that we do not by any means treat this matter lightly. He has a real point here. It is a very difficult problem but it is one which concerns the Prison Commissioners and the Home Office very much, and they will do their best to see how they can best cope with it.

§ LORD SCHUSTER
I am grateful to the noble and learned Viscount for his reply.

§ Clause 19, as amended, agreed to.

§ 10.46 p.m.

§ CLAUSE 20 [Corrective training and preventive detention]:

§ LORD CHORLEY
This is a drafting Amendment.

§ Amendment moved— Page 24, line 22, leave out from ("offence") to ("imprisonment") in line 23 and insert ("punishable with").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This also is a drafting Amendment. I beg to move.

§ Amendment moved— Page 24, line 36 leave out from ("offence") to ("imprisonment") in line 37 and insert ("punishable with").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
This too is a drafting Amendment.

§ Amendment moved— Page 25, line 23, leave out ("assize or").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ On Question, whether Clause 20, as amended, shall stand part of the Bill?

§ LORD GODDARD
There is only one thing I should like to say on the question 321 whether this clause shall stand part of the Bill. This is the clause which deals with two forms of imprisonment, one wholly new, and one not quite so new, because already, under, I think, the Prevention of Crime Act, passed in the earlier years of this century, one can sentence to preventive detention a man found guilty of being an habitual criminal. This particular clause makes it much easier to deal with a man as an habitual criminal, but I think that at some time very soon we ought to be informed what this new form of punishment called. "corrective training" is. There is no definition of it in the Bill and, if I may use a common expression, we are "taking this blind." I think judges and magistrates who have the duty of sentencing prisoners should know to what they are sentencing them. At present I know nothing about what corrective training will be, how it will differ from Borstal training, how it will differ from imprisonment, or what it is. Under this Bill I could, I think, send a man to preventive detention for four years, and therefore I would like to know whether there is any proposal on foot as to the treatment which people will receive under that sentence. The object of preventive detention is not punishment; it is to protect the public against persistent offenders. I should hope they will not be dealt with in the same way—at any rate for the whole of their period—as prisoners sentenced in the ordinary way to terms of what used to be called penal servitude but what is now, apparently, to be called simply "imprisonment." Corrective training worries me more than the other matter, because I have not the least idea of what it is.

§ LORD CHORLEY
I am afraid that I am unable to give the noble Lord a great deal of information on this matter, because it has not reached the stage at which one can do so. The noble Lord is aware that a strong Committee considered this question of persistent offenders and made a number of recommendations in a Report. That Report was published and I am sure that the noble Lord is familiar with it. The object of this clause is to enable the Prison Commissioners to carry out the recommendations of that Committee. I am afraid that I cannot carry the matter further than that at the moment. I have had the Report and I have read it, but 322 I do not pretend to carry the recommendations in detail in my mind. Nor do I think it would be of much advantage, at the present late hour, to open a discussion on this rather wide problem.

§ LORD GODDARD
I would like to point out that although there is, I believe, a provision in the Bill that different Parts of it may be brought into force at different times, if Part I is brought into force as soon as the Bill becomes an Act, the courts will be asked to deal with these people and send them to undergo corrective training. I do not know what it is that I shall be asked to do, or what I shall be doing—nor will any court. Therefore, I think that we are entitled to know at the earliest possible moment of what this new form of punishment is to consist.

§ THE EARL OF MUNSTER
I would like to say a word in support of the Lord Chief justice upon this. I feel that before this Bill is passed and sent back to another place we should have some information from, perhaps, the Lord Chancellor, or certainly from the noble Lord, Lord Chorley, as to what exactly this corrective training will be. At the moment we are being asked to pass this clause which relates to corrective training. We hear from the Lord Chief justice that he and his brother judges are quite unaware what this is; and I think we are entitled to a statement at the earliest possible moment from the Government giving full information on the subject. If we are going to adjourn now, perhaps we could have some further information upon this clause on Monday. A number of noble Lords on these Benches take a considerable interest in this particular clause.

§ LORD CHORLEY
When the Report stage is reached, I trust that: I shall have fortified myself with such information as is available, and that I shall then be able to communicate it to your Lordships. I think that would be the most appropriate course to follow.

§ VISCOUNT SWINTON
With great respect. I do not think it would. It may be that this is altogether admirable. On the other hand, if there should be something arising on this clause (which cannot now be explained to us) which requires amendment, then that Amendment would have to be put down on Report. It is extremely inconvenient to put down 323 Amendments on Third Reading. Surely the right thing to do when we are—as we are now—within two minutes or so of the adjournment, is to arrange to have a short explanatory statement made when we meet on Monday, giving whatever information is available to the House. Then the House would be able to dispose of the clause and, it may be, dispose of the whole business. But if we have to return to the clause, we can do so on Report stage, with full information. That is reasonable and makes for expedition.

§ LORD CHORLEY
If your Lordships prefer to have it on Monday, I will do my best to obtain what information I can for your Lordships.

§ House resumed.