§ 3.53 p.m.
§ Amendments reported (according to Order).
§ Clause 2:
§ Probation
§ 2.—(1) Where
- (a) a person is convicted on indictment of an offence (other than an offence the sentence for which is fixed by law), or
- (b) a person is charged before a court of summary jurisdiction with an offence (other than an offence the sentence for which is fixed by law) and the court is satisfied that he committed the offence,
§ (8) The clerk of the court by which a probation order is made or of the appropriate court, as the case may be, shall cause copies thereof to be given to the probation officer or officers nominated in pursuance of subsection (2) of this section, to the offender, to the probation committee for the probation area in which the offender resides or is to reside and to the person in charge of any institution or place in which the offender is required by the order to reside.
§
THE EARL OF SELKIRK moved to add to subsection (1):
Provided that, if a Sheriff Court is satisfied that it is desirable so to do, the Court may, after proceeding to conviction, make such a probation order.
The noble Earl said: My Lords, in the course of our discussions on the Committee stage, it was made clear that under Clause 2 it was not possible to impose a probation order after conviction. It is undoubtedly somewhat illogical in a summary case not to be able to impose a probation order on conviction, whereas on indictment it is possible to do so. I am not prepared to say that logic, as the Lord Chancellor told us, is the only consideration in this matter, but I suggest that it is an adequate ground for drawing attention to the curious anomaly which exists.
§ More practically, I would remind your Lordships that this Bill has two points 712 running all the way through it. First, it seeks to procure the fullest use of probation, and secondly it aims at seeing that the fullest possible information is available to the court when imposing sentence or in deciding how to deal with a case. To a large extent these two points are agreed by all Parties in this House. In this case, as the Bill stands, on a summary trial, once a conviction has been imposed, it is impossible, for good or bad reasons, to make a probation order. I am moving this Amendment which will enable probation orders to be made after conviction in a summary case. That will extend the range of the use of probation, and if necessary, in cases where there has been conviction and the court for some reason has received additional information, it will enable a probation order to be made.
§ May I illustrate exactly what I have in mind? It is fair to remember that these cases apply to adults as well as to children. Suppose this be the case. After a trial has been concluded, the court convicts, and calls on counsel for the defence to make a plea in mitigation. It may well happen that in the course of the trial certain facts which are only relevant to the plea in mitigation have not been brought to light. On hearing the plea in mitigation, the court, having decided that conviction is desirable, may be persuaded, under Clauses 3, 24, 25 or 26, to remand the accused for examination, either by a doctor or in a remand home, or in any other way. When that report comes back it may be perfectly clear to the judge that the case should be dealt with by way of probation, instead of by sentence, He is, however, precluded from taking that course because conviction has already taken place. For that reason, I submit that it would be much better to allow probation to be used after conviction in summary cases.
§ If that is not done, when the trial has been completed the court, before proceeding to convict, will have to decide which way it is to deal with the case—whether to proceed by way of probation or by way of a sentence of any sort. I say with respect that it is rather similar to the situation in Alice in Wonderland, where we find a sentence before conviction, because that is exactly the course that is to be pursued as the Bill is laid 713 at present. For those reasons, I beg to move this Amendment, which I submit broadens the basis of probation and permits a fuller examination of the accused in the particular terms which are recommended by this Bill. I beg to move.
§
Amendment moved—
Page 2, line 28, at end insert the said new proviso.—(The Earl of Selkirk)
§ LORD MORRISONMy Lords, so far as this particular Amendment is concerned, your Lordships will appreciate that I am taking part in something of an unequal contest, because at the present time there are in your Lordships' House those who have forgotten more about Scottish law than I am ever likely to know. The effect of the noble Earl's Amendment, I am advised, would be to defeat the principle that in summary cases a probation order should be made without the court proceeding to conviction. The noble Lord knows well that this principle has been in existence in Scotland, for about forty-one years, and it is considered that where the probationer who has been summarily tried has undergone, with credit, a period of probation, it is not right that he should be penalised by having a conviction recorded against him. I think the noble Earl accepts that point; what he is concerned with is the exceptional case.
The retention of this principle has been recommended by the Secretary of State's Advisory Council—the Scottish Central Probation Council—and by the Scottish Branch of the National Association of Probation Officers, and it is not considered right to abrogate this principle for the exceptional case where a court, after proceeding to conviction, wishes, after remanding and obtaining further information on the offender, to make a probation order. Where a court is satisfied beyond doubt that a probation order would not be appropriate, but wishes to remand the offender before passing sentence, it will convict; but where a court has not ruled out the possibility of probation as an appropriate method of dealing with the offender, it will, having found that the accused has committed the offence, remand him for further inquiries without recording a conviction, in accordance with the provisions of Clause 24.
Further, under the Children and Young Persons (Scotland) Act special Justice of 714 the Peace juvenile courts, have been set up in four areas in Scotland, and these courts normally deal with all children and young persons charged with offences. It would be anomalous to distinguish between these courts and the Sheriff Court. Thus, a young person resident in Glasgow committing an offence in the county of Renfrew, for example, could not be convicted before being placed on probation, while if he committed the same offence in Glasgow he could be convicted. For these reasons, and in view of the opinion expressed by these important bodies in Scotland which I have mentioned, that this system which has been in existence for forty-one years should be allowed to continue, I hope that the noble Earl will not desire to press his Amendment.
§ LORD SCHUSTERMy Lords, if the invitation which the noble Earl, Lord Selkirk, held out during the Committee stage to English Peers to take part in this discussion is still open, I would like to say that I hope he will press this Amendment. If it were simply a question of Scottish law, of course, no English person, however much or however little he might think himself a lawyer, would venture to express an opinion. But this is not a question of Scottish law at all; it is a pure question of common sense. The noble Earl, Lord Selkirk, has already explained to the House what is at stake. Surely the House realises that if a court in Scotland comes to the conclusion that the offence is of such a nature that it should not be passed over without a conviction being recorded, then, as matters stand, it is estopped from doing the sensible thing which every court in England can do.
