Lords Sitting of 7 June 1948

Preamble
The House met at four of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers.

  NURSERIES AND CHILD-MINDERS REGULATION BILL.
  4.5 p.m.
  Brought from the Commons; read 1a; and to be printed.

SHOREHAM HARBOUR BILL.
Returned from the Commons with the Amendments agreed to.
RADIOACTIVE SUBSTANCES BILL. [H.L.]
Returned from the Commons, agreed to with an Amendment: the said Amendment considered and agreed to.
ST. HELENS CORPORATION (ELEC- TRICITY AND GENERAL POWERS) BILL.
Committed: the Committee to be proposed by the Committee of Selection.

EDUCATION (MISCELLANEOUS PROVISIONS) BILL.
4.6 p.m.
Read 3a (according to Order), with the Amendments.
LORD WALKDEN: I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Walkden.)
THE EARL OF PERTH: My Lords, I do not rise in any way to oppose the passing of this Bill, because on the whole we think it is a useful measure and one which clarifies certain points of the 1944 Act. However, I feel bound to express my regret that the Government did not see their way to accept the Amendment which I put
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down on Clause 4 of thee Bill. I believed that Amendment to have been in consonance with the principles of the 1944 Act. The Minister raised certain administrative objections, both to the original Amendment and to a compromise which I put forward. I do not intend to press the matter any further, but I should like to express my gratitude to the noble Lord, Lord Walkden, for the trouble he has taken, and in particular for the statement contained in the last paragraph of the letter which he was good enough to write to me. It says:
"In the administration of the clause the Minister and the local education authorities will continue to be bound by Section 76 (of the 1944 Act) to which they will, of course, adhere."
We attach the greatest importance to Section 76 of the 1944 Act, and we are grateful that the Minister has seen fit to give us an official assurance.
On Question, Bill passed, and returned to the Commons.

CRIMINAL JUSTICE BILL.
4.8 p.m.
House again in Committee (according to Order).
[The EARL OF DROGHEDA in the Chair.]
Debate resumed on the Motion that Clause 20 [Corrective training and preventive, detention] stand part of the Bill.
LORD CHORLEY: As your Lordships will recollect, the noble and learned Lord, Lord Goddard, asked a question as to what exactly was the intention of the Government in connection with this new form of punishment of corrective training. I undertook to endeavour to obtain the information and to place it before your Lordships. The new clause arises, as I informed your Lordships, out of the recommendations of the Departmental Committee on Persistent Offenders. One of the matters which particularly exercised the minds of the Committee was the position of the man between twenty-one and thirty years of age. They considered that some additional provisions ought to be made for bringing reformatory influences to bear upon the young recidivist criminals of this sort of age, which I am sure your Lordships will agree is a particularly reformative time. If you cannot get the young criminal reformed at that

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age, the chances are against your succeeding with his reformation after he has passed the age of thirty. As your Lordships are aware, a court normally sentences a criminal for the actual offence which has been proved before the court, and on which he has been found guilty. The Committee thought, however, that for these young offenders, instead of a sentence for the specific offence, in many cases it would be preferable to have a sentence of a period of imprisonment of between two and four years, which would enable reformatory influences to be brought to bear upon him. That is the reason why this clause has been put into the Bill.
I should point out to your Lordships that it is not limited to the cases of young offenders between twenty-one and thirty. If the court thinks fit, it will be quite open to it to pass a sentence of corrective training upon a prisoner who is over thirty years of age. Obviously there will be all kinds of recidivists, including housebreakers and the serious types of criminals. There will also be the petty thief type. The noble and learned Lord, Lord du Parcq, referred on Second Reading to the propensity to steal bicycles, which is not at all uncommon. There are a number of persons who specialise in stealing bicycles. There is also the sexual type of criminal and others that one could mention. Therefore, the corrective training must be so devised as to have regard to these different sorts of men, to their character, to their antecedents and to their propensities. Indeed, it is probably true to say, as a general proposition, that with the advance of penology, the whole tendency is to treat each criminal more as an individual, and not to regard him as one of a group or class. Therefore, if any attempt were to be made by the Prison Commissioners to lay down some method of uniform treatment for dealing with recidivists of these different sorts, I think your Lordships will agree that it would be bound to fail.
The method it is intended to pursue is the method which is now adopted in cases of sentences of similar length. There will be a preliminary period of observation and classification, and then, as a result of that observation, the criminals will be divided into two classes. Those who appear to be particularly suitable for
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training will be sent to the regional training schools, of which there are at present two. It is hoped to increase that number to four before very long. The training at these prisons, which has now been going on for some time, is essentially directed to making the man capable of taking his part as a good citizen when he comes out of prison.
LORD LLEWELLIN: Would the noble Lord tell us which two they are?
LORD CHORLEY: I think they are Wakefield and Maidstone. As your Lordships are probably aware, considerable success has been achieved in training these men—particularly the young men—in various kinds of craftsmanship, so that on completing their sentences they are able to get quite good jobs and, in a number of cases, have settled down as useful members of society.
To some extent that development has resulted from the Report. When this type of corrective training was first introduced—I think it was at Wakefield—it was thought that it would be successful only in the case of first offenders, but after the Report of the Departmental Committee it was decided to try it in cases where there had already been previous convictions, and I am told that in a substantial number of cases it has proved really successful. All the prisoners who appear to be suited to this type of corrective training will be sent to one or other of these prisons, and it is hoped that in a few years we shall have a sufficient number of prisons to deal with them all successfully. The less amenable type will have to go to one of the ordinary prisons, for the time being at any rate. It is hoped to have a special prison for dealing with the rather less amenable type where the man will be dealt with rather firmly. He will be made to do a good day's work. One of the main principles underlying the whole of the work of the Departmental Committee was the importance of training the man to do a job of work, and making him do that job of work. From what was said at our last sitting, that policy evidently commended itself to the great majority of your Lordships. In the case of the rather less amenable type of prisoner an effort will be made to make him do a good day's job of work, but at the same time to provide educational

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facilities and a certain amount of recreational facilities, so that his life shall be more strenuous and less monotonous than the routine of life in an ordinary prison. In substance that is what it is intended to do in cases of corrective training imprisonment. I hope that what I have been able to say will satisfy the Lord Chief justice that this will be a successful experiment. No doubt the Prison Commissioners will learn a good deal as they go along.
4.20 p.m.
LORD GODDARD: I cannot say that my mind has been very much clarified by the statement to which we have just listened. I want to know, before I sentence a young man to corrective training, to what I am sentencing him—whether I am sentencing him merely to the same sort of training that can be and is at present being given in prisons. Since the Prison Commissioners have wide powers of prescribing the training and classifying of prisoners and so forth, I understand that this clause does not add anything to, or take anything away from, the powers which the courts at present have regarding the sentences which they give, except that it will enable courts to give a young man four years, whereas at present the maximum sentence is two years. I do not know whether that is desirable or not. The Prison Commissioners can put a man in what prison they like, and set him to work as they like. Clause 20 is an elaborate clause, dealing apparently with what is meant to be a new form of punishment. A court, which previously has had power to send a man to prison for only two years—which is the maximum sentence, for instance, for attempted housebreaking—is now given power to send him to prison for four years. I want to know if corrective training means something different from imprisonment, as we understand it at present.
LORD LLEWELLIN: I should like to ask one question. Do I understand that after this clause is passed, if a court passes a sentence of corrective training the man on whom it is passed will be bound to go to Wakefield or Maidstone, or one or the other institutions of that sort? Will the Prison Commissioners have to send him to one of those institutions? If he is sentenced to prison, does it mean that he will go, at the Prison Commissioners' own be-hest, either to Wakefield or Maidstone;
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or will he go to any prison? Is that the distinction that the court has to bear in mind?
LORD CHORLEY: I think that what the noble and learned Lord, Lord Goddard, says is substantially right. Of course, this provision does not come into force unless there is a two years' sentence.
LORD GODDARD: Power to send for "two years or more." It is a different thing.
LORD CHORLEY: The court, in sentencing a prisoner now, looks rather to the offence than to the prisoner.
LORD GODDARD: No.
LORD CHORLEY: It is quite true that many judges do not; but, on the other hand, many judges do, especially perhaps at Quarter Sessions. The object of this is that the mind of the sentencing court should be focussed very much on the character and propensities of the prisoner; and he will be sentenced in the light of these considerations.
In reply to the noble Lord, Lord Llewellin, I am afraid that I did not make myself clear. The Prison Commissioners will classify; they have under observation a man who is sentenced to corrective training, and then they classify him. And according to whether or not he appears to be amenable, they will send him to the Wakefield or Maidstone type of prison, or to the ordinary type of prison, where he will be under a rather special régime—so far as conditions existing in the ordinary prison enable that to be carried out. As noble Lords are aware, the Prison Commissioners are under very considerable difficulties at present, owing to the lack of adequate prison accommodation, and I am not for a moment suggesting that it will be possible to bring this clause into adequate operation within the next month or so, or even within the next year or so.
LORD LLEWELLIN: In the Dorset Quarter Sessions we look at the master not only from the point of view of the community but also from that of what is best for the reformative treatment of the prisoner. If a man is given a sentence of four years corrective training he may be sent to Dorchester prison—which is not a corrective training centre—just as we should send to that prison a man serving a sentence of imprisonment.
VISCOUNT TEMPLEWOOD: I am glad that your Lordships' House is giving attention to this very important clause. I am glad for two reasons. In the first place, the clause seems to me to dispose of the criticism sometimes made against the Bill, that it is simply a sentimental effort to reduce penalties. Secondly, I am glad because the success of the clause will not depend upon the actual wording of the provision; it will depend on the co-operation between the Judges and the Prison Commissioners. On that account it is necessary that both sides should know clearly what is intended by the provision. The provision, as I understand it, deals with two classes of offender: it deals with the public nuisance, the man who goes on committing comparatively small offences, which carry with them sentences of three or six months. These men go on time after time, in and out of prison. For them the present prison treatment is not only useless but actually harmful.
Then there is the other class, a much smaller class, the hardened criminal, the man who has had two, three, four, five or even six sentences of penal servitude, and against whom the community needs far more protection than it at present possesses. So far, in this discussion, we have dealt mainly with the first of these two classes. The second class, I suggest, is easier to deal with: there it is necessary, in the interests of the community, to give longer sentences. With the first class, the men who have perhaps forty or fifty convictions and who spend half their lives in prison—I have with me to-day details of one or two cases of the kind—it is different. In these cases, no single sentence may exceed six months. It is that class that is particularly difficult to deal with. Hitherto, these men have been in and out of prison, useless to themselves and to the community. But now we are going to impose upon a very large number of offenders—I say advisedly "a very large number"—sentences up to two years of training. In view of the great change that is taking place, and in view of the fact that the courts will undoubtedly have to deal with a very large number of these offenders, particularly young offenders who at present get off with three or six months' imprisonment, I should have thought that we wanted something more precise from the Home Office as a guidance to the courts who are to deal with this type of case. I suggest to the
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noble Lord who has just given his answer that the statement that he has made today is inadequate for that kind of guidance. This is one of the key provisions of the Bill. It is founded upon recommendations that were made fifteen years ago. Surely the Home Office and the Prison Commissioners have something more precise in their minds than we have heard to-day.
Let me make a suggestion to the noble Lord. I would have said that this is essentially a case in which the Home Office should issue a circular, not in any way to dictate to the courts as to what kind of sentences they should impose, but as guidance for interpreting this very important provision. I hope that the noble Lord will consider that suggestion seriously, for I genuinely fear that without guidance of any kind the courts will not take full advantage of the opportunity that is given them by this provision. I attach such importance to this provision that I wish to see it come into operation at the earliest possible moment. We have already waited for fifteen years. There has been no dispute about this question at all. Everybody who has considered the question has admitted that the present state of the law is unworkable. That being so, let the Home Office issue a general circular of guidance and let this provision come into operation as soon as possible.
LORD CHORLEY: I gladly assure the noble and learned Viscount that I will bring his suggestion, which seems to me prima facie a most useful one, to the attention of my right honourable friend.
LORD SALTOUN: Following upon what the noble Viscount, Lord Temple-wood, has just said, may I ask whether in that case the last word in subsection (1) (a) of this clause ought not to be "or" and not "and"? I do not know whether it was altered last time; I cannot remember.
LORD CHORLEY: Does the noble Lord mean between paragraphs (a) and (b)?
LORD SALTOUN: Yes.
LORD CHORLEY: I think that that would not be so. I think it needs to be "and."
Clause 20, as amended, agreed to.
Clause 21 [Power to order certain discharged prisoners to notify address]:
LORD CHORLEY: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 25, line 28, leave out from ("offence") to the end of line 28 and insert ("punishable with").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 21, as amended, agreed to.
Clause 22 agreed to.
Clause 23 [Power to make reception order]:
LORD CHORLEY: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 27, line 3, leave out from ("offence") to ("imprisonment") in line 5 and insert ("punishable on summary conviction with").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This is really little more than a drafting Amendment. It is a provision for enabling the witness's allowance to be paid to a medical practitioner who attends to give evidence under the clause in cases where, under the law as it stands at present, he would not be able to claim expenses. I beg to move.
Amendment moved—
Page 27, line 28, leave out from ("section") to end of line 31 and insert ("notwithstanding that the proceedings in which the evidence is given are not proceedings to which Section one of that Act applies").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24:
Power of courts of summary jurisdiction to adjourn a case after conviction and before sentence.
24.—(1) It is hereby declared that the powers of a court of summary jurisdiction under Section sixteen of the Summary Jurisdiction Act, 1848, to adjourn the hearing of a case includes power, after a person has been convicted and before he has been sentenced or otherwise dealt with, to adjourn the case for the purpose of enabling enquiries to be made or of determining the most suitable method of dealing with his case:
Provided that a court of summary jurisdiction shall not for the purpose aforesaid adjourn the hearing of a case under the said Section sixteen for any single period exceeding three weeks.
LORD RAGLANhad given Notice to move in the proviso to subsection (1) to delete "three" and insert "five." The noble Lord said: This is a similar point to that which I raised last week. I understand that the Government are prepared to accept "four." By leave of the House, I beg to move my Amendment in that form.
Amendment moved—
Page 27, line 43, leave out ("three") and insert ("four").—(Lord Raglan.)
LORD CHORLEY: I am happy to accept the noble Lord's Amendment in that form. After the adjournment of the House last week, we had a word on this point, and we were able to agree that "four" would be a happy compromise. At the Report stage an Amendment will be put down on the earlier clause on which the noble Lord moved this Amendment. There are one or two other cases which are bound by it.
On Question, Amendment agreed to.
LORD CHORLEY: This is a drafting Amendment for the purpose of clarification. I beg to move.
Amendment moved—
Page line 28, line 9, leave out ("said Act") and insert ("Summary Jurisdiction Act, 1848").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 24, as amended, agreed to.
Clause 25:
Remand for inquiry into physical or mental condition.
25.—(1) Without prejudice to any powers exercisable by a court under the last foregoing section, where a person is charged before a court of summary jurisdiction with 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, and the court is satisfied that the offence has been committed by that person but is of opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined, the court shall remand him in custody or on bail (with or without sureties) for such period or periods, no single period exceeding three weeks, as the court thinks necessary to enable a medical examination and report to be made.
(3) Where a person is remanded on bail under this section, it shall be a condition of the recognisance that he shall undergo medical examination by a duly qualified medical practitioner at such institution or place as may be specified in the recognisance or by such

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duly qualified medical practitioner as may be so specified; and, if arrangements have been made for his reception, it may be a condition of the recognisance that the person shall, for the purpose of the examination, reside, for such period as may be specified in the recognisance, in an institution or place so specified, not being an institution or place to which he could have been committed.
LORD CHORLEY: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 28, line 19, leave out from beginning to ("imprisonment") in line 20 and insert ("punishable on summary conviction with").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD RAGLAN: This is a similar point. By leave of the House, I should like to move the substitution of the word "four." I beg to move.
Amendment moved—
Page 28, line 26, leave out ("three") and insert ("four").—(Lord Raglan.)
On Question, Amendment agreed to.
LORD BALFOUR OF BURLEIGH LORD BALFOUR OF BURLEIGH moved to add to subsection (1):
"Provided that no such examination shall be made without the consent of the accused."
The noble Lord said: Subsection (3) of Clause 25 begins with these words:
"Where a person is remanded on bail under this section, it shall be a condition of the recognisance that he shall undergo medical examination by a duly qualified medical practitioner at such institution or place as may be specified in the recognisance or by such duly qualified medical practitioner as may be so specified;…"
At first reading, this appears to be a new power. It appears to be a power to require an individual remanded on bail to submit himself to a medical examination. I want to ask the noble Lord whether that is so, whether there is this new power, and how it is proposed that it shall be enforced.
I am advised by those people who have asked me to put down this Amendment, and who are skilled in certain social matters, that it is a principle of law that no one can be forced to submit himself to medical examination against his will. Indeed, I can understand that, where a medical examination is necessary, the co-operation of the person to be examined is desirable in order to secure the best results. I am informed that in practice, even in the case of the routine examination which is compulsory under prison rules,
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the examination is not literally enforced if the person objects. What happens is that the person is isolated until any suspected illness shows itself. As a matter of fact, hardly anyone objects, and the examination and treatment take place. I think I ought to explain the reason for the anxiety about this. I will not take long over it, but I should like in a word to give your Lordships the background.
The reason for anxiety on the part of those people for whom I am speaking is this. It is possible—or it appears to be possible—that if in fact this is a power of compulsory examination, it could be used in conjunction with other conditions of this Act, for purposes which I do not suppose are contemplated but on which I wish to have some reassurance. It appears possible that, in company with the provision for detention, this provision might be used for the detention of women, probably suspected prostitutes, who are thought to have venereal disease. It might be thought possible by administration to use it for detaining such women, compulsorily to examine them and then compulsorily to treat them. That would be contrary to the present practice. I will not go into the whole story, but it would not be a happy method of dealing with that situation. It is because that appears to be possible that I raise this question. I am happy to tell your Lordships that I have had the advantage of consulting with the noble and learned Viscount's advisers, and I am assured that there is no such power and that it is not intended to use the clause in that way. But the matter is considered to be of such importance by those for whom I speak that I formally move my Amendment, and I hope to receive the reassurance and explanation for which I ask.
Amendment moved—
Page 28, line 28, at end insert the said proviso.—(Lord Balfour of Burleigh.)
VISCOUNT MAUGHAM: Will the noble Lord allow me to clear up one point? The Marshalled List of Amendments refers to something to be put in at page 28, line 28; that is, in subsection (1) of Clause 25, which relates to a case where a court thinks that an inquiry ought to be made into the physical or mental state of a particular accused. But the noble Lord has opened this Amendment as

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though it refers to subsection (3). In order to have the matter put right for readers of Hansard, would the noble Lord say what he means?
LORD BALFOUR OF BURLEIGH: I am much obliged to the noble and learned Viscount. It may well be that, instead of page 28, line 28, it ought to be printed as at page 28, line 45, and then it would have referred to the point about which I made my speech to the House. I think that is probably the explanation, and I am much obliged to my noble and learned friend. Perhaps I ought to add that I am not saying that that is the explanation, because the noble and learned Viscount seems to think it is right where it is. However, I hope we shall be able to clear the matter up from the reply.
VISCOUNT MAUGHAM: The difference is that subsection (1)—as the noble Lord knows perfectly well—will apply to a case where a person is obviously non compos mentis, and it may be necessary that he should be examined. Subsection (3) refers to a case where a man is remanded on hail and, as my noble friend points out to me, if he does not like the examination under that clause he need not submit to it; but if he refuses, he cannot have bail. I am not expressing an opinion, but I am hoping the noble Lord will make it clear whether he wants the proviso to apply in both cases.
LORD BALFOUR OF BURLEIGH: Perhaps the noble and learned Viscount will permit me to await the answer of the noble and learned Viscount the Lord Chancellor.
VISCOUNT SIMON: May I ask one question, really for information, before we hear the answer? Of course, as has been pointed out, what is contemplated under subsection (1) is that in certain circumstances the court is to have power to remand a person in custody or on bail; these are alternatives. Subsection (3), of course, applies only to one of those two cases—namely, the case where the person is remanded on bail. Suppose that the case is one under subsection (1), in which the court remands the prisoner in custody. In those circumstances, is there any power to examine the man medically, as is suggested in this clause? Of course, he is not convicted; he has only appeared before the court. In a case where a man is to be remanded in custody, is there any
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power to force him to accept a medical examination? I perfectly understand that once he is convicted and sentenced, the rules of the prison will apply; but it is not clear to me whether or not in fact, in the case of a man who is only remanded in custody, there can be provision for medical examination.
LORD BALFOUR OF BURLEIGH: If my noble and learned friend will forgive me, I am anxious to have an assurance, not only about subsection (3) but about what happens under the rules of the prison. I am told—and I want to know whether I am right—that, even under the ordinary prison rules, where a man is in custody he can refuse a medical examination.
LORD CHORLEY: I am advised that there is no power to compel a man remanded in custody to submit to an examination. That is as far as the existing law goes. The object of this clause is to add the case where the man is given bail. I am glad to give the noble Lord who moved this Amendment the assurance that this clause gives no new powers. All that it really does is to give the court, on remanding the defendant, the possibility of enabling a medical examination to take place. In most cases the man or woman consents to it; but anyone is entitled to refuse. So far as the examination of women is concerned, it is the invariable practice that nothing at all in the nature of a vaginal examination is made without the woman's consent; and I can assure the noble Lord that that practice will be maintained in future. I hope that, with this assurance, he will be content to withdraw this Amendment.
LORD BALFOUR OF BURLEIGH: I thank my noble friend for that explanation and assurance and, in those circumstances, I have much pleasure in withdrawing the Amendment.
LORD RAGLAN: But surely this clause applies only to people who have been convicted? And a person who is convicted can be compelled to undergo a medical examination.
Amendment, by leave, withdrawn.
LORD CHORLEY: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 28, line 29, leave out subsection (2).—(Lord Chorley.)
VISCOUNT TEMPLEWOOD: Can we have some explanation as to why it is proposed to leave out this subsection?
LORD CHORLEY: Yes; it is because it is felt it would be better in Clause 26. It has been transferred from the one clause to the other.
On Question, Amendment agreed to.
LORD CHORLEY: This is a drafting Amendment.
Amendment moved—
Page 29, line 26, leave out from beginning to ("the") in line 28.—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This is a similar drafting Amendment.
Amendment moved—
Page 29, line 32, leave out from ("evidence") to end of line 33 and insert ("and shall so apply notwithstanding that the proceedings for the purposes of which the report is made are not proceedings to which Section one of that Act applies").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 25, as amended, agreed to.
Clause 26:
Remand and committal of persons under 21.
26.—(1) Where a court remands or commits for trial or for sentence a person under twenty-one years of age who is charged with or convicted of an offence and is not released on bail, then, except as otherwise expressly provided by Section nineteen or Section twenty-five of this Act, the following provisions shall have effect, that is to say—
(a)if he is under fourteen years of age, he shall be committed to a remand home;
instead of being committed to a prison.
(4) In this section the expression "court" includes a justice of the peace.
THE LORD CHANCELLOR (VISCOUNT JOWITT): My first two Amendments to this clause bring into it the provisions which we think will then be in their appropriate place—namely, the provisions from Clause 19, subsection (8) which we previously left out, and the provisions from Clause 25, subsection (2), which we left out a moment ago. We are simply putting them into this clause. I beg to move.
Amendment moved—
Page 30, line 4, leave out from ("by") to ("the") in line 5 and insert ("this section").—(The Lord Chancellor.)
On Question, Amendment agreed to.
4.49 p.m.
LORD LLEWELLIN LORD LLEWELLIN moved, in subsection (1) (a), at the end to insert "or other suitable place." The noble Lord said: I have put down this Amendment to ask whether each county has now made arrangements for a remand home. I am aware of the requirement that has been in existence since the year 1933, but I know that until recently not every county had made provision for a remand home. If every county now has this provision, well and good, but if there are not enough of these remand homes I suggest we should adopt some such form of words as: "or other suitable place." By that I do not mean a prison. If these homes are not in existence, it is going to be a matter of extreme doubt as to where a boy of under fourteen is to be sent, if we leave this clause as it is drafted. I say in my Amendment "or other suitable place," not wishing to send a boy to prison. If the words ought to be: "or other suitable place other than a prison," well and good; I agree to that alteration. It may be that if there is not a remand home available there is a hostel or some training centre to which one of these boys could be sent while awaiting trial. I would like to have the information for which I have asked, and I now beg to move my Amendment.
Amendment moved—
Page 30, line 8, at end insert ("or other suitable place").—(Lord Llewellin.)
THE LORD CHANCELLOR: It is not the fact, I think, that every county is provided with a remand home, in the sense that the county authority has provided it and runs it itself. But it is a fact that every county authority has either done that or has made arrangements with other people to provide a remand home for its area. Your Lordships will see that under Section 33 of the Children and Young Persons Act, 1933, it is provided that a child remanded in custody must be committed to a remand home, and Section 77 of the Act, which places a duty on the council of every county or county borough to provide remand homes for their area, also provides that for that purpose they may arrange with the occupiers of any premises for the use thereof. There have been a good many cases where local authorities have made use of premises not provided by them for the purpose of remand homes; and when such

