CRIMINAL JUSTICE BILL. (Hansard, 29 June 1948)

HL Deb 29 June 1948 vol 157 cc37-88 37

§ Further considered on Report.

§ Clause 3:

§ Probation.

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

§ LORD SCHUSTER moved to add to subsection (5): Provided that a requirement under section four of this Act may be inserted in a probation order notwithstanding that the offender has not expressed his willingness to comply with such requirement. The noble Lord said: My Lords, here also, I do not want to go over again what was said during the Committee stage. Clause 4, to which allusion is made in this Amendment, is the clause which deals with people suffering from some mental defect. It seemed to those with whom I was acting then, and it seems to me now, to be unreasonable to expect that a person suffering from some mental defect would be likely to consent to being put on probation. The whole basis of Clause 4 is the existence of some mental defect in the person concerned. I need not say more. I will simply move the Amendment.

§ Amendment moved— Page 3, line 26, at end insert the said proviso.—(Lord Schuster.)

§ THE LORD CHANCELLOR
My Lords, we take the view that we ought not to agree to this Amendment. I will put the case against it very briefly. First, we think it absolutely fundamental that when a probation order is made, the assent of the person who is going to be placed on probation should be obtained, otherwise the chance of doing any good by the operation of the system of probation will be negligible. That we regard as fundamental. The next point, which we also regard as fundamental, is that people must not be sent to an asylum or a mental home unless they are willing to go or unless they are certified. If your Lordships will think of it, I am sure you will agree that it would be a very tall order that a person who was not fit to be sent to an asylum—that is to say, a person net certifiable—should be forced to go there. We think that wrong. In American phraseology, it would be "railroading" him into an asylum.
And what sort of people are they who are involved very often in these cases? Frequently, they are people who are perfectly sound mentally but for one sort of a kink which leads them into trouble with the police by their committing some breach of the criminal law. In these cases, it is desirable to try persuasion with a view to getting the man concerned to realise, in his own interests, that he ought to invite medical help—that he ought to go to a mental hospital to see whether the doctors there can assist him. But to force that man to go would be a matter which, to my mind, greatly concerned the liberty of the subject, which noble Lords in all parts of this House care for very deeply. Therefore, we say; "Let us assert and stand on a matter of principle here—the principle that a man should be treated in this way only if he assents and is willing to go." Of course, I do not conceal from your Lordships that, in these cases, a good probation officer can bring considerable persuasion to bear, and, if he does his job properly, in ninety-nine cases out of a hundred he will be able to get a man to consent. Even where he cannot persuade the man to consent at the time, if he can manage to do so within three months afterwards (I think that is the period) the court may amend the order.
39 I beg your Lordships not to breach this principle that the consent of the person being put on probation is essential. I think we should make a profound mistake if we departed from that principle, though I agree that there is a case for waiving the consent or treating it as unimportant when you are dealing with some person of some mental instability. I promised that I would consider this matter very carefully between Committee stage and Report stage. Having considered it and having discussed it with experts of the Home Office, who know a great deal about this matter, I would venture to give advice to your Lordships. There is nothing remotely resembling Party politics connected with this matter, and I would advise your Lordships not to insert these words.

§ On Question, Amendment negatived.

§ Clause 6:

§ Breach of requirement of probation order.

§ (3) If it is proved to the satisfaction of the court before which a probationer appears or is brought under this section that the probationer has failed to comply with any of the requirements of the probation order, that court may impose on him in respect of the failure, without prejudice to the continuance of the probation order, a fine not exceeding ten pounds, or may—

(a) if the probation order was made by a court of summary jurisdiction, deal with the probationer, for the offence in respect of which the probation order was made, in any manner in which the court could deal with him if it had just convicted him of that offence;
(b) if the probation order was made by a court of assize or quarter sessions, commit him to custody or release him on bail (with or without sureties) until he can be brought or appear before the court of assize or quarter sessions.

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

§ 3.46 p.m.

§ VISCOUNT TEMPLEWOOD moved, in subsection (3), to omit "impose on him 40 in respect of the failure." The noble Viscount said: My Lords, this is the first of several Amendments which have been circulated in manuscript form early this afternoon. I must apologise to your Lordships for the fact that they are not in the printed list of Amendments, but owing to my not having received certain communications until late last night—not, let me say, in any way through any fault of the Lord Chancellor or the Home Office—it was only to-day that I was able to put down these Amendments in manuscript form. I hope I shall be able to show that, although they look formidable as drafted, they are really simple and, so far as I can judge, entirely uncontroversial. As I say, this is the first of four Amendments, all of which are necessary if we are to carry out what I believe to be the general wish of the House, as indicated during the Committee stage—that is, to introduce what are called attendance centres into the methods for dealing with young offenders. Your Lordships will remember that when the question was raised, it was urged from several sides of the House that these centres might form a useful part of our punitive system. The noble and learned Viscount the Lord Chancellor said that he had been impressed by the arguments put forward, and that he would consult the Home Office again on the subject to see whether he could suggest further provisions when the Report stage of the Bill was reached.

§ Since then, consultations have taken place, and there is now general agreement between the Lord Chancellor, the Home Office and those who, like myself, take an interest in this question, that these institutions might well find a place in the new penal system. Accordingly, it is necessary to amend the Bill in four separate clauses. The first Amendment necessary is to the clause which deals with probation. If the House accepts the experiment of attendance centres, it is necessary that it should be made possible, as part of a probation order, to require attendance at such a centre. The Amendment which I am now moving assumes that when we come to Clause 18 we shall agree to the attendance centres in the Bill and, on that assumption, it is necessary to take power in this clause to enable attendance at an attendance centre to be made a condition of a probation order. That is the purpose of the first of these Amendments.

§ The second of these Amendments—if I may give the House a general description of what is now necessary—will come upon Clause 18, which makes it possible to provide these attendance centres. I shall move that Amendment when we come to Clause 18. A further Amendment is necessary in Clause 47, which makes provision for the actual buildings; and another in Clause 51, which gives the Home Secretary power to make rules for these attendance centres. The general idea is that the Secretary of State should provide these centres for young offenders between the ages of 12 and 21 where he thinks it suitable. The local authorities will not be involved in any expenditure. I do not think it is contemplated that any heavy expenditure will be needed. In most cases, existing places will be used, and in any case the local authorities will not be called upon for local expenditure. No young offender, who has already served either a Borstal sentence or a sentence of imprisonment, will be sent to any of these places, the idea being that we do not want the hardened offender in these centres; we want to provide a short and sharp punishment for the young offender who has not yet become anything in the nature of a habitual criminal.

§ Lastly, it is proposed under these Amendments that the time during which a young offender may be ordered to attend at one of these centres should be reduced from the sixty hours under the 1938 Bill to twelve hours; that is to say, the loss of four half-holidays of three hours apiece. I think that that reduction should be made, for the very good reason that the Bill is proposing to set up detention centres, to which would be sent offenders who need a longer period than this time of short sharp punishment. That is a new proposal and one not included in the 1938 Bill. Those are the general provisions of the Amendments, the first of which I am now moving. I feel that if the House accept them, they will greatly improve the Bill, particularly in one direction—namely, they will enable us to make what may be an interesting and valuable experiment.

§ With many of these questions I feel there is a great need of experiment. Here is an experiment that is supported by a large number of experienced magistrates, an experiment supported by the Magistrates' Association. I imagine that it will be tried with caution, and in places where 42 it may be suitable. I myself have the definite view that it will fill a gap in our system. It may prove a useful form of punishment that has this advantage—it will not take young people away from their homes and schools. It will presumably be ordered at times when the schools are not sitting. It should not involve either the Home Office or local bodies in serious expense; indeed, it will not involve local bodies in expense at all. I urge the House to accept the Amendment to Clause 6, and to accept the other consequential Amendments that I shall move when we reach the appropriate clauses. Lastly, let me thank the noble Viscount the Lord Chancellor for the great interest he has taken in this question, and for the help that he has given me in drafting a very much better Amendment than that which I proposed to your Lordships in Committee. I beg to move.

§ Amendment moved— Page 7, line 4, leave put from ("may") to ("without") in line 5.—(Viscount Temple-wood.)

§ THE LORD CHANCELLOR
My Lords, I was wondering whether some noble Lords were going to speak on this Amendment. As the noble Viscount said, I have been into this matter and what I feel about it is this: We have so many obligations in this Bill—detention centres, remand centres and remand homes—that I rather wonder wither we should be wise in having something else. I agree, however, with the noble Viscount, that if we regard this as an experiment, to be started in a small way, we may learn something from it. I do not want your Lordships to go away with the idea that the whole country is to be covered with attendance centres. We shall have to go very slowly on this. No doubt we shall find some suitable buildings somewhere, and we can see what happens. So long as we can keep some sort of order and discipline in these places, I think it is a good idea that we should get a rather naughty boy round on Saturday afternoon, when he might be watching a football match or something of that sort, and make him do a job of work or require him to read a book, or whatever it may be. I can see that the young rascal would dislike it very much. If there is no question of his being contaminated by mixing with a lot of real criminals, that is in its favour. If we may regard this as an 43 experimental scheme, on a small scale to start with, I advise your Lordships on the whole to accept this Amendment and the series of Amendments of which it forms part.

§ LORD CALVERLEY
My Lords, some of us are rather at a disadvantage. The first time I saw this Amendment was at five minutes to four. Many of us would welcome some reform on these lines, because magistrates who have to deal with young delinquents feel at a loss to know what to do with them. When a young person is over sixteen and under twenty-one, we certainly dislike sending him to the local prison, even for twenty-one days. In various parts of the country, progressive bodies connected with the courts and the local authorities have co-operated in providing what I might call remand homes, and magnificent work has been done by the Police Court Mission, which is so admirably run by the Church of England. There, however, the question of discipline, which has been mentioned by the noble and learned Viscount the Lord Chancellor, has not entered into the matter. Some of these boys, especially on Saturday afternoons, have—I will not say made good their escape, but have simply disappeared during the time a football match has been going on. I wish we could have had this before us earlier. There is a lot to be said in its favour, so far as it has been explained by the noble Viscount, Lord Templewood. I would like to accept it, but I am sure that many noble Lords on all sides of the House feel that if they accept it, they do so as an act of faith, with a prayer in their hearts that some good will come of it. I think, in fairness to the Back Benchers, we should have had this in our hands, but I shall not vote against it.

