HL Deb 30 November 1948 vol 159 cc663-90

2.55 p.m.

Order of the Day for the Second Reading read.


My Lords, in moving the Second Reading of this Bill, I need hardly remind your Lordships that it is the Scottish equivalent of the Criminal Justice Act which was passed through your Lordships' House last Session and is now on the Statute Book. Your Lordships will also be aware that Scotland has its own criminal law, which has developed on lines parallel to, but by no means identical with, those of England. Scotland has its own judicial system, in which the main criminal jurisdiction is exercised by professional Judges. It has its own system of public prosecution instead of, as in England, a system of prosecution mainly by the police or by private persons. It has its own local government system, with town and county councils bearing responsibility for the provision of remand homes and the organisation of probation. For all these reasons, while the Bill covers broadly the same ground as the Criminal Justice Act to which I have already referred, there are substantial differences in detail between the two measures.

The Act of last Session disposes of at least two issues for Scotland as well as for England and Wales. First, whipping as a court penalty was abolished in the three countries, and secondly, mainly on the initiation of the noble and learned Viscount, Lord Simon, the privilege of Peers in criminal proceedings was also abolished in the three countries. Again, as I need hardly remind your Lordships, the question of capital punishment was also fully debated in relation to Scotland as well as to England and Wales during the passage of last Session's Act, and in view of the recent announcement that it is to be further examined by a Royal Commission, I hope it may be generally agreed that that controversial ground need not be again traversed in our discussion of this measure. The ground, as I think you will see, has thus been cleared in some measure for the examination of the Bill, which I would perhaps somewhat optimistically describe as a piece of relatively uncontroversial legislation that I trust will commend itself to all who are interested in the question of penal reform.

Like the Act of last Session for England and Wales, this Bill is the outcome of the notable progress which has been made in the course of the past few decades. During these years a succession of Committees have examined the problems presented by different types of offenders and have recommended improvements which ought to be made in the methods adopted for dealing with them. In this connection, I should particularly refer to the work of the Scottish Advisory Council on the Treatment and Rehabilitation of Offenders, which, under the chairmanship of the very reverend Doctor C. W. G. Taylor, has, by reports on particular subjects and by general advice, greatly assisted in the preparation of this Bill. If I were asked to summarise in a few words the outstanding developments in this field, I would say that the enlightened view has come to be that not only should the punishment fit the crime, but the treatment should fit the offender.

This Bill seeks to deal with an offender appropriately, both in his own interest and in that of the community. That does not mean, of course, that reformation can be regarded as the sole object of the system of criminal justice. Punishment must still have a place and may often be beneficial to an offender, as well as operate to deter others who may be tempted to commit similar breaches of the law. It is now recognised, I think by all, to be essential that the courts should have better facilities than they have had in the past to ascertain all the circumstances surrounding a case before they pass sentence; and that they should also have at their disposal a wide range of methods of treatment, to be applied in the light of the information thus placed before them.

The chief purpose of this Bill, then, is to equip the Courts more adequately in both respects. For example, under the provisions which we now propose, the courts will be enabled to remand an offender before sentence, and to require his physical or mental condition to be examined at that stage. Clauses 24 and 25 provide those powers. Special facilities are to be provided for the observation and examination of juvenile offenders, either in local authority remand homes (under Clause 47), or in the new State remand centres under Clause 46. Elsewhere, the Bill provides that special reports must be before a court which is considering sentencing to imprisonment a person under 21; and that before sentencing any persistent offender to a long period of detention the court must consider any report, similar to the present Borstal report, which may be made to it by the Secretary of State on the offender's health and suitability for such a sentence. These are some examples of the provisions included in the Bill, in order that the courts may have all the available information about an offender whose sentence they have to determine.

Another direction in which substantial advances will be made if this Bill is passed, is the introduction of new types of treatment, and the improvement of existing methods of dealing with offenders. At present, the courts are most handicapped in relation to three classes of offenders—namely, young delinquents, persistent offenders, and offenders who suffer from some mental abnormality. It is now generally accepted that new methods are required if progress is to be made in solving the distinct problems presented by these three groups. Some years ago the Departmental Committee on the Treatment of Young Offenders emphasised the undesirability of sending children and adolescents to prison. Short sentences are demonstrably harmful to juvenile delinquents, and make little or no contribution towards their reformation. Clause 17 of the Bill, therefore, declares that no court shall in future impose im prisonment on a person under seventeen. Power is also taken in that clause, as new methods of treatment become available, to raise the minimum age, by Order in Council, to twenty-one.

Of these new methods, the chief is the introduction of a new type of institution, the detention centre, to which courts may commit offenders who are over fourteen but still under twenty-one. The purpose of these centres is to provide a means of dealing with the juvenile who does not require the training provided in an approved school, or in a Borstal institution, but who needs to be pulled up more sharply than can be done by fining him or making a probation order. The punishment will be primarily deterrent, and while in a centre such a person will be subjected to strict discipline, although, in addition, such training as is possible in so short a time will be given to him. In order to keep out of prison young offenders who have not been sentenced, another new institution—namely, the remand centre—is proposed. To these centres will be committed young persons between seventeen and twenty-one, those between fourteen and seventeen who are certified by a court to be so unruly or depraved that they cannot be detained in an ordinary remand home, and those between fourteen and seventeen who require observation and examination which cannot be provided in a remand home.