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premises are so used they of course become remand homes (although they are not provided by the local authority) since a child can be remanded only to a remand home. There is in every county either the one or the other and the homes are subject to the rules and inspection of the Home Office—which is, of course, very necessary. We could not accept the terms of Lord Llewellin's Amendment because a court might commit to what was deemed a "suitable place" but which in fact consisted of premises which were subject to no safeguards.
VISCOUNT TEMPLEWOOD: I wonder if the Lord Chancellor could supplement the information which he has just given by telling the Committee whether the accommodation which is now provided is actually sufficient to meet the demand. My information goes to show that there is often a long list of individuals waiting to enter these places, and the result is that many of these young offenders, whether we like it or not, do go to prison. The Lord Chancellor has told us that, in theory at any rate, there is a sufficiency of remand homes. I ask him now whether there is a waiting list and whether we can take it on the answer which he has given that when this Bill goes through we shall not see repeated the scandal—because it is a scandal—of young offenders being sent to a prison instead of to a remand home.
THE LORD CHANCELLOR: I can give the noble Viscount this measure of consolation. A few years ago it was rather a scandal. Though local authorities had their remand homes, very often they were inadequate and not able to cope with the number of people that it could reasonably be expected it would be necessary to send there. The situation in that respect has much improved recently, though I will not go so far as to say that everything in the garden with regard to these remand homes is perfect. However, it is much better than it was, and I certainly hope that the difficulties and the waiting lists, and so on, which we encountered until quite recently, will in the near future become things of the past.
LORD LLEWELLIN: In view of what the Lord Chancellor has said, I shall not, of course, press this Amendment. But I agree with the noble Viscount, Lord Templewood, that it is highly important
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that remand homes should be provided in adequate numbers; and if there is any possibility of the system breaking down, I would like to see that power is provided to send these young people somewhere else. However, in view of the assurances given by the Lord Chancellor, I beg leave to withdraw the Amendment.
LORD GODDARD: I was going to say that I do not think that the process which we have just heard described is so simple as it might appear. I accept, of course, what the noble and learned Viscount the Lord Chancellor has said about the provision of remand homes, but I have come across cases in which there was no remand home to which to send a young person, or it was not possible to send him to a remand home because all the available ones were full. Now this is a mandatory clause in the Bill. It says quite plainly: "shall be committed to a remand home." What I would like to know is, what is to happen if there is not a remand home to which the young person can, in fact, be committed? There was a case in a Midland county which created a great deal of excitement a few years ago, and at the request of the noble and learned Viscount, Lord Simon, I held art inquiry into that case. One the difficulties that had arisen there, I was told, was that there was no remand home. Yet here in this clause, a court is told: "he shall be committed to a remand home." What is the court to do if there is no remand home or every available remand home is full?
VISCOUNT MAUGHAM: May I just say something with regard to the meaning of the words which are used here? "Remand home" is, fortunately, one of the phrases which is in the interpretation clause—Clause 77. The Committee will find it stated there that
"'remand home' means premises established or used by the Council of a county borough under the provisions of Section seventy-seven of the Children and Young Persons Act, 1933."
Again, I am not contributing anything to the debate except a reference to the actual language of the clause. I think the answer to the question which is here raised may be: "We have not established a remand home, but we have such premises which we use for that purpose." That would constitute compliance, though perhaps in an unsatisfactory way, with the

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position which might arise where a court was bound to send a young person to a remand home.
THE LORD CHANCELLOR: There is no reason why a local authority, if it is in difficulties, should not make use of the remand home of a neighbouring authority. They are not bound to commit to the remand home of a particular authority. Any remand home can be used for this purpose. Further, if there is really a difficulty, the local authority can provide a remand home in the sense which I have indicated—that is ad hoc. But I am informed that there is no difficulty about this matter at the present time.
LORD SHERWOOD: Does the Lord Chancellor really mean that there is no difficulty at all at the present time in sending people to remand homes?
THE LORD CHANCELLOR: I thought I had made it plain that by this proviso either use can be made of a neighbouring remand home or a remand home can be provided ad hoc. We do not anticipate that there will be any great difficulty. I am told that recent experience indicates that there is no difficulty.
LORD SHERWOOD: May I ask the Lord Chancellor a question about distance? Does he mean that a person can be sent to a remand home outside the county.
THE LORD CHANCELLOR: Certainly.
Amendment, by leave, withdrawn.
THE LORD CHANCELLOR: This Amendment is merely putting into the clause the provisions which we took out of Clause 25. I beg to move.
Amendment moved—
Page 30, line 22, at end insert—
("(2) Subject as hereinafter provided, where a person is committed or remanded in custody by a court of summary jurisdiction under Section nineteen of this Act with a view to a sentence of Borstal training he shall be committed—

(a) if the court has been notified by the Secretary of State that a remand centre is available for the reception from that court of persons of his class or description, to a remand centre; and

(b) if the court has not been so notified, to a prison:

Provided that if, being under seventeen years of age, he is remanded under subsection (6) of the said Section nineteen for a report or representations of the Prison Commissioners, and the court has not been notified as afore-said, he shall be committed to a remand home unless the court certifies that he is of so unruly a character that he cannot safely be detained in a remand home or of so depraved a character that he is not fit to be so detained.
(3) Where a person being not less than fourteen but not seventeen years of age is remanded in custody under Section twenty-five of this Act for an inquiry into his physical or mental condition, and the court is satisfied that facilities for such an inquiry during his detention in the remand home to which he would but for this subsection, have been committed are not provided or otherwise made available under this Act, then if the court has been notified that a remand centre is available for the reception from that court of persons of his class or description, he shall be committed to a remand centre.")—(The Lord Chancellor.)
On Question, Amendment agreed to.
4.59 p.m.
LORD LLEWELLIN LORD LLEWELLIN moved to add to subsection (4):
"and the expression 'remand centre' means premises established or used by the council of a county or county borough under the provisions of Section seventy-seven of the Children and Young Persons Act, 1933, where facilities are provided for proper inquiries to be made into the physical or mental condition of persons committed to a remand home and where separate accommodation is provided in which such persons who are of an unruly or depraved character may be detained securely and where disciplinary treatment appropriate to their characters is provided."
The noble Lord said: In this clause we are dealing with remand centres, but I must say that I have looked in vain for a definition in the Bill of "remand centre." Consequently, I have had a shot at defining the expression myself.
As the Committee will see, my Amendment raises three points—first, that a remand centre should be
"premises established or used by the council of a county or county borough under the provisions of Section seventy-seven of the Children and Young Persons Act, 1933,…"
Are remand centres to be provided by the Home Office, or by the county councils or county boroughs? I think we ought to know who is to provide these places; whether it is a function of the central Government or of the local authority. These centres seem to be different places from remand homes. I suppose there will be places
"where facilities are provided for proper inquiries to be made into the physical or mental

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condition of persons committed to a remand home…"
But some remand homes may not have in attendance an expert in mental diseases, and a remand centre should be available in the neighbourhood where such professional advice can be obtained. My third point is that I want the centre to be a place
"where separate accommodation is provided in which such persons who are of an unruly or depraved character may be detained securely and where disciplinary treatment appropriate to their characters is provided."
This may not be the case with the remand home. The third link of my Amendment tries to bring it into line with the remainder of the clause to which it is an Amendment.
The Amendment is put down to elicit some facts to which I think the House is entitled. What are these remand centres? Whose duty is it to provide them? And what kind of treatment will be given in them that is not given to those who go to an ordinary remand home? I have had a shot at putting down the kind of places they should be. I do not say my definition is a good one, but just as we define "remand home" we should define what we mean by "remand centre" Even if the Government do not accept the words of my Amendment, I hope that before Report stage they will consider putting down some Amendment to define a remand centre and to say whose duty it is to provide it. I beg to move.
Amendment moved—
Page 30, line 45, at end insert the said words.—(Lord Llewellin.)
THE LORD CHANCELLOR: A remand home is, of course, the concern of the local authority, but a remand centre is provided only by the Secretary of State. It is a new conception. If the noble Lord will turn to Clause 44 (2), he will see that
"The Secretary of State shall provide in remand centres facilities for the observation of any person detained therein on whose physical or mental condition a medical report may be desirable for the assistance of the court in determining the most suitable method of dealing with his case."
It may make the matter a little plainer if I remind your Lordships that it is contemplated using these new State institutions for the custody of the following classes of persons: those from fourteen to seventeen who are too unruly or depraved to be detained in a remand home, or who
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require medical observation which cannot be provided in a remand home: and, secondly, those from seventeen to twenty-one who, since they are above the age for reception in a remand home, can only be sent, if remanded in custody under the existing law, to prison. I think that answers the noble Lord. He will see that we have dealt with it fully in Clause 44, but if I find some lacunœ, I will gladly look at them between now and Report stage.
THE EARL OF MUNSTER: The noble and learned Viscount has explained that a remand centre is to be used for people who are so unruly that they cannot safely be detained in a remand home. I take it that the court will decide that matter on the evidence received on trial. I think subsection (2) of Clause 44, which deals with centres merely as observation places for hose whose physical or mental condition is not normal, can be read in conjunction with that dealing with a man of unruly temperament. I gather that both classes will be in the same remand centres.
THE LORD CHANCELLOR: Certainly.
VISCOUNT TEMPLEWOOD: I would suggest to the noble and learned Viscount the Lord Chancellor, that he should embody the explanation he has just given in the interpretation clause, Clause 77. The noble and learned Viscount will see there a paragraph explaining what is a remand home. I should have thought it would have been more necessary, with a new institution like the remand centre, to have a similar explanation for it.
THE LORD CHANCELLOR: I will gladly look into that point.
LORD LLEWELLIN: I think it would be of great convenience for anyone requiring to study this Bill to find some definition in the definition clause. I am obliged to the noble and learned Viscount for saying that he will look into the possibility, and beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 26, as amended, agreed to.
Clause 27:
Procedure in respect of offences punishable on summary conviction or on indictment
27.—(1) Subject to the provisions of this section, where a person who is not less than fourteen years of age is charged before a court

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of summary jurisdiction with an offence which, by virtue of any enactment, is punishable either on summary conviction or on conviction on indictment, then if application in that behalf is made by the prosecutor before the charge has been entered upon, the court may then determine to try the case summarily; but if the court does not so determine it shall proceed to hear the case as if the offence were punishable on conviction on indictment only.
(2) Where the court has begun, in accordance with the last foregoing subsection, to hear a case as if the offence were punishable on conviction on indictment only, then if at any time during the hearing it appears to the court, having regard to any representations made in the presence of the accused by or on behalf of the prosecutor, or made by or on behalf of the accused, and to the nature of the case, that it is proper to do so, the court may then determine (subject to the following provisions of this section) to try the case summarily:
Provided that where the prosecution is being carried on by the Director of Public Prosecutions, the court shall not try the case summarily under this subsection without the consent of the Director.
(5) For the avoidance of doubt it is hereby declared that this section does not apply—

(a) to any offence which is indictable by virtue only of Section seventeen of the Summary Jurisdiction Act, 1879; or

(b) to any offence which is triable summarily only with the consent of the accused under Section eleven of that Act or Section twenty-four of the Criminal Justice Act, 1925;

and nothing in this section shall be construed as affecting any other enactment by virtue of which the consent of any person is required for the summary trial of an indictable offence, or the accused is entitled to object to be tried summarily in respect of such an offence.
LORD MERTHYR LORD MERTHYR moved to omit all words in subsection (1) after the first "then" and from the beginning of subsection (2) down to and including the first "then" The noble Lord said: Taken in conjunction with Clause 29, this clause will effect a great improvement in the present position, but there seems to me to be a flaw in this clause, which I have tried to remedy by putting down these two Amendments, the second being consequential on the first. The number of cases affected by this clause is very large. It appears to me that under the first two subsections the discretion which is at present in the court to choose whether it tries a case summarily or otherwise, is severely limited. So far as the period before the case starts is concerned, the discretion is limited altogether, and I should like to know why that should be so.
The Committee will see that we must distinguish between two periods. Before the case starts, the initiative is entirely in the hands of the prosecution and if, for any reason at all, the prosecution do not apply for the case to be treated summarily, then no court has power to try it summarily. The prosecution may have a number of reasons for not applying, and I do not think that is satisfactory. But, directly the case starts, even if only one second's depositions are written down, the whole position is changed. The initiative passes from the prosecution to the court, as under the present law; and the court can make up its mind, completely unfettered (except in the rare cases where the Director of Public Prosecutions appears) and try the case summarily. That does not seem to me to be a good arrangement. I think it will lead to a certain amount of subterfuge, and I do not like subterfuges in courts. It will lead to this position being rather common, that where the prosecution for some reason best known to themselves—it may or may not be a good reason—have made no application, the court will frequently just hear a couple of sentences and then start again and decide to hear the case summarily. In order to elucidate this matter, I have put down these Amendments of which I beg to move the first.
Amendment moved—
Page 31, line 6, leave out from ("then") to ("if") in line 14.—(Lord Merthyr.)
THE LORD CHANCELLOR: This clause deals with the class of case now becoming very common, in which an offence may either be tried summarily, and punished by a certain measure of imprisonment or fine, or tried on indictment, in which case a more severe imprisonment or fine may be imposed. It is not at present clear whether the decision to deal with the case summarily or to send it for trial rests with the prosecution or the court. A case may arise in which there is a deadlock, such as occurred as the result of a difference of point of view recently between the prosecution and one of the Metropolitan magistrates. It is desirable that any possible ambiguity should be cleared up, and obviously it is right that the decision should rest with the court. But, of course, when the proceedings start the court should know nothing whatever

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about the case except the bare statement of the charge, and it will require some information in order to decide whether to hear the evidence or to take depositions. It is for the prosecution to tender their view as to whether the case is of a serious nature or is one suitable for the magistrates to deal with. Accordingly, subsection (1) proposes that the depositions be taken with a view to committal for trial unless the prosecution apply at the outset for the case to be dealt with summarily and the court approves that application. If the prosecution make no application and the court, in taking the depositions, decides that the case is not serious enough for committal of the prisoner for trial, it may be dealt with by them. Accordingly, subsection (2) gives the court power, subject to what the prosecution may choose to say, to decide then to deal with the case summarily.
The adoption of the Amendment moved by the noble Lord, Lord Merthyr, would have two results. The decision of the court at the outset would not be dependent on an application by the prosecution, so the count would have to consider any representation which the prosecution might make. Secondly, the defendant, as well as the prosecution, would have a right to express his views on the question whether the case should be dealt with summarily. There is no objection in principle to these slight Amendments which the noble Lord suggests, but the form of the Amendment is defective, and if the noble Lord is willing to withdraw the Amendments now, I will undertake to insert the substance of what he wants in a new Amendment on the Report stage.
LORD MERTHYR: I am quite prepared to withdraw the Amendment, and I am much obliged to the noble and learned Viscount.
LORD GODDARD: I am in some difficulty, especially in view of what the Lord Chancellor has said. Under subsection (6) it is provided that once the court has embarked on hearing the case summarily it cannot alter its decision. We find from time to time in the Divisional Court, in dealing with cases coming from magistrates, that the superintendent of police (who is in most cases the prosecutor) does not want the trouble of going
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to Quarter Sessions or Assizes, and often asks the magistrates to deal with cases which it is wholly improper to deal with at petty sessions. There was a notorious case not long ago in which a soldier had gone back drunk to barracks, and because he made a noise in the barrack room, and other soldiers told him to shut up, he fixed his bayonet and went round, stabbing several. He stabbed one man so severely that for a time his life was despaired of, and his depositions were actually taken at the hospital. It was some weeks before the offender could be brought up, and when the case did come before the magistrates, the superintendent of police suggested that she matter might be dealt with in some way as a reduced charge which would give the magistrates jurisdiction to try the case. Of course, that was a shocking thing to do. The man ought to have been sent to Assizes.
If subsection (6) stands part of this Bill, I fear that that practice may go on. It is giving the prosecutor—and most of these prosecutions are conducted by the superintendent of police—power to say to the magistrates, "You had better deal with this case. I am content that this case should be dealt with summarily" Magistrates think they may rely on the police officer, and once they embark upon the hearing of the case, if subsection (6) stands part of the Bill, they will not be able to withdraw and determine to send the case for trial. I would ask my noble and learned friend the Lord Chancellor to consider whether this is really the considered opinion of the Home Office, that the magistrates, once having been told that it is a proper case to deal with summarily, should never have the right to send it for trial. We are constantly having to say to magistrates. "Do remember that it is not only a question of sentence" Often they have a charge brought before them which ought to be dealt with by one of the superior courts, even though the superior court may think it right eventually only to bind over the offender. It may be a serious case which ought to be dealt with seriously, and the seriousness of the case does not lie merely in the sentence ultimately given.
THE LORD CHANCELLOR: What the noble and learned Lord, Lord Goddard, has said does not arise on the Amendments, but clearly it is relevant on the

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Motion that the clause stand part. I have not had the opportunity of considering this particular point, and I will see that it is examined. It is necessary to get finality in these matters. There is nothing in the clause to require the court to deal summarily with a case merely because the police ask them to do so. It is for the court to decide whether it will deal summarily with the case. I am afraid that however wisely we word our Acts of Parliament, we shall never prevent some Benches of magistrates making mistakes such as have been indicated. But there is nothing to require a court to deal summarily with a case, even though the prosecution ask them to do so. In a case such as we have just heard, it is obvious that any Bench of magistrates exercising a reasonable discretion, even if they have been asked by the prosecution, would decline to deal summarily with such a case.
LORD GODDARD: They would not know the facts. That is the point.
THE LORD CHANCELLOR: If they did not know the facts, they would probably be wise to say: "Before we decide whether or not to deal with this summarily, let us hear something about it. Let us start the case as though it is going to trial" Then, when they had started the case as though it were going for trial, if they were so minded, they could alter their view and say: "Now that we know the facts, we will deal with this summarily." That is what I suspect is the reason for subsection (6). Since the Lord Chief justice has been good enough to raise it, I will have this matter looked into, to see whether there ought to be any modification, or whether there are any strong objections to it, in the interests of finality.
LORD MERTHYR: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, to add to subsection (5)
"or as authorising a court to deal summarily with any offence unless the proceedings were commenced within the period prescribed in that behalf by section eleven of the Summary Jurisdiction Act, 1848, or by any other enactment applicable to the offence in question."
The noble and learned Viscount said: Section II of the Summary Jurisdiction
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Act, 1848, requires a complaint to be made or an information laid under the Act within six calendar months from the time when the matter of the complaint or information arose. Provision is made in some Statutes for the extension of this time for proceedings taken in respect of particular offences. Clause 27 prescribes the procedure to be followed in the case of offences which the Statue creating them declares to be punishable both on summary conviction and on indictment. There is a good deal of uncertainty, I am informed, about the procedure under the existing law. The purpose of this clause is to clear up those uncertainties and to endeavour to prescribe a code of procedure in these cases. The effect of the provisions in subsections (1) and (2) is that if the prosecutor in such a case applies to have the case dealt with summarily at the outset of the proceedings, the court may—not must—in its discretion, determine to try the case summarily; otherwise it proceeds to take depositions, with a view to the case being committed for trial. It is, however, open to the court, if, in the course of taking the depositions and after considering any representations that may be made by the prosecutor or the accused, it decides that the case is one for the court to deal with summarily, to determine to try the case summarily. I think it is clear that the general provisions of Section 11 of the Summary Jurisdiction Act, 1848, as to the time within which proceedings for a summary offence should be brought, ought to apply to a case which is dealt with summarily under this clause, but the clause as drafted, leaves some ambiguity as to whether those provisions do or do not apply. The object of this Amendment is to make it clear that the power of the court to deal summarily with a case under the clause is subject to the general limitation on the time for taking summary proceedings prescribed by Section 11 of the Act of 1848, or to any special provision extending that time which may be made by these other Acts. I beg to move.
Amendment moved—
Page 32, line 9, at end insert the said words.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 27, as amended, agreed to.
Clause 28 [Amendment of Second Schedule to Criminal Justice Act, 1925]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to omit Clause 28. The noble and learned Viscount said: This is a drafting Amendment. I am proposing to leave out Clause 28 the effect of which is to amend the Second Schedule of the Criminal Justice Act, 1925. The necessary Amendment is being inserted in the Ninth Schedule to this Bill at page 86, line 41. I beg to move.
Amendment moved—
Leave out Clause 28.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 29:
Committal for sentence in respect of indictable offences tried summarily.
29.—(1) Where, under subsection (2) of Section twenty-seven of this Act or Section twenty-four of the Criminal Justice Act, 1925, a person who is not less than seventeen years of age who is charged with an indictable offence is tried summarily by a court of summary jurisdiction, and is convicted by that court of that offence, then if, on obtaining information as to his character and antecedents, the court is of opinion that they are such that greater punishment should be inflicted in respect of the offence than that court has power to inflict, the court may, in lieu of dealing with him in any manner in which the court has power to deal with him, commit him in custody to quarter sessions for sentence in accordance with the following provisions of this section.
LORD CHORLEY: There are a number of Government Amendments to this clause, all of a drafting character. This is the first of them. I beg to move.
Amendment moved—
Page 32, line 25, leave out from ("age") to the second ("is").
On Question, Amendment agreed to.
LORD CHORLEY: I beg to move.
Amendment moved—
Page 32, line 26, after ("jurisdiction") insert ("for an indictable offence").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This is a further drafting Amendment. I beg to move.
Amendment moved—
Page 33, line 5, after ("of") insert ("a court of").—(Lord Chorley.)
LORD RAGLAN: May I suggest to the noble Lord that "practicable sitting," is
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not a very happy expression. Would not "available sitting" be better?
LORD CHORLEY: I will have it looked into.
On Question, Amendment agreed to.
LORD CHORLEY: The next three Amendments are drafting Amendments. I beg to move.
Amendments moved—
Page 33, line 23, leave out lines 23 and 24 and insert ("in relation to the proceedings before the appeal committee or court of quarter sessions as it applies in relation to the prosecution of an offence before a court of quarter sessions")
Page 33, line 33, at end insert ("or in any other enactment relating to persons dealt with by quarter sessions (including any such enactment contained in this Act)")
Page 33, line 35, at end insert ("by whom an offender is dealt with under that subsection").—(Lord Chorley.)
On Question, Amendments agreed to.
5.27 p.m.
LORD GODDARD LORD GODDARD moved to omit Clause 29. The noble and learned Lord said: I do not want to detain your Lordships long, but I have put down an Amendment to leave out this clause because I want to be sure that it is understood exactly what the clause does. It makes a radical change in the laws of the trial of indictable offences on summary jurisdiction—as radical a change, I suppose, as has even been introduced. It may be right, but there are certain considerations of which I want to remind the Committee. The reason for it, I understand, is because of two decisions in cases which all county magistrates know very well—namely, the cases of Sheridan and Grant. At present the Summary jurisdiction Acts require that, before the magistrates decide to deal with a case summarily, they should take into account, among other things, the antecedents of the prisoner. I know magistrates feel some difficulty about it. The general practice has been that they have not heard anything about the antecedents of the prisoner before they have embarked on the case because they think if they did they would not give the man a fair trial.
What happened in the cases of Sheridan and Grant was that, having embarked on the case without having heard the man's character, and decided to convict, they were told the man's record. Finding it was a very bad record, they said they should not deal with it themselves, but