All the noble Earl, Lord Selkirk is now proposing is to give to the Scottish Sheriff Court the same power which every English court has—that is to say, first of considering whether an offender has committed the offence charged and, second, of considering whether, having committed that offence, he ought to be convicted or whether, under the Act, the matter can be passed over. If the court comes to the conclusion that the man must be convicted it can then consider whether he should or should not be placed on probation. Consider what a great injury would be done to the offender if any other course were taken. It may well be—certainly it happens in courts in England—that a court is un- 715 able to reach any other conclusion but that a conviction must be recorded. When that has been done, that which we all regard as the best treatment—not in all cases, but in the great majority—the court is precluded from applying. Surely the mere fact that Scotland has behaved in this peculiar way for forty-one years is not going to preclude the Scots from adopting now the only common-sense way of dealing with the matter. No Englishman would have dared to put forward such an Amendment; no Englishman would dare, so to speak, to stray across the Tweed. Goodness knows what might happen if he did! But when a Scottish Earl, a member of your Lordships' House, proposes such an Amendment, I think we are entitled to raise our voices in support of it, and entreat the House to take what is a perfectly simple and plain course, not infringing in any way the principles of common law, but adopting a commonsense method for dealing with what is, after all, a business transaction.
§ LORD NORMANDMy Lords, I have always felt considerable difficulty regarding the state of Scottish law upon this point. For one thing, I always think it extraordinary that a magistrate or a Sheriff or a stipendiary should have to find, in certain circumstances, that an offence has in fact been committed but should be prohibited by law from recording a conviction. It appears to me that the administration of justice is put into a fundamentally false position by such a requirement. I agree also that there ought to be an opportunity of putting offenders upon probation when facts are disclosed after conviction which would justify that course being followed. As the noble Lord, Lord Morrison, has pointed out, however, there is one difficulty about this. The Bill—or the clause, at any rate—does not deal with anything except the Sheriff Court. It would be an extraordinary anomaly to rectify what I think is an erroneous position as regards procedure in the Sheriff Court, and leave the situation exactly as it is in the courts of Justices of the Peace and similar subordinate courts. I think there ought to be a remedial Act or a remedial clause which would apply to all courts of summary jurisdiction in Scotland.
§ THE EARL OF SELKIRKMy Lords, I must say that the answer given by the noble Lord, Lord Morrison on this Amendment, is not convincing. He has spoken of "an anomalous position." Can there be anything more anomalous than that if a man is convicted on indictment he can be put on probation, but if convicted in a summary case he cannot? That position is ridiculous. I have said before that logic is not the only thing. When the noble Lord speaks of an anomalous situation, I say that the situation I have described is quite absurd. As for the suggestion that the man will have a conviction against him all his life, I would point out that that can be completely wiped out by Clause 2. I have not sought to make any material alteration, such as Lord Normand suggests. I have sought merely to stop what appears to me to be an absurd gap which exists in the system at the present time. I did not include magistrates' courts in my Amendment. In fact I specifically excluded such courts, because I was aware that the only real criticism of this Amendment arises from the fear that the courts might take advantage of this clause and convict in every case before probation. It was for that reason I confined this to the Sheriff Court. In the case of a magistrate's court, if a man is convicted, the magistrate ought not to use probation; I think I am right in saying that he could remit the man to the Sheriff Court. In the circumstances, I do not propose to press my Amendment, and I beg leave to withdraw it.
§ VISCOUNT SIMONMy Lords, the noble Earl who has just spoken is much more familiar with this subject than I am. In this matter I am only an onlooker, but I feel, from what Lord Normand said just now, that he takes the view that, though the form of the proposal made by the noble Earl leaves an anomaly, what the noble Earl is aiming at is right. I would not have presumed to intervene, if he had not said so. If that is so, and though the noble Earl may be willing to withdraw his Amendment now—because we never try to carry things at the point of the bayonet—I should like to ask the noble Lord in charge of the Bill whether between now and the Third Reading in this House he would take into serious consideration what has been said by the noble and learned Lord, with his great experience, 717 and perhaps confer together with Lord Normand to see whether there is not a form of words which might achieve the object which I gather the noble and learned Lord and the noble Earl both desire. I know that Lord Morrison is the most reasonable of men and never fights for the sake of fighting. I am sure he is desirous, as I am and all of us are, of making this the best Bill possible. Perhaps the noble Lord will tell the House, before the Amendment is actually withdrawn, whether he thinks that that is the proper course to pursue between now and Third Reading.
§ LORD MORRISONMy Lords, I have listened attentively to the debate, but my advice from the Department is that they do not desire this Amendment. Two noble Lords from Scotland, both with considerable knowledge of the law, have given their opinions. The noble Viscount, Lord Simon, was correct in his interpretation of what the noble and learned Lord, Lord Normand, said. But I am in this difficulty: that I have no authority to accept the Amendment. The noble Viscount was good enough to indicate that usually my attitude was reasonable. I would say that the reasonable attitude on this matter is a somewhat different one from that which we usually take in this House. The noble Viscount's proposal might be usual for a Bill which had been through another place before it came here, but in this case the Bill has still to go through all its stages in another place, including the Scottish Grand Committee. Noble Lords who have experience of the Grand Committee will know how thorough the examination there will be. I have no doubt that this point will be threshed out at great length in the Scottish Grand Committee, especially after it has been ventilated here. What we should decide in this House is whether to accept the noble Earl's Amendment or not. The noble Earl, in the light of what has been said, has expressed his desire not to press the Amendment now. That is a decision the House have to take. In replying to the noble Viscount, Lord Simon, I would say that this is a better way, because even if we put down an Amendment at the last stage of all in this House, we do not have the same opportunity of thoroughly exploring this point as we would have in the Scottish Grand Committee.
§ VISCOUNT SWINTONMy Lords, I should have thought the most reasonable thing to do would be to take an exactly opposite view from that which the noble Lord has just enunciated. As he has said, this Bill was brought in here. We have always agreed that when a Bill is brought in here, our object, as the noble and learned Viscount the Lord Chancellor has said, is to give it in its first stages the best possible expert consideration. Therefore, it seems to me that our duty is to send this Bill down to another place in the best form that our collective and expert opinion can produce. May I take the example of the Companies Bill, upon which the noble and learned Viscount the Lord Chancellor and some of us worked for so long together? It was completely transformed in this House. We completely recast pages of it. When it was sent to another place, it was said, in the happy phrase of the noble Lord, Lord Pakenham (though the noble Lord himself did not originate it) "This is the Lords' doing and it is marvellous in our eyes." I should have thought that what we ought to do is to get this Bill into what we believe is the right form.