§ LORD LLEWELLIN
My Lords, may I just say a few words on this?—especially after what the noble Lord opposite has just said. If the noble Lord will cast his mind back to the Committee stage of the Bill, he will recall that we discussed a draft Amendment on the lines of these attendance centres which, if my recollection serves me aright, had the general support of the Committee. This, as I understand it, without giving anything away, is a redraft by more experienced hands than even those of my noble 44 friend Lord Templewood. The Amendment appears in a form in which the Government, as we were told by the noble and learned Viscount on the Woolsack, can accept it. I, for one, wholeheartedly support this Amendment. It is a difficult thing to know what to do with a young boy who breaks his probation order. If you can send him for a couple of Saturday afternoons to some place where, instead of going to the greyhound races or a football match, he will have to stay in, that will do him no harm whatever. It will show that the probation order does mean something. For my part, especially in country districts—I do not think it would apply in London—I would gladly see him sent to clear up the lawn in front of the police station, or to do some job like that, where he will be under the supervision of the officer who is temporarily in charge of that station, and will, instead of seeing a football match, do a couple of hours on what in the Army we used to call "fatigues." That will be far better than anything else you can do with the young man to bring home to him that a probation order does mean something, and that it is something to be obeyed. This method of dealing with the young man will not do him any harm whatever. He will not associate with people of criminal habits. I hope the whole House will support this Amendment.

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
My Lords, this is a consequential Amendment. I beg to move.

§ Amendment moved— Page 7, line 6, after ("order") insert ("impose on him").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ VISCOUNT TEMPLEWOOD
My Lords, this, too, is a consequential Amendment. I beg to move.

§ Amendment moved— Page 7, line 8, after ("pounds") insert ("or, in a case to which section " " (Attendance at an attendance centre) of this Act applies, make an order under that section requiring him to attend at an attendance centre").—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ 4.4 p.m.

§ THE LORD CHANCELLOR moved, in subsection (6), to omit all words from the 45 beginning down to and including "probation order, and." The noble and learned Viscount said: My Lords, this, and the next two Amendments, are designed to make the drafting of the clause a little clearer. Your Lordships will remember that there was a good deal of discussion about this matter on the Committee stage. I hope that these three Amendments do make the matter a little plainer. There is, if I remember rightly, a Latin maxim, nemo de eadem causa vexari debet, which translated into English means that you must not have a man up twice for the same offence. There was always trouble with regard to the breach of a probation order which might also constitute in itself a criminal offence. For instance, a man is put on probation for the usual term that he shall be of good behaviour, and while on probation he breaks into another house. That is a new offence. By all means punish him; but you do not want to punish him for the second offence and at the same time punish him for the same thing as being a breach of the obligation to be of good behaviour. This Amendment is drawn up to deal with that situation, and I hope the three Amendments make plain what, I am afraid, was rather obscure. I beg to move.

§ Amendment moved— Page 7, line ,43, leave out from beginning to the second ("a") in line 45.—(The Lord Chancellor.)

LORD RAGLAN
My Lords, as I raised this point in Committee, I should like to thank the noble and learned Viscount for clearing up what was to me, at any rate, an obscurity.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, I beg to move.

§ Amendment moved— Page 8, line 1, leave out ("Act") and insert ("section").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, I beg to move.

§ Amendment moved— Page 8, line 5, at end insert ("and without prejudice to the provisions of section eight of this Act, a probationer who is convicted of an offence committed during the probation period shall not on that account be liable to be dealt with under this section for failing to comply 46 with any requirement of the probation order").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 10 [Scottish probation orders relating to persons residing in England]:

§ THE LORD CHANCELLOR
My Lords, this is a drafting Amendment. I beg to move.

§ Amendment moved— Page 14, line 16, leave out ("and").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 15 [Incidental provisions as to lines and forfeited recognizance]:

§ THE LORD CHANCELLOR
My Lords, there are two Acts of Parliament referred to here—namely, the Law Terms Act, 1830, which applies only to Wales, and the Queen's Remembrance Act, 1859, which applies only to England. In minor respects the two Acts are inconsistent with each other. What we are proposing is to bring the English Act up to date, to improve it in some small respects, and apply it generally both to England and Wales. That is the reason for these next two Amendments. I beg to move.

§ Amendment moved— Page 18, line 25, leave out from ("1859") to ("or") in line 26.—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, I beg to move.

§ Amendment moved— Page 18, line 28, leave out ("the said section thirty-three").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 17:

§ Restriction on imprisonment.

§ (4) His Majesty may by Order in Council prohibit courts of summary jurisdiction from—

(a) sentencing to imprisonment persons under the age of twenty-one years or such lower age as may be specified in the Order;
(b) committing such persons to prison in default of payment of a sum adjudged to be paid by a conviction;

and any such Order may be limited to persons of one of the sexes:

§ 4.9 p.m.

§ THE LORD CHANCELLOR moved, in subsection (4), after "jurisdiction" to insert "or courts of assize and courts of quarter sessions." The noble and learned 47 Viscount said: My Lords, this is a clause dealing with the restriction on imprisonment, and providing that persons of certain age shall not be sent to imprisonment. The age differs according as the court is a summary court or a superior court. On the Committee stage we discussed whether there should not be a further qualification. Clause 17 (4) at present reads as follows: His Majesty may by Order in Council prohibit courts of summary jurisdiction.… Several of your Lordships, and certainly the noble Viscount, Lord Templewood, if I remember rightly, suggested that it might be wise to insert there: "courts of Assize and courts of Quarter Sessions." That would then give His Majesty power, by Order in Council, to prohibit all courts from sending certain persons to prison.

§ Quite frankly, I put this Amendment down in order that there might be discussion upon it. The Home Office take the view that it is not in the least likely at the present time that they will promulgate any such Order in Council dealing with superior courts. I do not pretend that I am myself a wholehearted advocate of this Amendment—I am a bit doubtful whether I am an advocate of it at all—but I do not mind accepting it. And in that it is my own Amendment, perhaps that is natural. On the other hand, however, I am frankly not at all keen on it. If I get an expression of opinion from the House one way or another, I shall be better able to judge how I propose to act. In the meantime I beg to move.

§ Amendment moved— Page 20, line 31, after ("jurisdiction") insert ("or courts of Assize and courts of Quarter Sessions").—(The Lord Chancellor.)

§ LORD LLEWELLIN
May I ask one question of the noble and learned Viscount? I see that further down the clause says: …any such order may be limited to persons of one of the sexes. If we were to put in these words, might the Order of the Home Secretary be limited only to summary jurisdiction courts in some cases, and not have to take in courts of Assize and Quarter Sessions at the same time?

§ THE LORD CHANCELLOR
The power is a large power. The Home Secretary may, by Order in Council, exercise his power over a large area. Of 48 course, he may equally, under that Order, exercise his power over a limited area only. He could do what the noble Lord suggests.

§ 4.12 p.m.

§ LORD GODDARD
My Lords, I think, if I may say so, this would be a really dangerous provision to insert in the Bill. It would have this effect. It would be established that at any moment an Order in Council might be issued which would prohibt any court sending to prison anybody under the age of twenty-one. What is one to do with young ruffians who use the knife when they are eighteen or nineteen? Only the other day there was a case at the Central Criminal Court of three boys, the eldest of whom was nineteen, shooting and wounding a police officer when they were discovered breaking into a factory. One is constantly having cases of boys of eighteen, nineteen or twenty whom one would not think of sending to Borstal because of the evil effect they would have on other Borstal inmates. I view with the gravest apprehension an expression of opinion from this House that it might be desirable—I suppose in the near future, even if the Home Office do not intend at the present time—to make it illegal for a court to send to prison some of these young fellows who are just as hardened in crime as many older men, and a great deal more hardened than many older men. I hope your Lordships will hesitate long before you agree that courts of superior jurisdiction should never be able to send to prison for serious offences a boy of the age of seventeen to twenty-one.

§ 4.14 p.m.

§ VISCOUNT TEMPLEWOOD
My Lords, as I raised this question upon the Committee stage, perhaps I might make one or two short observations. I would have liked to see the age of twenty-one taken as the minimum age for imprisonment, but I realise fully that it may be some years before the age contemplated at present in the Bill is raised. Looking back at the history of criminal legislation, one finds that it has always been a difficult affair to make a change of this kind by legislation. Upon the whole, the Home Secretary and the Prison Commissioners have acted wisely with their responsibilities, and have been able to make changes which might have been delayed for many years if they had not possessed 49 the powers. On that account I should have liked to see these powers given to the Home Secretary in the Bill, and I should have liked to see the powers affect all three types of court.
It is not the kind of question to which I attach an importance of principle, but I think that, in a Bill of this kind, in which we are contemplating a new chapter in our criminal system which may last many years before it is altered, it would have been better to give the Home Secretary this power now, rather than perhaps wait some years and then have the great difficulty of passing further legislation. That was the reason which prompted me to raise this question upon the Committee stage and that is the reason which prompts me, without taking an extreme view upon the subject, to say that I would have preferred this power to be given to the Home Secretary.

§ 4.16 p.m.

§ LORD SCHUSTER
My Lords, I do not like being continually in opposition to the noble Viscount, Lord Templewood, of whose intellect, enlightenment and lack of prejudice I have the greatest possible respect. But I have two thoughts I should like to offer upon this question. There is no magic about the age of twenty-one. Boys (as they like to call themselves) of nineteen and twenty, are, as my noble and learned friend sitting next to me has already said, continually before the courts charged with the gravest offences. They know quite well what they are doing. They have nothing more to learn in the way of crime, and I should have thought that they should go to those places to which people who commit crimes of that nature would naturally be destined. But, beyond that, this is a proposal to take the matter out of the hands of Parliament and to commit it to the Executive. If there is to be a "close season" for people up to twenty-one, I humbly suggest to your Lordships that it should be imposed by Parliament itself, and not handed to a Minister of the Crown and his officials to operate. For those reasons, I hope that this Amendment will not be pressed to a Division.

LORD RAGLAN
My Lords, it seems that this Amendment comes into conflict with Clause 58, which provides that the Secretary of State may transfer any boy from Borstal to prison. If this 50 Amendment is carried, the Secretary of State will be able to retain for himself powers which he denies to the Judges.