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would send it to Quarter Sessions. When it got to Quarter Sessions the man was defended by counsel, who at once took the point autrefois convict. They said that he had already been convicted and could not be convicted a second time. The Court of Criminal Appeal upheld that view. But Mr. Justice Humphreys, in delivering the judgment of the court, said that there need not be any difficulty if magistrates would follow the section carefully. They can ask for a man's character before they decide to try him, and if they find it is a good character, or the offences against him are trivial, they can try the case themselves. Surely, in that case the man would not be prejudiced. If, on the other hand, they find that the man has a bad character, and has many previous convictions against him, then their clear duty is to send him for trial. However, magistrates do find difficulty about it, I know, and many representations have been made to me that this clause helps them out of their difficulty.
But what is to happen in this regard is as follows. It is provided in one of the Schedules that when the magistrates give the man the option of being dealt with summarily, or on the indictment, they have to add: "But we may send you forward for sentence to Quarter Sessions, even if we do deal with the matter summarily." The words will be found on page 86 in the Ninth Schedule. You will see that they
"…..shall explain to him that he may, if convicted by the court, be committed to quarter sessions under Section twenty-nine of the Criminal Justice Act, 1948, if the court, on obtaining information as to his character and antecedents, is of opinion that they are such that greater punishment should be inflicted than the court has power to inflict."
I know that many of the Metropolitan magistrates think that the result will be that if the man has anything of a record he will say: "If that is the case, I will take a chance before a jury"—because you never know what a Sessions jury will do. The consequence will be that the Quarter Sessions in London may become overwhelmed with work.
That is the position, and I hope your Lordships' House will agree with me when I say that this clause introduces a radical change into summary jurisdiction. For myself, I should have preferred to see the
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law stand as it is, and the magistrates administer the sections as they are at present. They can always ask that the prisoner's record be handed in in writing, so that there shall be no prejudice to the man. In many cases, magistrates know at once the character of the person before them, because he is very likely one of their "regular customers" That cannot be helped. On the other hand, magistrates know that other people, such as a postman or a schoolmistress, have no doubt hitherto had a good character. However, I do not want to press for the elimination of this clause if the House considers that the difficulties I have indicated are not great. I think it will be found that a great many men who at present assent to be tried before the magistrates, because they know that the most they can get is six months, will say: "We will go for trial" The Quarter Sessions will then find that they have a great many more cases with which to deal. The advocates will soon know whether they are before a magistrate who is likely to take a serious view, or before a magistrate who is likely to take a lenient view. In the latter case they will say: "Take your chance here"; and in the former case they will say: "You had better elect to go to Quarter Sessions. The magistrate will send you there in any case, so go and have a shot before a jury" I beg to move.
Amendment moved—
Leave out Clause 29.—(Lord Goddard.)
THE LORD CHANCELLOR: I quite agree that there is a difficulty here, and it is a question of balancing inconveniences. The magistrates—it shows the very fair way in which they want to try their cases—do feel a great difficulty about this matter. Of course, as the noble and learned Lord said, if they have an "old customer" they cannot help knowing about him. After all, they are not trained lawyers; they are people doing the best they can. They have put this sort of case to me: "Suppose we have a man up before us for loitering with intent to pick pockets, or something like that. If we know, looking at his previous record before we try him, that he has been had up and convicted half a dozen times for this very offence, it is extremely difficult for us to rid our minds of the impression and to start trying him absolutely fairly. We cannot do it. We would much rather not know. We would rather try the case

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on the evidence and find out whether the case is established, and not, as it were, confuse our minds with the fact that he has this record"
I think I may say that it is perhaps easy for a trained lawyer, who has spent his life in the law, to rid his mind of that sort of thing, but it is exceedingly difficult for an ordinary magistrate to do so. I appreciate that a magistrate—conscientious as all of them are—would be glad not to know, before he applies his mind to the case. I quite agree with the Lord Chief justice that the clause may have this effect. A man has to be told: "If you elect to be dealt with summarily, you must remember that, notwithstanding the fact that you are being dealt with summarily, when your record is read out you may be sent for sentence to Quarter Sessions, because it is felt you should have a longer sentence than we can give" It is a risk, because it will mean that many more of these men will elect not to be dealt with summarily. That is a fact. But, on balance, I venture to think that the clause is right. I believe it accords with the wishes of the magistrates themselves, and it is, I think, a tribute to their desire to be scrupulously fair that they should ask us not to let them know before-hand, where it can be avoided, what the previous record of the man is. For those reasons, although I admit the difficulties and I admit that it is a question of balancing inconveniences, on the whole I think that the clause is right.
LORD GODDARD: In view of what the Lord Chancellor has said, I would certainly not desire to put any difficulty in the way of the magistrates. If the magistrates generally feel this way, of course I withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 29, as amended, agreed to.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after Clause 29 to insert the following new clause:
Jurisdiction over indictable offences committed in foreign countries by servants of the Crown.
".—(1) Subject to the provisions of this section, any indictable offence committed in a foreign country by a British subject employed therein in the service of the Crown under His Majesty's Government in the United Kingdom shall be deemed to be an offence of the same nature and subject to the same punishment as if it had been committed in England.
(2) A person may be proceeded against, indicted, tried and punished for an offence under this section in any county or place in England in which he is apprehended or is in custody as if the offence had been committed in that county or place; and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that county or place.
(3) This section shall have effect subject to so much of any Act of the present Session to make provision for British Nationality and for Citizenship of the United Kingdom and Colonies and relates to offences committed in a foreign country by British subjects who are not citizens of the United Kingdom and Colonies within the meaning of that Act"
The noble and learned Viscount said: This Amendment raises rather a difficult question. I am not at all satisfied that I have drafted this clause in the appropriate form, and I shall very much welcome the observations which your Lordships have to make in regard to it. I can tell you the sort of case with which it is meant to deal. When I was in Germany recently, our Judges brought a case to my notice as revealing a gap in the law. Suppose one of our citizens—if I may use the modern phrase—is in Germany, working under the Control Commission. Suppose that man does some disgraceful or discreditable act against some German—robbery, rape or what you will—and then comes over to this country. Extradition is not available, because there is no Treaty, and he cannot be tried at all. This is not a mere fanciful point—there have been cases in which people ought to have been tried. I think that is a scandal, and rather a blot on our law. I am sure we all desire that, if it is a fact that a man in that position has been guilty of that sort of act, the arm of the law shall be long enough to reach out and get him. That is what this clause tries to do. Your Lordships know that under the law as it stands, a good many offences—treason, murder, perjury and bigamy—are offences which can be tried in this country if committed abroad by British subjects. There are two old Acts (I am quoting from recollection). One was an Act of 1698, in the reign of William III, dealing with Colonial Governors. It was impossible to try a Colonial Governor in the court of the Colony, because he was in the position of being the Sovereign, and that Act was passed to enable such a man I to be tried here. I think that Governor I Eyre was tried under the provisions of

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that Act. Then there was another Act of 1802 which extended that principle and made it applicable to other classes of offence—not only those committed by a Colonial Governor. Both of those Acts survive to-day. In those days, of course, there was a question of a grand jury, and to try persons under those Acts you would have to have all the machinery of a grand jury. It may be that we shall have to alter this clause of mine on the Report stage, to include provisions abolishing the necessity for a grand jury in cases of that sort.
There is also a provision under the Act of 1802 providing for the taking of evidence, and this is one of those rare criminal cases where you can take evidence abroad and use that evidence, reduced to writing, here, without actually calling the witnesses. But it is difficult to see how that will work unless the country where the offence is committed is for instance, in the position of a Colony. In such a case, of course, you can address an order to the local court to have all these proceedings taken before it. Obviously, we could not do that in the case of Germany. However, those matters must be considered in connection with the broad general principle of this clause and I hope your Lordships will agree with me in this, provided always that there is no unfairness to the men accused of these crimes. After all, with regard to a man accused of treason, murder, bigamy—or perjury, I think—the same position arises there; and we have to see that he is protected. The sense of fairness of our law is such that I have no doubt that where a defendant charged with any of these crimes had evidence which he thought ought to be called, the prosecution themselves would take steps to see that this evidence was made available if possible. I am sure they would do that; justice would require it.
There are one or two other points I should like to mention. Before I come to them I would recall that there was a case quite recently of a man, under military discipline in the Army in Germany, who was accused of ill-treating some German prisoners. He was arrested here as if he were still subject to military law. But, having been out of the Army for more than three months,
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the courts decided that he was no longer subject to military law and consequently granted his release under habeas corpus. In our recent Army Act, we have put in a clause extending the period of three months, which used to be applicable, to three years. We are very anxious to have such cases tried here, even if we could have them tried in Germany—and, if the man happens to be here, I do not think we could. We feel that it is very much better that this particular type of very dirty linen should be washed over here and not over there. That is the object of the clause. Questions may arise as to whether there is or is not the possibility, if the man has been previously tried, of a plea of autrefois convict. I have had that looked up and I have somewhere a reference showing that a plea of autrefois acquit and autrefois convict is available to such a man.
That is really all I have to say about this clause. I now submit it to your Lordships' tender mercies, feeling sure that we shall all desire to preserve these two principles: first, as I have said, that we want the arm of the law to be long enough to deal with these people; and, second, that we want to be sure that these people are dealt with fairly. If we can achieve those two ends, then I think this clause is desirable. I expect, as I have indicated, that between now and the Report stage I myself shall have some Amendments to this clause. One will be concerned with the question of a grand jury. I think it will be useful if we can have a discussion. There is nothing controversial, in the Party sense, between us here, and I shall be able to use your Lordships' judgment and guidance to enable me at a later stage to construct a rather better clause. I beg to move.
Amendment moved—
Page 33, line 41, at end, insert the said clause.—(The Lord Chancellor.)
VISCOUNT SIMON: The Lord Chancellor has explained very clearly the reasons which led him to make a proposal along these lines, and he has indicated that he does not think this proposal is quite right. He invites contributions from members of the Committee, who may, perhaps, have had special reason to consider this class of subject. Speaking for myself, I quite appreciate what the Lord Chancellor has said about not wanting to leave what he called this "dirty linen" unwashed. I

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agree that it is very difficult to decide what is the best way in which to make the proper provisions—I am not blind to that. But there is an important consideration, which I am quite sure the noble and learned Viscount has thoroughly in mind, which I should like to put to your Lordships. I am not going to oppose the clause at the moment. I wish to do my best in all candour and fairness to make a helpful contribution.
The great thing to remember is that, according to our English criminal law, and according to the traditions of our country, a criminal court in this country has no jurisdiction—save for certain special statutory exceptions—to try even a British subject, if the crime is committed abroad. The Englishman who goes abroad and misbehaves himself does not come under the criminal law of this country, and cannot be tried here. The reason for that is that our whole system is based on the idea of a territorial jurisdiction, which is the very reason why a criminal is indicted in one country rather than in another—in the county, in fact, in which he committed the crime. It is also due to the fact—and I hope it is a fact which will always be upheld in this country—that we at any rate regard it as of extreme importance that before a man is convicted and punished the evidence against him should be, so far as possible, sworn evidence in the face of the court. The court thus sees the witnesses, and the accused also sees them making their testimony to the jury; the Judge and jury have a good opportunity of deciding whether the witness looks the kind of man who is telling the truth. The witness creates an impression on those who have to decide. Of course, once you rely upon written evidence, what I may call recorded evidence, a different state of affairs arises. We do rely upon it in one or two quite limited cases. For example, if a witness gives his deposition before a magistrate and dies or becomes so ill that he cannot attend the Assizes, then his deposition may be read at the trial, simply because it is not possible for anything better to be done.
Those are the two principles upon which we have constructed our criminal law in this respect. To repeat: one is that we regard the jurisdiction of our courts as a territorial jurisdiction—for instance, people who commit crimes in Cornwall are tried in Cornwall, and so on; secondly, we
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attach much more importance than some other countries do to having what we call first-hand verbal sworn evidence given face to face in court. While that is true, very limited exceptions, as the noble and learned Viscount the Lord Chancellor said just now, have been made, in every case by a special Statute, which give our courts (usually the Central Criminal Court) jurisdiction to try a British subject although he has committed a particular crime—always a very grave crime—abroad. For example, we can try a British subject for having committed murder or manslaughter abroad. We can try a man for having committed bigamy abroad. We can try him for slave-trade offences and offences committed on the high seas. If I may say so, with great respect to the noble and learned Viscount the Lord Chancellor. I think that the statement about perjury has to be a little limited. We can try a British subject for perjury if the perjury has been perpetrated in connection with a British trial, supposing he has sworn a lying affidavit. But the cases are extremely limited. They all depend upon the deliberate action pursued by Parliament in dealing with a particular crime.
I am not seeking to criticise in any final way, but I would point out that this clause is so drawn as to make a most fundamental alteration in our law, because it is not limited to any particular crime but applies to any indictable offence. The first words of the proposed clause are:
"Subject to the provisions of this section, any indictable offence committed in a foreign country by a British subject employed therein in the service of the Crown…"
Let me take an example. Driving a motorcar furiously to the public danger is an indictable offence. Larceny and stealing, even of sixpence—perhaps I had better take a foreign currency: stealing, for instance, ten francs—when perpetrated in England would be an indictable offence. But at present no British subject can be tried in our English courts for those offences when committed abroad, because they are not included in this limited list. In an effort to cover the special case to which the noble and learned Viscount the Lord Chancellor referred, and so far as I know he described it with perfect accuracy—and I sympathise with his desire—what is really done in this clause is to make an immense extension in general terms of the jurisdiction of the British courts in order

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to catch a particular kind of person who, in a few cases has, I am sorry to say, behaved disgracefully when he was in the service of the Crown in the British zone of either Germany or Austria. I want to see such a man dealt with, if it can be done, just as much as any of your Lordships do, but, as at present advised, I cannot think that we ought to make a really large and general extension of the jurisdiction of the British criminal courts to apply to anybody and everybody who, while
"in the service of the Crown under His Majesty's Government in the United Kingdom"
perpetrates an offence which in this country would be an indictable offence. That is an enormous extension, as everybody will agree.
We might easily be sorry for going so far. The British Government of the day send various officials, British subjects, to serve the Crown in all parts of the world. I do not know how many Missions there may be in United States or in South America or where you please. As this clause now stands, it is going to confer a jurisdiction that has never existed in this country in respect of any sort of indictable offence in any foreign country. The list is very long. The English court is to have power to try such a person because what he has done is to be "deemed to be an offence" as though it were an offence perpetrated in England. I do not wish in the least to exaggerate or to be rhetorical, but I am sure that the noble and learned Viscount the Lord Chancellor will excuse me for pointing out that that is the extent of this clause, and therefore in passing it we shall be doing a very considerable thing. We shall be making a permanent change in the law and we shall be doing it in all sorts of circumstances. If somebody who is sent on behalf of the Crown to a state in South America is supposed to have committed any indictable offence—and there any many, many examples; I suggested driving furiously to the danger of the public—this clause enables a British court to try him as though he had committed the offence here. Nothing of that sort has ever before been contemplated in our law.
I would point out that one reason why we have been very unwilling to try such
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cases before, save in regard to a limited number of most serious offences such as murder, is because of the difficulty of getting the evidence. The accused is entitled to bring his own evidence before a British court. In many cases, it must be exceeding difficult to imagine how that could be done. Whereas up to the present we have always regarded any jurisdiction to try a man for a crime abroad as a thing not to be granted to our courts save in the case of specific kinds of serious crime—every one of them statutory—this clause really confers a jurisdiction upon the British courts to try crimes committed by British subjects in the service of the Crown, whatever the indictable offence may be. I must say that I think that will certainly in many cases put both prosecution and defence in serious difficulty as to how the evidence is to be produced in this country. Although I am sure the Lord Chancellor will try to find means of offering evidence in the form of a certificate or report or something of the kind, it is not very satisfactory. If I were employed as an official in some foreign country, I do not think that I would like to be tried in this country upon the evidence of a mere signed certificate of some foreign court of what they said I had clone or what the evidence was——
THE LORD CHANCELLOR: In the clause as drafted, there is no provision for that at all. You would have to call evidence in the ordinary way and, if you did not, there would be no case.
VISCOUNT SIMON: I do not want to enter into any controversy, but look at it from the point of view of the defendant. The defendant may consider that he is quite innocent. If he is tried in this country for an offence committed in this country, he can subpœna witnesses, for witnesses are often not far away. He can endeavour to prove that he is innocent. The noble and learned Viscount the Lord Chancellor is right when he says that at present there is a gap in the proposed clause. I am saying only that I do not see how, in a great many of these cases, one could possibly get the witnesses over here. I do not like the idea of asking the criminal courts for the first time to deal with all sorts of offences against the Crown—offences which we call indictable offences—on evidence which it is not so easy to obtain. I do not know whether it is of

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interest to the Lord Chancellor or to anybody else, but perhaps I might be permitted to say there happens to be a valuable appendix to this book Ilbert's Government of India. It begins at about page 375, and gives a complete list of all the exceptional cases which can be tried in this country when they are committed by British subjects abroad. It was because I had that list before me that I ventured to say what I have said about perjury. However, I entirely see the desire of the Government to find some way of dealing with these people.
I would point out, first, that, so far as I can judge, that ought not to call for a permanent change in the law, but rather for something which takes notice of the fact that there is at present this occupation of Germany or Austria. Secondly, without professing at the moment to make a definite suggestion, I would point out that there are ways in which one can imagine the scope of the clause being narrowed, so that at least it corresponds to the sort of cases which the Lord Chancellor has felt we ought to try. I do not know whether he or his advisers have had the opportunity of looking into the possibilities of using the Foreign Jurisdiction Act. I do not profess to be a master of it at the moment, but I know that under it Orders in Council can be made; and I should not be surprised to find that, by a simple Amendment limiting it to this sort of case, power might be taken for this purpose. Again, you might perhaps make it turn on an Order in Council made in respect of a particular area and perhaps a much more limited list of crimes. I say this really in response to the Lord Chancellor's invitation.
I do not know what the Lord Chief Justice or other legal members of the House think, but I feel that it is entirely wrong to take a steam hammer to break even the dirtiest nut. By this clause our criminal jurisdiction is to extend to every sort of indictable offence, in any part of the world at any future time, committed by anybody who is in the civil employment of the Crown. The general objection to that will appeal to the Lord Chancellor as quickly as to any other of your Lordships. None of us wants, because we see a particularly grievous but limited evil, to say that we will correct it by changing the law, which is immensely wider than the point we are
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seeking to cover. Some of your Lordships may recall the famous essay of Macaulay on one of Gladstone's early works, when he was "the rising hope of the stern and unbending Tories" Gladstone wrote a hook called Church and State which Macaulay reviewed, and the review is to be found in the Edinburgh Edition of Macaulay's works. Macaulay pointed out that this young gentleman, desiring to secure a certain limited result, had pursued the not uncommon method of propounding an enormously wide propositions which would cover both what he wanted to do and a vast number of things that he did not want to do. Everybody has always thought that that was one of the most brilliant examples of Macaulay's style. That was in the days when Mr. Gladstone was a Tory.
However, that is the point I want to urge. And I am sure the Lord Chancellor will be the first to agree with me that no change in the law ought to be so much greater than is needed for the purpose. I am not opposing the clause. I am perfectly willing to see it considered further, and I am glad that the Lord Chancellor himself takes that view. He will decide whether he wants to have the clause in now, or whether, after such ventilation as it receives now, he will withdraw it and give it further consideration before Report. I have not the least doubt that the Lord Chancellor is right when he says this is a very difficult and novel proposition.
VISCOUNT MAUGHAM: I was not quite sure whether the noble and learned Viscount would like to reply now, as there are one or two others who would like to say something on this point. I am loth to interrupt the Lord Chancellor, but I was going to say that I find myself in the unhappy position of not agreeing in this case with my noble and learned friend Lord Simon. I am of opinion that a clause of this kind is necessary. I think it is a clause that is just, and I do not think it will lead to many of the abuses that my noble friend, with the great ingenuity that he possesses, has suggested. In the first place, I cannot think it just that a man in the service of the Crown—in, let us say, Germany or elsewhere, or in one of the many embassies or legations or something of that sort—having committed what I will call a grave offence (because I am not defending the word

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"indictable" for the moment), should escape; and that not only should he escape but that he should be entitled to come over here, walk about the streets and live in magnificent hotels with, it may be, advantages which he has attained by something of a criminal nature while in the service of the Crown abroad.
It is perfectly true—and nobody could have stated it more accurately than did my noble friend—that our law is based mainly upon the place where the crime has been committed. But when he suggests that that is a universal principle—subject to three or four exceptions which he has mentioned, I think he is going too far. I do not think it is a principle at all, and I will tell your Lordships why. Some time ago (I think when I was occupying the Woolsack), I had occasion to look very carefully into this question, and, though my memory no doubt is faulty, my recollection of the history of the matter is that there was the narrowest possible limitation to the jurisdiction of the Judges of the land to punish offenders. I think I am right in saying that originally it was possible, in a particular hundred of a county, to arrest a criminal and try him only if he had not departed over the boundary. And I am quite sure that I am right in saying that for a long time the liability of the criminal was to be arrested and tried only in his own county. In the interests of justice, there were further extensions from time to time.
We know, however, that the soil of England is not so sacred from this point of view as my noble friend Lord Simon seems to think. On a British ship, for instance, we may take and try people who have been guilty of crimes because, of course, a person on a ship is not in a particular county, except by some fanciful extension of the law. A person does not escape liability for a crime if he commits that crime on the high seas in a British ship. For the life of me, I cannot see why, a man—say a man in the service of the Crown, in any country in the world—who has ex hypothesi committed a grave crime in that country and has since come here, should be able to snap his fingers at the justice of this country. Why should he be allowed to escape, full, it may be, of the fruits of his crime, full of the advantages which he has got from it?
I do not want to over-state my case or
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to enlarge too greatly upon that matter. But I cannot conceive any reason whatever why we should not extend the law in that respect so that these people can be punished. I think the comment which has been made on the word "indictable" is probably a just one. Probably the question of what is indictable does require limitation in some way, because, as your Lordships all know, the question of what offences are indictable and what are not sometimes depends on very curious definitions. There is a lot of law on the subject. I think that the Government might well consider something limiting the word "indictable" to particular forms of crime, or they might take another course which would be even simpler—that is, to say that the consent of the Attorney-General should be necessary for an application under this clause. But there are half a dozen ways of limiting the precise nature of this clause, ways which would satisfy my noble and learned friend Lord Simon, and would not substantially interfere with the principle as a whole.
Another thing can be suggested. We all know that, at the moment a good many thousands of British people are abroad—and a large proportion of them, obviously, are in Germany. It might be desirable—personally I do not think it would be, but I understand the weight of this—to make some sort of emergency provision, limiting the application of the clause in the future, either by making it applicable for so many years or until a particular formula is made. That seems to me a comparatively trifling matter. The real substance of this clause is to prevent persons who commit crimes while in the service of the Crown, in the next few years at any rate, from getting off scot-free.
I am not going to detain the Committee longer except to make a suggestion as to the way in which the clause, if proceeded with, should be drafted. I think the noble and learned Viscount, Lord Simon, is right when he said that very often these offences, if committed abroad, are not, prima facie, crimes at all. I am inclined to think that in subsection (2), or somewhere in the clause, there should be something to show that what we are proceeding against are offences which, if committed in this country, would be indictable or would be subject to criminal proceedings. It is quite right, as Lord Simon has suggested, to