Two of the methods of treatment which are at present used to a considerable extent for young persons will be improved when the Bill takes effect—namely, the probation system and Borstal training. I propose, with your Lerdships' permission, to say a few words later about the probation system, because probation is also applicable to adults. As I have already said, the other method, in regard to which improvements are proposed is Borstal training. At present the wording of the old Prevention of Crime Act, under which Borstal sentences can be imposed, prevents courts from using this hopeful method for a number of adolescents. Clause 19, therefore, widens the qualifications for Borstal training, and is designed to ensure that in no suitable case is it impossible to commit the offender to Borstal. It should in future be possible to check criminal tendencies at an earlier stage by giving the offender the benefit of a period of Borstal train ing before he has contracted criminal habits or begun to associate regularly with persons of bad character. Another substantial change in regard to Borstal involves the abolition of the sentence of two years' detention in an institution. In future all sentences will have to be for three years, but the Secretary of State will have discretion to license the offender at any time within that period. The intention is, of course, that each individual should be given the period of training suited to his own particular needs.

The hardened offender presents another main problem which is seldom satisfactorily solved under the existing law. The existing provisions authorising preventive detention for periods of not less than five and not more than ten years are rarely used in Scotland and, in any event, such sentences can be imposed only as an addition to penal servitude. The Departmental Committee on Persistent Offenders recommended some time ago that two new types of sentence should be introduced—namely, a shorter term suitable to less hardened offenders, with a view both to the protection of the public and to the provision of training and discipline calculated to check the offender's criminal tendencies; and longer detention for hardened offenders, with a view not only to remedial treatment, but to their relegation from society for a prolonged period. Effect is given to these recommendations in Clause 20. That clause introduces corrective training for not less than two and not more than four years for persons over 21 convicted of a serious offence and having at least two previous convictions of a serious nature; and preventive detention for not less than five and not more than fourteen years for persons over 30 convicted of a serious offence and with at least three previous convictions of a serious nature. Only the High Court in Scotland will be empowered to impose preventive detention, but sheriff courts as well will be empowered to pass sentences of corrective training. This Bill recognises that the effectiveness of these two new sentences will depend not only on the way in which the courts use their powers, but also on the development of the prison system, and it is the intention to adapt that system to cope with the new classes of offenders.

I come now to another group of offenders specially dealt with in the Bill—namely, those who show signs of mental abnormality. It is obviously desirable that they should be cared for in suitable circumstances, and should be given every chance to recover without having an opportunity to get into further trouble. Clause 22 therefore provides a simpler machinery than at present exists for committing to mental hospitals insane persons who have broken the law or, if they are dangerous or offensive, to a State mental hospital. Clause 23 empowers the High Court or a sheriff court to order a mentally defective offender to be detained in a suitable institution or to be placed under guardianship. The Bill does away with the expressions "criminal lunatic" and "criminal lunatic asylum" which, I suggest, are in a sense contradictions in terms, because an insane person cannot be held to be responsible for his actions. These unfortunate people will in future be cared for in a State mental hospital which will be managed, not by the prison authorities but by the mental hospital authorities. To safeguard the public, however, responsibility for their release will still rest with the Secretary of State.

I have already mentioned that attention is devoted in the Bill to improving the probation system. Probation is now a well-established method of treatment, and it has been adopted with success by the courts in a very large number of cases. The Bill amends and consolidates the law in this field. Several changes in procedure are made. For example, "conditional discharge" is dropped. This method of disposal has scarcely been used in Scotland, the Scottish courts preferring to defer sentence on an offender. A new power is given to the courts by Clause 3, which enables a probation order to include, with the offender's consent, a requirement that he shall for a period not exceeding one year submit to treatment for his mental condition under the direction of a doctor. In addition to making changes of procedure, the Bill recognises—and this is a point I want particularly to emphasise—that the success of the probation system must depend in the last resort upon the calibre of the probation service. The training of probation officers is, therefore, a matter of vital importance, and provisions are included which will facilitate training schemes for officers and also for future candidates.

I am sure your Lordships will forgive me if I do not deal with all the main provisions of the Bill. I hope it will suffice to say that we are abolishing a number of obsolete sanctions which are still part of Scottish Criminal Law, including the sentence of hanging and quartering. I have seen certain comments from English sources as to why these gruesome penalties now being abolished by this Bill ever existed in a highly civilised country such as Scotland. I understand from my researches into this question that they were introduced from England in the year 1707. The Eighteenth Article of the Act of Union provided—and here I quote: … that the laws which concern public right, policy and civil government may be made the same throughout the whole United Kingdom. It was to implement that Article that an Act was passed later in 1707, providing that the pains, penalties and forfeitures for high treason should be the same in both countries. That was how Scotland came to adopt this barbarous system of hanging, drawing and quartering. I thought those noble Lords from England whom we are privileged to have with us this afternoon might like to be reminded of that.

These gruesome accompaniments of hanging in cases of treason were abolished for England, Wales and Ireland by Section 31 of the Forfeiture Act of 1870, but that Act did not apply to Scotland and, therefore, the penalties still remain on the Statute Book. By Clause 13 of this Bill they will be abolished for Scotland, and the penalty will be confined to hanging. I have been unable to discover when was the last occasion upon which this barbarous sentence was imposed, but the last occasion upon which it was prescribed appears to have been l20 years ago at the town of Stirling. According to my information, when the sentence of hanging, drawing and quartering was imposed, a public outcry arose with so much effect that the drawing and quartering was not carried out, and the men concerned were merely hanged and beheaded. I have not been able to discover in my researches into literature whether they expressed any gratitude for this concession! We are also doing away with penal servitude and hard labour, both outmoded forms of sentence with little practical significance in these days.