The noble and learned Lord, Lord Normand, speaking with all the authority of a Law Lord with a lifelong experience of Scottish law, advised us that, in his opinion, this Amendment would not be adequate and the reform should go through all the courts. What is sought to be done here partly, and if done partly would create an anomaly, would be right if done universally. What is to stop us from doing, on Third Reading, what the highest Scottish legal authority here advises us is the right thing to do? It seems to me we should De doing less than our duty were we not to do that, The appropriate Amendment will be put down on Third Reading, and I am sure that, on consideration and consultation, the noble Lord, Lord Morrison, will see that that is the right view. The Scottish Grand Committee may differ from the opinion of this House, but I think it most unlikely, because this is not a Party issue. Of course, they can do so. But we should be failing to do our duty if we did not make this non-contentious, technical Bill into what we believe to be the best Bill possible.
§ LORD REIDMy Lords, I should like to state in a few sentences my general 719 agreement with the view of my noble and learned friend Lord Normand, and on much the same grounds. I agree with him that our system is anomalous, but I know that a great many people take another view. I would not support this Amendment if I thought it meant any general change in the administration of our law or in our methods; but, on the face of it, this introduces an exception which would apply only in special cases. If our object is, as I believe it is, that as many cases as possible should be dealt with by probation, then the affect of this Amendment could be none other than to increase, if only by a few, the number of cases where probation would be applied. If that is so, I think that theoretical objections might be waived in order to achieve so practical a result. I do not think it would make much difference if the Sheriff Court were in one position and the Justice of the Peace court in another. If the Amendment does not go far enough, at least it goes some distance. I agree with the noble Earl, Lord Selkirk, that if we knew the matter would be reconsidered, it would not be necessary to press the Amendment. I had hoped that the noble Lord, Lord Morrison, would be able to give us a little more comfort on the subject.
§ LORD MORRISONMy Lords, I can speak again only with the permission of the House. I might say that history repeats itself. The last occasion that I had the difficult task of trying to get a complicated legal measure through your Lordships' House was on the Bill dealing with Scottish Records and Registers, when, as I afterwards explained, we were getting on well until the Opposition introduced two "spin bowlers," which made things difficult for me, because I find great difficulty in playing spin bowling. To-day we have had that experience repeated, because the noble Earl had risen in his place, and had actually offered to withdraw his Amendment, when suddenly—I do not know who is the captain of the other side—the two "spin bowlers" came into action and put me in difficulty.
I have some little comfort, however, from the speeches of the two Scottish Law Lords here. In the circumstances, if I am" asked to give a final answer, as I was just now by the noble and learned Lord, Lord Reid, it would be that surely 720 if ever there was a case for the Scottish Grand Committee to hammer out, this it is. There will be more Scottish lawyers and legal experts on the Scottish Grand Committee, and they will probably spend as many days over this Bill as this House will spend hours. I have no authority whatsoever to accept this Amendment—indeed, the noble Earl does not want me to—or to give any assurance. I am sorry, but I cannot go any further than to repeat that it seems to me, if this matter merits further discussion—and, so far as I am able to judge, it certainly does—your Lordships having discussed the matter, it should now be left for the Scottish Grand Committee to take it up from there.
§ THE EARL OF SELKIRKMy Lords, with the permission of the House I would like to reply to what the noble Lord has said. His was one of the most remarkable speeches I have ever heard. If it has not treated the House with contempt, I do not know what does. With all the respect that I have for the Scottish Grand Committee, it so happens that, with the exception of two Law Officers, there is not a single lawyer from Scotland in the other place. With respect to the noble Lord, I should have thought this was essentially a point which could better he discussed in this House, with the knowledge that we have, than in the Scottish Grand Committee. I think it would be a great pity for this House to throw off its responsibility in this matter in the way suggested. However, I do not propose to press the Amendment at the moment, but will put it down again on Third Reading.
§ Amendment, by leave, withdrawn.
§ 4.25 p.m.
§ LORD MORRISON moved, in subsection (8) to substitute "probationer" for "offender," where that word first occurs. The noble Lord said: My Lords, we come presently to a series of drafting Amendments which implement an undertaking that I gave to the noble Earl, Lord Lindsay, in Committee. The noble Earl will remember that on the Committee stage he had down a number of similar Amendments and I said that if he would be good enough to withdraw them we would look into the whole Bill, and see whether it was necessary to put down any more than he had indicated. The noble Earl agreed to withdraw his Amendments, and I am advised that the 721 ground has now been covered completely. I beg to move.
§
Amendment moved—
Page 3, line 38, leave out ("offender") and insert ("probationer").—(Lord Morrison.)
THE EARL OF LINDSAYMy Lords, I should like to take this opportunity of thanking the noble Lord for meeting the points which I raised in Committee.
§ On Question, Amendment agreed to.
§ LORD MORRISONI beg to move the remaining three Amendments on this clause. They are all on the same point.
§ Amendments moved—
§ Page 3, line 39, leave out ("offender") and insert ("probationer")
§ Page 3, line 41, leave out ("offender") and insert ("probationer")
§ Page 3, line 42, leave out ("offender") and insert ("probationer").—(Lord Morrison.)
§ On Question, Amendments agreed to.
§ Clause 3 [Probation Orders requiring treatment for mental condition]:
§ LORD MORRISONThe Amendments to Clause 3 cover the same point. I beg to move.
§ Amendments moved—
§ Page 4, line 43, leave out ("offender") and insert ("probationer")
§ Page 5, line 5, leave out ("an offender") and insert ("a probationer")
§ Page 5, line 10, leave out ("offender") and insert ("probationer")
§ Page 5, line 12, leave out ("offender") and insert ("probationer")
§ Page 5, line 14, leave out ("offender") and insert ("probationer")
§ Page 5, line 19, leave out ("an offender") and insert ("a probationer")
§ Page 5, line 24, leave out ("offender") and insert ("probationer")
§ Page 6, line 6, leave out ("an offender") and insert ("a probationer").—(Lord Morrison.)
§ On Question, Amendments agreed to.