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make perpetrators of these offences—because they are offences—liable to prosecution in this country. I agree that that is something which must be considered. Having made these observations, although I think there is a great deal more that might be said on the subject, I end by repeating what I said at the start. I am inclined to think that the principle of this clause should be adopted, and that, in view of the further attention that could be given to the matter between now and the next stage of this Bill, we should be able to put in the Statute Book a clause which will have the effect of preventing some dastardly criminals from going scot-free.
6.13 p.m.
LORD LLEWELLIN: I would like to say just a few words on this topic. The new clause seems to have arisen in consequence of circumstances which exist at the present time in one country—Germany. What we are doing by this clause is to make any indictable offence—I suppose that is any offence indictable in this country—capable of being tried in the courts of this country, although it has been committed in a country where it may not be an indictable offence, or even an offence at all against the criminal law of that country. I have not been able to look into the comparative laws of different countries, but certainly there are a number of offences which are indictable in this country but which are not offences at all in certain foreign countries. I would say in answer to one part of the speech of the noble and learned Viscount, Lord Maugham, to which we have just listened, that when a distinction is drawn between county and county and between this country and a British ship, let us remember that all through the past period the law of this land was the same for every county and held good for British ships on the high seas.
VISCOUNT MAUGHAM: My noble friend must forgive me, but my whole point is that the offences which are to be, or should be, indictable in this country, are offences which would be indictable if committed here. There may be countries where murder is not an offence, but it is an offence here and, therefore, it should be tried here.
LORD LLEWELLIN: The point I was making was this. In the old days the area of jurisdiction where a crime could be dealt
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with might be extended, but the offence was, nevertheless, a crime where it was committed, although it was in a different county. Now, under this clause we are going to say: "Although what you did may not be a crime where you did it, because it is a crime or indictable offence in England it shall be considered and dealt with on the basis that you have committed that indictable offence." That will be one effect of this clause. I think that we had much better apply our minds—and I hope that the noble and learned Viscount will consider this point—to the question whether we could not amend this clause to deal with a number of cases we have in mind, and after the words "a foreign country" insert some such words as: "which is in temporary occupation of His Majesty's Forces." The clause would then apply in the case of a country which we are occupying and where no extradition treaty obtains; but it should not be given so wide a sweep just because a few of these cases have occurred among personnel in occupied Germany.
LORD GODDARD: I think this matter could be dealt with quite simply. The reason for bringing forward this clause is the present position with regard to occupied territories; that is to say, the clause is meant to deal with offences committed in Germany and Austria, where the offender has escaped to England. Let me remind the House that there is at present on the Statute Book an Act of 1802 which deals with offences committed by any persons employed by His Majesty abroad in any service or military station, office or capacity, but it is limited to offences
"committed in the exercise of any such station, office, capacity or employment."
That covers people who commit offences by reason of the fact that they are in that office. We have got on very well for a great many years without finding it necessary to have special legislation to deal with defaulting diplomats, whom I think my noble friend Viscount Maugham had in mind. I have never heard of an ambassador, or even a secretary of a legation, who has committed an offence. Maybe there would be such a case, but I do not think we need legislate specially for it.
There is the case of a man who commits a rape abroad and escapes here. That

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offence does not come within the old Act of 1802, but, except in Germany and Austria, the man would be extraditable. If he commits the offence in America, why should he not be tried in America? If the Americans do not want him, why should we deal with him? I am putting this argument forward seriously. If a man commits an offence in any civilised country he is liable to be extradited under the Extradition Acts. In the British Dominions and Colonies he is liable to be dealt with under the Fugitive Offenders Act. The only practical difference between the Fugitive Offenders Act and the Extradition Acts is that one applies to the Dominions and Colonies and the other to foreign countries. I would venture to suggest to the noble and learned Viscount the Lord Chancellor that we should not make a permanent change in the criminal law to deal with what essentially is a temporary state of affairs.
VISCOUNT SIMON: And a local one.
LORD GODDARD: And a local one. If the clause were confined, as the noble Lord, Lord Llewellin, suggested, to offences committed in occupied territory where the offender had been arrested in England, I do not think there would be very much difficulty about it.
THE LORD CHANCELLOR: I was going to point out before the noble Lord rose that I think it is inaccurate to say that the existing law deals merely with certain specific offences. It does not, because of the provisions of the Acts of 1695 and 1802. The 1802 Act is perfectly general. It provides that where any person employed in the service of His Majesty:
"in any service, military station, office or capacity, who shall hereafter be guilty of any crime, misdemeanour or offence, in the execution, or under colour, or in the exercise of any such station, office, capacity or employment aforesaid, every such crime, offence, or misdemeanour may be prosecuted or inquired of and heard or determined in His Majesty's Court of King's Bench."
This is limited to "in the execution, or under colour, or in the exercise."
LORD GODDARD: It must be connected with his office.
THE LORD CHANCELLOR: It must be connected with his office. Therefore
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it is not accurate to say that it deals merely with specific offences. Any offence connected with the office is included. But the machinery of the Act of 1802 is obsolete and I would be sorry to have to rely on that machinery, though it could be used. We could have a grand jury for the purpose. Take the case of an ambassador abroad who, to use the colloquial phrase, "robs the till" and comes back to this country. There is no question of extraditing him. He has committed the offence in the embassy and we could try him under the provisions of the Act of 1802, if we could get the machinery to work. The Act of 1802 had what I do not propose to have—elaborate provision for taking evidence on commission and reading it to the court. I think that procedure is rather objectionable in a criminal case. I prefer to have the simple principle of calling evidence. It is not right to say that this clause relates solely to Germany, although it is right to say that my attention was called to the gap in the law by our own judges in Germany and by the assertion which has been made to me that there have been instances which call for some provision of this sort.
It would not be enough to say merely "connected with his duty" Suppose, taking a hypothetical case—I am not suggesting there would be such a person—some one in a position of authority in Germany takes his opportunity there to rob or to burgle or extort money or rape. In such a case it would be deplorable that that man could get over to this country and could not be tried. It would bring our law into disrepute. It seems possible, having regard to what the noble and learned Lord, Lord Goddard, said, that we might limit the clause in some way to apply to particular offences which do not admit of extradition. What I propose to do is this, if it meets with your Lordships' approval. I will withdraw the clause now and ask the assistance of your Lordships—and I am sure I shall not ask in vain—in hammering out something better. We ought to have something on these lines, but I do not suppose for a moment that this is the last word. I am certain that, with your Lordships' assistance, I shall be able to draft something better.
LORD BALFOUR OF INCHRYE: The noble and learned Viscount has asked us

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to make representations on the clause, and as this may be my only chance, I would like to raise one point. The clause may not fulfil the noble and learned Viscount's own purpose. Subsection (1) provides that
"any indictable offence committed in a foreign country by a British subject employed therein in the service of the Crown …"
It says "employed therein"—that is, in the country in which he commits his crime. Surely a subject employed by the Crown in Austria, let us say, might cross to Germany and commit some crime in conjunction with another citizen employed by the Crown in Germany. Both might come back to England in due course. The man employed in Germany would be liable but the man who went from Austria and committed the crime in Germany, would not. I suggest that if that is the true state of affairs, the drafting should be looked at again.
Amendment, by leave, withdrawn.
6.31 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after Clause 29, to insert the following new clause:
Abolition of privilege of peerage in criminal proceedings.
"—(1) Privilege of peerage in relation to criminal proceedings is hereby abolished.
"(2) In any criminal proceedings the jurisdiction to be had and the procedure to be followed, the punishments which may be inflicted, the orders which may be made, and the appeals which may be brought shall, whatever the offence and wherever the trial is to take place, be the, same in the case of persons who would but for this Section be entitled to privilege of peerage as in the case of any other of His Majesty's subjects."
The noble and learned Viscount said: The credit for this Amendment belongs entirely to the noble and learned Viscount, Lord Simon, and I am not putting forward my own Amendment to try to reap where he has sown. But the words he has used are the actual words which were used in a Bill passed in this House in or about the year 1937. The drafting of that Bill was by Sir Maurice Gwyer, who was a very astute draftsman. After the Bill was drafted the late Lord Atkin became interested in the matter and made some suggestions about the drafting. Sir Maurice Gwyer said that he did not think any of the suggestions were really necessary, but if he had had them before him when he drafted the Bill he would have put them in. That is why I have
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ventured to put down the Amendment of the clause in the Gwyer-cum-Atkin form. I think I need not say anything more on this Amendment, or I should really be trespassing on ground which belongs to Lord Simon.
Long before the Bill was at this stage I asked a law authority to have such a clause inserted, but I was informed that it could not be done because it would cause undue delay. There was some ground for that statement. Moreover, no less a person than Mr. Winston Churchill himself had objected to a Bill which passed this House before the war and went to another place. But the fact that, in addition to the noble Viscount, Lord Simon, the sponsors of a similar Amendment include the Leader of the Opposition, the Marquess of Salisbury, Viscount Hailsham, Viscount Samuel, Viscount St. Davids, Lord Llewellin, Marquess Townshend, Lord Lloyd, Lord Schuster and Lord Quibell, shows that there is such a general measure of consent that I am perfectly certain this provision will commend itself to your Lordships. If this Amendment is passed, we shall in future be treated like everybody else, and if the method is good enough for other people it is good enough for us. If it is not good enough for the people, let us improve it and get a better. Let us end what is a complete anachronism. I may remind your Lordships that there are now some 850 Peers. In Henry VII's time, I think the number was thirty, and in Henry VIII's time, not more than fifty. Then they had a manageable number. With these few observations I beg to move.
Amendment moved—
After Clause 29, insert the said new clause.—(The Lord Chancellor.)
VISCOUNT SIMON: I need not occupy your Lordships' House for more than a moment or two. I must express my gratification that the Lord Chancellor has been able to come forward now and propose this new clause as a Government clause, so that we may presume it has the authority and support of the Government as a whole. Nothing could be better. I ought to say that in addition to the names which stand at the head of the Amendment I have put down and which the Lord Chancellor has quoted, the noble and learned Viscount, Lord Maugham, asked tint his name should be inserted.

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In the first place I confess that the clause I put down was a redraft of what Sir Maurice Gwyer had drafted. It is due to the memory of the late Lord Atkin to say that he must have been one of the few people who has ever persuaded a Government draftsman that there could be a better draft than the one he had produced. It is not quite correct to say that the clause as I put it down was exactly what was previously suggested. It seemed to me that it is not quite correct to speak of Peers being tried "as in the case of any other of His Majesty's subjects," because, of course, the jurisdiction to try a man in this country for a crime does not depend upon his being His Majesty's subject at all. But that is a matter for the draftsman. Indeed, the Lord Chancellor used these very words: that a Peer should be entitled to be tried in the same way as everybody else. We do not draw any distinction as to nationality. But that is a small point.
The only other observation I should like to address to the Lord Chancellor is this. Obviously the Government desire that this clause should be put in. but I do not want any difficulty hereafter on the ground that the title of the Bill does not cover the clause. I ask my noble and learned friend to consider the right title, and whether we should not put in "Abolition of privilege of peerage in criminal courts" I can imagine some very meticulous person saying that this is not a mere Amendment relating to proceedings." I hope that the Lord Chancellor will consider having the title of the Bill enlarged to that extent in order that we may know that we are doing something which is really effective, and, I am very glad to say, with the full approval of His Majesty's Government.
6.38 p.m.
LORD MIDDLETON: As a layman I feel shy about joining in this debate which looks like a field-day for the legal profession. Mention has been made of the Bill which the late Lord Sankey introduced into this House twelve years ago. When that Bill came up for Second Reading I had the temerity to move its rejection, and I had quite substantial support, which would have been more substantial had not the noble and learned Viscount, Lord Hailsham,
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who was then on the Woolsack, insisted on members of the Government voting for the Bill. I think that one member of the Government voted on our side, but experienced no inconvenience afterwards for that act of insubordination. I felt strongly twelve years ago that I was right. Since then there has been time for reflection and I feel equally strongly now that it is right to support this Amendment.
LORD SALTOUN: I should like to congratulate the noble and learned Viscount, the Lord Chancellor, on proposing a reversion to an old Scottish practice.
On Question, Amendment agreed to.
6.40 p.m.
LORD CHORLEY LORD CHORLEY moved, after Clause 29 to insert the following new clause:
Issue of single summons on more than one information.
".—(1) Where two or more informations are laid under the Summary Jurisdiction Acts against the same person or persons, a single summons may be issued under these Acts against that person or each of those persons in respect of all the informations:
Provided that the matter of each information shall be separately stated in the summons.
(2) Any such summons as aforesaid shall be treated for the purpose of the Summary jurisdiction Acts as if it were a separate summons in respect of each information.
(3) The foregoing provisions of this section shall apply to complaints as they apply to informations."
The noble Lord said: During the war, under the provisions of Regulation 10A of the Defence (Administration of Justice) Regulations, it was possible to deal with cases where two or more informations were laid before a court of summary jurisdiction against the same person or persons by means of a single summons. I am sure your Lordships will agree that that is the most convenient and sensible way of dealing with the problem. That regulation has ceased to be effective, and the object of this clause is to enable that reasonable method of procedure to be used in future. The inclusion of this particular provision we owe to a suggestion of the justices Clerks' Association, which we are pleased to acknowledge. I beg to move.
Amendment moved—
Page 34, line 2, at end insert the said clause.—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY LORD CHORLEY moved, after Clause 29 to insert the following new clause:
Supply of copies of informations to persons committed for trial.
".—Where any person is entitled to copies of depositions taken under the Indictable Offences Act, 1848, he shall be entitled also to copies of the written information (if any) required by Section twenty of that Act to be transmitted with the depositions; and any enactment relating to the furnishing of copies of depositions shall accordingly apply to any such information as it applies to depositions."
The noble Lord said: This is another small but useful procedural Amendment. When a case goes from the court of summary jurisdiction to the higher court, as your Lordships are aware, the prisoner is entitled to have the depositions; but in the past he has not been entitled to have a copy of the information, in those cases where a written information has been laid. This Amendment will enable him in future, after the case has gone forward, to have not only the depositions but a copy of the information, which may be of some assistance to him in handling his defence. I beg to move.
Amendment moved—
Page 34, line 2, at end insert the said clause.—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 30 [Amendment of Summary jurisdiction (Appeals) Act, 1933]:
LORD CHORLEY: There are three Amendments to Clause 30, all of which are drafting Amendments. I beg to move.
Amendments moved—
Page 34, line 3, at beginning insert ("For")
Page 34, line 4, leave out from ("1933") to end of line 6 and insert ("(which regulates the appointment of appeal committees of quarter sessions) there shall be substituted the following paragraph")
Page 34, line 10, leave out from the first ("appeals") to ("justices") in line II and insert ("including").—(Lord Chorley.)
On Question, Amendments agreed to.
Clause 30, as amended, agreed to.
Clause 31:
Challenge of jurors and separation of juries.
31.—(1) A person arraigned on an indictment for any felony or misdemeanour may callenge not more than seven jurors without cause.
LORD GODDARD LORD GODDARD moved, in subsection (1), to omit all words after "arraigned" and to insert:
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"for felony shall have no challenge except for cause."
The noble and learned Lord said: Clause 31 (1) makes a considerable change in the law, both for and against a prisoner. As originally introduced in this Bill, it provided that peremptory challenges should be carried out. A peremptory challenge—in case I am using an expression with which some of your Lordships are not familiar—means that on a charge of felony a prisoner is entitled, without showing any cause, to twenty jurors. That means that, although there may be only one prisoner for trial at Quarter Sessions (and this always happens) you have to summon not only twelve jurors, but at least twenty more, because the prisoner has the right on peremptory challenge to twenty jurors.
I should have been quite content to see the clause stand as proposed by the Home Office in the first place, because I have some doubt as to whether the right of peremptory challenge is very valuable. But a great many of my noble friends think that there ought to be this right. You can always challenge the cause—that is to say, to show that the jury does not stand indifferent "between our sovereign Lord the King and the prisoner at the Bar," as it is said: and if you can show cause, you can challenge anybody. This clause does, in fact, introduce a challenge which has never yet been given in English law, because it gives a challenge in the case of misdemeanour, as well as in the case of felony. My real object in this matter is to save time in criminal cases. A good many people in another place, and I know many of your Lordships, feel that the right of peremptory challenge should be preserved, but that the number should be limited. I feel inclined not to press this Amendment, but I would like to make a suggestion to the noble and learned Viscount in charge of the Bill to this effect. You are now giving a challenge in misdemeanour, as well as in felony. That means that the jury will have to be sworn in every misdemeanour in exactly the same way as they are now sworn in felony. The time that is wasted is considerable. First, the prisoner has to be informed of his right that
"If you object to them, or to any of them, you must make your objection as they come to the Book to be sworn, or as they are sworn, and you shall be heard."

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Every juror has to be sworn separately; that takes a considerable time. Then the jury has to be counted, and so forth.
I would like to ask the noble and learned Viscount whether he would not consider inserting a clause, or substituting a new clause, on Report, so as to give the challenge in seven cases, both in felony and misdemeanour, but to provide that the prisoner shall be informed when he pleads that the names of the jurors will be read to him, and that he can object to any or all of them, and the jurors can be sworn together, as they are in misdemeanour. If that were done, I think we should save considerable time in criminal trials, and no injustice would be done. The prisoner would have the additional advantage of being able to object in misdemeanour, which he has not now. At present, the prisoner cannot object to any juror if the offence is misdemeanour. I always hope to live to see the day when, the difference between misdemeanour and felony is abolished. It is wholly artificial and quite absurd, and there is no real reason for it. If this were done, it would do something to abolish the difference between misdemeanour and felony. I hope that we may have a clause in which the jury can be sworn in all cases as they are now sworn in misdemeanour, and that the prisoner can be informed of his right to object to seven jurors. I think that ought to be enough. If the noble and learned Viscount can consider that suggestion favourably, I will not press the Amendment which I now move.
Amendment moved—
Page 34, line 13, leave out from ("arraigned") to end of line 15 and insert the said new words.—(Lord Goddard.)
VISCOUNT SIMON: I am one of those who think that what is called "peremptory challenge" ought, within reasonable limits, to be preserved. I have nothing like the experience of the Lord Chief Justice in these matters, although he and I knew a good deal of the same sort of thing on the circuit to which I used to belong. May I tell your Lordships of a single experience? I was not counsel in the case, but was sitting in the court watching. I remember a man in Bristol who was indicted for felony and who was told: "These are the names of the jury who are about to try you. If you object to them or to any of them you must
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make your objection before they come to the Book to be sworn or as they are sworn and you shall be heard." The ordinary procedure went on. The first, second, third and fourth juryman had been sworn, and everybody was just waiting until it was finished. When it came to the fifth juryman in the back row, I heard the prisoner or his counsel say, "Object," and immediately the Clerk of the Court said: "Please leave the box." The man then went away. He had the Testament in his hand, and as soon as he discovered he was objected to, and would not have the privilege of trying the case, he flung the Testament down on the desk in a rage and marched out of court. I thought to myself when I saw that: "Well, I believe it is a good thing that the man who is charged with a crime should have the right to object to somebody there who is licking his lips at the prospect of trying him." There may be instances—they occur very rarely—where the prisoner does not want to give the reason for his objection, but he none the less knows the reason very well in his heart.
LORD DU PARCQ: I should like to say a few words on this subject because I am one of those who regretted very much the suggestion, when it was originally made, that the right of peremptory challenge should be done away with. I am glad that it should now be proposed to extend it—although in a much curtailed form—to cases of misdemeanour as well as to cases of felonies. I have listened with great attention to what was said by my noble and learned friend the Lord Chief Justice, and I think there is no objection to be taken, so far as I can see, to the suggestion that both in cases of felony and in cases of misdemeanour the jury might all be sworn together.
There is only one matter which makes me hesitate at all. I have often thought that the process in most courts by which three Testaments are provided, and the jury are told that four of them are to hold a Testament and they are then sworn by the oath being read to them, is not a very imposing ceremony. If oaths are to be taken by juries or anyone else I do not think they ought to be taken except in solemn form. If the oath mean anything, it means a great deal, and it ought to be solemnly treated. That is

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a matter which can be overcome. I am not sure that the existing law is always complied with, and it may need alteration or not; but if one consults the Act about the swearing of juries I think it will be found that it is not always complied with. Whether it would be better if it were, I do not know. I am quite content that there should be this right of challenge. I agree that the right to challenge up to twenty in felonies is too much, and I have never seen any reason why there should not be a right to challenge in misdemeanours without assigning cause. It does not need much imagination or experience to see that, in many cases, to tell a man he may challenge for cause shown is nothing like enough to give him the certainty of a fair trial and the sure knowledge, in his own heart, that he is getting a fair trial.
The sort of experience I used to have when defending prisoners was this. The instructing solicitor would say: "Our client does not want so and so on the jury; he thinks he does not like him." It may be it was information on second or third hand from some relation or friend in the village. It may be, of course, that one's client had not a blameless record, and the gentleman to whom he wished to object knew about it. But it did not follow that he was not innocent of the charge which was preferred against him. Many instances suggest themselves. I know my noble and learned friend the Lord Chief Justice will agree that there were very few challenges—and this applied to misdemeanours as well—because what happened was this. If he and I were against each other he would say to me: "I do not want this man on the jury," and I would say: "Very well, we will tell the Clerk of Assize not to call him." I have grave doubts whether that was a regular method of procedure, but at any rate it worked in a friendly way. Having started with these preliminary friendly negotiations, we proceeded to attack each other with some violence.
But there are much more serious matters to take into account. Every time has been a time in which the liberty of the subject had to be carefully safeguarded, and it is not less so now. One wants to guard against the mere possibility that juries might be packed. Although I observe that in the draft Bill
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it was suggested that all peremptory challenges in cases of felony should be done away with, there was not a word said about the right of the Crown—which means the right of the prosecution—to say: "That juryman is to stand by, and if we cart fill up without him we will." So the Crown was left in a position to keep off the jury people they did not like without assigning any cause at all, and the defendant was put in a position of not being allowed to challenge except with cause. One can see in a moment that it would become perfectly easy in such circumstances for a prosecutor to pack the jury.
I need not develop that point, because it is not a subject upon which one wants to dwell. But there a re cases sometimes where there may be persons on the jury of unexceptionable character and record whom, nevertheless, a defendant, whose religious views and race might be very different, would be sorry to have on the fury that is to try him. For those reasons I, am most thankful that the right of challenge without assigning cause is to be preserved. It exists in Scotland and it exists, I should think, in every part of the Dominions. I hope your Lordships will approve of the clause. Although in one sense modified and in another in an extended form, it seems to me a most admirable compromise.
THE LORD CHANCELLOR: I need say very little on this point. I confess that I was myself surprised to find what anxiety the Bill created in its original form by doing away with the challenge altogether. When the Bill reached the Committee stage, the Home Secretary was asked from all sides of the Committee to put these words back. Consequently, I say no more, except to remark that we shall obviously be wise to keep those words there. I, too, like every speaker on this Amendment, was a member of the western circuit. All I can say is that in my whole life at the Bar I have never heard a peremptory challenge. I confess that it has always seemed to me rather pitiful that a large number of excess jurors had to be summoned and taken away from their business, in case there might be a series of peremptory challenges. As I say, in my small experience of the court, I have never seen such a thing. However, we are all agreed that this right shall be kept as we have, it