§ 4.18 p.m.

§ LORD DU PARCQ
My Lords, I had not intended to speak upon this Amendment, but I would ask my noble friend Lord Templewood to reconsider his attitude. I am not obliged to say as my noble friend Lord Schuster was obliged to say, that I am frequently in opposition to the noble Viscount, Lord Templewood. One cannot generalise about cases of this kind. There was a time in my experience when I would have said that I should never send anyone under twenty-one to prison. Occasions arose when I felt not only that I must do it, but that no other course was possible. I remember one young man—certainly he was under twenty-one—who, because he was jealous of the young woman to whom he was engaged or with whom he was walking out, went into a shop in London and bought a terrible-looking clasp knife. He made his way down to the seaside place where she was staying, pursued her, stabbed her and all but murdered her. I am not at all sure that one could deal with a case like that—I thought one could not—except by imprisoning the man. I suggest that it is not a matter which ought to be left to anybody except the Judges who deal with the case.

§ On Question, Amendment negatived.

§ THE LORD CHANCELLOR
My Lords, I will not move the next Amendment, and the two Amendments which follow are printed on the list in error. They belong to Clause 19.

§ VISCOUNT TEMPLEWOOD
My Lords, this is a consequential Amendment, dealing with attendance centres, to which I have already referred. I beg to move.

§ Amendment moved—

§ Page 22, line 10, at end, insert:

§ "Attendance at an attendance centre.

§ .—(1) Where a court of summary jurisdiction has power, or would but for section seventeen of this Act have power, to impose imprisonment on a pea son who is not less than twelve but under twenty-one year of age, or to deal with any such person under section six of this Act for failure to comply with any of the requirements of a probation order, the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception from that court of persons of his class or description, 51 order him to attend at such a centre, to be specified in the order, for such number of hours, not exceeding twelve in the aggregate, as may be so specified.

§ Provided that no such order shall be made in the case of a person who has been previously sentenced to imprisonment, Borstal training or detention in a detention centre, or has been ordered to be sent to an approved school.

§ (2) The times at which an offender is required to attend at an attendance centre by virtue of an order made under this section shall be such as to avoid interference, so far as practicable, with his school hours or working hours, and the first such time shall be specified in the order (being a time at which the centre is available for the attendance of the offender in accordance with the notification of the Secretary of State) and the subsequent times shall be fixed by the officer in charge of the centre, having regard to the offender's circumstances:

§ Provided that an offender shall not be required under this section to attend at an attendance centre on more than one occasion on any day, or for more than three hours on any occasion.

§ (3) The court by which an order has been made under subsection (1) of this section, or any justice acting for the petty sessional division or place for which that court acts, may, on the application of the offender or of the officer in charge of the attendance centre specified in the order—

(a) by order discharge the order; or
(b) by order vary the day or hour specified therein for the offender's first attendance at the centre;

and where the application is made by the said officer, the court or justice may deal with it without summoning the offender.

§ (4) Where an order is made under subsection (1) or subsection (3) of this section, the clerk to the justices shall deliver or send a copy of the order to the officer in charge of the attendance centre specified therein, and shall also deliver a copy to the offender or send a copy by registered post addressed to the offender's last or usual place of abode.

§ (5) Where a person has been ordered to attend at an attendance centre in default of the payment of any sum of money then—

(a) on payment of the whole sum to any person authorised to receive it, the order shall cease to have effect;
(b) on the payment of a part of the said sum as aforesaid, the total number of hours for which the offender is required to attend at the centre shall be reduced proportionately, that is to say by such number of complete hours as bears to the said total number the proportion most nearly approximating to, without exceeding, the proportion which the part paid bears to the said sum.

§ (6) Provision may be made by rules under section twenty-nine of the Summary Jurisdiction Act, 1879, as to the application of sums paid under the last foregoing subsection and for determining the persons authorised to receive 52 such payments and the conditions under which such payments may be made.

§ (7) Where an order under subsection (1) of this section has been made and it appears on information to a justice acting for the petty sessional division or place for which the court which made the order acts that the person in whose case the order was made—

(a) has failed without reasonable excuse to attend at the centre in accordance with the order; or
(b) while attending at the centre has committed a breach of the rules made under section fifty-one of this Act which cannot be adequately dealt with under those rules;

the justice may issue a summons requiring the offender to appear at the place and time specified therein before a court of summary jurisdiction for the petty sessional division or place for which the justice acts, or may, if the information is in writing and on oath, issue a warrant for his arrest requiring him to be brought before such a court.

§ (8) If it is proved to the satisfaction of the court before which an offender appears or is brought under the last foregoing subsection that he has failed to attend as aforesaid, or has committed such a breach of rules as aforesaid, that court may revoke the order requiring his attendance at the attendance centre and deal with him in any manner in which he could have been dealt with by the court which made the order if the order had not been made.")—(Viscount Templewood.)

§ On Question, Amendment agreed to.

§ Clause 19:

§ Borstal training.

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

§ LORD SCHUSTER moved, in subsection (3), after "sessions" to insert "or to any Court of Assize whichever is the earlier." The noble Lord said, My Lords, this Amendment was put down on Committee stage. It is repeated here in order that the noble Viscount the Lord Chancellor should have an opportunity of telling us what consideration has been given to the matter. Broadly speaking, what I want to know is whether the Government have been able to apply their minds to the matter. I beg to move.

§ Amendment moved— Page 22, line 33, after ("sessions") insert ("or to any Court of Assize whichever is the earlier").—(Lord Schuster.)

§ THE LORD CHANCELLOR
My Lords, I have gone into the matter again, and I feel that the objections which have been advanced are really insuperable. If you are going to send the man for sentence you must remember that you must send him to a court which can also deal with the appeal. That seems to us to raise an insuperable barrier. For that reason, we feel we should be wiser to stick to the proposals of the Bill.

§ LORD SCHUSTER
It is obvious that the Government have considered this matter, and I am grateful to them for that. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ LORD CHORLEY
My Lords, during the Committee stage the noble Lord, Lord Raglan suggested that the word "available" was a better word than the word "practicable." We agree, and so we have put down this Amendment. I beg to move.

§ Amendment moved— Page 23, line 5, leave out ("practicable") and insert ("available").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this is a case where the noble Lord, Lord Llewellin, suggested an Amendment which he preferred to ours. I am not sure that I convinced him that he was wrong. However, we have looked at it again, and we agree that the words in the Bill are a little clumsy. We therefore suggest these words as more satisfactory. I beg to move.

§ Amendment moved— Page 23, line 6, after ("court") insert ("consisting of members").—(Lord Chorley.)

§ LORD LLEWELLIN
My Lords, I am much obliged to the noble Lord. I think his words are clearer, and I am glad that he has proposed them.

LORD RAGLAN
My Lords, you will realise that a Committee of this House and a Committee of members of this House may be two very different things; and the same applies to this case. I am a member of the Appeal Committee in my county, and I am one of the magistrates who sits in petty sessions. With me is another member of the Appeal Committee. It happened recently that we were the only magistrates on the Bench, and therefore the court consisted of members of 54 the Appeal Committee. If this Amendment had been inserted, and this Bill were in force, it could be held that we should have had power to impose a Borstal sentence.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, with regard to the next Amendment, if noble Lords will look at page 24, line 8, they will see the words "not exceeding three weeks," during which an offender shall be remanded in custody. I think the words occur in various other places in the Bill. We wish to make it "not exceeding four weeks" I beg to move.

§ Amendment moved— Page 24, line 8, delete "three" and insert "four."—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 20:

§ Corrective training and preventive detention.

§ 20.—(1) Where a person—

(a) is convicted on indictment of an offence punishable with imprisonment for a term of two years or more; and
(b) has been convicted on at least two previous occasions since he attained the age of seventeen of offences punishable on indictment with such a sentence,

then, if on the day of his conviction he is not less than twenty-one years of age and the court is satisfied that it is expedient with a view to his reformation and the prevention of crime to do so, the court may pass, in lieu of any other sentence, a sentence of corrective training for such term of not less than two nor more than four years as the court may determine.

§ 4.28 p.m.

§ LORD CHORLEY moved, in subsection (1), after "person" to insert "who is not less than twenty-one years of age." The noble Lord said: My Lords, this and the next two Amendments go together. The first two are merely preparatory drafting Amendments to the third. The third has been put down in response to a request of the noble Viscount, Lord Templewood, who, with other noble Lords, raised the question of the meaning of the expression "corrective training." I did my best to satisfy him as to what was intended. Among the suggestions he made was one that the Home Office should in clue course issue a circular, and I promised I would bring that suggestion to 55 the notice of my right honourable friend. I am glad to say that the Prison Commissioners are ready to deal with the matter on those lines, and the Home Office will see that a circular is issued. The other point was that we promised we would try to think out a definition, and this is the result of our thoughts. It has been drafted on the basis of the Report of the Committee of 1932 on Persistent Offenders. As your Lordships will see, it covers the three important features of corrective training which were referred to by that committee—that is, that the training must be of a corrective character, that it should be for a substantial time, and that there should be a period of supervision. I beg to move.

§ Amendment moved— Page 24, line 17, after ("person") insert the said words.—(Lord Chorley.)

§ VISCOUNT TEMPLEWOOD
My Lords, I am much obliged to the noble Lord for having made something of an advance since the Committee stage. I still think that the definition is very jejune. It does not seem to carry the matter much further. I have, however, some hope from what the noble Lord said about the Home Office circular. I have not pressed for further information for any tiresome or pedantic reasons; I pressed for it for what I believed to be a good reason. I think it is essential, particularly with the beginning of this new chapter of penal treatment, that the Home Office should give the general public much fuller information about their methods than has been the case in the past. One of our troubles with all these penal questions has been the ignorance of the general public. On that account, I think it is most important, now that we are beginning a new chapter with corrective training and preventive detention, that not only the Judges but also the general public should know what it means. Therefore, whilst thanking the noble Lord for the advance that he has made, I take this opportunity to impress upon him the need for giving the public much fuller and much more up-to-date information about all these penal questions than has been the case in the past.

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this Amendment is consequential. I beg to move.

§ Amendment moved— Page 24, line 24, leave out from ("if") to ("the") in line 25.—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this Amendment is also consequential. I beg to move.