The Bill makes possible a number of administrative reforms in the prison system, and introduces several improvements in the procedure of the Scottish criminal courts. In the last connection, Clauses 35 and 42 are worthy of special mention. These clauses are designed to ensure that an accused person's previous convictions are not known to the Judge until his guilt has been established. This is obviously a most desirable reform, which should remove any suggestion that a court's verdict might be influenced by the past record of a person charged before it. Finally, I need only add that, for reasons your Lordships will readily understand, the provisions of this Bill can be brought into farce only gradually. Many of the projected reforms depend upon the provision of new types of institution, and while the national building programme is so congested these reforms must inevitably be delayed. However, this measure opens the way to speedier progress in many other directions, and so far as the Government are concerned full advantage will be taken of it. I am sorry to have occupied so much of your Lordships' time, but this Bill is a major step in the development for Scotland of a system of criminal justice which will combine the maximum protection of the community with increased attention to the reclamation of the offender. I beg to move that the Bill be read a second time.

Moved, That the Bill be now read 2a.—(Lord Morrison.)

3.19 p.m.


My Lords, I am sure your Lordships would like me to thank the noble Lord for so clearly and simply explaining this Bill, which is undoubtedly of very great importance. I would, however, make reference to two points. The first is that it is unfortunate that the two noble Lords who are really qualified in Scottish criminal law are unable to be present this afternoon. I would like to make reference to the remarks of the noble and learned Viscount, the Lord Chancellor, on May 11, when he referred to the danger of a Committee of this House sitting at the same time as this House is sitting. It is particularly unfortunate that the two noble Lords who might have taken part in this debate—I do not know whether they would—have been unable to do so.

Secondly, I would like to draw your Lordships' attention to the date on which this Bill was produced — namely, November 9. To-day is November 30. That is a period of three weeks. In calling attention to the relatively short time which this Bill has had for consideration, I want to make it clear that I do not wish in any way to criticise the noble Viscount the Leader of the House. I again take this opportunity of reiterating my appreciation of the trouble he always takes in meeting every reasonable request. But I am fortified in pressing that this Bill should not be rushed, in that it is a non-Party measure and it deals with criminal justice which, of all subjects, requires mature consideration. I suggest that it would have been more appropriate to publish it six months ago. If such a course had been followed, it would have been possible for outside bodies to give their considered views of the general features included in this Bill, many of which, however desirable, are entirely new.

I am sure that Lord Morrison would not argue that because parts of this Bill are very similar to what is in the English measure, Scotsmen should be fully familiar with its contents. We have quite enough to do reading Scottish legislation. Moreover, if it were fully similar, then there would be still less justification for failing to publish it three to six months ago; for all of which reasons I wish to press the noble Viscount who leads the House to delay the Committee stage until at least two months from the present date.


It was proposed to take the Committee stage immediately after the recess. If it is felt that a longer interval is required, I shall be glad to consider the point.


I thank the noble Viscount for what he has just said, and I again wish to say how much I appreciate his consideration.

Turning to the Bill itself, it appears to me to be a workmanlike attempt, both in drafting and structure, to reform the penal code in Scotland. As Lord Morrison has said, it is an endeavour to make the punishment fit not the crime but the criminal. Only last week, on a Motion by the most reverend Primate, the Archbishop of York, this House was discussing the implication of criminal statistics in England. No doubt such a source is a poor basis on which to judge the moral code or standards of a country. In fact, the study of penal reform is not, in itself, likely to raise moral standards any more than an intensive study of disease is likely to promote the health of the nation. However, as the criminal statistics of England have so recently been examined, it may be of interest to see how we stand in Scotland. The Scottish criminal statistics for 1946 have just been published—that is to say in October, 1948—and from them it appears that the persons dealt with in criminal courts during the year 1946, although greater in number than in 1945, were fewer than the average for the last twenty-five years and, with the exception of the year 1945, were fewer than in any year since 1933. What is perhaps even more encouraging is that persons under 17 who were so dealt with were, in the year 1946, 20 per cent. lower than the number in 1945. But, in any case, the number of crimes known to the police in 1946 was notably less than in 1938.

The noble Lord, Lord Morrison, in introducing the Bill, very properly made reference to the abolition of drawing and quartering, and has explained that this barbarous method of execution was introduced in Scotland at the time of the Union. What he did not say was that it was by these means that one of our greatest national heroes, Sir William Wallace, was executed, not a great distance from where we are now, after a trial which was a mere mockery. The resentment at the treatment which was meted out to him by Edward I is very far from dead in Scotland at the present time.

The general structure of this Bill contemplates something of the order of twelve different ways of dealing with delinquents. The scheme is complicated, and up to the present time, even after Lord Morrison's speech, we still have only a slight idea of what some of these new methods and institutions really mean or will effect. I know that the Secretary of State has an advisory council to assist him in his responsibilities with regard to these institutions. I would ask for an assurance that the members of the advisory council will have free access at all times to the institutions, so that they may be able to give to the Secretary of State their judgment based on full knowledge of the way in which they are organised. I suggest that it is of importance that the widest knowledge and experience should be available to guide these new methods and institutions in their early stages.

I should like to make one or two references, if I may, to the procedural side, and to one or two powers which are to be introduced in this Bill. By Clauses 19 and 56 the Secretary of State is, in effect, enabled to increase a sentence by his own fiat. I am aware that it is only a limited sphere in which this can be done, but I submit that the precedent is not desirable, and the power should be fenced round as closely as possible. I believe that something of the same sort of power existed previous to this enactment. If so, why is it necessary to have it in again? If it is included again, is there any extension of the powers previously held by the Secretary of State?