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to-day, but that we shall limit it to seven and extend it to misdemeanours.
If I may say so—I am speaking with out instructions—it seems that the suggestion made by the Lord Chief Justice would be most valuable in order to save time. Your Lordships are aware that in felony trails every juror is sworn separately, whereas in misdemeanour trials they are sworn either in batches or all together. I do not see why you could not, by giving each one a Testament, make the proceeding a solemn one. I entirely agree that it ought to be solemn. Each man could hold up the Testament and take the Oath. It could be a perfectly solemn proceeding but, at the same time, it could be done all together; and we could have it done alike in felony and in misdemeanour in that form. I am grateful to the Lord Chief Justice for making that suggestion, and I hope that I shall be authorised to approve such a suggestion. I will certainly instruct the Parliamentary counsel to rough out such a clause, which he can submit to the Lord Chief Justice so that he may look at it and see whether he thinks it meets the point he has in mind.
LORD GODDARD: I am much obliged to the noble and learned Viscount.
LORD ROCHE: It must be done, for this reason. You are not interfering with challenge for cause. The form and the reality correspond in that matter. Challenge for cause is made as the man is given the Testament to be sworn; therefore the members of the jury must be sworn separately, if you are to preserve the right of challenge for cause. I think the Lord Chancellor will find that that is so. If each man is sworn as he takes the Oath it would be quite possible for the challenger to say "I am objecting to that gentleman who is being sworn now."
THE LORD CHANCELLOR: I will gladly have that looked into. I do not profess to be anything of an expert on this matter, but could the accused not challenge for cause if he were handed a list of the jury? He would be told, at the same time, that these were the jury who were going to be sworn and would be advised "Now speak up if you have anything to say. You can challenge peremptorily or for cause: what have you to say?"
LORD ROCHE: I think it wants looking into.
LORD LLEWELLIN: In some cases he does not want to give openly the cause of challenge. If he could be allowed to challenge for cause without the need for doing so openly, that would entirely meet the point: he would not have to give any reason. One kind of case in which the peremptory challenge applies is where, for instance, the accused thinks he would not like a woman to try him or something of that kind. That right has always been exercised in felony. Or, it may be a particular type of person he does not like.
THE LORD CHANCELLOR: If the accused challenges for cause, he must show what the cause is.
LORD GODDARD: I think a man has also a right to challenge for cause in misdemeanour. There is a third challenge called "challenge to arraign" which may be used in the case of a supposed partiality on the part of the sheriff. I believe that in Ireland this has been reduced to a fine art.
VISCOUNT SIMON: It seems to me that there may be cases in which the accused is given a list of names and does not know the name of the person to whom he might object. I think that often in rural districts the feeling of a man is that when he sees a certain person he thinks "That is the man whom I should not like to try me," but he may not know the name.
LORD GODDARD: The names could be called and the juries could come into the box as they were called. I think the difficulty could be overcome in that way.
LORD ROCHE: At one time in the western circuit every woman who came in was challenged.
LORD RAGLAN: Why cannot the distinction between felony and misdemeanour be done away with in this Bill?
LORD DU PARCQ: In Scotland there is no distinction between felony and misdemeanour. I understand that there the juryman's name is drawn out of a box by ballot, and that that is the moment when he must be challenged, either for cause or peremptorily. In another jurisdiction with which I am familiar I have seen challenges, both for cause and without cause assigned, when the jury have been called into the box.
LORD GODDARD: In view of what has been said, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 31 shall stand part of the Bill?
LORD ROCHE: May I suggest that in line 2 "challenge" is spelled in the usual way, with an "e"?
Clause 31 agreed to.
Clause 32 agreed to.
7.6 p.m.
Clause 33 [Bail on appeal, case stated or application for certiorari]:
LORD CHORLEY: This is a drafting Amendment, I beg to move.
Amendment moved—
Page 36, line 6, leave out from ("aforesaid") to ("has") in line 8.—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This Amendment is in the nature of a drafting Amendment. It is intended to deal with the situation when a case comes from the court of summary jurisdiction to the High Court and the High Court is in a position to dismiss the case, to uphold the conviction or to send it back. If it is sent back, the requirement will be that the man should enter into a recognisance, because his attendance before the court has to be secured; the words of the clause as it stands have been drafted on that basis. But if the case is not going to be sent back, there is no reason why the attendance of the man should be secured—indeed, his attendance is not required. Therefore the words as they stand are not satisfactory to deal with the situation and the Amendment has been drafted in order to leave it to the discretion of the court to decide whether it will require the man to enter into recognisances. I beg to move.
Amendment moved—
Page 36, line 12, leave out from ("appearance") to ("section") in line 14, and insert ("(unless the judgment of the High Court otherwise directs) at the sessions at which, under").—(Lord Charley.)
On Question, Amendment agreed to.
LORD CHORLEY: This also is a drafting Amendment. I beg to move.
Amendment moved—
Page 36, line 16, leave out from ("1925") to end of line 18 and insert ("that judgment is entered, or the appeal to quarter sessions is entered for re-hearing, as the case may be;").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This again is a drafting Amendment, on the same sort of lines as the one which I explained. I beg to move.
Amendment moved—
Page 36, line 29, at end, insert ("unless the determination in respect of which the case is stated is reversed by that judgment;")—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This also is drafting. I beg to move.
Amendment moved—
Page 36, line 42, at end, insert ("unless the conviction or sentence is quashed by that judgment").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: The next Amendment is purely of a drafting character. I beg to move.
Amendment moved—
Page 37, line 8, leave out ("prescribing").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This Amendment, again, is drafting. I beg to move.
Amendment moved—
Page 37, line 9, at begging insert ("for prescribing").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This Amendment, again, is drafting. I beg to move.
Amendment moved—
Page 37, line 11, at end insert ("and the persons").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This, too, is drafting. I beg to move.
Amendment moved—
Page 37, line 12, leave out ("a") and insert ("any such").—(Lord Chorley.)
On Question, Amendment agreed to.
LORD CHORLEY: This Amendment is purely drafting. I beg to move.
Amendment moved—
Page 37, line 14, leave out paragraph (c) and insert—
("(b) for authorising the recommittal, in such cases and by such courts or justices as may be prescribed by the rules, of persons released from custody under this section;").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 33, as amended, agreed to.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after Clause 33, to insert the following new clause:
Power of Court of Criminal Appeal to order new trials.
".—(1) Notwithstanding anything in Section four of the Criminal Appeal Act, 1907, where an appeal against conviction is allowed by the Court of Criminal Appeal under that Act and it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal, direct the appellant to be retried upon the whole or any part of the indictment:
Provided that—

(a) where the appeal relates only to part of the indictment upon which the appellant was tried, the court shall not direct him to be re-tried upon any other part thereof unless in the opinion of the court it is necessary to do so for the purposes of the proper re-trial of the appellant upon any part thereof to which the appeal relates; and

(b) if the appellant, being convicted on the re-trial, again appeals against his conviction under the said Act, the court shall not direct him to be re-tried a second time.

(2) An appellant who is directed to be retried under this section shall be re-tried before such court as the Court of Criminal Appeal may direct; and where by virtue of any such direction an appellant is to be re-tried before a court of assize or quarter sessions before which he could not have been tried but for the direction, that court shall have jurisdiction for all purposes connected with the retrial as if the offence had been committed within the jurisdiction of the court.
(3) Where the Court of Criminal Appeal direct an appellant to be re-tried under this section, the court may make such orders as appear to the court to be necessary or expedient for the purposes of the re-trial, including orders—

(a) for the amendment of the indictment upon which the appellant is to be re-tried;

(b) for the custody or admission to bail of the appellant, and for the attendance of witnesses and other persons at the re-trial.

(4) Where an appellant is re-tried by virtue of a direction under this section before any court of assize or quarter sessions before which he could not have been tried but for the direction, any costs payable in the case under the Costs in Criminal Cases Act, 1908, shall in
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the first instance be paid in the same manner as if the offence had been committed in the county or county borough in which he is tried, but shall be recoverable from the treasurer of the county or county borough in which the offence was or was supposed to have been committed.
(5) In relation to an appellant who was tried separately on any count or counts of an indictment, the provisions of this section shall have effect as if those counts had been found in a separate indictment."
The noble and learned Viscount said: This is an important clause and I commend it to your Lordships. The Court of Criminal Appeal has no power at the present time, no matter what the circumstances, to order a new trial. May I quote from a recent decision in the case of Rex v. Cooper? This is what the learned Judge said:
"The presiding Judges in this Court, throughout the long time from the very first year in which it came into existence, have said over and over again that in order to do justice in certain cases, not often but occasionally, it is essential that the court should have power to order a new trial. That power has never been given to the Court."
It is a power which I think should be used with very great discretion and circumspection. If I may use the words of that decision, it should be used "not often, but occasionally."
I have no doubt that occasions do arise when use should be made of this power. It is the fact that in Australia, in Canada and in New Zealand, the corresponding Court has, and has had for many years, the power to order new trials, and no suggestion has been made that injustices to the appellants have resulted. In the United States, both the Federal and State courts have a similar power. Indeed, the only argument that I know against granting a new trial is that the second jury, having discovered that the case is being retried after a man's original conviction, may be prejudiced against him. But as experience has shown, the fact is that in these countries of our own people and in the United States, when the second trial takes place, counsel for the accused always brings out the fact, because he relies upon the fact that the man has been tried before as being a ground for showing that there is doubt and that he ought to be acquitted on the second occasion. Of course, we do not want to prejudice or endanger the likelihood of an innocent man being acquitted, but it is a real misfortune when sometimes an obviously guilty man, a man who appears

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to be guilty, gets off on a mere technicality. I will not say more about it than that, because there are those here who can speak with much more authority than I can. But, at the present time the power of the Court to say that, although there has been some error in the summing-up or something of that sort, yet no substantial miscarriage of justice has been done, is not really enough for this purpose. I commend this clause to your Lordships, being perfectly confident that we can trust to the discretion of the Court of Criminal Appeal to use this power with due regard to all the interests involved and as an exceptional and unusual power. Accordingly, I beg to move.
Amendment moved—
Page 37, line 46, at end insert the said clause.—(The Lord Chancellor.)
LORD GODDARD: It is right that I should say a word to your Lordships about this matter. I may say that I most sincerely commend the clause to your Lordships. First, it should be borne in mind that no case comes before the Court of Criminal Appeal unless a man has been convicted. It is an appeal only by a person who has been convicted; there is no appeal where a prisoner has been acquitted. From time to time—not often, but in certain cases—it happens that some question emerges in the course of a case—for instance, that there has been some misdirection, perhaps an accidental misdirection, by the presiding Judge. If the Court can come to the conclusion that the prisoner must have been convicted in spite of that misdirection—that is to say, if the misdirection had really nothing to do with the conviction—the proviso in the existing Act enables us to say that, notwithstanding the misdirection or misconstruction of the evidence, the conviction shall stand. But that does not always happen. It sometimes happens that it is impossible for the court to say that, but that the Court conceive that, taking a fair view of the case, the prisoner would, in all probability, have been found guilty, as the jury found him guilty; but they cannot say for certain.
I think that the only real objection that can be urged against the clause is that, as it stands and as I hope your Lordships will insert it in the Bill, it will be possible to re-try on the whole of an indictment a man who has been convicted on some counts of the indictment and acquitted on
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others. I want to explain to your Lordships why that is an absolutely necessary power. The most unsatisfactory cases that ever come before the Court, and where they cannot order a new trial, are cases in which the verdict of the jury is repugnant, they having found a verdict of guilty on one count and a verdict of not guilty on another, those verdicts on examination being found to be repugnant. The case from which the noble and learned Viscount the Lord Chancellor quoted a moment ago, Rex v. Cooper, was case which your Lordships may remember when I remind you that it concerned two detectives of the Metropolitan Police Force who were charged with robbing various aliens whom they interviewed with regard to alleged offences or with regard to their permits, and so on. Those officers were charged with having robbed those people, extorting money from them in consideration for not reporting them. It was about as serious a case as could be made against members of the Metropolitan Police Force.
The indictment contained a first count which charged them with conspiracy. It was perhaps unfortunate that that count was put into the indictment. The indictment then went on with three or four other counts charging them with robbing A, B, C and D. And, of course, on the prosecution side the only evidence against the men that they had conspired together was that in each case they had together been to A, B, C and D. The evidence of these different people who had been robbed was not all of the same class; it was not all of the same weight. In one case particularly on reading the evidence it struck me that one would not have been at all surprised if there had been an acquittal. In the case of the other three, if the evidence was accepted at all, it was extremely difficult to see how there could be anything but a conviction. What did the jury do? After a long adjournment they came back, having found these two men guilty of conspiracy. As my brother Humphreys afterwards said (interpreting the thoughts of the jury), in delivering the judgment of the Court of Criminal Appeal: "In other words, we are convinced that you two men are rogues, and two bad rogues." Apparently the jury could not agree on all these different counts and, instead of saying that they did not agree on them—if that was the fact, as I think it must have been—

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they said: "Not guilty" on each count—a clear case of a compromise verdict.
The Court of Criminal Appeal were faced with the fact that a verdict of "guilty" was returned upon the first count, a verdict of "not guilty" was returned on every other count; and it was only the evidence on those counts which could possibly support the conviction on the first count. Therefore, we had to quash the conviction. Of course, if the jury had said: "Guilty on the first count, but we cannot agree on the other counts," the learned Judge could have taken one of two courses. He could have told the accused: "I have a verdict of 'Guilty of conspiracy.' I will sentence you on that, and I will discharge the jury from giving a verdict on the other counts." I do not think that would have been the right course. Or, alternatively, he could have said to the jury: "As you have disagreed, I shall order the whole of this case to be retried." He could have done that. But the difficulty was that whatever else happened, a verdict of "Guilty" having been returned on one count and "Not guilty" on the others, that verdict could not stand. I venture to think that that case shows your Lordships the importance of the courts having the power in a proper case to order a new trial.
I can assure the Committee that it is a power which the court would exercise very sparingly and very seldom. The only occasion now on which they have power to order a new trial is where, for some reason or another, there has been what we in law call a mis-trial, which is equivalent to no trial at all. For instance, there was one case in which there were two separate indictments against a prisoner and he was tried on the two together. Nobody noticed that there were two indictments against him. That was a mis-trial, and the whole thing had to take place again. There have also been a few other cases of a highly technical nature, with which I need not trouble your Lordships. I think your Lordships may rest assured that this power would be sparingly exercised.
Let me give another instance of how necessary it is, in some cases, to have the power to order a new trial, although there is not an inconsistent or repugnant verdict. I remember a case in which a man was charged with serious house-
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breaking—I believe at Southend. His defence was an alibi, which, of course, if it can be sustained, is the best defence of all—and it is astonishing how seldom it is sustained. That was his defence. The offence was supposed to have taken place fairly early on a Sunday evening. In giving his evidence before the jury in support of his alibi, he stated that at about nine o'clock (I think it was) he had gone to a billiard club in Catford, a great many miles from Southend. If he was in the billiard club in Catford at nine o'clock, or whatever the time was, he could not possibly have been housebreaking at Southend at the time when the offence took place. The Chairman of Quarter Sessions, in error—it was an understandable mistake, and no one corrected him—said to the jury: "And then he tells you that he went to some billiard rooms" instead of "billiard club." He also said, "You know, gentlemen, that billiard rooms are not by law allowed to be opened on Sundays." And in the course of his summing up, he repeated that not once but, I think, three times. He had mistaken the evidence in that he thought the man had said "billiard rooms," when in fact he said "billiard club." Accordingly, he impressed on the jury the fact that billiard rooms are closed on Sundays, thereby possibly making the jury suspicious of the prisoner's alibi.
The prisoner applied for leave to appeal, which was granted, and he applied to the Court of Criminal Appeal for leave to call the proprietor or manager of the billiard club to give evidence that the premises were open on Sundays and that the prisoner was a member. The manager said: "I cannot say that he was there; I cannot say that he was not there; I cannot remember whether he was. All I can say is that he is a member, and that the club was open on Sunday." The balance of the evidence was almost overwhelmingly in favour of the fact that the prisoner was guilty of this offence, but the court felt they could not allow this conviction to stand, because they did not know how much weight the jury might have attached to the unfortunate misdirection which the Chairman gave. That would have been a good case in which to say: "Here is a case in which a mistake has been made, which no one corrected at the time." The

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prisoner was represented by counsel. Counsel did not notice, any more than did the Chairman, that the prisoner had said "club" and not "room"; nor did counsel for the prosecution. In consequence, we had to quash that conviction, and I had no doubt at all that a very guilty man had escaped; I think the jury had convicted, and rightly convicted him. At the same time we could not look into the minds of the jury and cross-examine them as to what weight they attached to that error, and we had to quash the conviction. That is a case in which, unless you are a member of a society for the protection of convicted persons, there ought to be the power to order a new trial; and, if a new trial had been ordered in that case, justice might have been done.
Let me point out that the new clause as drafted provides that where a new trial is granted the court can give a direction as to where it should be heard, thereby preventing any prejudice to the prisoner. It is a most important provision because, if you take the case of a fairly small borough with its own Quarter Sessions, it would be undesirable, if the court ordered a new trial, that it should be tried within that borough. The court could say that it should be tried in an adjoining borough or county, or somewhere else, so that the prisoner would not be tried by the same jury and in the same atmosphere. It is always suggested that everybody knows everything that has taken place. Although a good many people read the police news, I am not at all convinced that they always remember it or always remember the details of the case. Whether the fact that he has been tried before would be brought out or not I do not know; it depends, of course, on the line of cross-examination. I do not think any counsel for the prosecution would bring out the fact that the prisoner had been tried before. In all those circumstances, I hope your Lordships will give this clause your consideration and will agree that it shall form part of the Bill. Experience has shown that it is very badly needed.
LORD ROCHE: I do not propose to keep your Lordships from the adjournment for more than one moment. Probably, in the case of an Amendment which is commended by the Lord Chancellor and the Lord Chief Justice, your Lordships will not need any more persuading, but I should like to say that, as I have
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sat many times in the Court of Criminal Appeal, I think this Amendment is both needed and right. There are ample provisos, such as paragraph (a), to prevent its abuse, and I am sure that, with that protection and the discretion of the court, there is no likelihood of its being abused. That is all I desire to say, except that I could not quite follow the Lord Chief Justice about the society he mentioned and whether it was the society of which Lord Chorley was President. However that may be, I commend this clause to your Lordships.
7.30 p.m.
LORD LLEWELLIN: I hate to interrupt this pæan of praise. I think everyone in the House will probably be in complete agreement with regard to convictions after trials which have been defective in some respect—possibly there has been some deficiency in the summing up—that in appropriate cases it is right that there should be a new trial. But I am a little horrified to think that a man may be sent back again to trial by a jury on counts on which he has already been acquitted. That does rather horrify me. Once the man has been acquitted by the jury, is the Court of Criminal Appeal to say that the whole case must be heard again—not only that the counts on which the man has been convicted shall be tried again but also the others on which he was acquitted? That goes absolutely and fundamentally against one of the main principles of our criminal law, which is that once a man has been acquitted by a jury, he cannot be put in jeopardy again on that particular charge. I think we might well look at this matter again before the Report stage is reached with a view to seeing whether appropriate words can be devised to regulate that kind of proceeding. The only other point I wish to raise relates to drafting. Ought the words "the court shall not redirect him to be retried a second time" to be left as they are? Should the wording not be: "the court shall not direct him to be retried a third time?" Is not that what we mean?
LORD GODDARD: Not "retried"—"tried" a third time.
LORD LLEWELLIN: Yes, I agree.
THE MARQUESS OF READING: May I add one word on this matter? I understand the advantage in the type of cases

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which Lord Goddard has mentioned of allowing a man to be retried on counts on which he has previously been acquitted. But I think, with Lord Llewellin, that we ought to consider very seriously the principle underlying that situation, and to see whether it is not possible to arrive at the same end by some other means or, if not, whether in order to arrive at what must be a comparatively rare remedy, we ought to sacrifice so valuable a principle. I hope that the noble and learned Viscount the Lord Chancellor will reconsider that aspect of the matter before the next stage of this Bill.
LORD DU PARCQ: I am sorry to strike a discordant note, but I think it is only right that I should say this, because I most firmly believe that this is altogether an unfortunate clause. So far as I know, this problem had never arisen before the Court of Criminal Appeal came into existence in this country, although, from time to time, convictions were quashed. They were quashed by the Court of Crown Cases Reserved. That had grown out of the habit by which Judges in Serjeants' Inn used to discuss points of law reserved for them by the Judge who had tried a case—difficult points of law. If they were in favour of quashing the conviction, as they thought that it was wrong, it was quashed, and there was never any talk of a new trial. The man had been tried and he had been acquitted, because the conviction had been quashed on the advice of the judges, and there was an end of it. Then came the Court of Criminal Appeal. Many Judges and lawyers of great experience were much against it. I believe that we all feel now that they were wrong and that criminal appeals are most desirable in England and Scotland and everywhere else. Everyone was anxious—that is, so far as I know, for I do not think anyone suggested new trials—that a man should not be put twice through the ordeal of a criminal trial.
My noble friend the Lord Chief Justice made an observation that puzzled Lord Roche when he referred to a "Society for the Acquittal of Guilty Prisoners." I am going to say something which may seem odd, but I believe that on reflection your Lordships will agree with it. It is inevitable, and one might almost say that it is right and desirable, that guilty persons should sometimes escape. It is
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the price we pay for making sure that no innocent person is ever convicted. I have sat at many Assizes where I have known men escape who I thought were probably guilty, perhaps certainly guilty if I looked at the list of previous convictions which I had before me but which the jury were not allowed to know about. Sometimes I have summed up very much in the man's favour because, although I thought that he was guilty, I did not think that he had been proved to be guilty; and, according to our law, no one who has not been properly proved to be guilty by evidence fairly presented to the jury ought to be convicted. If we do away with that attitude of the English law—which, after all, is our constant boast—we are striking at its root; and the result will be the conviction of innocent persons.
I am not at all alarmed at the suggestion that anyone who is against new trials is a supporter of the acquittal of guilty persons. One must in these matters, as in others, exercise a little imagination, and I press this upon your Lordships. I believe that no one who has not undergone it can know what sort of an ordeal a trial for a criminal offence can be. We start with the presumption of innocence. Let me deal for a moment with one case to which the Lord Chief justice has referred. I do not know anything about it except the little which I have read in the newspapers. He, of course, knows a great deal more. I think, if I may say so with respect, he has conjectured even more than he knows, because he has told us how, in his opinion, the jury probably arrived at their remarkable verdict. He thinks that they did what they were told not to do, and compromised. They were, no doubt, asked as juries are asked: "Is that the verdict of you all?" It usually is impressed upon juries by the Judge that they must all agree upon their verdict. Unquestionably they were asked, "Have you all agreed upon your verdict?"
May I take the matter a little further, because this has been cited as a typical case where a new trial ought to be ordered? May I look at it from another point of view? Of the two men who were on trial I know nothing except that they were detectives. I know nothing about the witnesses who were called