§ Amendment moved— Page 24, line 27, leave out ("to do so") and insert ("that he should receive training of a corrective character for a substantial time, followed by a period of supervision if released before the expiration of his sentence").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this Amendment and the two succeeding ones go together. The first two are simply drafting and are preparatory to the third. The third Amendment indicates, in the same way as the last one which we discussed and which was concerned with corrective training, the essential features of preventive detention. Therefore, it is a parallel Amendment. Those essential features are, of course, that the offender has to be detained in custody for a substantial period of time and that, if he is released before the expiration of that sentence, then he is to be subjected to supervision. I beg to move.

§ Amendment moved— Page 24, line 31, after ("person") insert ("who is not less than thirty years of age").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this Amendment is drafting. I beg to move.

§ Amendment moved— Page 24, line 41, leave out from ("if") to ("the") in line 42.—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, I have already spoken of this Amendment. I beg to move.

§ Amendment moved— Page 24, line 43, leave out ("to do so") and insert ("that he should be detained in custody for a substantial time, followed by a period of supervision if released before the expiration of his sentence,").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, your Lordships will remember that on the Committee stage the noble Lord, Lord Schuster, moved an Amendment to 57 Clause 48 as it then was (now Clause 51) requiring that rules under the clause should provide for special treatment of persons sentenced to corrective training. We have since considered the suggestion which the noble Lord made and have come to the conclusion that, although the sort of rules would be different rules from those required for preventive detention, nevertheless it would be valuable to have them. Therefore, we have tabled this Amendment in order that such rules may be made. I beg to move.

§ Amendment moved— Page 25, line 7, at end insert ("and while so detained shall be treated in such manner as may be prescribed by rules made under section fifty-one of this Act").—(Lord Chorley.)

§ LORD SCHUSTER
My Lords, naturally I am grateful to the noble Lord and to the Home Office for having given consideration to the proposal which I made. I do not know when we shall be likely to see these rules. It would be most desirable that we should see them, or that they should be seen generally, very soon after the Act comes into force, because, if I might venture to say so (being now at last in agreement with the noble Viscount, Lord Templewood) our general complaint about this Bill was that so many of the things in it were leaps in the dark, and we did not know even what kind of dark. From the point of view of the Judges, as I know my noble friend, Lord Goddard, would say if he were not temporarily absent from the Chamber, it is most desirable that we should know what is going to happen and what the treatment will be. For my own part, I prefer rules to Home Office circulars.

§ LORD CHORLEY
My Lords, I am afraid that I cannot indicate anything now, but obviously the suggestion of the noble Lord is an important one. Therefore, I will bring it to the attention of my right honourable friend.

§ LORD SCHUSTER
I am grateful to the noble Lord.

§ VISCOUNT TEMPLEWOOD
My Lords, may I draw the noble Lord's attention to this fact that, in regard to corrective training and preventive detention, we hope that we shall not have to wait until a lot of new buildings are finished? As soon as the Bill reaches the Statute Book, 58 we shall be dealing with a problem which will be much bigger than the present problem, owing to the extended definition in this clause. That being so, it is important that we should have these rules. I am inclined to agree with my noble friend that rules in this case are better than a circular. We ought to Gave them in the immediate future. Both the general public and particularly the courts concerned ought to know exactly what a sentence of this kind will really mean.

§ LORD SCHUSTER
Thank you.

§ On Question, Amendment 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 punishable on summary conviction with 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 four weeks, as the court thinks necessary to enable a medical examination and report to be made.

§ (4) On exercising the powers conferred by this section the court shall—

(a) where the person is remanded in custody, send to the institution or place to which he is committed; and
(b) where the person is released on bail, send to the institution or place at which or the person by whom he is to be examined,

a statement of the reasons for which the court is of opinion that an inquiry ought to be made into his physical or mental condition, and of any information before the court about his physical or mental condition

§ 4.37 p.m

§ LORD BALFOUR OF BURLEIGH moved, in subsection (1), to leave out "physical or" The noble Lord said: My Lords, on the Committee stage I moved an Amendment to this clause which I withdrew on receiving from the noble Lord who answered for the Government an assurance which I thought satisfactory, and also because I had been given to understand that the Amendment could not in any case be accepted in the form in which I put it down. I have been looking further into this matter since 59 then, and I have come back to your Lordships with another suggestion, because I think that there is a real point here which ought to be met. On looking into the previous history of this clause, I have found that it is based on Clause 38 of the 1939 draft of the Bill introduced by the noble Viscount, Lord Templewood. In those days, the clause dealt solely with mental cases, and even in those days some apprehension was aroused as to what would be the effect of the clause.

§ Certain Members in another place were rather alarmed about it, and they took the advice of a very well-known magistrate's clerk, Mr. Albert Lieck, on the point. I have found an old letter in which he says: Clause 38, as it stands, is intended only for mental examination, but there is a proposal to substitute 'medical' for 'mental' throughout the Bill, and this would verify your fears (that women should be remanded for medical examination) if it becomes law in that form, if charges were made under the Vagrancy Act. As a matter of fact, that Amendment was never made. Nevertheless, the point was thought to be of sufficient importance to ask for an assurance, and an assurance was given by the Solicitor-General in another place. In regard to that clause—which, I would remind your Lordships, had nothing to do with physical examination at all, but only with mental examination—the Solicitor-General then said: With regard to the point about the common prostitute, there is no evidence whatever that the clause should operate in any other way than to ascertain the mental condition of anyone. The common prostitute is in exactly the same position as anyone else, and it is only for the purpose of ascertaining the mental condition that the examination could be taken. I sympathise with the hon. Lady in the apprehension that she feels against any extension of an examination of a purely physical character of these women, but nothing of the kind is contemplated or intended under the clause.

§ Since 1939 a very odd thing has happened. The clause has been extended, without any explanation, so far as I know, to include in this Bill physical or mental examination. But what I think is still more odd is that in the explanatory memorandum to the Bill, as it was introduced in another place, the explanation of Clause 24 is headed "Mental Cases"; and it is perfectly clear that this explanation deals with nothing but mental cases. 60 There are four paragraphs of the explanatory memorandum, one of which says that Clause 24 gives improved facilities to courts of summary jurisdiction to enforce a medical report of the mental condition of the offender in order to assist the court. The second one deals with insane persons, the third deals again with criminal lunatics, and the fourth deals with Broadmoor. I am not talking now about the clause; I am talking about the explanatory memorandum. And it is perfectly clear that the explanation is to deal with this question of mental deficiency.

§ I was alarmed because simultaneously we have had the changeover to the new National Health plan, which has involved some changes in the organisation of the whole service for treating venereal diseases, and some questions which I addressed to my noble friend this afternoon have elicited the reply that no major administrative change is intended. Of course, I accept that assurance absolutely; but, even accepting that assurance, quite definitely some safeguard is needed against abuse. May I quote Mr. Lieck once more?—because he was a most experienced magistrate's clerk. He said on the previous occasion: I don't think you are trying to interfere too much. Doubtless, if the Bill becomes law as it stands, it would not properly be used to enforce medical examination of prostitutes, but any law which can be abused against them does get abused. For a glaring, instance take 40D of D.O.R.A., where the proviso intended to be some sort of safeguard for women (that they should have a medical examination to show they are not guilty) was interpreted by one combination of chief constable, J.P. and divisional surgeon as justifying compulsory examination of prostitutes. If that was thought to be dangerous then, when there was only a mental examination, with a possibility of altering it to medical, quite clearly the position is very much worse under this Bill, where we have a definite provision for physical examination. On the relevance of the value of an assurance, I must give your Lordships one more quotation from Mr. Lieck. He said: The Secretary of State can't give you any assurance. If the law is there, J.P.'s can use it, and the Home Office must bob down. That is a most delightful expression, but it shows that if the magistrate has the power he can use it, and it does not matter a bit what has been said in your 61 Lordships' House or anywhere else. The power is there and it can be used.

§ We have the authority of this very experienced magistrate's clerk that it will be not only used, but abused. In spite of the very categorical assurance of my noble friend about the fact that this information will not be given after the changeover of administration on July 5, I must explain to your Lordships why I feel rather apprehensive about it. I have in my hand a copy of the circular on this subject which has been issued by the Ministry of Health to local authorities, and the third paragraph of the circular says: County and County Borough Councils, as Local Health Authorities, may continue to be concerned, within the scope of their arrangements under Section 28 of the National Health Service Act, in co-operating with the work of venereal disease treatment centres, as regards following up persons under treatment or known or believed to be sources of infection. The Minister would take this opportunity of stressing the importance of treating information about persons under treatment as confidential, even though the revocation of the 1916 regulations repeals the statutory requirement to this effect. I must confess that I cannot understand why that statutory requirement should have been repealed. Of course, it was necessary to repeal and re-enact the regulations, in order to bring them into line with the new arrangement; but that that particular requirement of statutory secrecy is the only one of the old regulations to be left out, strikes me as being extremely odd. I repeat, I accept my noble friend's assurance that there is not intended to be any change, but I think the position bristles with dangers.

§ What is to be the position of a medical officer of health when he is put into the witness box, and the magistrate asks for the information? He no longer has the statutory protection of secrecy. He still has what I believe the medical profession rely upon, their Hippocratic oath—that is, that they feel bound not to give information confidentially acquired from a patient. But I think it is doubtful whether that would free the doctor from the difficult situation in which he would be placed in the witness box, if he is asked for this information by what was described—I thought very aptly—as "a combination of chief constable, J.P. and divisional surgeon" It might be that the divisional surgeon would be the person who would 62 have to give the information. That is the position.

§ In view of the noble Lord's assurance which I received earlier in regard to my question—namely, that there is no major change contemplated in the system, which I cordially welcome, I think the least we can do is to see that this safeguard is put into the Bill. Consequently, I have now worded my Amendment in a different way. I propose to omit the reference to physical examination and to limit examination to mental examination—as appears to be the intention of the clause. I then seek to put in a proviso to this effect: Provided that, whether the person be charged with an indictable or non-indictable offence, and whether on bail or on remand, he shall not, without his consent, be physically examined. The intention is to get over the difficulty which was raised last time in regard to interfering with the routine examination in prison. This deals only with people on remand or on bail, and I think it gets over the difficulty. I am bound to tell your Lordships that I think the case for this Amendment is so strong that, if the Government do not feel able to accept it, I shall feel bound to ask your Lordships to divide, if I am fortunate enough to obtain a teller. I beg to move.