I wish also to draw attention to Clause 20, subsection (4), which gives the Secretary of State power to advise the court of the nature of the sentence to be imposed. The noble Lord, Lord Morrison, made references to this point, in the course of his remarks. It is obviously desirable that the court, in imposing sentence, should have as wide and full information as possible, but this seems to me to be something which we have never had before in this country: the Crown, or the Secretary of State, is in effect demanding or suggesting a sentence. I think that the previous system (which I believe existed in the Prevention of Crime Act, 1908) was that certain evidence could be laid by the Prison Commissioners. It is obviously desirable that in certain cases, evidence should be put forward by them or by the Board of Control, where mental ailments are in question.

I should like now to refer to Clause 36, by which a corporation can be sentenced in absentia. There are powers existing already by which a corporation can be dealt with in this way under the Companies Act. A corporation, of course, having neither a soul to be saved nor a bottom to be kicked, is difficult to apprehend. But under some recent Acts, once a company or corporation has been found guilty, the onus of proof on the directors to show their innocence passes to the directors individually. In such circumstances, I submit that it might be unfortunate if the corporation were found guilty in absentia and subsequently the onus of proof were to shift. It is a point which should be carefully considered, to see whether this principle of trial in absence should not be further and more carefully circumscribed.

There is a reference in Clause 49, subsection (6), to the abolition of corporal punishment in Peterhead. I should like to ask whether it is not the intention to retain corporal punishment, as was done in the English Act, for assaults on warders. It appears to me that the effect of this clause is to exclude corporal punishment from Peterhead altogether.


I am advised that Peterhead is the only prison in Scotland to which this applies. Corporal punishment has not been applied, and could not be applied, to any other prison in Scotland, because Peterhead is the only convict settlement in the country. The last time that corporal punishment was applied in Peterhead prison was over twenty years ago. After the passage of this Bill, Peterhead will no longer be known as a convict prison; it will be merely an ordinary prison. The choice therefore left is of making this applicable either to all prisons in Scotland, or to none. As it has not been applicable to any prison other than Peterhead, then I think it is proper to abolish it in respect of Peterhead.


I thank the noble Lord for his explanation. I understand that such is the discipline in prisons in Scotland that it is not necessary to retain the powers which prison authorities have retained in England. That is correct, is it not?

I will not say any more except this: that another place has been trying ineffectively for many years to pass a Bill for the prevention of clandestine outlawries. I am sure that the other place will be glad to hear that this Bill goes further than that, and abolishes outlawries altogether. I have one final point. This is simply (shall I say?) a scaffolding, into which must be erected a body; and the main and most important feature of this measure is the personnel, who are to administer it. We cannot ensure by legislation the quality of personnel. I hope that the high hopes with which this Bill has been introduced will be fully justified.

3.32 p.m.


My Lords, I hope that anything I say this afternoon will not be taken as opposition to this Bill. I have not many criticisms to make, but I have a few points to raise. First, I would like to associate myself warmly with all that has been said by the noble Earl, Lord Selkirk, about Clause 20. I entirely agree with him on that point. For the most part, the provisions of the Bill codify an existing practice. Part I of the Bill deals with probation, and one hopes that the new provisions will be more effective than those which they have superseded. However, so far as I can find out, juvenile offences in England committed by children under the age of 17 amount to about one-third of all the offences that are committed. The noble Earl, Lork Selkirk, has pointed out that, so far as we can gather to date, the Scottish figures are lower. I am afraid that the difference in the two sets of figures is largely due to the difficulty of prosecution in the case of juvenile offenders in Scotland.

The Bill seems to me to betray a knowledge of what should be done, with the careful avoidance of doing it. For example, if a boy robs a house, he may be put on probation. Which is the worse thing to do: to rob a house or to fail to observe the probation order? Yet if a boy fails to observe a probation order, the court has power under the Bill to fine the parents or guardian. The court does that in the certainty that that remedy will be effective. Why not have the power to fine the parent or guardian for the offence, in order to be sure that the boy may be taught not to rob? If the responsibility of the parent or guardian is recognised in Clause 5, why should we not also recognise it in Clause 2? I notice that in this Bill no power is taken as was taken in England to fine for an indictable offence. It may be that that power exists in Scottish law to-day, but it will not cover the fining of a parent or guardian who has not committed the offence. Therefore, I humbly submit that that power should be included in Clause 2 as well as in Clause 5.

Again, if I have rightly understood it—for it is not an easy clause to understand—we have in Clause 8 the old question: When is a conviction not a conviction? When we are considering the qualifications of applicants for a position which involves a good start in life, we take great care to examine what the children have done at school, and, if possible, we obtain a character from the schoolmaster. Why, then, do we put obstacles in the way of discovering what is far more important—whether a child has been guilty of an indictable offence? It seems to me that the person who has the right to decide whether a boy or girl should be given another chance is the person who stands to lose by a failure. If this provision stays as it is, I am afraid that people will be forced to ask whether a candidate has ever been charged with an offence, and that would certainly be a lamentable position. I do not think it is creditable that the State, which, after all, is partly responsible for standards of honesty and truthfulness, should merely pave the way for what is a constructive lie. Clauses 13 and 14 effect the abolition of some of the old and obsolete penalties. I should like to point out that in the old Court of Heritable Jurisdiction, which was abolished, none of these penalties had a place. These powers were given to the Crown only after the Crown had moved South to England and so had to come under the influence of a new climate. At any rate, I am very glad that those penalties are being moved out of the way.

Clause 15 follows the lines of the English Act in abolishing penal servitude and hard labour. As they have already gone, I am certainly not going to plead for their reinstatement. But, taking this clause in conjunction with Clause 49, I think it is worth while at this moment to consider the way we are tending to go. A few days ago, the most reverend Primate the Archbishop of York painted a very grim picture of the increase of crime in the country from day to day. I am afraid that even the picture that he painted was under rather than over the truth, because some very brutal crimes which are committed practically never come to light, and that makes the position worse.