§ Clause 4 [Discharge, amendment and review of probation orders]:
§ LORD MORRISONI beg to move the two Amendments to Clause 4.
§ Amendments moved—
§ Page 6, line 12, leave out ("offender") and insert ("probationer")
§ Page 6, line 28, leave out ("an offender") and insert ("a probationer").—(Lord Morrison.)
§ On Question, Amendments agreed to.
722§ Clause 5 [Failure to comply with requirement of probation orders]:
§ LORD MORRISONI beg to move the the first four Amendments to Clause 5.
§ Amendments moved—
§ Page 6, line 34, leave out ("offender") and insert ("probationer")
§ Page 6, line 36, leave out ("offender") and insert ("probationer")
§ Page 6, line 38, leave out ("offender") and insert ("probationer")
§ Page 6, line 41, leave out ("an offender") and insert ("a probationer").—(Lord Morrison.)
§ On Question, Amendments agreed to.
§ LORD MORRISONMy Lords, in Committee the noble Earl, Lord Selkirk, moved a Manuscript Amendment on this point. On examination it has been found that a fuller Amendment is desirable. I f a probation order has been made after proceedings on indictment there will have been a conviction, but if after summary proceedings there will not. Accordingly, it is necessary, as in the Amendment I now move, to provide for sentence in one case and for conviction and sentence in the other. I beg to move.
§ Amendment moved—
§
Page 7, line 6, leave out paragraph (b) and insert—
("(b) (i) where the offender has been convicted for the offence I or which the order was made, sentence him for that offence
(ii) where the offender has not been so convicted, convict him and sentence him as aforesaid.").—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I thank the noble Lord for this Amendment, which meets the point I raised in Committee.
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 7, line 15, leave out ("offender") in both places where that word occurs, and insert ("probationer").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Clause 6 [Commission of further offence]:
§ LORD MORRISONI beg to move.
§ Amendments moved—
§ Page 7, line 37, leave out ("offender") and insert ("probationer")
§ Page 7, line 41, leave out ("offender") and insert ("probationer")
§ Page 7, line 43, leave out ("offender") and insert ("probationer").—(Lord Morrison.)
§ On Question, Amendments agreed to.
723§ LORD MORRISONMy Lords, this is a consequential Amendment. I beg to move.
§
Amendment moved—
Page 7, line 46, leave out from ("him") to the end of the subsection, and insert ("in accordance with the provisions of paragraph (b) of subsection (2) of the last foregoing section").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 8, line 4, leave out ("an offender to whom a probation order relates") and insert ("a probationer");
§ Page 8, line 5, after the second ("the") insert ("probation");
§ Page 8, line 8, leave out ("the offender") and insert ("him").—(Lord Morrison.)
§ On Question, Amendments agreed to.
§ Clause 15 [Abolition of penal servitude and hard labour]:
§
LORD MORRISON moved to add to subsection (1):
Provided that nothing in this subsection shall be construed as empowering a court, other than the High Court, to pass a sentence of imprisonment for a term exceeding two years.
The noble Lord said: My Lords, this Amendment is necessary in order to preserve an existing limit upon the powers of sentence of Sheriff Courts. These courts may at present pass sentences of imprisonment but not of penal servitude, which means that they cannot send an offender to detention in prison for more than two years. The abolition of penal servitude would have the effect of removing this limitation, and the purpose of this Amendment is to ensure, as is clearly right, that it is retained. I beg to move.
§
Amendment moved—
Page 11, line 11, at end, insert the said proviso.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I would just like to ask a question on this. I presume that this does not include corrective training. I notice that at the beginning of Clause 20 (3) it is stated:
A person sentenced to corrective training or preventive detention shall be detained in a prison.…I thought it conceivable that imprisonment in those circumstances would be covered by this.
§ LORD MORRISONI do not think the legal definition of a sentence of 724 imprisonment would include corrective training.
§ On Question, Amendment agreed to.
§ 4.30 p.m.
§ THE EARL OF SELKIRK moved, after Clause 18 to insert the following new clause:
§ "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 person who is not less than twelve but under twenty-one years of age, or to deal with any such person under Section five 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, 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 the Sheriff exercising his summary powers under Section 11 of the Summary Jurisdiction (Scotland) Act, 1908, 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 attend-dance at the centre;
§ (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 725 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 fifty-one of the Summary Jurisdiction Act. 1908, as to the application of sums paid under the last foregoing subsection and for determining the persons authorised to receive 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 area 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 forty-nine of this Act which cannot be adequately dealt with under those rules;
§ (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."
§ The noble Earl said: My Lords, I am moving this Amendment primarily because the answers which the Government gave on the Committee stage can hardly be considered satisfactory. The Government on that occasion said that because Scotland was so sparsely populated, the young people would have to travel from outlying parts, including the Western Islands, and, secondly, that it involved 726 mixing together different types of offenders. I do not think either of those reasons is very strong, because I do not know of any punishment at present in use which does not involve different types of offender, and it would certainly be difficult to apply everything in the Western Islands to other parts of the country.
§ My purpose in putting down this Amendment is to ask this question: Under the age of sixteen, what punishments are there which can be applied quickly and sharply, with the exception of a fine which, I suppose, is generally paid by the parents and which, in some cases, possibly cannot be met? There is no alternative except a remand home or an approved school. I suggest, with great respect, that this proposal does provide a method for a comparatively sharp and short punishment, which would fill the gap left at the present time in our system. Particularly is that so because there are no detention centres or anything of that kind.
§ I do not propose to go into this matter in great detail, except to remark that I am fully aware that the Government may say that there is no demand for this sort of thing from Scotland at the present time. I am fully aware that they may say that no one is pressing them to take action of this character. They may go even further, and say that some people do not like it. But can the noble Lord tell us of any demand which is coming from Scotland at the present time for any form of punishment, or indicate that there is any real interest in the manner in which criminals or offenders of any sort are being dealt with? I am not pretending that this is necessarily an ideal form of punishment. I am not pretending that this will be an answer to juvenile delinquency. But I do press upon the noble Lord to accept the fact that there is not at the present time an easy punishment which can be imposed immediately and sharply. There is probably no ideal punishment of any sort or kind, but suggest, with great respect, that this is an innovation which is merely permissive. If it did nothing more than arouse controversy and interest, I think that, in itself, would be serving a useful purpose. I beg to move.
