CRIMINAL JUSTICE BILL.

HL Deb 07 June 1948 vol 156 cc326-99

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 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 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 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; 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 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 RAGLAN

had 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 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 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, 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 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 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 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 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 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 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—

1. (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
2. (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 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 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 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 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—

1. (a) to any offence which is indictable by virtue only of Section seventeen of the Summary Jurisdiction Act, 1879; or
2. (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 "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 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 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 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 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 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 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 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 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.

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, 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 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 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 moved, in subsection (1), to omit all words after "arraigned" and to insert: 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. 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 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 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 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 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 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—

1. (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
2. (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—

1. (a) for the amendment of the indictment upon which the appellant is to be re-tried;
2. (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 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 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 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— 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- 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 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 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 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 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 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 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 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.