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against them, except that, apparently, they were not believed. These two men had done years of service in the police force—they may have been good men or they may have been had men, I know not—and they were charged with conspiracy and other crimes. A conviction meant not only imprisonment but ruin—complete and utter ruin. They were tried and the whole of the evidence was taken. The jury, after retirement—and I have no private knowledge as to what went on in the jury room—came back with a verdict which, on the face of it, meant: "We do not think these men are proved beyond all reasonable doubt to be guilty of the specific offences charged against them; we do not believe they are proved to be guilty of that." Yet, they also said: "We do find that they conspired"—when the only evidence of conspiracy was evidence purporting to show that they had committed, as was alleged, these offences. The learned Judge who was presiding or who delivered the judgment said that the jury thought they were scoundrels. They may have thought so. But you cannot indict men for being scoundrels. You have to prove offences against them, and in this case the prosecution had failed to prove offences.
Now we are told that that is just the sort of case in which the men ought to have been subjected to a new trial. Observe this. I do not suppose there is one of your Lordships who did not read about that case in the papers. I do not suppose that there was—I was going to say a man in England, certainly very few in any part of England, who had not read about that case. Let me carry it a further stage. The Court of Criminal Appeal are going to use this power very sparingly. I am sure that they would. Would they ever use it except in a case in which they felt certain the people were guilty? I believe the answer would be that where they thought there was reasonable doubt about the man's guilt, they would never order a new trial. They would not order one unless they were convinced that he ought to be convicted. How would any of us feel, if we were in the position of these two men; tried, the witnesses against us not believed, the Court of Criminal Appeal saying, in effect, as everybody would know, "Try them again. We believe they are guilty. They were a foolish jury. They ought to have convicted." I should have thought
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that case was one where a new trial ought not to have been ordered.
On the other hand, you might have a case where it ought to be ordered. I am inclined to think that in a case where new evidence comes forward which was not available at the trial, there should be a new trial. There was one remarkable case, which the noble and learned Viscount on the Woolsack may remember, where new and sensational evidence was available which proved the verdict of the jury to be wrong. There are cases where the further evidence leaves the matter in doubt. In such cases—they are very rare—it might not matter if an order could be made for re-trial. But where a Judge or Chairman of Quarter Sessions misled the jury, quite innocently, of course—as in the case about the billiard rooms which my noble friend referrer to—or where there has been such a blunder in the direction to the jury that there has been or may be a substantial miscarriage of justice, then I would rather run the risk of an occasional guilty roan escaping than put them twice in peril. That is contrary to every principle of our law, of which it has always been a fundamental maxim that a man could not be put in peril twice for the same offence.
I want to say one word about the Act. One rather unfortunate thing has happened about that Act. As it was passed, it provided that where there had been a misdirection, or where evidence had been wrongly admitted, the Court of Criminal Appeal need not quash the conviction if they thought there had been no substantial miscarriage of justice. In a very proper anxiety to be fair to appellants, that was interpreted by the Court of Criminal Appeal in this way: that the conviction would be quashed unless the jury would inevitably have come to the same conclusion and convicted. In my opinion, "inevitably" was a very unfortunate word. I would not venture to criticise it, but for the fact that the noble and learned Viscount, Lord Simon, while delivering his judicial opinion in this House not long ago, with the assent of those who sat with him, said that where he Court of Criminal Appeal were satisfied that a reasonable-minded jury (I hope I am quoting the noble Viscount correctly) would certainly have convicted, then they were not bound to quash the conviction. So that it is narrowed down to those cases where the

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Court of Criminal Appeal say, "This man has not been fairly tried," in the sense that there has been some blunder or misdirection which has prejudiced the trial, and they cannot say that the jury, assuming them to be thoroughly reasonable persons, would have convicted if the man had had a fair trial. In those conditions, is it a terrible hardship to the community that that man should be allowed to go free?
I ask your Lordships to consider further. This is a great change in our law. I venture to say that I am not alarmed at the prospect of an occasional guilty man escaping, if by that means we preserve the liberty of the innocent. We all were taught as students that, as the old writers put it, it is better that ten guilty men should escape than that one innocent man should be punished. If others agree with me, I shall vote against this proposed clause.
THE LORD CHANCELLOR: This may be a convenient time at which to adjourn. We had arranged to adjourn at 7.30.
House resumed.

BUSINESS OF THE HOUSE.
7.45 P.m.
LORD WALKDEN: My Lords, before we adjourn for dinner, I beg leave to make the following announcement on the adjourned debate on the Second Reading of the Parliament Bill, to-morrow and Wednesday next. Owing to the number of noble Lords who have notified their wish to take part in the debate, it may be necessary to ask your Lordships to sit after dinner to-morrow (Tuesday) and to meet on Wednesday at two o'clock, instead of two-thirty, in order that the House may be ready to divide between five and six o'clock. I will repeat this announcement when we adjourn to-night, as the notice is so short.
[The Sitting was suspended at thirteen minutes before eight o'clock and resumed at nine o'clock.]

CRIMINAL JUSTICE BILL.
9.0 p.m.
House again in Committee.
LORD CROMWELL: The value of this House, as all will readily admit, lies in the fact that one can find experts on any topic that is likely to be brought up. Although I have a great mistrust for expert witnesses, as such, in a court, that cannot apply to our debate to-day. As a layman, I think that when all those people most qualified to give their opinion on any particular subject—and it is a legal matter—are on one side, the layman cannot go far wrong in following their advice. But when they differ, as has been the case this afternoon, it makes it much more difficult; and it places the ordinary layman more or less in the position of a Judge in court when one expert witness says that something is black and another says it is white, and the Judge has either to agree with one or the other, or to decide that the colour is grey. I think that in order to come to a decision—and it is up to everybody to come to a decision—it is necessary to ask a series of questions. I am going to ask some questions, the answers to which appear to me to be simple.
As I understand it, cases go before the Court of Criminal Appeal only on a verdict of "Guilt." It may be a case of "Guilty on all counts" or of "Guilty on one or mere counts and not guilty on others." In a case where the verdict is "Guilty on all counts," so far as I can see, the prisoner can suffer no injustice by a re-trial, in that he must at least get the benefit of being found not guilty or reaffirmed as guilty—in which case he suffers nothing at all from the re-trial. But, as I understand, under this clause, if it is put in the Bill and if the Bill becomes an Act, when a man appeals, having been found guilty on one count and, for example, not guilty on five others, the Court of Criminal Appeal may order a re-trial on all counts. I think I am right in that assumption, and if I am right I confess that I am much impressed by the arguments used by the noble and learned Lord, Lord du Parcq. I do think, as he seemed to say, that it is very dangerous to reopen cases on "Not guilty" counts. The noble Lord has suggested that, if he has sufficient following, he will be prepared to move

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and vote against the inclusion of this clause. If he does so, unless I can hear any other arguments which convince me that I am wrong, I shall, if I am still in doubt, even though not entirely convinced by the noble Lord, Lord du Parcq, vote for the status quo.
LORD OAKSEY: I should like to add a word or two to what has been said. I cannot claim to have had the great experience in the Court of Criminal Appeal which the noble Lord, the Lord Chief Justice, has had. But I think that very great weight attaches to his opinion and to that of other members of the Court of Criminal Appeal who have, as I understand expressed their view in favour of this clause. If I may say so, I think the argument of the noble Lord, Lord du Parcq, to some extent left out of consideration the fact that the clause could apply only when a man had been convicted—and convicted on the very principles of English law upon which the noble Lord relied; namely, that the man should be given the fairest possible trial and should be convicted only if there was no reasonable doubt. That is a point, of course, which is impressed upon juries in every case. When a man was convicted in such circumstances, a re-trial would be ordered by the Court of Criminal Appeal only in cases where, for some technical reason, the conviction had to be quashed. I would suggest that possibly the Court of Criminal Appeal would take into account, in considering in what cases they would order a re-trial, cases where there had been a tremendous amount of publicity. In a case like that of which the Lord Chief Justice spoke, where the two detectives had been tried and convicted on the one count of conspiracy, the unfortunate publicity which attached to the case must make it difficult for a re-trial on fair lines. But I think that is a matter which the Court of Criminal Appeal would consider in deciding what cases should be re-tried. On the whole, I feel that I should support the view of the noble and learned Lord, Lord Goddard.
LORD BLACKFORD: May I be allowed to say, as a layman, hat, in spite of the worthy words which have just fallen from the noble and learned Lord, Lord Oaksey, I was much impressed by the remarks of the noble and learned Lord, Lord du Parcq, and by the feelings underlying
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them? And if he decides to divide the House on this issue I shall support him.
LORD GODDARD: I would like to try to make the position a little clearer with regard to my suggestion that it would be a good thing to give the Court of Criminal Appeal the power—to be exercised, of course, with great care—to grant a new trial, even though it involved the re-trial of a man on a count on which he had been found not guilty. I am impressed with what Lord du Parcq said about the strain on a man having to stand his trial a second time, but I would remind your Lordships that that is by no means unknown at present. It not infrequently happens that a jury disagrees, and the man then has to stand his trial a second time. In that case, he probably stands it in the same town or place where he was previously tried.
The first case where I should like to see a re-trial is where the verdicts are repugnant. It is not often that you find an indictment containing three or four counts where those counts do not refer substantially to the same subject matter. You can put in quite different crimes. Of course, if quite a different crime were put into the indictment on which a man was found not guilty from those on which he had been found guilty, no one would think of having him tried again on those counts of "Not guilty," because there would be nothing repugnant in the verdict. The re-trial would be only where the counts related to the same set of circumstances—as I illustrated with the conspiracy, on which the jury found the men guilty. If they found them guilty of conspiracy they must have found them guilty of being dishonest men. They could not otherwise have found them guilty. I do not say that I looked into the minds of the jury, because I could not, but the only reasonable explanation I could find of their not having found them guilty on the other counts was chat they were not all satisfied. Some may have found them guilty on one count and some on another—I do not know. If, therefore, there is a verdict which is repugnant, it seems to me that the only fair thing to everybody concerned, including the prisoners, is to re-try them. You can only re-try them once, and no one suggests that you can re-try the m a second time.
I was considering whether I should be prepared, if the noble and learned

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Viscount thought right, to suggest that the clause should be drafted so that a new trial could be ordered only where the verdict was repugnant. But there is just one other class of case which, for some reason or another, has been very prevalent lately. It is always the custom—and quite rightly—when a man is charged with stealing, to put into the indictment a count for stealing and a second count, which is quite alternative, for receiving goods well knowing them to have been stolen. We constantly find cases in which a jury come back and say: "Not guilty of stealing, but guilty of receiving." Then the objection is taken: "But there was no evidence here upon which the jury could find him guilty of receiving. We cannot understand why the jury should say it was receiving." Receiving is a much more technical matter to prove than stealing. The evidence may show that the man is guilty of stealing, but the jury, for some reason, say: "Not guilty of stealing, but guilty of receiving." One is left in doubt, therefore, as to what the jury really mean. The court must say: "Well, as the jury have found him guilty of receiving we must give judgment." Then when the case comes before the Court of Criminal Appeal the Judges constantly have to say that the verdict does not make sense, and that there is no evidence that the man received the goods from anybody but himself. You cannot receive stolen goods, or any other goods, from yourself; you either have them or you have not. You have either stolen them or you have not stolen them. If you have stolen them, you cannot receive. If, on the other hand, you have not stolen them, there is probably not the least evidence that you have received them from any human being. I admit that that case is not so important as the case of the repugnant verdict, and it is the case of the repugnant verdict which I think ought to be dealt with in some way; and the way I can see is by ordering a new trial. That is the only reason why I think that the Court should have power to do it. If safeguards can be put into the clause, no one would be more pleased to see them than I would.
THE LORD CHANCELLOR: I may perhaps tell your Lordships how my mind is reacting. I do not feel strongly or keenly upon this matter, one way or the
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other. After all, we all want to see justice in these cases, but justice involves two things: it involves the acquittal of the innocent and the conviction of the guilty. If there is a risk of the first principle being endangered, then I entirely agree with the noble and learned Lord, Lord du Parcq, that it is better that ten guilty men should get off rather than that one innocent man should be convicted. May I point out that, as I see this clause, there are two distinct questions. As to the first, I feel no difficulty at all in my own mind. That was the case of which I gave an illustration, of a billiards club or a billiards room. There a man was found guilty by a jury and, as he had been found guilty, he could not appeal to the court at all. There was some error in the summing up of the Chairman of Quarter Sessions. Surely there is no hardship in saying to that man, "We will give you the benefit of a re-trial by reason of this error." I fail to see any hardship in that, and I do not think the noble Lord who spoke just after the adjournment sees any hardship either. If he agrees with me, the right thing to do is to support the clause and to consider amending it to deal with the second case to which I now come.
The second case seems to me a much more doubtful proposition, because here you are involved in a re-trial of a matter in regard to which the jury have found a man not guilty. Obviously, it should be done only in exceptional cases. I should have thought that if it were confined to the cases of repugnant verdicts no harm would be done, and for that purpose, if necessary, we can consider an Amendment at a later stage. Proviso (a) of the proposed new clause says:
"Provided that where the appeal relates only to part of the indictment upon which the appellant was tried, the court shall not direct him to be re-tried upon any other part thereof unless in the opinion of the court it is necessary to do so for the purposes of the proper re-trial of the appellant upon any part thereof to which the appeal relates."
That is the way we are trying to do it at the present time. I am not saying it is necessarily the happiest way of doing it. You might be able to get a different form of words, and I should be very ready to consider a different form; but I suggest that some limitation of that sort being in the clause makes the second part

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of the clause also desirable. That is the proposition I advance.
A further point has occurred to me connected with the policemen who have been mentioned. Let us assume the two policemen are honest men wrongly accused. It seems to me rather a hardship on them that they should have standing against them this verdict of a jury and the remark of the judge of the Appeal Court that they were scoundrels; and that they should be without any chance of rehabilitating their character. Is it not right and in their interests, if they really have a grievance, that this matter should be tried again? They may be found not guilty of anything. How difficult a position it is that these men, with a slur of this sort on their character, should go back as detectives in the police force. After all this is justice, not a kind of game we are playing. It is the administration of justice. I feel that, always provided we can trust the discretion of the Court of Criminal. Appeal—and according to my experience I am sure we can—this power will be used very sparingly. In such cases as that of the billiards room I see no difficulty whatever in giving the Court this power, and in the second class of case, so long as it is carefully guarded by proper words, equally it seems to me all right. But I will certainly look at the clause and see whether more careful safeguards should be introduced on the Report stage. If your Lordships will give me this clause now, we can certainly return to the matter on the Report stage, when we shall have had time to digest the very cogent remarks which the noble Lord, Lord du Parcq, made, and see whether we are satisfied that the difficulties to which he called our attention have been removed. Therefore I would ask your Lordships at this stage to give me the clause on the understanding that we will look at the matter again on the Report stage.
LORD CROMWELL: I am prepared to accept the undertaking given by the Lord Chancellor, so far as I am concerned. I think we ought to let the clause go through at this stage. However, I think it is wise to give notice now that I should like to put down an Amendment to leave out the last three lines of proviso (a) and end it by saying:
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"the court shall not direct him to be re-tried upon any other part thereof of which he has been acquitted."
I really think that we are entering upon most dangerous ground if we once admit that a person who has been acquitted on a count may be re-tried upon that particular count.
I agree wholeheartedly on that with my noble and learned friend Lord du Parcq. I do not think the noble Lord likes the whole of this clause. I do not mind a man who has been convicted on a count having to go back—because, after all, he has appealed—and I do not mind its being said: "Well, the Court of Criminal Appeal is not going to quash the conviction. What it is going to gave is a second chance; and you have a second chance of persuading a jury that you are not guilty." I make a tremendous distinction between that case and the case of a count upon which a man has already been acquitted. I think we ought to allow this clause to go through now, but that some such Amendment should be made. Perhaps we may be able to have a talk about it between now and Report stage. I feel that there is a real question of principle involved in saying that any court may direct a man to be re-tried on a count upon which he has been already acquitted. I should hate to see this House agreeing to any such principle.
VISCOUNT ST. DAVIDS: After listening to the speeches that have been made, I, as a complete layman, feel troubled about this clause, particularly in the matter of a re-trial on counts upon which a man has been acquitted. The cases upon which trouble will arise will be particularly the ones on the edge of doubt. I can imagine an innocent man going up to the Court of Appeal, having been convicted upon one at a long chain of counts, and his lawyer saying to him "Do you really wish to appeal? Because if you do appeal, you may have those other counts brought up again." I do not know whether that is possible. I should like to hear more upon this point from the legal luminaries. But it seemed to me that it was possible for some such thing to occur, with the result that the innocent man who wished to appeal on the one count where he had been convicted would be deterred by the fact that other counts might be brought up against

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him again in a case in which strong circumstantial evidence had been partly against him.
LORD SALTOUN: Surely, if he is an innocent man he would face anything to establish his innocence? I have been in that position myself and I know that I would have faced anything to put things right.
LORD RAGLAN: It seems to me that the difficulty of the case put forward by the noble Lord, Lord Llewellin, is this: that in the case of the policemen, about which we have heard so much, if they were not tried again on the count upon which they had been acquitted, they could never have been tried at all.
On Question, Amendment agreed to.
9.24 p.m.
Clause 34:
Amendment of Criminal Appeal Act, 1907.
34.—(1) Subsection (3) of section fourteen of the Criminal Appeal Act, 1907 (which relates to the reckoning of a term of imprisonment pending the determination of an appeal under that Act), shall have effect as if references therein to a prison and imprisonment included references to a Borstal institution, detention centre or remand home, and to detention in such an institution, centre or home, or to detention under a sentence of corrective training or preventive detention, as the case may require.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved to leave out subsection (1) and to insert:
"(1) Where an appellant within the meaning of the Criminal Appeal Act, 1907, is admitted to bail under that Act, the time during which he is at large after being so admitted shall be disregarded in computing the term of any sentence to which he is for the time being subject.
(2) Subject as hereinafter provided, six weeks of the time during which any such appellant, when in custody, is specially treated as such in pursuance of rules made under Section forty-eight of this Act, or the whole of that time if it is less than six weeks, shall be disregarded in computing the term of any such sentence as aforesaid:
Provided that—

(a) the foregoing provisions of this subsection shall not apply where leave to appeal is granted under the Criminal Appeal Act, 1907, or any such certificate as is mentioned in paragraph (b) of Section three of that Act has been given for the purposes of the appeal; and

(b) in any other case, the Court of Criminal Appeal may direct that no part of the said time, or such part thereof as the court thinks fit (whether shorter or longer
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than six weeks) shall be disregarded as aforesaid.

(3) Subject to the foregoing provisions of this section, the term of any sentence passed by the Court of Criminal Appeal under the Criminal Appeal Act, 1907, in substitution for a sentence passed on the appellant in the proceedings from which the appeal is brought shall, unless the court otherwise directs, begin to run from the time when it would have begun to run if passed in those proceedings, and references in this section to any sentence to which an appellant is for the time being subject shall be construed accordingly.
(4) In relation to a person sentenced to Borstal training, any reference in this section to the term of that sentence shall be construed as a reference to the periods during which, under the Second Schedule to this Act, he may be detained in a Borstal institution; and nothing in this section shall be construed as affecting any period during which a person so sentenced is liable to supervision under the said Second Schedule."
The noble and learned Viscount said: This is a clause dealing with the period of time from which the sentence is to start. As your Lordships are aware, a man appeals to the Court of Criminal Appeal but, assuming that the sentence is not altered, the time, unless some special order is made to the contrary, starts running—I think this is right—from the date of the sentence of the Court of Appeal.
LORD GODDARD: If he applies for leave to appeal and leave is not given. If leave is given, it always dates from the conviction.
THE LORD CHANCELLOR: Yes; that is, subject to the Lord Chief Justice's reminder, that if leave has been given to appeal then the time of sentence dates from conviction. There is no problem about appellants being admitted to bail. Admittedly, assuming the man's sentence is upheld, his time must start running from the sentence of the Court of Criminal Appeal; but where he is kept in custody, unless the court makes some other order, then under this new clause he sacrifices six weeks—that is to say, he will be worse off by six weeks. If he is kept in prison for ten weeks, then four weeks—and four weeks only—will count towards his sentence; but six weeks will not. But that is all subject to the Court of Criminal Appeal having power to make any other order it thinks right. This has been worked out as a reasonable basis, and I hope it will commend itself to your Lordships. I beg to move.
Amendment moved—
Page 38, line 1, leave out subsection (1) and insert the said new subsections.—(The Lord Chancellor.)
LORD LLEWELLIN: Does that mean that if anybody appeals without the leave of the Court of Criminal Appeal, six weeks will automatically be added to his sentence because he has appealed?
LORD GODDARD: No.
LORD LLEWELLIN: Then what does it mean?
LORD GODDARD: I think I can give a simple explanation to the noble Lord. The original Act provides that where a prisoner appeals or applies for leave to appeal, the time that he has spent in prison waiting for his appeal to come on shall not, unless the court otherwise orders, count towards his sentence. For years past, the Court of Criminal Appeal have worked upon this principle: prisoners can appeal as of right in one of two cases—namely, where a certificate has been given to them by the trial court, or if they appeal on point of law only. If they want to appeal on fact, or mixed questions of law and fact, they can appeal only with the leave of the Court. Applications for leave to appeal are heard every Monday morning. If a prisoner is appealing as of right and his appeal is dismissed, I think I may say the Court invariably order that the time that he has been in prison awaiting his appeal to come on shall count as part of his sentence. If he applies for leave to appeal and that is granted, the appeal will then probably come on after a week. Again, if he has been given leave to appeal, the Court always grants the application that the time he has spent waiting shall count as part of his sentence. That is because the very fact that he has been given leave to appeal shows, at any rate, that there was something to talk about, something to appeal about, and some reason for appealing.
I do not want to exaggerate but at least 80 per cent.—and, I believe, even more—of the cases which come before the Court of Appeal are purely frivolous. The country is put to a very great expense indeed in regard to these appeals, more especially in regard to receiving cases and black market cases, where the appellants usually have plenty of money.
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Very often 100 or 200 pages (and I have known even 360 pages), of the transcript of the shorthand notes have to be prepared in a case where there has been absolutely nothing about which to appeal—where the question was purely one for the jury, and the jury have convicted. There must, therefore, be some sanction against frivolous appeals.
That sanction was provided in the original Act by making the time which the prisoner has waited for his appeal to come on not count as part of his sentence. Appeal, therefore, may increase his sentence. He is treated as an unconvicted prisoner and there is little difference in the treatment. In effect, he gets eight weeks more, because for years now we have followed this rule. We found that it was almost impossible to get cases before the Court of Criminal Appeal more quickly than eight weeks after the conviction. Shorthand writers are, after all, only human. They have to get their transcripts out and transcripts have to be copied. Very often it is a long business. The transcript has to go to the Scriveners' Department and, if necessary, further copies have to be made. We have found that the average time for an appeal to come on is eight weeks. At present the Court makes this order unless the case is a wholly exceptional one. We always give the man the benefit of what we call the "eight weeks' rule." If the appeal takes, say, ten or twelve weeks to come on, we treat it, for sentence purposes, as if it had in fact come on within eight weeks.
The only difference to the existing practice which this Amendment makes is that in the future we shall give the man who appeals the benefit of what will, in effect, be a six weeks' rule instead of an eight weeks' rule. We shall treat the appeal as though it were heard within six weeks of his conviction, and not within eight weeks. I should view the position with great apprehension if an alteration were made in the original Act and it was said that the whole time that the prisoner was waiting in custody should count towards his sentence. That would mean that every convicted prisoner would put in an application for leave to appeal, 'because he would have everything to gain and nothing to lose. During the time that he is treated as an unconvicted prisoner he can have more visitors and

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more letters, and it may be arranged for him to have his food sent in from outside. Therefore there would be every inducement for a man to appeal, even if he had absolutely no hope. And, indeed, there are regrettably few cases that come before the Court of Criminal Appeal in which there is any serious question to be argued. Of course the Court does not usurp the functions of the jury. We cannot see the witnesses or hear the witnesses and it would be quite wrong to usurp a jury's functions. Therefore there ought to be some solid ground of appeal, but very often there is not. The only sanction which can be employed is the time which the man will be waiting in custody. If you accept this Amendment—I have no objection to the extra fortnight being granted; it will mean that a man who has been convicted on, say, the first day of the month and whose appeal does not come on for eight weeks will get the benefit of a fortnight—the appeal will be treated as though it were heard within six weeks whereas at present it is treated as though heard within eight weeks of conviction.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment is consequential upon the one which we have just passed. I beg to move.
Amendment moved—
Page 38, line 11 leave out ("said Act") and insert ("Criminal Appeal Act, 1907").—(The Lord Chancellor.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This also is drafting. I beg to move.
Amendment moved—
Page 38, line 15, leave out from ("mercy") to end of line 18.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 34, as amended, agreed to.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after Clause 34 to insert the following new clause:
Appeals from High Court in criminal cases.
".—(1) Notwithstanding anything in Section thirty-one of the Supreme Court of Judicature (Consolidation) Act, 1925, any person aggrieved by a judgment of the High Court in a criminal cause or matter (not being a judgment from which an appeal lies to the Court of Appeal or
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the Court of Criminal Appeal) may, with the leave of the High Court, appeal from that judgment to the House of Lords.
(2) Provision shall be made by rules of court under Section ninety-nine of the said Act for regulating the procedure and practice to be followed in connection with the grant of leave to appeal under this section, the making of applications for such leave, and the abandonment of such appeals; and such rules may in particular make provision—

(a) for enabling the court or judge by whom any such judgment was delivered or by whom leave to appeal under this section is granted to suspend the operation of the judgment pending the making or determination of an application for leave to appeal under this section or pending the determination or abandonment of such an appeal;

(b) for enabling any such court or judge to release on bail any person who would otherwise be required to be kept in custody pending the making or determination of such an application or the determination or abandonment of such an appeal, or to enlarge any recognizance entered into for the purposes of the proceedings in which the judgment of the High Court was delivered;

(c) for authorising the re-committal or committal in such cases and by such courts or justices as may be prescribed by the rules, of persons who are released on bail, or whose recognizances are enlarged, as aforesaid;

(d) in the case of an appeal from a judgment of the High Court on an appeal from a court of quarter sessions, for suspending or modifying the provisions of subsection (4) of Section twenty-five of the Supreme Court of Judicature (Consolidation) Act, 1925 (which relates to the entry at quarter sessions of the judgment of the High Court) so far as may be necessary for the purposes or in consequence of the appeal under this section.