§ Amendment moved— Page 28, line 24, leave out ("physical cr").—(Lord Balfour of Burleigh.)

§ LORD CHORLEY
My Lords, the noble Lord has covered the ground of all these Amendments, and I will deal with them on the same basis. I ought to start by confessing to a mistake at the beginning of my reply to the noble Lord on Committee stage, when he had down the Amendment to which he has referred. I then said that I was advised that there was no power to compel a man remanded in custody to submit to an examination. I had rather misunderstood what I had been informed, and I am in fact told that there is at present the power to remand a person in this way in order that an examination whether physical or mental may be made. The noble Lord has rather suggested that something a little sinister has been ping on in this connection because the word "physical" has been added to the word "mental," which appeared in the Bill of 1939. But I should like to assure him and your Lordships that there is nothing of the kind in this. It is very necessary that in 63 the proper cases it should be possible to make both physical and mental examinations. It is necessary in the interests of the prisoners themselves. Not all criminals are free from infection, nor are they always clean.

§ VISCOUNT SIMON
Do you call a person on remand a criminal?

§ LORD CHORLEY
The clause provides, as I am sure the noble Viscount is aware, that: 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 punishable on summary conviction with 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… Really these persons are remanded to be examined in order that the court may decide how to deal with them.
When the learned and noble Viscount put that question to me, I was dealing with the necessity for this kind of examination from the point of view of other inmates of the prison. From the point of view of the man himself, it is necessary that there should be this power, because often a man's whole defense before the court is that he was ill or that there was something the matter with him and that that explained the offence charged against him. Obviously, if the individual concerned is a well-to-do man he can bring evidence in support of his contention. But, as your Lordships are aware, the vast majority of these people are not able to employ doctors. Therefore, in the interests of justice, and particularly in the interests of the men themselves, I am sure your Lordships will agree that it is more reasonable to give the court power to remand in order that medical examination may take place. The examination may have to be physical, or, if it is suggested that there is mental deficiency of the kind which is in question, it will have to be a mental examination. Courts of summary jurisdiction already have a general power of remand, whether in custody or on bail. The object of this clause is merely to say that one of the reasons for which the court can remand is in order to enable a medical examination 64 and report to be made for the purposes of this measure. The clause attaches a limit to the period of such remand—four weeks—although actually, as your Lordships know, there is no limit to the period for which a court may remand under its general powers in summary cases. In indictable cases there is a limit of eight days, and that limit is in practice followed in this type of case.
The clause further gives the court power to make it a condition of a bail recognisance that the person shall undergo medical examination. This is an important and valuable innovation in respect of bail remands. If a prisoner is sufficiently well to do to be able to have a medical examination at his own expense, there is never any particular difficulty about remanding him on bail in order that such an examination may take place. But often, in the past, there have been prisoners who clearly could not afford to have a medical examination at their own expense and, as a result, the courts have refused bail. This clause gives opportunity to remand the man on bail, and for the court to see to it that the medical examination takes place. So I would suggest that it is an innovation of the greatest assistance to the prisoner in question. Of course, the matter has been raised by the noble Lord because of fears in connection with venereal disease and what may happen in the case of prostitutes. I assured the noble Lord on the last occasion that in this clause there was absolutely no alteration in the law as it stands, and that the practice followed in the past will be followed in the future.

§ VISCOUNT SIMON
Would the noble Lord mind saying what is the practice to which he refers?

§ LORD CHORLEY
The practice in the case of these women is never to subject them to a vaginal examination without their consent. I gave the noble Lord the assurance that that would be so in the future just as it has been in the past, and I repeat that assurance now. I think your Lordships will see that these provisions are really provisions required in the interests of the offenders themselves, just as much as in the interests of the other people at the prisons, and that it is essential that there should be powers of this kind. In the circumstances, I hope that the noble Lord will not persist in his proposal to force this matter to a Division.

§ VISCOUNT SIMON
My Lords, I must confess that I find this rather a puzzling matter. I am not seeking to be dogmatic about it. It clearly is not easy to state this precisely, because the noble Lord who has just spoken has frankly told us that he misunderstood, or did not correctly state, the position during the Committee stage. I am sure that he would have done so with the greatest accuracy if it had been a simple matter. I quite see some of the considerations which he has mentioned, though I think, if I may say so very respectfully, that he moved from one reason to another with remarkable rapidity. At one moment it was to protect the other prisoners. At another moment it was in order that the magistrates might find out what was best to do with the individual. At a third moment, it was in order to secure that a poor man should be able to have the advantage of a medical examination which a richer man might be able to pay for. There may be something to be said for all those reasons, but they are rather a curious combination.
I had hitherto thought, I confess, that if a man or a woman was remanded—by magistrates, for example—before being convicted and sentenced, it was only because that was necessary, as it was thought, to make sure that he or she would not run away. I had thought that if I were arrested and, for some reason, brought before a magisterial court and charged with some offence or other which it was not possible to deal with immediately, I should not be remanded in custody but would be remanded on bail, unless, indeed, it was shown that I was likely to run away. I had hitherto supposed that that was the object of remand. I recollect that this question arose not long ago in connection with the police in one big provincial town where it looked as though the Chief Constable applied for a remand rather than that an adjournment should take place under the conditions of bail, because he wanted to take people's finger-prints, and he could take a person's finger-prints if, in the meantime, the individual was put into custody—remanded in prison. He could not take the finger-prints if there was an adjournment on bail. That was an actual incident which came to my notice. How does it really stand here? I am asking much more for purposes of clearness than from any claim to understand this matter in detail myself. Is it at present the law 66 that a person who cannot be dealt with immediately, but who is remanded in custody, and who therefore has not been convicted and not been punished, none the less in that interval is submitted to both physical and mental examination? I really ask for information. I am quire sure that by this time the noble Lord is most fully apprised on the subject. I would have thought that there was a view that, except possibly for the purposes of avoiding infectious disease, there should not be such treatment of a person, man or woman, before he Or she was in fact convicted.
I understand that when a man becomes a prisoner (that was why I ventured to interrupt the noble Lord, because he mace use of that phrase) the prison rules apply, and I have not the slightest doubt that the medical officer of the prison will quite properly from time to time make himself acquainted with the individual's mental and physical condition. I really ask for information, because it is as well that we should know what is the legal view about what happens to people who have not been convicted but who are remanded in custody. I quite appreciate that subsection (2) of this clause is an attempt to secure the same treatment for a person who is remanded on bail. I can see good sense in that, because if the consequences follow equally in either case, there would not be the same temptation (which I think is sometimes likely to arise where the person has to be remanded) for the police authorities, for example, to acquire further information about the man or woman s physical condition by remanding the person in custody rather than by remanding him or her on bail. I think it must be agreed that the matter is not as clear as one would like it.
I do not overlook the fact that this clause says: where…the court is satisfied that the offence has been committed by that person… I do not know if that phrase exists in present law. As the wording is set forth, does the court tell the person, "We are satisfied that you are guilty" and then postpone its sentence; or is this to be an internal state of mind? I do not want to worry the noble Lord, but it is a matter which affects a large of people. I would like it cleared up a little more than it is at present. Finally, when a 67 woman who has been arrested on suspicion of soliciting, usually on the evidence of two policemen who say that a man was approached and seemed to be annoyed, what is the rule for saying (except for the concession which is made here, no doubt on instructions) that, before she has been convicted, before she has been punished, she is to be examined in an intimate fashion? Is it a prison rule? Is it a rule of law? I think this is a matter which has many times greatly aroused feeling in this country and it is one about which we should be clear. I apologise for asking the noble Lord so many questions, but I do not think the matter is exactly clear.

§ LORD LLEWELLIN
My Lords, I think it would help a large number of noble Lords if we could know at this stage what the attitude of the Government is going to be on the fourth of these Amendments put down by my noble friend Lord Balfour of Burleigh. It seems to me that there will be little objection to retaining physical examination if that fourth Amendment is accepted and we can get a compromise on that. In the case of a person suspected of venereal disease, the words which my noble friend has put down in the fourth Amendment only bear out what is the existing practice. If the Government were inclined to accept the fourth Amendment, that men and women could not be examined without their consent, they would be going on much the same line as that which the Government themselves have quite firmly taken in regard to probation—that it is no good trying probation unless the person consents. Here it is not much good trying physical examination unless the person to be examined consents. I should have thought we could leave the words "physical" in the first three Amendments, if the Government were prepared to accept the fourth Amendment which, after all, is very much involved with the liberty of the subject, which we all have at heart.

§ LORD CHORLEY
My Lords, may I have your permission to speak again? In reply to the noble Lord, Lord Llewellin, we took it that these Amendments go together. The Government's view is that the objections to the earlier Amendments are objections to the fourth 68 Amendment as well, and we do not accept it.

§ LORD LLEWELLIN
My Lords, if the word "physical" comes out of the earlier part of the clause, surely there would be no point whatever in the fourth Amendment, because there would .be no power to make an examination and therefore no necessity to give consent. They do not hang together.

§ LORD CHORLEY
My Lords, that is a view which had struck me. But I do not think that is what the noble Lord who moved the Amendments had in mind. The Government's view is that the objections to the fourth Amendment are so substantial—they follow on the lines I have already indicated—that the fourth Amendment cannot be accepted either. The noble and learned Viscount, Lord Simon, asked me a number of questions which I hope I am able to answer. I will tell him What I understand is the position but, as he himself has indicated, the law on this matter is not very easy, and if I make a mistake I hope your Lordships will forgive me. The noble Viscount wished to know what the position was in regard to ordinary remands. A man is taken up by the police in the act of committing some crime——

§ VISCOUNT SIMON
On suspicion?

§ LORD CHORLEY
—or on suspicion, and is brought before the court next morning, and then is remanded, say, for a week in custody. That means, in effect, that he has to be kept in prison. The practice is that he should have a medical examination. I am sure your Lordships will agree that it is very necessary, because he might well be suffering from some dangerous infectious disease, or he might be verminous. I am sure your Lordships will agree it would be quite wrong to put such a man amongst other people.

§ LORD BALFOUR OF BURLEIGH
But he is probably going on bail.

§ LORD CHORLEY
He may or may not be. It is not always possible to remand him on bail. The noble and learned Viscount asked the question about a man who was remanded in custody.