§
Amendment moved—
After Clause 18, insert the said new clause.—(The Earl of Selkirk.)
§ LORD MORRISONMy Lords, this clause was discussed at the last stage, and since that discussion, as the noble Earl knows, it has been given careful consideration in the light of that debate. The noble Earl asks whether I know of any demand for it from Scotland. The answer is that I do not know of any such demand as he knows perfectly well, being much more closely in touch with Scottish opinion than I am. He says that there is no easy punishment for cases of this sort. My information, such as it is, is that Scotland is not looking for any easy punishment, and this suggestion of attendance centres has certainly not "caught on" in Scotland. Incidentally, I am not aware of any great interest in England, which I know much better than I England, Scotland, with regard to this point. It is looked upon, and was agreed to by this House in the English Bill, as an experiment. As I said in the last debate, that is probably the attitude Scotland will now take towards it; they will look upon it as an experiment, and will watch with friendly interest to see whether it produces any results.
The opinion of the Government, and of Scotland, is that administratively it would be very difficult to operate, and I would add that they are also of the opinion that practical results are very problematical. I doubt whether the results would be worth all the trouble that is likely to be taken. There is also the danger that it might be regarded as an attempt to make light of the law by making offences (putting it in the words of the noble Earl) capable of "easy punishment." For example, if a youngster were to be asked to go to the police station on a Saturday afternoon, or on six Saturday afternoons in succession, and remain in the police station for two or three hours, the police sergeant's wife, being a typical Scottish character, would probably start the proceedings by giving him tea and cakes, and it might be regarded as somewhat of a holiday rather than a punishment. People who are authorities on this question in Scotland are rather afraid that the result might be to bring the law in regard to this matter a little into contempt.
It is true, as we all know, that it is included in the English Act, but again I would point out, as I did on the last occasion when we debated this, that 728 Scottish opinion, as represented by the Scottish Advisory Council on the Treatment and Rehabilitation of Offenders, is strongly against the establishment of attendance centres in Scotland. That goes a little further than the noble Earl. Their interest has led them strongly to oppose the proposal, and in face of this the Secretary of State—and I am sure the noble Earl would not blame him—does not feel justified in accepting the Amendment. In the meantime, I would point out that a court wishing to make an order for the sole purpose of punishing an offender may impose a fine or, where the offender is under seventeen, order a short period of detention in a remand home, say, for a week-end. An additional alternative in the future will be detention in a detention centre for offenders of fourteen and under twenty-one years of age.
But it is now generally recognised that it is not sufficient to deal with offenders—especially young offenders—by purely punitive methods. Experience has shown that most young offenders need treatment rather than punishment if they are to be cured of their anti-social propensities. Treatment may be more unpleasant and, therefore, a greater deterrent than a light form of punishment. I am sorry that I cannot go any further. The Scottish Department will watch the English experiment in this matter very closely, and you may be sure that if any good comes from it or it is working satisfactorily then Scotland will not be far behind in adopting it.
§ LORD NORMANDMy Lords, I am glad to hear that the Government do not propose to accept this Amendment. I am sure that the noble Lord has rightly represented the state of opinion in Scotland about this proposal—that there is no faith in this form of treatment and very little knowledge of what it means. I think the proper attitude is not to adopt into the Scottish legal system something which has already been considered by those best able to assess its value and who have rejected it as having no particular value for Scotland. That there are administrative difficulties in Scotland as compared with England, I do not doubt. I think the attitude taken up by the noble Lord, in that we may watch the experiment taking place in another body before we accept it in Scotland, and 729 accept it only after it has proved its success here, is a very sensible line to take.
§ THE EARL OF SELKIRKMy Lords, I do not propose to press this Amendment further, but I would like to comment upon what the noble Lord has said. He said that this type of punishment should not be punitive but that it should be treatment. Let us make it treatment. Can anyone suggest that this Amendment could not be used for the purposes of treatment? What is a crime or an offence? It is generally destroying something, or putting dirt in some place or other. Let the afternoon be spent in building something or cleaning something—cleaning the Town Hall, or a school, or some other building; that is to say, doing the obvious opposite to the nature and quality of the crime. I do not propose to press the Amendment any further, and I beg leave to withdraw it.
§ LORD MORRISONMy Lords, there again, the noble Earl's suggestion is interesting, but it raises great administrative difficulties. It is all right to send a boy to clean out the Town Hall—but who is going to supervise him while he is doing it? Questions of that sort will arise, and one gets further and further into great administrative difficulties. Let us in Scotland wait and see whether the people in England successfully weather these difficulties. Let us treat the matter with our own proverbial Scottish caution.
§ THE EARL OF SELKIRKMy Lords, I have too high a regard for the Scottish administration to feel that putting this matter into operation would cause any difficulty whatsoever. If the noble Lord came back to Scotland, he would see the change for himself.
§ Amendment, by leave, withdrawn.
§ Clause 19 [Borstal Training]:
§
LORD MORRISON moved, in subsection (3) to omit all words after the first "shall" and to insert in place thereof:
call for and consider a report on the offender's physical and mental condition and his suitability for such a sentence, which report it shall be the duty of the Secretary of State to cause to be furnished to the court.
The noble Lord said: My Lords this Amendment and that on Clause 20, at page 14, line 43, are a result of further
730
consideration of the points raised by the noble Earl, Lord Selkirk, and the noble and learned Lord, Lord Reid, during the discussion in Committee of Clause 20, (4). The Amendment lays upon the court the positive duty, before passing a sentence of Borstal training, of obtaining in every case a report on the offender's physical and mental condition and his suitability for the sentence. It also requires the Secretary of State to cause such report to be furnished to the Court. It is the present practice for reports to be obtained from prison governors, on behalf of the Secretary of State, before Borstal sentences are passed. This Amendment will ensure that the practice continues to be followed, and I hope it will be acceptable to noble Lords. I beg to move.
§
Amendment moved—
Page 13, line 33, leave out from ("shall") to the end of the subsection and insert the said new words.—(Lord Morrison.)
§ THE EARL OF SELKIRKI thank the noble Lord for this Amendment, which meets the point I had in mind.
§ On Question, Amendment agreed to.