The most reverend Primate concluded, with a wit which I am bound to say I felt was rather akin to the guilelessness of sainthood, by suggesting that the State (which in the last three or four years has acquired several thousand million pounds' worth of property by what I call, if I may, a brigand's bargain—in case noble Lords on the other side do not like that term "brigand's bargain" I should explain that it is a bargain in which one side fixes the price) should canvass the people of the country on the question of the sanctity of private property, and than politicians and administrators should address them on the virtues of truthfulness and honesty. Offences and offenders are steadily on the increase, while the nature of the penalty has steadily been growing milder and milder. A grave responsibility rests upon those who claim credit for the change, because it is not true that punishment is not a deterrent and cannot be a deterrent. The whole history of mankind (and the Petrol Act) proves the contrary. The first task of punishment is prevention. I do not think we are having very much prevention to-day.

The second task of punishment is to afford some sort of satisfaction to the victim of an outrage. I may be told that that is revenge, but I think it would be sheer hypocrisy for us sitting in this place, sheltered as we are by our circumstances from so many dangers, to attempt to condemn the natural feelings of a man whose wife has been bashed and robbed while he is away at his work. It is only after these two objects have been attained that reform of the criminal comes into view. As to the reform of the criminal, I submit that the most important step is a determination on his part never to come back to prison. I say that with more confidence because I know I have behind me the opinion of men who themselves have served terms of imprisonment and have made good afterwards. After all, what happens in a prison? There are opportunities for association between prisoners. Very often these are used for planning the next coup; and if there are other prisoners who are determined to reform, they are nearly always sent to coventry and sometimes, if opportunity occurs, are even mal treated. I hope that when the rules come to be drawn up in regard to Clause 49, some of the points I have mentioned will be borne in mind. There may be noble Lords who do not agree with me in this matter, but I have said enough to make my point. If I had failed to say as much as I have said this afternoon, then with the next case which occurred of some brutal crime, such as he concerted rape of some helpless victim, I should not be easy in my own mind as to the degree of responsibility which I myself bore.

3.42 p.m.


My Lords, it may appear odd that an Englishman should take part in a debate on Scottish law; yet I understand that I am to be accompanied in this matter by the noble and learned Viscount on the Woolsack. At any rate, we can both claim to be Peers of the United Kingdom, which I believe still includes the part North of the Tweed. So perhaps we have a right to talk on these matters, just as Scottish noble Lords are always seeking to talk on matters that concern us. The noble Lord, Lord Morrison, in introducing this Bill (which he did in a very able way, if he will allow me to say so) said that he thought it was relatively uncontroversial. I can assure him that that is the case. In this Bill, we start with provision; dealing, first, with an absolute discharge and, secondly, with probation—in contrast to the clauses with which we opened the English Bill, which dealt with capital punishment (on which there were some interesting and remarkable debates in your Lordships' House) and corporal punishment, on which almost every member in this House was agreed. In this case we start with the much less controversial subject of absolute discharge and of probation.

The noble Lord who introduced this measure referred to the Royal Commission which is to be set up in regard to capital punishment. I think we shall all welcome the appointment of such a body. I hope and I have no doubt that a considerable amount of trouble will be taken to ensure that tie people appointed to that Royal Commission will be those in whose judgment everybody will have some reliance. And I hope that the Commission will consist of people who have not too materially committed themselves, on one side or the other, in regard to this question. One of the worst bodies one can have is a Royal Commission such as I once remember the Government setting up on some question relating to the drink trade. All the most vociferous teetotallers were on one side and the brewers were represented on the other; and there was no hope of obtaining a Report from that Commission, however long it sat.

I hope that this Commission will be charged not only with recommending, perhaps, what degrees of murder there should be, but also with considering whether all the formulae attached to the passing of sentence of death is really now necessary. For one thing, it seems completely unnecessary that two wretched prison warders should have to sit up with a condemned man in the condemned cell, from the day he is condemned to the day he is executed, if in fact execution takes place. I do not see (although others may not be able to agree with me in this) that any great harm would be done if, in the exceptional circumstances of the case, a man forestalled the executioner and took his own life. But what I do think is a most deplorable thing to ask prison officers to do is to sit up, day after day and night after night, with a man who they know is getting nearer to his death every day. It is a duty which I certainly would not like to have placed upon me, and I think a large number of noble Lords would agree with me. Therefore, I dislike seeing it imposed upon other people. Probably one could also get rid of the posting of the notice outside the prison, the clanging of the prison bell, and things of that sort. I hope this Royal Commission will have terms of reference which are wide enough to enable it to go into matters of that sort.

As I say, we start in this Bill with a completely non-controversial clause. I would, however, like to ask why, in Clause 1, there is not the power given in Section 7 of the English Act enabling a court to discharge a man, subject to the, condition that he commits no offence during the maximum period of twelve months. That provision which we put into the English Act (if I may call it that for short) finds no part in Clause 1 of the Scottish measure. It may well be an extremely valuable provision to give to any court. In fact, it is the kind of provision that many courts of which I have personal knowledge often use; it enables them to keep a tag on the young man (or, for that matter, the older man) who knows that if within the period of twelve months from coming up to court he does anything else, the original offence as well as the new offence which he may have committed will be taken into account.

In Clause 2, I notice again a different wording from that of the English Act. In Scotland, in a summary trial, the accused person need not be convicted—I believe my noble friend Lord Saltoun referred to that a moment ago—but I do not think it makes much difference. In the English Act the person is convicted but is then put on probation. I think it is much better to make the court realise, by having to record a conviction, that they must have sufficient evidence on which to convict before they can impose any penalty. I think that way which we adopted in the English Act is the right one. In any event, if a man comes before a court charged with a subsequent offence, whether there has been a conviction or not, this probation order will certainly be read out. That is, in effect, the only time when these things are referred to—officially at any rate. Whether a conviction has actually been recorded or not will certainly make no difference to the reading out of his past record, because he will have been put on probation. I think the line which we took in the English Act is better than the kind of camouflage we have in this Bill.