THE MARQUESS OF READING
My Lords, I think this is important. The noble Lord says, "The practice is" to 69 do such-and-such a thing. Is that merely a custom which has grown up, is it done under statutory power, or is it done under certain Home Office rules and regulations? That is what I want to know about existing powers.

§ LORD CHORLEY
It is done under prison rules. I have not got them here, but I understand that in the prison rules provision is made for examination. I think the provision for the examination of women accused of soliciting is exactly the same, from the legal point of view, as that of any other person charged before the court. An instruction has been given that an examination of the kind to which I have referred should not be carried out. It is the intention of the Government to stand by that undertaking, which I gave on the last occasion. I think that covers the points which have been raised. I now understand that the prison titles are statutory.

§ THE MARQUESS OF SALISBURY
There is at present statutory power to carry out this examination?

§ LORD CHORLEY
Yes.

§ THE LORD CHANCELLOR
My Lords, possibly I can help on this matter. The power to examine a prisoner is found in the prison rules. Quite obviously, it is a necessary condition that anybody going to prison should be examined. If we did not do that, all sorts of infectious diseases might spread. If I may say so, it is nonsensical to think of sending a man to prison where he will be in association with other prisoners, without taking any step whatever to find out his condition of health. You may find the person is verminous; you may find that he is suffering from various kinds of infectious diseases. We have no right whatever to put any person in prison unless we take steps to see what is his physical as well as his mental condition. That derives from the prison rules; and the prison rules, I need hardly tell your Lordships, apply only to persons going to prison. But they apply to persons going to prison, whether it is on remand or whether they are sent to prison to serve a sentence, the principle of the rule being that you must not incarcerate anybody in a prison unless you ascertain his physical as well as his mental condition.
The suggestion—it is nothing more—that prisons never subject a woman to a 70 vaginal examination without her consent is not, as I understand, actually written into the prison rules. You will not find a rule to that effect, but it is a well-understood principle; and to that principle we intend to adhere. We do not in the least want to go back to the old controversy about this. We are entirely prepared to agree that that principle, which has been a principle for many years past, should be adhered to most strictly. There is not the slightest objection to that. But because we want to do that, and because it is perfectly right and proper, to go to the length of saying that people who are sent to prison—as I say, whether on remand or to serve a sentence—should not be medically examined is, I suggest, to make ourselves quite ridiculous. There might be a spread of all sorts of diseases. We have no right, in so far as other prisoners are concerned, to let in new prisoners without finding out in what sorts of condition they are. So far as women are concerned, I agree with the noble Lord. I say, quite frankly, that if he is disturbed about this convention being merely a convention, and not being written into the prison rules in black and white, so far as I am concerned, I am quite prepared to approach the Horne Secretary to find out whether he is in willing to have this convention written into the prison rules. But I beg your Lordships not to say that a person is to go to prison without the slightest regard to his physical condition.

§ VISCOUNT SIMON
The noble and learned Viscount on the Woolsack has cleared up one or two points, but there is one thing which is not clear, at any rate to me, He has explained the prison rules and what is the existing law. What I do not follow is this. If that is right, why should we now be asked to enact Clause 25 (1)?

§ THE LORD CHANCELLOR
In order to answer that question I shall have read Clause 25 (1). Glancing at Clause 25 (1), I imagine that it is because the clause applies to bail. At present there is no power, unless you have the person coming within the prison discipline, to order a medical examination. This is rather a useful power. With a person actually coming into prison, and being subjected to prison rules, if you are satisfied that he is guilty and you want to know what is the right way to deal with that person, surely it is right, in his and 71 everybody's interests, that you should find out what is his physical condition, which may have an important bearing on his punishment. For instance, if you find that somebody has only one lung, and that one lung not so good, surely it is relevant to know that before you make up your mind what punishment you should give. I should have thought the fact that we have not this power to-day was a great pity, and that this is an excellent provision.

§ LORD LLEWELLIN
My Lords, may I just ask the noble and learned Viscount one question? I think we might otherwise get at cross-purposes on this. There are already the powers under the prison rules, when a man is sent to prison, to have a physical examination. The new physical examination extends to a person who is going to be admitted to bail.

§ LORD CHORLEY
The words are, "in custody or on bail" It is for the purpose of discovering how to deal with him by sentence.

§ LORD LLEWELLIN
It can already be done under the prison rules if a man goes to prison?

§ THE LORD CHANCELLOR
Yes.

§ LORD LLEWELLIN
The new power is to be able to carry out a physical examination of a person on bail—a power which does not at present exist under the prison rules.

§ LORD CHORLEY
And to obtain a report as to his condition for the purposes of the court which is to sentence him. That power does not exist under the prison rules.

§ LORD LLEWELLIN
That does not apply to the point that I was putting to the noble and learned Viscount. Once you have admitted a man on bail, on condition that he has a medical examination, you cannot carry out a medical examination unless he goes to the doctor's house and consents to it. Therefore, why not accept the fourth Amendment? Then we can all probably be agreed on this?

§ THE LORD CHANCELLOR
We are now in the middle of the first Amendment. I object to the fourth Amendment even more than I do to this. Clause 25 (2) says: 72 Where a person is remanded on bail under this section, it shall be a condition of the recognizance that he shall undergo medical examination by a duly qualified medical practitioner… What is wrong with that? I would press your Lordships on this point. I really do think it may be necessary—I do not put it higher—for a court, if it is to make up its mind as to the appropriate punishment to award to a person, to find out what that person's physical condition is before the punishment is fixed. To my mind, that must be right. That is the addition which is made to the existing law. The existing law already gives power, once a man enters the portals of the prison, for him to be examined. In his own interest, and in the interest of the other prisoners, surely it is necessary that there should be a physical examination. With regard to the more intimate examination, for the purpose that has been indicated, that has never been made, and will not be made, save with the consent of the prisoner.

§ VISCOUNT SAMUEL
My Lords, the weak point of our judicial system has for a long time been recognized to be that there is frequently insufficient information before courts of all grades as to the matters relating to the individuality of the prisoner. It was always assumed that what had to be done in a court of law at a trial was to determine whether the person was guilty or not guilty. Then the court, as best it could, had to subject him to a sentence. That was under the old principle that the punishment must fit the crime. Now, we say that the punishment must fit the criminal. Frequently, however, the court is quite uninformed as to the background of the prisoner and as to his physical condition. Therefore, the court does not know what kind of sentence it ought to impose. Consequently, various measures have been taken to provide further information, largely through the Probation Act and other ways. That is an extremely valuable provision. Nevertheless, this question of physical condition may not have been the subject of inquiry at the earlier stages of the case, and there is no power to require information as to the physical health—not merely the mental temperament, but bodily vigour and strength of the individual—before he is sentenced. It seems to me most desirable and necessary that there should be that power.
73 The case dealt with in this clause is that of a man who has not yet been sentenced, but whom the court has determined to sentence. Therefore, there is no possibility of anything happening, such as a remand or anything of that kind. The court would not be justified in keeping him in prison. The trial is over. All the clause says is, that, where the court thinks it is necessary to have a medical examination of a person whose guilt has been ascertained, but whose sentence has not been determined, there should be power to remand him for that purpose. An exception to the general rule is made in the case of certain classes of women, and certain classes of examination. That is quite right; but in all other cases it seems to me that the clause is quite justifiable, and that the Amendment of the noble Lord now before the House ought not to be accepted.

§ 5.22 p.m.

§ LORD CALVERLEY
My Lords, when a person has been found guilty the practice in many of our large cities is to defer sentence in order to try to ascertain what is the proper sentence to pass upon him. We defer sentence in order that the accused may have a medical examination for his physical and sometimes his mental state. We have been doing this for a long time, and I hope we have not been breaking the law. It is a very humane provision, in order to try to help the prisoner, and not to punish him in a way which would do more harm than good. With regard to those remanded in custody, if you go to any large prison you will find people on remand either in the verminous section or the V.D. section. That is bound to be done. But that is another question. I presume now that we are speaking about those who have had a trial in a summary court and their sentence has been deferred. If this clause is going to provide that there will be a medical examination of these people more freely than in the past, in order to help them, then I say it is all to the good, and we should pass the clause.

§ LORD GODDARD
My Lords, after what my noble friend Lord Samuel said a few moments ago, I want to add only very few words. As I understand subsections (1) and (2) of the clause, they deal only with a case where the court has made up its mind to convict. It is essential, therefore, that there should 74 be information before he court as to the physical and mental condition of the prisoner. This clause gives the court power, instead of passing sentence at once, to remand him. I think we have that power now.

§ LORD CALVERLEY
We do it.

§ LORD GODDARD
With regard to bail, it may be that the court may thing: "Must we send this man to prison in his own interests, or hall we deal with, him by giving him the opportunity of agreeing to go to a centre?" He may be tubercular, and anything may happen The court can then release him on bail, but make it a condition of recognisance that he should submit to examination. If he does not do so, after he has been let out on bail, he will be retaken for a breach of the bail recognisance and put into prison, where he will be examined, What I am even more concerned with—because it concerns more directly the courts in which I have to sit—is subsection (3). That is a most valuable provision, and I wholeheartedly support it. That subsection refers to what is to happen where a man, not having been convicted, is sent for trial. Again one sees what a pity it is that, when a man is let out on bail, no report is obtained at all. The only thing you can do is to remand him in custody in order that you may get a report. If what I regard as a most valuable provision goes through, and if, when the magistrates commit him for trial, they send him to prison, no doubt he will be observed by the medical officer, and the court will get a report both on his mental condition and his physical condition.
Let me remind your Lordships that in all cases where it is decided that the prisoner shall go to a Borstal institution, he is examined, because the court has to be informed whether his physical and mental condition are such as to make him suitable for Borstal. It is done, therefore, in all cases of young offenders who may be sent to Borstal. But one so frequently reads of cases where magistrates commit for trial but let out on bail, and when the case comes before the court the Judge says: "Good heavens! I do not believe this boy or this mar is really sane. Has there been no medical examination?" There has not, because the man has been on bail. If this pro- 75 vision goes through, it will be a condition of the recognisance that he does submit to examination, so that the court, on his trial, can be informed whether he is tubercular, whether he is half-witted or whether he is mentally deficient. You will then get rid of the necessity of having to send a man down and to say: "Bring him before me at some neighbouring Assize town when he has been examined." When I read this clause, I confess that I thought it was most valuable, and I hope your Lordships will pass it.