(3) Where any person is admitted to bail in pursuance of rules of court made under this section, the time during which he is at large after being so admitted shall be disregarded in computing the term of any sentence to which he is for the time being subject."
The noble and learned Viscount said: This is a somewhat important clause. The law at present—it is stated in the Supreme Court of Judicature (Consolidation) Act, 1925, but, of course, it has a much longer pedigree—provides that no appeal shall lie
"(a) except as provided by the Criminal Appeal Act, 1907, or this Act, from any judgment of the High Court in any criminal cause or matter."
The words "or this Act" refer to the provisions of Section 29 of the Act, which give a right of appeal to the Court of Appeal (and not to the Court of Criminal Appeal) from a conviction or indictment at Common Law in connection with the non-repair or obstruction of any highway,

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public bridge or navigable river. Leaving aside the Court of Criminal Appeal, there is no appeal from a criminal cause or matter except in regard to the non-repair of a highway or public bridge or navigable river. Mr. Manningham-Buller, who took a prominent part in the debate in another place, as your Lordships who have read the debates will know, moved a clause to provide for an appeal in a criminal cause and the Attorney-General promised to give consideration to the question in order to cover cases of great legal difficulty and considerable public importance which sometimes come before the Divisional Court.
This clause provides that, with the leave of the Court, and only with leave of the Court—there are no other rights of appeal at all—there may be an appeal. It will apply to judgments of the High Courts in such matters as case stated, certiorari, mandamus, habeas corpus, extradition and cases under the Fugitive Offenders Act. The appeal is to the House of Lords, because the Divisional Court occupies a position which corresponds to and is of the same status as the Court of Criminal Appeal. There is another reason. It is desirable sometimes to go to the House of Lords because it is a Court which has authority over both Scotland and England and in the House of Lords difficulties between the two judicatures can be put right. This is a most important clause. At the present moment, if by order of a Divisional Court, or Judge of a High Court, a man is released on habeas corpus proceedings, there is no appeal. If this clause is passed there will be an appeal in such a case to the House of Lords. That is one illustration of the importance of this clause. It covers other cases of appeal by the Crown.
VISCOUNT SIMON: Against whom?
THE LORD CHANCELLOR: Appeal by the Crown against an order discharging a man will be permissible. Obviously it is an important matter which ought to be considered and there will be cases on case stated, certiorari, mandamus, and so on. For these reasons it was thought undesirable to insert in the clause any stipulation, such as we have in the case of an appeal from the Court of Criminal Appeal, that the Attorney-General can use his fiat. Although in many criminal cases the Crown is a party in a nominal
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sense, in these cases it may be a party in a much more real sense. It is very undesirable that the Attorney-General should have the right of using a fiat. Leave ought to be given only by the Court. I think we can rely on the Court to give leave only in cases which seem to raise important constitutional questions. That is the genesis of the clause, and on the whole I think it carries out the desire which has been expressed, and that it is a useful piece of legislation. I commend it to your Lordships.
Amendment moved—
After Clause 34 insert the said new clause.—(The Lord Chancellor.)
9.41 p.m.
VISCOUNT SIMON: I agree with my noble and learned friend the Lord Chancellor that this is an important matter. I always like to agree with him when he is expounding the law, but the reason why I interposed and asked who would be the person who would appeal in the case he mentioned is that, according to my understanding, it has been laid down quite clearly that the Crown—the prosecutor—is not a "person aggrieved." I have provided myself with one precedent.
THE LORD CHANCELLOR: I gladly accept the correction.
VISCOUNT SIMON: I quote from the case of The Queen v. The Keepers of the Peace and Justices of the County of London, 25 Q.B.D., at p. 361, where the Lord Chief Justice Coleridge, dealing with a Statute which gave power to a "person aggrieved" to appeal, says this:
"Is a person who cannot succeed in getting a conviction against another a person 'aggrieved'? He may be annoyed…but is he 'aggrieved' because someone is held not to have done wrong? It is difficult to see that the section meant anything of the kind."
I speak subject to correction, but I may be confirmed, when I suggest to the Lord Chancellor that a "person aggrieved," in the case of a criminal trial, can mean only the person who is convicted. Therefore this clause will not in fact enable a prosecutor, however much annoyed he may be, to appeal.
There is a second point. The Lord Chancellor gave us some instances of intended application. Again, I suggest this observation—and I think it may be

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supported. I question whether, when a court grants a writ of habeas corpus, and orders the discharge of the person applying, the court has delivered any "judgment" at all; if that is right, then this clause again does not, in fact, do what the Lord Chancellor suggested.
I should myself, take the greatest objection to the view that, in a criminal cause or matter, once a man has applied for a writ of habeas corpus and has succeeded, and the court has given an order that he is to be freed, the matter can be taken by appeal any further. My noble and learned friend the Lord Chancellor was anxious to avoid technicalities, but it is important to remember this one. In the case of writs of habeas corpus the whole idea is that the man who has succeeded in his application is now and thenceforth free.
There is another kind of case in which habeas corpus comes in; it is not in a criminal cause or matter at all. Suppose that a husband locks up his wife, or that a trustee puts improper restraint upon his ward, the person who complains can apply for a writ of habeas corpus and may obtain one; but in that case, since it is not a criminal cause or matter, there is an appeal. I quite appreciate that my noble and learned friend was speaking generally and without looking the point up precisely.
It must therefore be remembered that it is the principle of our law, and a most precious principle, that once a man has been freed by the order of the court, and becomes again a free man, there cannot be—except in special cases provided for by Statute—an appeal to have him put back in prison. I will content myself with quoting from a very famous predecessor of the Lord Chancellor and myself, who in matters of law everybody regards as a very high authority—namely, Lord Halsbury. What Lord Halsbury said in the well known case of Cox v. Hakes was this:
"It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal."
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As, on the Lord Chancellor's invitation, I sometimes sit on the final Court of Appeal, I am rather troubled at the idea that is proposed by this new clause, as at present framed, to place on the House of Lords—with, of course, the leave of the High Court—an entirely new form of appeal, which I should have thought conflicted with rather well-established principles. I do not wish to say more. I am contributing only what I can to show the difficulties which I feel. If I am right when I say that it has been held for a long time as beyond dispute that a person who is aggrieved by a decision in a criminal case cannot be the prosecutor (even the Attorney-General is allowed to be "annoyed" if he does not succeed, but that does not mean he is "aggrieved") then this clause does not do what is suggested. If I happen to be right in my belief that writs of habeas corpus are not judgments at all, then this clause appears to me to be doubly faulty.
LORD GODDARD: May I say, first, speaking as Head of the King's Bench Division, that I should have no objection at all to there being some right of appeal from the King's Bench Division? I think it is unfortunate that in many cases, because they come within the words "criminal cause or matter," the judgments should be final and not open to question. In many cases—sometimes cases stated by magistrates—important questions are raised, on which it would be fitting to have the opinion of a higher court. No court worth its salt ever objects to having its judgments placed under review. It welcomes such review because it provides guidance for the future. But, with regard to this clause, I am bound to say that on one particular matter—to which, it so happens, I have given a great deal of attention in the last few months—I am quite convinced that the clause will not achieve that which it is intended to achieve in regard to a large part of the jurisdiction. I share to the full the doubts which my noble and learned friend Lord Simon has just expressed, with regard to the desirability of allowing the discharge of a person under a writ of habeas corpus to be questioned elsewhere. The same applies in the case of a writ of certiorari, which may allow a conviction or any order of an inferior court to be examined and, may be,

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quashed. That is a matter of policy which, no doubt, has been carefully considered but, of course, it will be a great departure from what has hitherto been the recognised principles of this country: that a prisoner discharged under a writ of habeas corpus is free once and for all.
But what I want to point out to the Lord Chancellor—because I am sure that it has to be most carefully considered—is this. He suggests that this clause will give a right of appeal to the House of Lords in matters relating to what are called the prerogative writs—namely, habeas corpus, mandamus, certiorari and prohibition—provided they relate to "criminal cause or matter," which words are given—and we are told to give—a very wide interpretation. It has been the law ever since the days of Lord Coke that those decisions in the matters of prerogative writs are not judgments. They are said to be mere warrants of the court, and not judgments. It was decided in this House at some time in the reign of George II. I gave my note to the noble and learned Viscount, Lord Simon, this morning, and I cannot give your Lordships the name of the cases. There are two cases, one in the House of Lords, in which it is definitely laid down that error did not lie. There was no appeal in the modern sense until the judicature Act, and with that I think the Lord Chancellor will agree. The only way in which the decision of a superior court could be challenged was by a writ of error. The reason given in two or three cases—which I have net at hand at the moment, but which I shall supply to the Lord Chancellor in due course—why error did not lie, was because there was no judgment in the case of a prerogative writ. It is a highly technical matter, and it is one which I am rather surprised has not been considered by the draftsmen, because I sent my note on the subject to the Attorney-General when I knew that this clause was contemplated.
This matter does require very strong consideration, and far more consideration than has been given to it. Consideration should be given to it not only by the draughtsmen but by others, because it raises points so technical that in these days one rather wonders how it ever came about that the courts gave the decisions they did. But there are the decisions,
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and they will not be get rid of by this clause. The reason why—if I may tell your Lordships and if it does not bore you to be told of this matter—was this. The case was that of The King v. the Dean and Chapter of St. Patrick's in Ireland in the reign of George II. I should say that in those days the Court of King's Bench in England assumed jurisdiction in error over the King's Bench in Ireland. There came up one of these prerogative writs—I think it was a writ of mandamus on an error—and the Court refused to entertain it because they said there was no judgment. The reason why there was no judgment: was because there were not in the judgment the words idio consulium est. There was no judgment and there never is a judgment, so they said, in those cases. Therefore, I say that if it is desired to give power to challenge these, writs, a great deal more thought, inquiry and research needs to be given to the matter than has been given. I will gladly supply to the Lord Chancellor the note I prepared on this subject, because, as I say, it is extremely technical. Unless one goes very deeply into these matters one would not readily understand it. But, of course, the more serious point is whether you are to allow an appeal in the case of habeas corpus. I confess that my mind wavers a little for this reason: it would not only enable the Crown to appeal but it would the prisoner to appeal.
THE LORD CHANCELLOR: Not the Crown.
LORD GODDARD: I thought that was the whole object.
VISCOUNT SIMON: What is the noble Lord's view of the words "any person aggrieved"? Does it, in his view, include the Crown?
LORD GODDARD: I quite agree that as it stands at the present time it does not give the Crown a hope. But my point was that I thought the object of the clause was to give this appeal. The matter is a highly technical one with which I felt obliged to trouble your Lordships. If it is desired to give an appeal, I dare say the difficulties could be got over by skilful drafting. This would also enable the subject to have an appeal if he was either refused his writ or was remanded. At

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present the position is that if a person applies in term time for a writ to the High Court and it is refused, he can go to every Judge and see if he can find one to grant it. That was laid down in a judgment which the noble Viscount, Lord Hailsham, gave in a case relating to the Government of Nigeria—an interesting and instructive case. I never thought that it was a very hopeful proceeding. But one thing is quite certain and that is that in the old days a man who applied to the Court of King's Bench and was refused could try the court of Common Pleas, and if he did not succeed in the Court of Common Pleas he could still go to the Exchequer.
Under this provision, if an appeal did lie one of two things could happen. The man who was refused his writ of habeas corpus or was remanded and sent back to prison could still, when the writ was argued, go from judge to Judge; or he could apply for leave to appeal to your Lordships' House. That might be desirable; I am not sure that it would not be. There was a recent case during the war in which a man, a Dutch subject, who was arrested for failing to report to the Dutch Army, to which he was liable to report under the Visiting Forces Act in this country, applied for habeas corpus and was refused by the Divisional Court. He sought to appeal to the Court of Appeal. I happened to be a member of the Court of Appeal in those days and was sitting on the Appeal. We refused to entertain the appeal because of this section in the Judicature Act. It seems to me a matter of high policy.
VISCOUNT SIMON: It came to the House of Lords.
LORD GODDARD: I had forgotten that the case went on appeal to the House of Lords; but my judgments have been upheld sometimes. It seems to me that it is a matter of high policy and it requires the most careful consideration as to whether, in this high prerogative writ, which is the greatest protection of the subject in the world, it is desirable that where a court has thought that the prisoner was wrongfully in custody he should be subject of appeal. I think there is much to be said for that point on both sides. I call the attention of the noble
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Lord in charge of this Bill to the other difficulties.
THE LORD CHANCELLOR: Let me hurriedly withdraw this clause before I receive any more lectures on the law! I am inclined to think that I have done what I could to meet Mr. Manningham-Buller's desire. I will look into this clause between now and Report to see if I can improve on it. The noble Viscount, Lord Simon, has shown that he has infinitely greater knowledge of the law than I have——
VISCOUNT SIMON: On this particular point.
THE LORD CHANCELLOR: I have not had the benefit of the Lord Chief Justice's note since this morning. I dare say that had I been able to give this matter approximately the amount of time which the noble and learned Viscount has given to it, I also might have scored many points. My only desire was to introduce a clause which might have been of some practical utility. However, if it is of no practical utility, I will not put it down again.
LORD GODDARD: On that point.
THE LORD CHANCELLOR: If, on the other hand, I think it is of some practical utility, I shall put it down in an amended form. Although I have not looked it up, or considered it for many years, I had thought that since 1938 there had been a change in these prerogative writs: that whereas up to that time they were merely writs, since that date they were orders. I had thought that that was so. I thought that it had made a fundamental difference. I have not looked at this matter for several years, and certainly during the recent few days or weeks I have not gone into this matter in detail. I will withdraw the clause now and consider whether I shall put it down again in an amended form on Report stage.
Amendment, by leave, withdrawn.
LORD MERTHYR LORD MERTHYR moved, after Clause 34, to insert the following new clause:
".—(1) If upon the hearing of any information in a court of summary jurisdiction the court has adjudged that the case against the defendant has been proved, the court may be informed before it proceeds to pass sentence

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and notwithstanding the fact that the defendant has failed to appear to answer the said information and provided that the provisions of subsections (2) and (3) of this section have been complied with of any previous occasions upon which the defendant has been convicted or upon which a case against the defendant has been found proved, and it shall not be necessary for such conviction or finding or the identity of the defendant to be otherwise formally proved.
(2) A notice in writing, stating the intention to inform the court of such previous convictions or findings shall be served upon the defendant not less than five days before the hearing of the case.
(3) The notice shall contain a list of all the convictions or findings of which it is intended to inform the court and shall be served with or in the same manner as the summons issued upon free said information or by being sent by registered letter to the defendant at the address given upon that summons."
The noble Lord said: This Amendment is designed to deal with a situation that must be extremely common in every court of summary jurisdiction. In fact, I would say that there must be many thousands of cases every year in which the court is dealing with charges of a comparatively minor character against an accused man who is not present in court, and where it obviously would be quite unreasonable to insist upon his presence. He might be at the other end of the country. In suitable cases the charge could be heard in his absence. He is convicted, and then comes the question of whether he has had a record of previous convictions or otherwise. According to my information, the law is that whilst a court may ask whether he has been previously convicted and be told "Yes" or "No," is it improper and contrary to law for a list of the previous convictions to be read out to the court if he is not there and unless those previous convictions are strictly and formally proved. The strict and formal proof of convictions may be a cumbersome, lengthy and possibly an expensive business, because it would strictly be necessary either to call evidence from some witness who was present in court when the man was convicted or take various other means to prove the convictions.
I think that that is an unsatisfactory situation. The result of it is that either a court is obliged to do without the record of previous convictions or, being told of it, they must ignore the fact that he has been convicted. Then the situation is that merely by his
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absence from the court, which may have been intentional and meant for that very purpose, either the man in escapes the disclosure of his previous record or the case has to be adjourned for his attendance (which may be extremely inconvenient and expensive), or for the attendance of some witness who can formally prove the convictions. That is a difficulty which I believe is sometimes overcome by devious means, which I think are strictly illegal. I may be wrong and, if I am, I shall be glad to be corrected. The proposition contained in this Amendment is that in these cases there shall be no insistence upon the attendance of the defendant, if he does not want to come, but that if he chooses to remain absent his previous record may be read out to the court. I am quite certain that mistakes have been made in this matter. I heard of a case where the record of a father was read out in court when the son was being tried and had been convicted. That was a genuine mistake though, of course, the names were the same; but that sort of thing does happen and may have unfortunate results.
To safeguard against such a mistake it is proposed that a list of the previous convictions which it is proposed to read should be sent beforehand to the defendant, who will therefore be acquainted with the fact that if he is convicted that record will be read out. And he will thus have an opportunity of attending or of writing to the court and saying (if it be the fact), that it is wrong. I think that the House will agree that if a man stays away from a court merely in order to rid himself of the consequences of his previous record, it is most undesirable. I am satisfied that that does sometimes happen and I have, therefore, put down this Amendment. I am aware that it is a rather lengthily worded Amendment, which I dare say could be improved upon. Indeed, suggestions have already been made to me with that intention in view. Before I go into that matter, however, I would like to move the Amendment to see whether it finds favour in any part of the House. I beg to move.
Amendment moved—
Page 38, line 18, at end insert the said new clause.—(Lord Merthyr.)
LORD RAGLAN: I think this whole question of trial in the absence of the

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defendant is one which requires very careful attention. In the small petty sessional court over which I have for many years presided, I have always made it a rule never to proceed to the trial of anybody unless he is present or represented, or has written to the court clearly admitting his guilt. I understand that there are courts which proceed to conviction upon proof of service; but several cases have come to my notice in which that has caused a serious injustice. During the war, for instance, there were many long-distance lorry drivers who were driving about the country from place to place and were often absent from home for many weeks. If at the beginning of his tour such a man did something which led to a charge, what happened was that the summons was served upon his wife, who perhaps did not know where he was; and, when the man got home, he found that the day of the hearing had already passed—and this although he may have had a perfectly good defence; for instance, he may have left his driving licence in another coat. I think that in the matter of previous convictions the danger of injustice is small, but mistakes do sometimes occur, and I do not think it is safe to assume anything merely because a person does not reply within five days.
THE LORD CHANCELLOR: I feel with the noble Lord who has just spoken. I do not very much like this clause. I think there are dangers about. Of course, I agree that it is only the odd case where the man stays away in order that his convictions may not be proved against him, although it does happen. On the other hand, the great majority of these cases where the defendant is absent are not very serious cases. I do not much like the idea of convictions being proved in this somewhat lax way. After all, notice of the previous convictions would be served like a summons—that is, by leaving it or sending it by post to the last known address of the defendant. If it is sent by post it may be opened by a servant or by a friend of the defendant, or by someone else, and there is very real doubt whether the man himself would ever get it. The clause, as drafted, is further defective—I point this out to the noble Lord; he can easily put it right, if he desires to do so, at a later
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stage—in that it does not deal with what is to happen if the man, on receiving notice of previous convictions, writes to say that that notice is untrue. The clause does not deal with that, and, obviously, it is a matter that ought to be dealt with.
Frankly, I am not in favour of the clause as a whole. If you are dealing with a motoring offence, or something similar, is it necessary to bring it up against a man that when he was sixteen or seventeen years of age he was convicted, say, of stealing apples? I would not mind so much if the previous offences which were brought up were confined to offences of the same class as that being investigated by the court. But I also feel that there is a real danger about this because, as the noble Lord himself has said, police records are not so perfect that mistakes do not occur—it may be through similarity of names and causes of that sort. So I do not really think it is safe to rely on notice being given to a man—given it may be in this rather indirect sort of way so that it may never, in fact, be brought to his attention at all—that reliance is to be placed on those previous convictions. On the whole, I think this innovation would be dangerous, though in some cases it would be useful in preventing abuses. Perhaps, between now and the Report stage, the noble Lord would like to consider what I have said, and put his Amendment in more correct shape. But I must warn him that, even if he does, on the general principle I should not be in favour of such a clause.
LORD CROMWELL: May I ask the noble and learned Viscount the Lord Chancellor whether it is not a fact that, in practice, the police ask for a remand where it is clear that a man has not attended the court for the particular reason to which Lord Merthyr has alluded.
THE LORD CHANCELLOR: Yes, I believe that is so.
LORD LLEWELLIN: I have known cases where that request has been made and, in my experience, the court has always granted it. So the few exceptional cases which the noble Lord has in mind can easily be met.
LORD MERTHYR: I would like to say one or two words more about this if I