§
LORD MORRISON moved, after subsection (3) to insert the following new subsection:
(4) If on consideration of a report furnished in pursuance of tie last foregoing subsection the court, either ex proprio motu or on the application of either party, thinks it expedient to do so, it may require any person concerned in the preparation of the report to appear with a view to his examination on oath regarding any of the matters dealt with in the report, and such person may be examined or cross-examined accordingly.
The noble Lord said: My Lords, this Amendment will remove any doubt about the power of a court to require the appearance of a person who has prepared, or helped to prepare, a Borstal report, with a view to his examination about the contents of the report. During the Committee discussion on Clause 20, the noble Earl, Lord Selkirk, and the noble and learned Lord, Lord Reid, pressed that this power should be made specific, in order to enable the defence to pursue a challenge against a statement made in a report. I hope this Amendment meets the point which they expressed. I beg to move.
§
Amendment moved—
Page 13, line 40, at end insert the said new subsection.—(Lord Morrison.)
§
THE EARL OF SELKIRK moved to amend the above Amendment by inserting after "report," where that word occurs a second time:
or with knowledge of matters dealt with in the report.
The noble Earl said: My Lords, may I first thank the noble Lord for the change he has made in this Amendment? At the same time, I think it requires completion, and I submit with great respect that it requires the addition of something of the nature which I suggest here. If it is convenient to your Lordships, I should like to speak on an Amendment to Clause 20 at the same time, since the two are closely connected. I do not feel very strongly about Clause 19, but I feel strongly about Clause 20. Your Lordships will observe that Clause 20, subsection (5) provides for a report to be submitted to an offender, or to his solicitor, before the sitting of the court. That is in order that he may have the opportunity of rebutting the evidence contained in the report. How is he to rebut that evidence? As the new subsection proposed by the noble Lord reads at present, the court:
… may require any person concerned in the preparation of the report to appear with a view to his examination …
On the face of it, that means that only the person who has prepared or who has seen that report can appear and give evidence as to its accuracy and reliability. But if the subsection is to have any value, the defence must have the opportunity of presenting their own evidence.
§ The Amendment which I am moving is that after the word "report" there should be inserted "or with knowledge of matters dealt with in the report."
§ That is to say, besides the person concerned in the preparation of the report, anyone with a knowledge of the matters dealt with therein should be called before the court and examined. There is not only the defence side; there is also the side, so to speak, which is supporting the contents of the report. In the past we had such statements as "he associates with criminals." In some cases that may be a question which requires close examination, particularly in connection with Clause 19 of this Bill and certainly under Clause 20—I believe it is the wish of His Majesty's Government that these two clauses should be more or less com- 732 bined. It seems to me of the utmost importance that full knowledge should be available to the court of anyone who can speak in connection with the case. I do not wish to add anything further, but I hope the noble Lord will consider the point.
§
Amendment to Amendment moved:
Line 6, after ("report") to insert the said new words.—(The Earl of Selkirk.)
§ LORD REIDMy Lords, may I also express my appreciation of the fact that the Government have introduced this Amendment to deal with a difficult situation? I agree with the noble Earl, Lord Selkirk, however, in doubting whether the Amendment standing in the name of the noble Lord, Lord Morrison, goes far enough. There are many cases in which the calling of the person who prepared the report, or of somebody concerned in its preparation, may be sufficient to clear un a difficulty; but there are other cases (for example in a case where the doings of the man narrated in the report are in dispute) where it will be necessary to call someone who was not concerned in the preparation of the report but who saw the occurrences which are reported. I doubt very much whether the policeman whose evidence was incorporated in the report could be deemed to be a person concerned in its preparation.
It is hardly fair to authorise evidence from someone appearing to be on the side of the prosecution, and not to authorise the defence witnesses to come forward to give the other side of the story. It may be possible to extend this Amendment to allow the defence to call the evidence where it is desirable. I would not ask that they should have an absolute right. I think that the Amendment is correct, that it should be in the discretion of the court whether or not a witness is allowed to come forward at that stage, but I think it ought to be open to a court to allow a defence witness. I am very much afraid that since the Amendment narrates persons "concerned in the preparation of the report," it impliedly excludes altogether any witness who might wish to testify on behalf of the accused as representing the defence. I hope either that this Amendment can be accepted, or that the matter can be reconsidered before the Third Reading.
§ LORD MORRISONMy Lords, I readily admit that I cannot at the 733 moment think of any adequate answer to the excellent arguments that have been addressed to your Lordships' House by the noble and learned Lord, Lord Reid, and the noble Earl, Lord Selkirk, which might be summed up by saying that, if evidence is to be heard in support of statements made in the report, it is only reasonable that evidence in rebuttal should also be accepted. I hope your Lordships will forgive me for being so brief, but we have much more to do this afternoon. I can only say that I have pleasure in accepting this Amendment and I thank the noble Earl for having improved the clause. A similar Amendment to Clause 20 I shall also be pleased to accept.
§ THE EARL OF SELKIRKI am obliged to the noble Lord.
§ On Question, Amendment to Amendment agreed to.
§ On Question, Amendment, as amended, agreed to.
§ 4.52 p.m.
§ LORD MORRISONMy Lords, this is a drafting Amendment. I beg to move.
§
Amendment moved—
Page 13, line 41, leave out from ("report") to ("shall") in line 43, and insert ("furnished under subsection (3) of this section").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Clause 20 [Corrective training and preventive detention]:
§ LORD MORRISONMy Lords, this Amendment is in the same form as that which I have already moved to Clause 19, except that, as I have already explained, it relates to sentences of corrective training and preventive detention instead of to Borstal training. I beg to move.
§
Amendment moved—
Page 14, line 43, leave out from ("shall") to the end of the subsection and insert ("call for and consider a report on the offender's physical and mental condition and his suitability for such a sentence, which report it shall be the duty of the Secretary of State to cause to be furnished to the court.").—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I should like to thank the noble Lord for introducing this Amendment.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, this is a similar point to that which I have 734 already explained on Clause 19. I beg to move.