§ LORD BALFOUR OF BURLEIGH
My Lords, by leave of your Lordships, may I say one word? I must confess that this discussion leaves me profoundly uneasy. I think that this is a radical change in the law, about which we have not been told enough. I have told your Lordships the genesis of this clause, which was to deal with mental cases, and I am not satisfied with the explanation which we have had. It is not really an explanation of how the words "physical or" came to be put in. I confess to your Lordships that, so far as men are concerned, and more often so far as women are concerned, there may be a case. I remain profoundly convinced that this is opening the door to a great abuse against a class of women who never get adequate protection. What is going to happen is that women will be arrested under the Vagrancy Act, under the Metropolitan Police District Act or under the Town Police Clauses Act. Two constables say: "We saw this woman speak to a man and the man appeared to be annoyed," and she is held guilty of soliciting. Then she is branded as what is known as a common prostitute. If even under the 1939 Act there was reason for qualified people to fear abuse and injustice, there is still more so in this case. I deeply regret putting your Lordships to the trouble of a Division, but I do feel that there is here the chance—indeed, I think the certainty in due course—of an abuse in this particular type of case, and I much regret that I must put your Lordships to the trouble of a Division if I can find a Teller.

§ On Question, Amendment negatived.

§ 5.30 p.m.

§ LORD BALFOUR OF BURLEIGH
My Lords, I beg to move the next Amendment.

§ Amendment moved—

§ Page 29, line 54, at end insert— Provided that, whether the person be charged with an indictable or non-indictable offence, and whether on bail or on remand, he shall not, without his consent, be physically examined."—(Lord Balfour of Burleigh.)

§ THE LORD CHANCELLOR
My Lords, this Amendment has to my mind several objections. Whether a person is charged with an indictable offence or not, he can give his infection to other people, whether on bail or on remand. Here you have a man in prison—if he is on remand. Is the noble Lord really going to say that, no matter what the offence may be, the court has no right to order a physical examination? It seems to me a most astounding proposition. The man may have a terrible disease. What right have you, in the interest of the other prisoners, to put the man in prison without making an effort to find out what is the disease from which he is suffering? It is a completely mistaken point of view. The proposition would make havoc with our prison administration. I beg your Lordships not to agree with this Amendment.

§ LORD LLEWELLIN
My Lords, I should have thought that if a man is sent to prison he can be dealt with in this matter under the prison rules—except for the possibility of the report not being available; but the report from the prison doctor always is, in fact, available. On the other hand, these words might be necessary in the case of a man on bail. But it should be a condition of his being released on bail that he does undergo this medical inspection. In that event, he will already have consented, under the order releasing him on bail, so that the words seem unnecessary for people on bail. I do not see, therefore, why it is necessary for us to include them at all; they do not add anything to what is already inherent in the Bill.

§ VISCOUNT SAMUEL
My Lords, if we were to insert these words in the Bill and they became the law of the land, would the present prison rules have to be altered in order to conform with these new provisions?

§ THE LORD CHANCELLOR
Certainly, that would be so. This is part of a Statute and it would override all the 77 present rules. You would no longer be able to examine all people who go into a prison.

§ VISCOUNT SAMUEL
Suppose that an epidemic was raging, and a man was sent to prison: presumably they would not be able to examine him to see whether he was suffering from the disease that was prevalent.

THE EARL OF PERTH
The noble and learned Viscount made a promise which seems to me to be of great value. He promised to see whether the Home Secretary would change this rule to meet the particular case referred to by the noble Lord, Lord Balfour of Burleigh. I think we should be happier if that could be done.

§ THE LORD CHANCELLOR
My Lords, I have no authority from the Home Secretary, but I am told that this is a practice which has always been followed. I see no reason why it should not be written into the rules in black and white. I will certainly approach the Home Secretary, so long as your Lordships understand that I am not authorised to make any promise beyond the promise that I will see the Home Secretary.

§ On Question, Amendment negatived.

§ Clause 26 [Remand and committal of persons under 21]:

§ LORD CHORLEY
My Lords, this is a drafting Amendment, I beg to move.

§ Amendment moved— Page 31, line 8, leave out ("a fit person") and insert ("fit").—(Lord Chorley.)

§ On Question, Amendment 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.

§ (6) Where, under the foregoing provisions of this section or under any other enactment, a court of summary jurisdiction has begun to 78 deal summarily with an offence which is punishable on conviction on indictment, the court shall not thereafter proceed to hear the charge as for an indictable offence.

§ LORD MERTHYR moved, in subsection (1), to omit "then if application in that behalf is, made by the prosecutor." The noble Lord said: My Lords, on the Committee stage of the Bill I moved some Amendments to this clause and the noble and learned Viscount the Lord Chancellor was good enough to say that if I would withdraw them the Government would suggest some Amendments to take their place. That was done, and the Amendments now on the Order Paper in my name are the consequence—the two going together. I am in rather a difficulty, and I would ask your Lordships' indulgence for a moment because, in spite of the fact that the Lord Chancellor was good enough to write to me about these Amendments, suggesting words—and I am very grateful to him for the trouble lie has taken in this matter—I am not quite satisfied that the Amendments will improve the Bill. If should like to hear what the noble and learned Viscount says on the subject, and therefore I should like to press the matter for just a little further. The noble Viscount said that where an offence under Clause 27 is treated from the outset as a summary offence, there seems no good reason to give power to send a person convicted by quarter sessions, for sentence on account of his previous record, since the Bill gives no such power in respect of purely summary offences. I should like to know why that is so. Why is there no good reason?

§ Clause 28, as drafted, refers only to cases dealt with under subsection (2) of Clause 27; it has no effect upon cases dealt with under subsection (1) of Clause 27. That, I think, is very material. You may have cases dealt with under subsection (1) of Clause 27, where the court for some reason or other overrides the wishes of the prosecution, determines to hear the case summarily, and then finds itself unable to send Vie defendant to Quarter Sessions, however bad his record. That may happen, and it is for that reason that I think that the Amendment now on the Paper may be dangerous. I would ask the noble and learned Viscount to give his opinion on these Amendments which, after all, were drafted by him or by his Department. I beg to move.

§ Amendment moved— Page 31, line 22, leave out from ("indictment") to ("before") in line 23, and insert ("the court may").—(Lord Merthyr.)

§ THE LORD CHANCELLOR
My Lords, I do not remember the details of the letter, but I remember that I worked out with the Parliamentary draftsmen the Amendment which I thought the noble Lord wanted. But the more I looked at it, the less I liked it. If my recollection is right about the letter which I wrote to the noble Lord, I said to him: "Here is the Amendment which I think carries out your intention, but I beg of you to think again and see if you are satisfied about it. If you are, I will accept it but, on the whole, I think it would be wiser not to have it." I think I said words to that effect. Anyhow, I say them now. I will tell your Lordships why I do not like it. The Amendment strikes out the words: then, if application in that behalf is made by the prosecutor". Therefore, as the clause stands, unless an application is made before by the prosecutor, the court must go on with the case. If no application were made, then the court could do nothing; it would have to carry on.
If you strike out those words, what I am frightened of is this. The court might say: "Well, it looks like a case that we can deal with in a summary manner. What do you say about it?" Counsel for the prisoner will say "It is quite all right." Then the prosecution, knowing that the accused had a lot of previous convictions, would say: "We think that there are cogent reasons against this," or words to that effect. The mere fact that they said something of that sort would half reveal that this man had a bad record, or had previous convictions. Therefore, I think it is desirable to retain these words. If these words are kept in, and the prosecution do not make an application—and they will not do so if they know that the man has previous convictions—then the justices will not have to ask anything at all. They will not have the power. Whereas, if the words are not there, then it will be for justices to find out about it. They will ask questions and the answers which they will get to those questions, however carefully they may be phrased, may lead them to suppose that the man has a bad record, which 80 may prejudice them when they come to adjudicate. Therefore, on the whole, although I am disposed to help the noble Lord if he presses the Amendment, I hope that he will not press it, because I think it would not be an improvement to the Bill.

LORD MERTHYR
My Lords, whilst I must say that I am still not satisfied that it is necessary to have two separate procedures—one to be applied before the case starts and another to be applied after the case starts—I have decided to withdraw the Amendment in accordance with the suggestion made by the noble and learned Viscount on the Woolsack. I beg leave to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ THE LORD CHANCELLOR moved in subsection (6) to leave out "the foregoing provisions" and insert "subsection (1)." The noble and learned Viscount said: My Lords, I will deal with this Amendment and the next two as printed on the Marshalled List. The position here is that we are dealing with the committal for sentence in respect of indictable offences tried summarily. I note that the noble Lord, Lord Llewellin, has an Amendment down which is very like mine, but there is this variation which perhaps the noble Lord will think is a useful one. I do give a right to the magistrates, at any time before the conclusion of the case for the prosecution, to discontinue a summary trial. That, after all, is at a time before the defendant has disclosed his hand. I think that that is not unfair and it is a reasonable compromise. If the noble Lord agrees with that, I think he will also agree that my Amendment picks up the subject matter of his Amendment and deals with it satisfactorily. I formally beg to move the first of these Amendments.

§ Amendment moved— Page 32, line 33, leave out ("the foregoing provisions") and insert ("subsection (1)").—(The Lord Chancellor)

§ LORD LLEWELLIN
My Lords, as the noble and learned Viscount on the Woolsack has said, this Amendment meets the point in the Amendment which I put down. I think it meets it in a better way than that in which my Amendment, as drafted, would do. I am much obliged 81 to the noble and learned Viscount. I hope that the House will carry these three Amendments.

§ On Question, Amendment agreed to.

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

§ Amendment moved— Page 32, line 34, leave out from beginning to ("a").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, I have already dealt with the reason for this Amendment. I beg to move.

§ Amendment moved— Page 32, line 36, after ("court") insert ("may, at any time before the conclusion of the case for the prosecution, discontinue the summary trial and proceed to hear the charge as for an indictable offence; but except as aforesaid a court, having begun to deal summarily with such an offence, whether under this section or under any other enactment").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ Clause 28 [Committal for sentence in respect of indictable offences tried summarily]:

§ LORD CHORLEY
My Lords, there are three small Amendments here which perhaps your Lordships will take together. The first two are purely drafting, and the third is in the nature of a drafting Amendment, as it corrects a mistake in the existing draft. I beg to move.