I quite understand that there are some phrases in Scottish law which are altogether different from those used in English law, and I do not know whether the Lord Chancellor will know the answer to this question. It seems to me rather odd to read in Clause 28: For the removal of doubts it is hereby declared that a person may be convicted of, and punished for, a contravention of any statute or order, notwithstanding that he was guilty of such contravention as art and part only. I must admit that I do not know what the technical phrase "art and part only" means. Where we have phrases which apply equally in the two codes, I do not see why we should not use them similarly in the two measures. In Clause 3 of the Scottish Bill, for example, we get the phrase "from the date of the requirement." It is "from the date of the requirement" that time is to run. Your Lordships will see a passage which runs: "for such a period not extending beyond twelve months from the date of the requirement." In the English Statute it was "from the date of the order." It is the order that lays down the requirement, and why the same words are not used I do not know. Going through this section of the Bill one finds "offender" mentioned. Although in the Scottish draft Bill there is careful provision for avoidance of registering a conviction, throughout the whole of the clauses dealing with probation the individual concerned is called an "offender." Under the English Statute we do allow a conviction to be registered, but then we call the man convicted a "probationer." I must say that I think that "probationer" is probably the better word, because the state in which the individual is at that time is the state of probation.

Clauses 5 and 6 of the Scottish Bill deal with failure to comply with the requirements of a probation order by the probationer—or "offender" if you prefer that term. The normal procedure in Scotland seems to be to issue a warrant for his arrest. In England, the normal procedure would be to issue a summons. I must say that I think a summons is much the better process. If you issue a warrant, the individual cannot be tried on the day the warrant is issued. That means he has to be put somewhere; he has to be locked up, very likely in a prison, and that is a result which we all want to avoid. So I hope that in the Scottish Bill we shall be able to substitute "summons" for "warrant," which ought to be used only in the last resort when it is not possible to get a man before the court by means of a summons—which I believe in Scottish parlance is called a "citation." A "citation," at any rate, is not a process by which a person is brought up forcibly, as he is by a warrant. When brought up by a summons or by a citation, he appears without any pressure from the police. In Clause 7, I notice it is provided that only a parent or guardian can give security for an offender's good behaviour. In our English Act, it was laid down that not only a parent or his guardian could give security but any person could do so whom a court thought fit to accept as a surety. That opens a slightly wider field in cases where a young man may have a friend who is not actually a parent or guardian but who is ready to stand as surety for him. I hope we shall be able to get the two measures in line in that respect.

With regard to Clauses 13 and 14 (upon which comment has already been made) which get rid of the provision for drawing a body and for dividing it into four quarters, and also get rid of any attainder, I am very glad to see that Scotland, although seventy-eight years late, is now coming into line with English law. I must say that I do not know why the Scots "contracted out," so to speak, in 1870. At any rate we have heard that they inherited this from South of the Border. One must remember, however, that at the time it was inherited a great deal of the law in Scotland was not in the hands of the courts at all. Those who administered the law in Scotland then had their own methods, when clan warred upon clan. What took place in those days as the result of a successful foray? I do not know that it was only drawing and quartering that normally ensued. At any rate, I think that all Peers from South of the Border would like to congratulate our colleagues from the North on so sensibly coming into line by now repealing these old provisions of the law.

I have not many more remarks to make except to say that I notice in Clause 17 that it is provided that a sheriff or a stipendiary magistrate's Court in Scotland need not give the reason why they consider that a person under 21 should go to prison. Under the English Act., a stipendiary magistrate, and indeed, a Court of Quarter Sessions, have always to give a reason when, for exceptional considerations, they send a person under 21 to prison. I do not see why it should not be the duty of a sheriff court, which is not a higher court in Scotland than a Court of Quarter Sessions, and of a stipendiary magistrate's court in Scotland, equally with their opposite numbers in England, to give reasons if they adopt what we hope will now be an exceptional procedure. It certainly is some restraint on lightly sending people under 21 to prison, and I hope it will be applied in Scotland to equivalent courts just as it has been applied in England.

I find that the provisions of Section 18 (1) and Section 19 of the English Act have no place in the Scottish Bill. Section 18 (1) (c) of the English Act deals with the detention at a detention centre. It says: If the offender is of compulsory school age and the court is of opinion that a term of detention of three months, or equal to the maximum term of imprisonment aforesaid, would be excessive, the term for which he is ordered to be detained as aforesaid may be any term of not less than one month and not more than three months or the maximum term of imprisonment aforesaid. The noble and learned Viscount on the Woolsack will remember our discussion on that point, whether in the case of a schoolboy, a short "snappy" sentence of one month would not be enough and better than interfering with his school training by so long a period as three months. There was considerable agreement, and eventually we agreed to an Amendment, to which the Government, after a certain amount of legitimate pressure, gave their consent. It seems to me we should have the same power in the Scottish Bill as was agreed upon on the English Act.

Section 19 of the English Act, which my noble friend Viscount Templewood tried so hard to secure—and in the end did secure—deals with attendance at attendance centres. Your Lordships will remember all the reasons given by the noble Viscount, from his own experience as Home Secretary and as Chairman of the Magistrates' Association. This Section, also, finds no counterpart in the Bill before your Lordships to-day. I am not suggesting that I should have an answer to any of these points this afternoon. They are matters which should be looked into in Committee stage. In a measure of this kind, which is a conglomeration of so many different clauses, it is difficult to make a Second Reading speech without going into some detail, because a principle is established in almost every clause.