§ Amendment moved—
§
Page 14, line 46, at end insert the following new subsection—
("(5) If on consideration of a report furnished in pursuance of the last foregoing subsection the court, either ex proprio motu or on the application of either party, thinks it expedient to do so, it may require any person concerned in the preparation of the report to appear with a view to his examination on oath regarding any of the matters dealt with in the report, and such person may be examined or cross-examined accordingly.")—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, for the reasons I have already given, I beg to move this Amendment to the Amendment under consideration.
§
Amendment to Amendment moved—
Line 6, after ("report") insert ("or with knowledge of matters dealt with in the report").—(Earl of Selkirk.)
§ On Question, Amendment to Amendment agreed to.
§ On Question, Amendment, as amended, agreed to.
§ LORD MORRISONMy Lords, this is a drafting Amendment. I beg to move.
§
Amendment moved—
Page 15, line 1, leave out from ("report") to ("shall") in line 3, and insert ("furnished under subsection (4) of this section").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Clause 22 [Power to order the detention of persons of unsound mind]:
§
LORD MORRISON moved to insert at the commencement of the clause:
(1) Where it appears to the prosecutor in any court of summary jurisdiction before which a person is charged with an offence that the person is of unsound mind, it shall be the duty of such prosecutor to bring before the court such evidence as may be available of the mental condition of such person.
The noble Lord said: My Lords, this Amendment implements an undertaking given in Committee. It will oblige a prosecutor to bring before a court of summary jurisdiction any available evidence about the mental condition of a person who may be insane. There is at present a standing instruction to prosecutors to bring such information to the notice of the court, but it is admittedly
735
desirable that the obligation should be made statutory. I beg to move.
§
Amendment moved—
Page 16, line 16, at beginning insert the said subsection.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I should like to thank the noble Lord for meeting the point I raised in Committee.
§ On Question, Amendment agreed to.
§ Clause 23 [Power to order the detention of mental defectives]:
§ LORD MORRISONMy Lords, this Amendment and the next two Amendments are proposed to meet points raised by the noble Lord, Lord Reid, and the noble Earl, Lord Selkirk, in Committee, on manuscript Amendments moved by the noble Earl. They will secure that, in both summary and indictment cases, a court will proceed to conviction before considering whether or not the offender is mentally defective and ought to be placed in an institution or under guardianship. This is particularly desirable in cases taken on indictment, where the jury should be permitted to decide the issue of guilt before the method of disposal is determined. I beg to move.
§
Amendment moved—
Page 17, line 25, leave out ("charged") and insert ("convicted").—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I should like to thank the noble Lord for meeting the point I raised in Committee.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords. I have already referred to this Amendment. I beg to move.
§
Amendment moved—
Page 17, line 26, leave out ("with") and insert ("of").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, this Amendment also has already been referred to. I beg to move.
§
Amendment moved—
Page 17, line 26, leave out from ("satisfied") to ("on") in line 27.—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Clause 32:
§ Proof as to productions in proceedings on indictment.
736§ 32.—(1) Where, in any proceedings on indictment, a person who has examined a production is adduced to give evidence with regard thereto, it shall not be necessary to prove that the production was received by him in the condition in which it was taken possession of by the procurator fiscal or the police and returned by him after his examination of it to the procurator fiscal or the police unless the accused, at least four days before the second diet gives to the Crown Agent, where he is cited to the High Court of Justiciary for the second diet, or to the procurator fiscal of the district to the court of which he is cited for the second diet, where the case is to be tried in the sheriff court, written notice that he does not admit that the production was received or returned as aforesaid.
§
THE EARL OF SELKIRK moved, in subsection (1), after "thereto" to insert
and the production has been lodged at least eight days before the second diet,
The noble Earl said: My Lords, this is an Amendment to Clause 32 which deals with proof as to productions. The Clause shortens the procedure necessary for a certain production in a criminal case. It makes it obligatory upon the defence to object to productions in certain respects four days before the second diet. At the present time, there is no date on which productions need to be lodged prior to the second diet. What my Amendment proposes, in order to make the clause complete, is that there should be a date fixed by which productions should be lodged. I am moving that they should be lodged at least eight days before the second diet. If that is not done, the object of the clause will be lost, because defence counsel will have no alternative but to object to the productions themselves, and accordingly time will be lost, as it is at present to some extent, in proving productions which are not necessary. I beg to move.
§
Amendment moved—
Page 22, line 23, after ("thereto") insert ("and the production has been lodged at least eight days before the second diet").—(The Earl of Selkirk.)
§ LORD MORRISONMy Lords, I am happy to accept this Amendment.
§ THE EARL OF SELKIRKI am grateful to the noble Lord.
§ On Question, Amendment agreed to.
§ THE EARL OF SELKIRKMy Lords, this Amendment is consequential. I beg to move.
§
Amendment moved—
Page 22, line 34, leave out subsection (2).—(The Earl of Selkirk.)
§ On Question, Amendment agreed to.
§
LORD MORRISON moved to add to the clause:
(3) Nothing herein contained shall prevent evidence of previous convictions being led in any case where such evidence is competent in support of a substantive charge.
The noble Lord said: My Lords, this is a clarifying Amendment to preserve Section 19 of the Prevention of Crime Act, 1871. It repeats a provision of Section 67 of the 'Criminal Procedure Act, 1887. In some proceedings, previous convictions are material evidence in establishing the charge brought against the accused. The earlier provisions of this clause might be construed as precluding mention of such convictions, and this Amendment is proposed in order to enable mention of them to be made. I beg to move.
§
Amendment moved—
Page 24, line 21, at end insert the said subsecton.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I think this is an improvement.
§ On Question, Amendment agreed to.
§ Clause 36 [Proceedings on indictment against bodies corporate]:
§
LORD MORRISON moved, in subsection (1) (a), after "office" where that word last occurs, to insert:
or the registered office is not in the United Kingdom.
The noble Lord said: My Lords, this Amendment and the next go together. They are designed to enable indictments to be served on companies which do not have registered offices in the United Kingdom. It is possible that such a company might commit an indictable offence through one of its agents in Scotland. If so, inordinate delay might be involved in serving the indictment at the registered office abroad. The Amendments will enable it to be served at the company's principal place of business in the United Kingdom. I beg to move.