§ Amendment moved— Page 33, line 21, leave out ("practicable") and insert ("available").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ LORD CHORLEY
My Lords, this Amendment is drafting. I beg to move.

§ Amendment moved— Page 33, line 21, after ("court") insert ("consisting of members").—(Lord Chorley.)

§ On Question, Amendment agreed to.

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

§ Amendment moved— Page 34, line 16, leave out the first ("of").—(Lord Chorley.)

§ On Question, Amendment agreed to.

§ 5.46 p.m.

§ THE LORD CHANCELLOR moved, after Clause 29 to insert the following new clause:

§ Jurisdiction and procedure in respect of certain indictable offences committed in foreign countries.

§ "30.—(1) Any British subject employed under His Majesty's Government in the United Kingdom in the service of the Crown who commits, in a foreign country, when acting or purporting to acting the course of his employment, arty offence which, if committed in England, would be punishable on indictment, shall be guilty of in offence of the same nature, and subject to the same punishment, as if the offence 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 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 country or place.

§ (3) Subsection (4) of section one of the Administration of Justice (Miscellaneous Provisions) Act, 1933 (which continues the procedure by way of indictment preferred before a grand jury of the County of London and County of Middlesex in the case of indictments under the enactments specified in the First Schedule to that Act) shall cease to have effect; and subsection (2) of this section shall apply to any offence in respect of which a bill of indictment could, but for this subsection, have been so preferred as it applies to an offence under this section."

§ The noble and learned Viscount said: My Lords, this is a new clause to deal with British subjects employed under His Majesty's Government. I had a clause before which I invited your Lordships to discuss with me, and your Lordships pointed out that the clause was a good deal too wide as I then drafted it. I have tried to profit from that criticism, and so I have made this clause a good deal narrower. In fact, your Lordships will see that it applies only to such a person when acting or purporting to act in the course of his employment. There are two old Acts, the Act of 1698, dealing with the punishment of governors of plantations for crimes committed in the plantations, and the Criminal Jurisdiction Act, 1802. What I have in fact done is to borrow from the Criminal Jurisdiction Act and limit the class of offence with which I deal here to the same class of offence as was dealt with there. I have got rid of the provisions for a Grand Jury which were dealt with in the Criminal Jurisdiction Act. I am not 83 concerned here with the taking of evidence viva voce. The Act of 1802 remains, of course, but I do not think that it is at all a satisfactory method of dealing with a criminal case, to try it with a sort of deposition without seeing the witness. So that the two Acts will remain parallel—this and the 1802 Act. I only touch the 1802 Act to the extent of doing away with the Grand Jury. The Foreign Office think it desirable that we should have such a clause. There has been a rather notorious case recently where some diplomat in the employment of an ambassador has been guilty of stealing. It is obviously most undesirable, even if it is possible, that that sort of linen should be washed anywhere except in this country. The Foreign Office think it desirable that we should have this power. At present, it is also particularly necessary that we should have it in regard to Germany and Austria. I hope that your Lordships will think that I have managed successfully to construct a clause on sufficiently tightly drawn lines, and that it will be worth while having it. I beg to move.

§ Amendment moved— Page 34, line 28, at end insert the said clause.—(The Lord Chancellor.)

§ VISCOUNT SIMON
My Lords, the noble and learned Viscount the Lord Chancellor has very clearly explained to your Lordships how he has come to construct this provision. Since I took some part in criticising the unduly wide draft, I should like to say at once that I think that in this new form the clause should be accepted. It is true that it will apply to more than those cases which I think immediately moved the Lord Chancellor to propose something of this kind, but those, I understand, are cases in our Zones in Germany or in Austria, not necessarily of diplomats but also of other people who are in the service of the Crown. This clause is made wider than that, but I can quite see that it may be well to make it so. I mention one other consideration which appeals a little to me. I suppose that a number of persons who are serving His Majesty abroad in the diplomatic sphere would be entitled to plead diplomatic immunity in regard to proceedings taken against them in a country where they are alleged to have committed an offence. If that is so, it is all the more reason for saying they 84 should not escape altogether. I think that is right enough. The other point to which I attach great importance is that, under this new clause, the whole matter is limited to cases where the offending British subject is acting or purporting to act in the course of his employment. That is a most material part of this matter and entirely cuts out the illustration I gave the other day of a man driving at a furious pace down the street, and offences of that sort. I am grateful to the Lord Chancellor for so kindly producing a clause which I think deserves the support of the House.

§ LORD GODDARD
My Lords, as one who made some observations on the last occasion with regard to the matter of jurisdiction in respect of indictable offences committed in foreign countries, I rise only to say that, having considered very carefully the present clause, I think it is open to no objection and should therefore be accepted by the House.

§ THE EARL OF MUNSTER
My Lords, I wonder if I might ask the Lord Chancellor one question—namely, whether this clause will come into operation immediately on the passing of the Bill. Under Clause 82 different days can be appointed for the purposes of different provisions of the Bill, I take it that it is the noble and learned Viscount's intention that this clause should operate as soon as possible.

§ THE LORD CHANCELLOR
Frankly, I had not considered that point before, but I see no reason why this clause should not come into force at once.

§ On Question, Amendment agreed to.

§ Clause 33 [Challenge of juries and separation of juries]:

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

§ Amendment moved— Page 35, line 17, leave out ("trial takes place") and insert ("accused is to be tried").—(The Lord Chancellor.)

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR moved, after subsection (2) to insert: (3) Upon the trial of any person on indictment for felony or misdemeanour, the whole or any two or more of the jury may be sworn together: Provided that an opportunity to challenge each of them separately shall be furnished to the prosecutor and the accused before the oath is administered. 85 The noble and learned Viscount said: My Lords, hitherto in trials for felony—and I shall be corrected if I am wrong—every juror has had to be sworn separately. In trials for misdemeanour, I think it is common to see three or four of the jury sworn together. This Amendment provides an opportunity to challenge each juror separately before the Oath is administered.

§ In view of the fact that we now have this right of challenge, I suggest that the way in which it would probably be clone is that it should be left to the Judge to decide, but that probably a sort of roll-call would be taken and each juror would be asked to stand up as his name was called, so that the prisoner would have a chance to make his challenge in regard to any juror. Then, if he was not challenged—the challenge must be made of course, before the Oath is taken—the prisoner would have had his chance to challenge, and the whole of the jury could be sworn together, which would save a considerable amount of time. Unfortunately, our criminal courts are over-pressed, and I am sure your Lordships will agree that, so long as we preserve the right of challenge and make the right of challenge effective in the way that I have indicated, it would be all to the good that the jury should be sworn together. There is no reason why the fact of the jury being sworn together should not be just as solemn a proceeding as if the jurors were sworn separately; indeed, one sometime; finds people, talking and laughing with each other if a succession of. Oaths is being taken, which is rather unseemly. That is the compromise I propose. I just reassert the procedure. An opportunity to challenge each of them separately would be furnished and the Judge, probably by a resolution of the Judges, would see to it that the procedure which is adopted is a real and effective right of challenge. That is the endeavour I have made to bring our discussion to a head and, broadly speaking, I think it is in accord with what the House wished on the last occasion. I beg to move—

§ Amendment moved— Page 35, line 18, at end insert the said subsection.—(The Lord Chancellor.)

§ VISCOUNT SIMON
My Lords, may I just make this one observation? I think the Lord Chancellor's proposal is a good one, but I am sure he will agree that 86 it is important that the opportunity to challenge should arise before the juror takes t he Oath. The prisoner may recognise a man's features, and know him as a person he does not wish to try him, or it may be that he knows the man's name and does not wish the person of that name to try him. Those two things are not the same, because you may have a prisoner who knows a man's face but does not know his name; equally you may have a case where a man objects to the name, though he may not recognise the face—especially if the prisoner happens not to have good sight. I would have thought it was perfectly, safe to leave to His Majesty's Judges the making of any rules of practice which would secure both those points.

§ LORD GODDARD
My Lords, I am obliged to the Lord Chancellor for petting down his Amendment. It was a matter which I raised on Committee, and he may be certain that the matter will be considered by the Judges at their next meeting, when I think a proposal very much on the lines he has suggested will be adopted. I thought the line probably would be first of all to get the jury into the box and let them all sit clown; then the prisoner would be informed of his right to challenge seven (which is what the Bill provides), either in felony or misdemeanour. Then I was going to propose that each juror should be called by name and should stand up as he is called. The prisoner would then hear the name and see the person. After that, all the jury will be sworn together. By that means, a great deal of valuable time would be saved.

§ LORD LLEWELLIN
My Lords, is not it right to say that the prisoner has seven peremptory challenges—apart, of course, from challenges of cause—of which, equally, he should he told? I rise only to say that I am much obliged to the Lord Chancellor for moving the Amendment in this form. There is only one other thing, which I suppose would normally be done—that, if and when there is a resolution as to the procedure adopted by Judges of the King's Bench Division, it shall be circulated to all courts of Quarter Sessions.

§ LORD DARWEN
My Lords, I should like to ask the Lord Chancellor about the position under this clause of a juryman 87 who wishes to affirm, instead of taking the Oath. Apparently, under this clause, they cannot be taken less than two at a time.

§ THE LORD CHANCELLOR
I assume that it will be done as it is now.

LORD SALTOUN
My Lords, there is only one point I should like to mention, which I am sure will be adequately taken care of. I have some sympathy with a man who finds himself in the dock for the first time, in unfamiliar surroundings. If he is a person with failing eyesight he might find it rather difficult to distinguish the faces of the jurymen at the back of the box. I am certain that the Judges will be very careful about that, but I feel this is a point that ought to be made.

§ On Question, Amendment agreed to.

§ THE LORD CHANCELLOR
My Lords, it is now about six o'clock, and that is the time when we agreed to adjourn our consideration of this matter. As we 88 have now reached a rather lengthy topic, I think this is a convenient moment at which we should adjourn. I therefore beg to move that this debate be now adjourned.

§ Moved, that the debate be now adjourned.—(The Lord Chancellor.)

§ On Question, Motion agreed to, and debate adjourned accordingly.