It is somewhat unsatisfactory to have a Bill for Scotland and at the same time to have Section 81 of the English Act, which lays down the provisions of that Act which apply to Scotland. I hope that eventually, when this Bill has been passed through Parliament, a consolidating measure will follow shortly, in which the provisions of the English Act which apply to Scotland and the Scottish Bill will be brought together under one cover. I was glad that the noble Viscount the Leader of the House intervened to say that we shall not be taking the Committee stage until after the Christmas adjournment. I think that is absolutely right. We are all grateful to the noble Viscount for giving us extra time, which will allow for proper consideration of the Bill by legal opinion in Scotland, and I hope my noble friends from the North will find this completely satisfactory.

4.5 p.m.


My Lords, may I intervene for a moment to emphasise what has been said by the noble Lords, Lord Llewellin and Lord Saltoun, with regard to Clauses 1 and 2 of this Bill. I am very disappointed to find that again an attempt is being made to hide the fact that a man has committed offences by saying that he is not to be convicted. I thought we had got rid of that when the English Act was passed, and now it comes up again in the Scottish Bill. I also deplore the fact that there should be this difference in law between Scotland and England. I know that there must be some differences between Scottish law and English law, but I cannot see any reason why there should be a difference in this respect.

In view of what has been said this afternoon, I would ask the noble and learned Viscount, when he replies, to tell us why it is necessary to pretend—because that is what it means—that a man has not done a thing, when he has. He is charged with an offence, and nothing can be done to him, of course, until the offence has been proved; but now, in Clauses 1 and 2, we are told that in the case of summary convictions he has not to be convicted. The argument is an old one. It is tied up with the question of a man's record when he wants to go into the Army or other Government service. Then he is asked how many convictions he has. The answer in such a case will be none, although the man may have been in court many times, and may have had many offences proved against him. I think that is deceptive. The Army, rightly or wrongly, want to know what a man's character is. I can see no point in trying to hide the fact from the Army that a man has done several wrong deeds. If it is wrong that a man's whole future should be blighted by the reading out of his record, then the Army Regulations should be altered and worded in the right way. If, on the other hand, it is right that the Army should know whether a man's character is blameless or not, why in the world should not we tell the Army he has been convicted? It is merely a pretence. It has been abolished in England, and I had very much hoped that it would be abolished in Scotland. I am disappointed to find that it has not. If that point could be dealt with, I should be grateful.

4.9 p.m.


My Lords, the noble Lord, Lord Llewellin, expressed his surprise at the temerity which he displayed, as a mere Welshman, in taking part in the discussion of a Scottish Bill; but no one would have fell any surprise at a Scotsman taking part in an English Bill! On this occasion, we Englishmen can get our own back. I have this justification: that a part—and a very practical part—of the office which I hold is that I am Lord High Chancellor, not only for England but also for Scotland. I am a Judge who, by virtue of my office, is supposed to be competent to expound the law of Scotland, although I confess I expound with the greater readiness when I am supported by my noble colleagues who have been trained in the law of Scotland. Nevertheless, I have learned over some years to have the most profound regard for that law. For my part, I should be sorry, even in matters of nomenclature, to attempt to make the two systems exactly coincide. For instance, we talk about "an accessory"; in Scotland they have the ancient phrase, "art and part," which means the same thing. I do not see, if we are dealing with the Scottish Bill, why we should use the English word "accessory" instead of using the Scottish phrase "art and part." Therefore, I do not want in any sense whatever to enter into a competition between the two systems, either on the nomenclature or on the merits of each.

There is one other thing I should like to say to the noble Earl, Lord Selkirk. I very much hope that when we come to the Committee stage of this Bill those noble and learned Lords who are peculiarly well qualified to discuss these details, Lord Normand and Lord Reid, will endeavour to be here. I say, again, that it should be quite plainly understood that if any noble and learned Lord who is a member of your Lordships' House is taking part in a judicial hearing, and thinks there is some business on the floor of this House which demands his presence, he should not hesitate to indicate that to the noble Lord presiding over the judicial hearing, in order that he may come here. In that event, arrangements can always be made. I have no doubt that those noble and learned Lords will give your Lordships the benefit of their assistance when we come to technical questions on the Committee stage.

The noble Earl, Lord Selkirk, referred to the Scottish Criminal Statistics for 1947. I understand that these will be published before the Committee stage of the Bill is reached. I hope that the statistics will continue to show the satisfactory trend to which the noble Earl referred; but as the figures are not yet available. I cannot, of course, at present make any pronouncement about them. The noble Earl asked about the Scottish Advisory Council on the Treatment and Rehabilitation of Offenders. I should like to make it plain that the Council have free access to all penal establishments and its members are, indeed, encouraged to visit them. In addition, there are independent visiting committees for all institutions which are maintained by the Secretary of State for Scotland. The noble Earl called attention to the possibility of transferring a man serving in Borstal to corrective training. The Secretary of State for Scotland already reports to the courts in Borstal cases in exactly the same way as the Prison Commissioners do in England. The same system is extended by the Bill to corrective training. In practice, the responsibility for preparing such a report rests, of course, with the prison governor, who is, in fact, the only person who can do it.

The noble Earl then asked about the commutation of Borstal detention to imprisonment. The position is that Clause 19, as read with Clause 56 (2), empowers the Secretary of State to commute to imprisonment the unexpired part of a Borstal sentence. This provision already exists under the present law. From Clause 56 (2) it will be seen that it can be applied only in such exceptional cases as are reported by the visiting committee as being incorrigible, or in those cases where the person is exercising a bad influence on the inmates of the institution. Although it is true that the Secretary of State can exercise his discretion in regard to the length of the substituted sentence of imprisonment, that cannot exceed the unexpired residue of the Borstal sentence. So it is not a case where an executive officer has power, of his own volition, to extend or increase a sentence.