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may. The noble and learned Viscount has dwelt upon the dangers of this suggested method of procedure. I think the present dangers are greater. I think it is a fact that many courts—by no means all of them; I would not say even the majority, but certainly a good many—ignore the law in this matter and do, in fact, take account of previous convictions which are read out. I myself have seen it happen many times. That surely is a greater danger. And the temptation to do that is considerable. It is to avoid that very occurrence that I have put down this Amendment, and, whilst I quite see his point, I can assure the noble and learned Viscount that it was to make the position more correct and safer that I put down this Amendment. The noble and learned Viscount suggested that in the case of a motorist who had been fined for something trivial years before it would be unfair to drag in his previous conviction. I entirely agree. It is quite wrong to take any account of his previous conviction, but there is little harm in hearing about it.
I would like to put this to the Committee. Suppose that a case came before a court in which a man was charged with failing to take out a dog licence—and I am thinking of a particular case which did actually occur. That in itself is a trivial matter, but when it turns out that this man never takes out a dog licence and has been previously convicted eight times in as many years, surely that makes a considerable difference to the penalty which ought to be imposed. It is of that sort of case I am thinking when I suggest that the court should have the previous record of the accused person. It is true, as the noble Lord, Lord Llewellin, pointed out, that the prosecution can formally appeal for adjournment in order to prove previous convictions, but they do not do it in a vast number of cases where a man's previous record would be most valuable to the court. At present, I am satisfied that in many cases the law is not being carried out, but in view of what has been said, I shall not press this Amendment this evening, I would like to consider it further. I am grateful for the suggestion, and I may put the Amendment down at a later stage in a better form. Meanwhile, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
10.17 p.m.
LORD LLEWELLIN LORD LLEWELLIN moved to insert the following new clause:
Duty to give notice of additional counts in indictment.
".It shall be the duty of the prosecution to supply to the accused person a copy of so much of an indictment as contains counts additional to or in substitution for the charges upon which such accused person was committed for trial and such copy shall be supplied free of charge at the time at which tine accused person is notified of any evidence which it is proposed to adduce at the trial additional to that contained in the depositions."
The noble Lord said: This is a simple, but in some ways important, Amendment. It is nothing new. For many years a defendant has not been given a copy of any new counts that were to be proved against him. He knows what is in the summons in the original court, but when he comes up before the Assizes or Quarter Sessions there may well be additional evidence supplied. Additional evidence has to be served on him or witnesses cannot be brought to court. Additional counts often arise from that additional evidence, and what happens in practice is that unless he is defended he hears of the additional counts only when they are read to him by the clerk when he comes into the dock to be arraigned. He has never heard them before. They are read out to him, and on the spur of the moment he may plead guilty to the charges. Where a man is defended, generally his counsel has a word with the counsel for the prosecution and asks what additional counts are being preferred. In 999 cases out of 1,000 the prosecuting counsel will tell him what they are. I think the defendant ought to be given a copy of additional counts, not only for the benefit of the accused, who ought to have a prior notice of what is to be charged against him, but because often a man would plead guilty to a new count if he had time to think it over. When it is sprung upon him, he hesitates, and naturally the clerk thinks that it is a plea of not guilty. In every case where additional evidence is served upon a prisoner, he ought at the same time to be told what additional counts are to be preferred against him. I beg to move.
Amendment moved—
Page 38, line 18, at end insert the said clause.—(Lord Llewellin.)
THE LORD CHANCELLOR: It appears to me that this matter might well be dealt with under the Indictments Act, 1915, under which there is power to make rules, and a rule of this sort could be made. One of the rules—Rule 13—lays down the duty of the Clerk of Assize, when a Bill of Indictment has been prepared and signed, to give the applicant a copy of the indictment free of charge. I think that the Rules Committee under the Indictments Act could deal with it. The noble Lord, Lord Llewellin, is familiar with this matter, but for the benefit of those who are not so familiar I should like to say that it is wrong to suppose that new counts can be added only where there is additional evidence, and, secondly, it is wrong to assume that the prosecution is responsible for the framing of these indictments. Unless the consent of a High Court Judge or Commissioner of Assize has been obtained, the new counts must be founded on the evidence given in the depositions. In the great majority of cases the indictment is drafted by the Clerk of the Peace or the Clerk of Assize; but, whether or not the indictment is drafted by the prosecution, it is finally settled and signed by the Clerk, and it would be of no use for the prosecution to supply a copy of the indictment unless and until the Clerk had approved it. Therefore I do not think that the proposed new clause would be a means of meeting the difficulty and, as I said before, this is a matter which might well be taken into consideration by the Rules Committee under the Indictments Act, 1915.
LORD LLEWELLIN: I am much obliged to the noble and learned Viscount, the Lord Chancellor. This is rather a problem, and it is one which has to be met. It think it would be far better if it were met by the Rules Committee, and, of course, we have no control over them here. But I did see the difficulty of putting the duty on the Clerk of Assize, because the Clerk of Assize was said in another place not to have the staff to do this work. I am well aware that he or the Clerk of Quarter Sessions is the man who is finally responsible for settling the indictment. I think that in a matter of this kind we ought to try to clear up the difficulty. I believe that in some cases the time of the court is wasted when a man pleads "Not guilty" when
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he would otherwise perhaps, if he had understood it, have pleaded "Guilty" Certainly, if this is done the presiding Judge or Chairman ought always to adjourn the case to give the man sufficient time to know of what he was accused before the trial starts. But I am quite content to withdraw my Amendment on the understanding that this kind of case will be dealt with, if possible, by the Rules Committee.
Amendment, by leave, withdrawn.
Clause 35 agreed to.
Clause 36 [Taking of finger-prints by order of justices]:
LORD CHORLEY: This Amendment is really a drafting Amendment. Subsection (4) was accepted on the motion of a Member in another place, but it was necessary to put it into rather better form, and this Amendment has been put down to achieve that object. I beg to move.
Amendment moved—
Page 39, line 23, leave out subsection (4) and insert:
"(4) Where the fingerprints of any person have been taken in pursuance of an order made under this section, then if that person is acquitted or discharged under Section twenty-five of the Indictable Offences Act, 1848, or if the information against him is dismissed, the fingerprints and all copies and records thereof shall be destroyed."
VISCOUNT TEMPLEWOOD: There is one question which I should like to ask the noble Lord. What happens in the case of a probation order? Supposing finger prints are taken and the probationer makes good, that is not an acquittal or a dismissal. Am I right in assuming that the finger prints would be destroyed? They certainly ought to be.
LORD CHORLEY: I am afraid I cannot answer that off-hand, but I will have inquiries made and let the noble Viscount have the information. If the Committee as a whole would like it, I will make a statement at a later stage.
VISCOUNT TEMPLEWOOD: I am surely right in assuming that if they are to be destroyed in the case of an acquittal, they ought equally to be destroyed in the case of a probation order.
LORD CHORLEY: That would certainly appear to follow, but I have not been authorised to make any statement.

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I think it would be better if I make inquiries and procure the information for which the noble Viscount has asked.
On Question, Amendment agreed to.
Clause 36, as amended, agreed to.
Clauses 37 to 39 agreed to.
Clause 40 [Payment of costs of defence on acquittal, etc.]:
LORD CHORLEY LORD CHORLEY moved, after subsection (4) to insert:
"(5) Where, in pursuance of a direction of the Court of Criminal Appeal under section (Power of Court of Criminal Appeal to order new trials) of this Act, any person who has appealed to that court is re-tried before a court of assize or quarter sessions, and is acquitted on the re-trial, the sums which may be directed by the court of assize or quarter sessions to be paid out of local funds under this section shall include—

(a) any sums which the Court of Criminal Appeal might have directed to be so paid on the appeal to that court; and

(b) (if an appeal was brought to the House of Lords from the decision of the Court of Criminal Appeal) any sums which the House of Lords might, or might if that appeal had been determined in his favour, have directed to be so paid on that appeal."

The noble Lord said: This Amendment is consequential on the new clause which your Lordships accepted giving power to the Court of Criminal Appeal to order a new trial.
The precise form of that new clause has been remitted to the Report stage, as your Lordships remember. This clause makes the necessary provision to include among the costs of the defence, which may under Clause 40 be awarded by a court on acquittal, the costs incurred by the defendant before the Court of Criminal Appeal—or, possibly, before the House of Lords, if the case goes so far—if, eventually, as a result of the appeal, he is acquitted on a re-trial. I beg to move.
Amendment moved—
Page 42, line 18, at end insert the said subsection.—(Lord Chorley.)
On Question, Amendment agreed to.
LORD GODDARD LORD GODDARD moved, after subsection (6) to insert as a new subsection:
"(7) The Court of Criminal Appeal may when they dismiss an appeal or an application for leave to appeal order the appellant or applicant as the case may be to pay the whole or any part of the costs of the appeal or application."
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The noble and learned Lord said: Clause 40 introduces an entirely novel principle, to which I do not think there can be any real objection. For the first time it enables the court to make an order providing that the defendant, if he is successful, should have his costs paid out of local funds. It seems to me that there is no objection to that in principle, because nowadays, under the Poor Prisoners' Defence Act, nearly every prisoner, if necessary—and certainly if he is contesting and has not the means—is provided with counsel and solicitors, who are paid out of the county funds. Clause 40, as see it, will merely enable what is generally called a dives prisoner—namely, a prisoner who has the means of defending himself—to obtain his costs out of the county funds in the same way as a poor prisoner has his costs paid from the county funds.
No doubt your Lordships will agree that that may be a desirable change in the law, but at the present time, as I told your Lordships earlier this evening, many cases in the Court of Criminal Appeal are absolutely frivolous appeals. Therefore, I want, by this Amendment, to give the Court of Criminal Appeal power to order an unsuccessful applicant to the court to pay the costs. Of course, in the great majority of cases the court would not do so, because it would not be of the least use. But with these receivers and black market offenders, with hundreds of thousands of pounds, who have been making that money out of their crimes, it does seem to me absurd that when they put the country to the expense of a transcript of the shorthand notes—as I say, often running to 200 or 300 pages, and which is supplied free—they should not, in cases which are dismissed, pay something towards the cost of the transcript of the shorthand notes. That would give some of these gentry reason to think before they brought these frivolous appeals, at no cost to themselves, and where the court cannot now make an order for costs.
I ask your Lordships to accept this subsection which will give power to make an order for costs. There is power in a court of first instance, and sometimes, when such a court has well-to-do defendants, appearing before it, they are ordered, in addition to the other penalty, to pay £50 or £100, or whatever it may be, towards the cost of the prosecution.

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That is what I ask for here. The court would never do it in the case of the ordinary sneak thief or a person of limited means, because there would be no object in doing so. It would not be done except in a few cases. It seems to me in all common sense that we should have the same power when the defendants enter these frivolous appeals. I beg to move.
Amendment moved—
Page 42, line 35, at end insert the said subsection.—(Lord Goddard.)
THE LORD CHANCELLOR: It was suggested to me that before accepting this Amendment I should ascertain what was the general feeling of the Committee. I looked anxiously around to see who was going to get up next, and no one rose. Therefore, I hope that if I sit down your Lordships will let me know the general feeling of the Committee, so that in accordance with my instructions I may accept or reject the Amendment.
LORD SCHUSTER: At half past ten in the evening one is rather averse to expressing any more opinions than one can help. I had hoped that the eminently reasonable nature of the Amendment would require no remarks from me.
VISCOUNT SWINTON: If a mere layman may intervene, and come quite fresh to this, I must say that the reasoning of the Lord Chief Justice appears to make extremely good sense. One leaves this right to the Court of Criminal Appeal with complete confidence. Here is not a case where one would run any risk against a man's interests. Obviously, the matter could not be in better hands, and nobody would suffer who ought not to suffer. I cannot see why a very rich criminal should cost the country a great deal more for any appeal.
LORD OAKSEY: I will say only that I strongly support the Amendment.
THE LORD CHANCELLOR: Under those circumstances, I think I shall be carrying out my instructions if I accept this Amendment.
On Question, Amendment agreed to.
LORD CHORLEY: This Amendment is consequential. I beg to move.
Amendment moved—
Page 42, line 37, at end insert ("and references in any enactment (including any
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enactment in this Act) to costs payable under the Costs in Criminal Cases Act, 1908, shall be construed as including references to costs payable by virtue of the provisions of this section").—(Lord Chorley.)
On Question, Amendment agreed to.
Clause 40, as amended, agreed to.
LORD SALTOUN LORD SALTOUN moved, after Clause 40 to insert the following new clause:
Compensation for victims of robbery with violence.
". Where any person by reason of any assault or personal violence upon him by any person is unable to carry out his normal business or household or other duties, and such person makes an application under this section to the Court of Summary Judisdiction acting for the place in which he resides, there may be paid to him out of local funds within the meaning of the Costs in Criminal Cases Act, 1908, such sum by way of compensation as will re-imburse him for any expenses reasonably incurred by him in making arrangements for the duties normally carried out by him to be provided by some other person on his behalf; and where such assault or personal violence results in permanent injury or disablement such sum shall be so paid to him as the Secretary of State may in all the circumstances consider reasonable."
The noble Lord said: The Amendment on the Marshalled List needs one alteration, in the small note at the side. It refers only to compensation for victims of violence and it was not my intention to annex the word "robbery" to this Amendment. We have had forty clauses, all dealing with the criminal and all discussing the best way to treat him. I think it is quite right that I should suggest that we should have one clause, at least, in the Bill about his victim. It is the more necessary because we have to remember that we may be persuaded to put back Clause 1 and accept Clause 3, and though this would add to the importance of my proposal, I shall not be able to urge it again upon your Lordships.
If one goes back 150 years in this country one finds that every man was expected to be able to defend himself—and he was generally ready to do so. Your Lordships will recall the familiar cry "Who goes home?" when they disperse in another place, which will remind your Lordships that honourable Members and noble Lords were always ready to defend themselves. The establishment of the London Police Force altered that situation. The Police Force, by their extreme efficiency, produced such a state of affairs

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that that readiness for self-defence was no longer necessary. But to-day we are short of police. We cannot get recruits for the Force, we have no accommodation for its members, and recruiting is bad. I submit that one advantage of the clause that I am suggesting is that it will in the first place make the Police authorities careful to use the force of Police which they have for the most important duties, and to concentrate their efforts on dealing with crimes of violence. That is the more important because the right of self-defence is not so strong as it was 150 years ago. As a matter of fact, I have seen it stated by a magistrate in a court that people ought not to defend themselves from assault but that they should send for the police. I noted that with considerable regret. At any rate, there is a general sense in the population that they do not receive the protection to which they are entitled. One finds on turning to the history of punishment that it started with the idea of compensation. It is only later that the idea of punishment as such came in. Now, in this Bill, the one thing that we have before us is the idea of reform; compensation and punishment have gone by the board, and with them the old principle that damage that has been wantonly done must be made good.
I will give your Lordships one kind of case I have in mind. I had a letter a few days ago from a man whose wife and daughter were held up in the hall of their home by two men armed with pistols. The man was old. They came into his room, threatened him with a pistol, and demanded money. He saw a chance of making a fight of it, and he and his wife and his thirteen year old daughter did make a fight. They were all badly damaged but, owing to what they did, the villains were apprehended. One of these men was most indignant. He said that if the man had only given him the money, there would have been none of this trouble and he would not have been injured. The unfortunate man reckoned up that he is considerably the loser by the services he has done for the community. He had only £32 in the house but he has lost more than that by his action. He has suffered damage, he has had to pay doctors' bills and extra expenses and he is considerably the loser
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by reason of the services which he rendered to the community.
When I left your Lordships' House the other night, the porter who took my bag at the station told me that one of his neighbours had been called to the door of her house, she had been knocked on the head, the house had been robbed and she was still in hospital. There she is in hospital, and who is to look after her house? She has to pay somebody to take on that duty. But there is an even more serious kind of case: that is, those horrible cases of concerted rape such as the noble and learned Viscount on the Woolsack told us about a year or two ago. In those cases it is not only the act itself. I expect that most of your Lordships know as well as I do that very often there is tremendous physical damage done at the same time—broken ribs, ruptured kidneys and things like that. Such unfortunate people certainly deserve some compensation as well as consideration because, if people do not obtain from the country the protection to which they are entitled, then they will try to get it in another way.
This Bill contains a great deal that everybody welcomes, I know, but I humbly submit to your Lordships that it removes many of what expert witnesses have told your Lordships are deterrents to crime. We have been told, but I can hardly believe it, that our learned Judges do not study penology; whether they do or not I maintain that they are expert witnesses of whose testimony the Government should take some account. If we are to carry out an experiment of this kind in the teeth of such testimony, I do not think that we should do it entirely at the risk of the people who are entrusted to the care of the Government. If this Amendment is agreed to, think it will go a great way towards satisfying the people of this country that in the Bill they have not been entirely disregarded in the matter by the Government. I beg to move.
Amendment moved—
After Clause 40, insert the said new clause.—(Lord Saltoun.)
LORD CHORLEY: I regret that I cannot accept the noble Lord's Amendment. Your Lordships will obviously have the greatest sympathy with the unfortunate victims of the outrages to which

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the noble Lord has referred, as of course your Lordships would have with anybody who suffered injury in the various hazards of life. But it is really not possible for the State to undertake the burden of compensating people for all the damage and suffering from one sort of cause or another which occur to them as they go through life. Obviously, if this particular avenue were opened up, it would lead to an astonishing range of insurance, covering almost anything that could happen to anybody. Apart from that, there are a number of technical difficulties in the way of the noble Lord's Amendment which make it, I think, quite impracticable. In the first place, a court of summary jurisdiction is obviously not at all the appropriate court for dealing with a problem of this kind. The noble Lord provides for compensation in respect of getting assistance. Apart from the case at the end, where he puts upon the Secretary of State the duty of assessing the sort of compensation which ought to be given in respect of permanent injury, he limits it to the one case. That, I am quite sure your Lordships would agree, is a quite impossible and impracticable suggestion. Therefore I think your Lordships will agree that this Amendment cannot be accepted.
VISCOUNT TEMPLEWOOD: I agree with the noble Lord in that his criticisms against the drafting of this clause are valid. At the same time, I cannot help saying that I do feel—and I have often expressed my view upon the subject—that we ought to reconsider the whole question of compensation. I feel there are many cases in which an offender ought to pay much more compensation than he at present does. I will not argue this general question now, upon this Amendment, but I have noticed many cases recently in which the defendant was a young man of means who might well have been called upon to pay a considerable sum in compensation to his victim. I have also felt (although I do not go so far as does Lord Saltoun in this clause) that there are more cases in which the State should pay compensation. I have in mind particularly the type of case that has been mentioned more than once in this discussion—namely, of escapes from Borstal. The State is responsible for keeping these young men under control, and I think there is a good argument to be made where, as a result
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of the methods we employ—methods that I believe are good upon the whole—these young men escape and rob the neighbourhood. There, I think, there is a strong case for the State to pay compensation. I do not press these general considerations upon this particular Amendment, although I feel it is necessary to make this reservation before we part with this clause. As to the Amendment, I think the objections against it are valid, but I think we ought in future to reconsider the whole question of compensation to the victims.
LORD OAKSEY: I entirely agree with what has fallen from my noble friend Lord Templewood. It seems to me that it is no great hardship upon the State, in the case of damage which has been inflicted upon a private individual by a convicted criminal, that it should pay some compensation. I will not say anything more. I think there may be difficulties about the wording of the Amendment, but I do think that the subject deserves close consideration by the Government.
LORD RAGLAN: I think I can reassure the noble Viscount upon this point. Although the Government assume no liability for absconders from Borstal they do pay compensation in appropriate cases.
LORD SCHUSTER: It depends what is meant by "appropriate cases" I know plenty of cases where damage has been done, and I suppose they have not been very "appropriate"; but that is hardly the view taken by the man whose shop has been broken into and whose stock has been ruined.
LORD CHORLEY: May I just say that the Prison Commissioners have authority, in a proper case, where damage is done by lads escaping from Borstal, and where they injure people, to make compensation payments? And that is not infrequently done.
LORD SALTOUN: I am grateful to my noble friends for the support they have given to this Amendment, and I hope that its principles, in some form, will receive the serious attention of the Government. I would remind the Committee that self-defence was originally a private matter, and it is certainly not desirable, at this time of day, that people should again

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form associations to defend themselves and to take over duties which have now been undertaken by the State. I should like, if possible, to have a word in private upon one side of this question as there is something relating to it, which I do not wish to put before the Committee now, in reinforcement of what I have to say about this matter. As the Amendment is defective in form, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 41 agreed to.
Clause 42 [Approved probation hostels and homes]:
VISCOUNT SAMUEL VISCOUNT SAMUEL moved, in subsection (2), to omit all words after "provide," and insert:
"for consultation with the Secretary of State as to applicants for appointment to the charge of an approved probation hostel or home and empower the Secretary of State to prohibit the appointment of any particular applicant therefore except in the case (if any) in which the regulations dispense with such consultation by reason that the person to be appointed possesses such qualifications as may be prescribed by the regulations."
The noble Viscount said: On behalf of my noble friend Lord Reading, I beg to move this Amendment which deals with a minor point and which, I think, need occupy your Lordships for only a very few minutes. Clause 42 provides for the approval of premises as probation hostels and homes. Among the voluntary organisations which manage such institutions are the Salvation Army, and the Salvation Army have made the suggestion that the clause should be amended as proposed in this Amendment. The Salvation Army now have eight probation hostels and homes, and plans are in hand for considerable further developments. The officers in charge of those homes are experienced people who are specially trained for the work. As Clause 42 now stands, the Salvation Army think it will require them to obtain consent from the Home Secretary for all changes in the appointments held by these officers. Those changes are frequent. They may arise through individual circumstances—questions of health, home circumstances, or extensions of work. Or they may be made in pursuance of a policy which the Salvation Army have adopted of changing
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officers from one place to another in order that they may gain wider experience and not grow stale in one particular centre.
The Salvation Army submit that to require the approval of the Home Secretary before any such change is made is really an unnecessary interference in the internal administration of the system. If any unsuitable person were, in fact, to be appointed, the Home Secretary has power to require his removal or, in an extreme case, to withdraw approval of the home or hostel. That is the sole matter raised by this Amendment. It may be pointed out that the form of the Amendment follows the model in Clause 15 of the Children's Bill. In the opinion of the Salvation Army, it will allow a reasonable latitude in administration without causing undue complexity and delay, while, at the same time, it will retain proper control in the hands of the Home Secretary. If there are any defects in the drafting of the Amendment, I need hardly say that we will gladly accept any alteration which may be suggested by the Government. I beg to move.
Amendment moved—
Page 43, line 35, leave out from ("provide") to the end of line 37, and insert the said new words.—(Viscount Samuel.)
THE LORD CHANCELLOR: Without committing myself now to acceptance, I think that I may be able to go some way to meet the noble Marquess. I shall be glad to discuss the matter with Lord Reading, and if he sees me and those advising me I think that we shall probably be able to agree on some form of words which will give him what he wants. But I could not accept this Amendment in its present form. Particularly I do not at all like the provision that the mere fact that a man possesses certain qualifications shall in itself dispense with the Home Secretary's approval. On the other hand, I quite understand that there may be frequent changes among a small group of people, and it may be possible to evolve some way of meeting that point. Without making a definite promise, I would ask the noble Viscount to withdraw the Amendment, on the understanding that I will have a discussion between now and Report stage with the noble Marquess, Lord Reading, and with the noble

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Viscount, if he will come, to see if we can agree to some form of words which will give the noble Marquess the substance of what he wants.
VISCOUNT SAMUEL: I am grateful for the sympathetic reception which the noble and learned Viscount the Lord Chancellor has given to my noble friend's Amendment, and on that assurance I now ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 42 agreed to.
Clause 43 agreed to.
House resumed.

BUSINESS OF THE HOUSE.
LORD WALKDEN: My Lords, I beg to repeat the announcement I made earlier in the evening with regard to the business for to-morrow and Wednesday on the Parliament Bill. Owing to the number of your Lordships who have notified their wish to take part in the debate on the Second Reading of the Parliament Bill, it may be necessary to ask your Lordships to sit after dinner to-morrow (Tuesday) and to meet on Wednesday at two o'clock instead of two-thirty, in order that the House may be ready to divide between five and six o'clock.
House adjourned at three minutes before eleven o'clock.