The noble Earl, Lord Selkirk, also asked about the prosecution of companies. We have already dealt with that matter in previous measures which have come before your Lordships' House. The trouble is, of course, that steps must be taken to get the company before the court, and that cannot necessarily be done. Consequently, there must be powers to proceed against the company in absentia. So long as steps are taken to see that the company is given notice of all the proceedings, I think that is all that can be done. It would be idle to say that one cannot proceed unless the company appears, because the company does not itself appear, except by a representative. With regard to whipping in prisons, my noble friend Lord Morrison called attention to the fact that the right to whip exists only in Peterhead Prison; and, oddly enough, it exists in Peterhead Prison only under the Peterhead Harbour of Refuge Act, 1886. The last time it was used was in the year 1934.

The noble Lord, Lord Saltoun, also asked some questions. It is the fact that the court can already fine the parent or guardian of an offender under the Children and Young Persons Act. Clause 2 deals only with probation orders; outside probation orders, the power already exists. It is an essential part of the theory of probation that if the offender makes good during his period of probation, the offence is in effect washed out, and is not to be used against him when he is seeking employment or engaging in any normal activity. The noble Lord, Lord Merthyr, will remember that although the English Act provides for a conviction before an offender is put on probation it directs that the conviction is to be disregarded for all such purposes. The noble Lord, Lord Saltoun, also asked about parental responsibility in regard to probation orders. Under Clause 7 the court, when putting a young offender on probation, can require the parent or guardian to give security for his good behaviour. This matter is dealt with therefore even in probation orders.

The question as to whether it is right or wrong to make a probation order without proceeding to conviction is one on which your Lordships will remember we had a great deal of discussion on the English measure. In Scotland, those who are well qualified to speak—that is to say, the Secretary of State's Advisory Council, the Scottish Central Probation Council, and the Scottish Branch of the National Association of Probation Officers—have recommended that a probation order should continue to be made without conviction in summary procedure. They consider that more in keeping with the spirit of probation. I agree that there is room for argument, and we can discuss this matter on the Committee stage. However, the balance of opinion in Scotland is for the retention of the present law, and we feel, subject to what may be said and decided in Committee, that it is better not to make any change.

On this topic the noble Lord, Lord Llewellin, pointed out that, whereas in the English Act anybody other than the parent or guardian could be required to give security, the Scottish Bill is differently drafted. That was done quite deliberately, because it was thought undesirable that a person other than the parent or guardian of a young offender should be put under a penalty if the probationer misbehaved. It was thought that to do so might involve a conflict of responsibility between the probation officer, who is statutorily responsible for the carrying out of the probation on the one hand, and on the other hand the person who can fairly say, "Well, my money is at stake." This again is a matter which might well be considered when we reach the Committee stage, but I can tell the noble Lord that that is the reason why Scottish opinion is overwhelmingly in favour of not asking for security from persons other than the parent or guardian.

The noble Lord, Lord Llewellin, further pointed out that in the Scottish Bill we have not included the provision enabling a court to discharge conditionally. The noble Lord will remember that, in the English Act, the power to discharge conditionally has been modified by the withdrawal of the power to require the offender to enter into recognisance. In Scotland, courts have not frequently used this power, but have preferred to adopt the somewhat similar procedure of deferring sentence. In these circumstances, it has not been thought that there is any merit in retaining conditional discharge. The court will be able, as an alternative to imposing a penalty, to discharge unconditionally, or to defer sentence, or to place the offender on probation. This again accords with the majority of Scottish opinion.

The noble Lord then asked: Why is it that sheriffs and stipendiary magistrates are relieved from the necessity of sending in a statement saying why they thought it necessary to send a young person under the age of 21 to prison? The noble Lord will realise that sheriffs are responsible for trying cases both summarily and on indictment, and it is thought that it would be unreasonable to ask them to give reasons for the imprisonment of young persons in one type of case and not in the other. One must remember, of course, that both the sheriff and the stipendiary are fully trained and full-time lawyers. That being so, speaking as a well-trained and full-time lawyer, we can, I hope, rely upon them to carry out their duties properly and with discretion.


May I interrupt the noble and learned Viscount on this point? Surely he fell into an error, first in saying that he did not want to discriminate between those tried summarily and those tried on indictment. Under the English Act, the Court of Quarter Sessions—which now, I am glad to say, is increasingly provided with perhaps not full-time lawyers but with fully-qualified lawyers to whom the noble and learned Viscount himself grants the extended jurisdiction—have to report if they send a young person under 21 to prison. I should not have thought that the stipendiaries in Scotland were any better—although I do not say they are any worse—than their colleagues South of the Border, so I think it is a matter in which we might well hold that these courts should be put on an equality.


I quite agree with the noble Lord. That is a perfectly legitimate point which needs consideration, and we will isolate it from the mass of other points and bring our attention to bear upon it.

Those are all the matters which have been raised and which are, as noble Lords themselves have said, in the nature of Committee points. If any noble Lord wants particular guidance or help from me before the Committee stage, I will, as your Lordships know, gladly do my best to give it. I say quite frankly that the source to which I shall go are those two noble and learned Lords, Lord Normand and Lord Reid, who are at present sitting on the Cross-Bench, and I feel sure that on any factual question they will be most pleased to give their assistance to your Lordships in any way they can.

On Question, Bill read 2a, and committed to a Committee of the Whole House.