§
Amendment moved—
Page 24, line 26, after ("office") insert ("or the registered office is not in the United Kingdom.")—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I would like to make one observation on this. It is clear what is meant by "any principal place of business" of a British company, but is it always so in regard to the principal place of business in the United Kingdom of a foreign company? I think there is a risk that what is referred to may not be absolutely clear. What does the court go on? It has to go on a certificate that delivery has been made by the Post Office at a place of business—I am referring now to the second part of subsection (1). And on that evidence with an acknowledgment or certificate of delivery of the letter to a place of business, the court is entitled to proceed to convict in absentio. I ant hound to express my view that there is a slight danger of conviction taking place when delivery of an indictment has not been properly carried out. I do not propose to raise any strong objection on this point, but I mention those matters as I think they should be examined more closely.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move this consequential Amendment.
§
Amendment moved—
Page 24, line 26, after ("business") insert ("in the United Kingdom.")—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, the effect of this Amendment will be to remove the requirement that an indictment against a company must be served by delivery in Scotland of a copy to the secretary, or any director, or any person in charge of any principal place of business, as well as by delivery of a copy to the registered office or principal place of business of the company. The requirement in paragraph (b), which it is proposed to omit, seems to be too vague, particularly when it is appreciated that failure to comply with it would vitiate the service of an indictment. As the noble and learned Lord, Lord Reid, pointed out in Committee discussion "any principal place of business" is a loose and indefinite term. Moreover, a strict reading of the paragraph would place too onerous an obligation on the prosecution, which would have to ascertain whether or not there was a secretary or director of the company resident in Scotland. If 739 there was not, and if the company had no principal place of business in Scotland, it would be impossible to serve the indictment and the company could not be prosecuted. Such a company, however, might commit an indictable offence through an agent in Scotland and ought to be subject to prosecution. I beg to move.
§
Amendment moved—
Page 24, line 27, leave out from ("corporate") to the end of line 31.—(Lord Morrison.)
§ On Question, Amendment agreed to.
§
LORD MORRISON moved to leave out subsection (2) and to insert:
(2) In any such proceedings as aforesaid the body corporate may, for the purpose of
The noble Lord said: My Lords, this Amendment and the next two implement an undertaking given in Committee by the Lord Chancellor that Clause 36 would be amended to make it clear that a company will not have the right to conduct a full defence through a non-legal representative. The first Amendment will enable a company to act through a lay representative only for the purpose of stating objections to an indictment or prosecution, tendering a plea, or making a statement in mitigation. The other two Amendments make it clear that for these and all other purposes of the proceedings, the company may be represented through counsel or a solicitor. I beg to move.
appear by a representative of the body corporate.
§
Amendment moved—
Page 24, line 40, leave out subsection (2) and insert the said new subsection.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I would like to thank the noble Lord for meeting the point I raised on Committee.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 25, line 5, after ("subsection") insert
740
("or by counsel or a solicitor").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move.
§
Amendment moved—
Page 25, line 10, after ("section") insert ("or by counsel or a solicitor").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ 5.4 p.m.
§ Clause 56:
§ Transfers from prison to Borstal institution and vice versa
§ (2) If a person detained in a Borstal institution is reported to the Secretary of State by the visiting committee to be incorrigible, or to be exercising a bad influence on the other inmates of the institution, the Secretary of State may commute the unexpired part of the term for which the said person is then liable to be detained in a Borstal institution to such a term of imprisonment as the Secretary of State may determine, not exceeding the said unexpired part; and for the purpose of this Act the said person shall be treated as if he had been sentenced to imprisonment for that term.
§
LORD MORRISON moved, in subsection (2) to leave out "commute" and to insert:
present an application to the sheriff within whose jurisdiction the institution is situate for commutation to imprisonment of
The noble Lord said: My Lords, this Amendment and the next follow an undertaking given in Committee that further consideration would be given to an Amendment moved by the noble Earl, Lord Selkirk, with the same intention. As a result of that consideration, the Amendments propose to alter the method of dealing with a Borstal trainee who is reported to the Secretary of State by the visiting committee to be incorrigible or to be exercising a bad influence on the other inmates of the institution. As it stands, the clause empowers the Secretary of State himself to commute the unexpired part of the trainee's term of detention in Borstal to a term of imprisonment not exceeding that unexpired part. The Amendments will enable the Secretary of State, on receiving a report from the visiting committee, to apply to the sheriff of the area where the Borstal is situated for commutation of the unexpired part of the Borstal sentence; and will empower the sheriff then to commute the unexpired part to a term of
741
imprisonment not exceeding that unexpired part. The principle is thus accepted that the power of commutation should rest with the courts.
§ An assurance can be given that it is not the intention to ask the court to exercise this power save in the most exceptional case, where no alternative is available. The Secretary of State entirely agrees that it is inconsistent both with the principles of the Bill and of Borstal training to send to prison a young person undergoing training in Borstal. There is already provision within the Borstal system for handling difficult cases in a separate Borstal institution, and the power to commute a Borstal sentence to one of imprisonment will be invoked only where a case proves, as sometimes happens, so abnormally difficult that it cannot be handled in any Borstal institution without upsetting the whole course of training. I beg to move.
§
Amendment moved—
Page 35, line 26, leave out ("commute") and insert the said new words.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I would like to thank the noble Lord for this Amendment, which meets the point I raised in Committee. If the sheriff makes a mistake and sends the wrong type to Borstal, it is as well that it should be known. I see no harm in that, and I know the instances in which it will arise will be rare. I am grateful to the noble Lord for meeting the point.
§ On Question, Amcndment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment. Amendment moved—
Page 35, line 27, leave out from ("institution") to ("and") in line 29 and insert ("and on any such application the sheriff may commute the said unexpired part to such a term of imprisonment, not exceeding the said unexpired part, as he may think fit").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Clause 60 [Treatment of persons transferred front prisons, etc., to institutions for mental defectives]:
§
LORD MORRISON moved to leave out subsections (1) and (2) and to insert:
(1) Where an order under Section ten of the Mental Deficiency and Lunacy (Scotland) Act, 1913, that a person he transferred to an institution for defectives or be placed under guardianship expires, or the person to whom
742
the order relates is ordered to be discharged from such institution or guardianship then, if, at the time of such expiry or order for discharge, either,
The noble Lord said: My Lords, although this Amendment is rather long and covers considerable space, it is in the main a drafting Amendment. The alterations of substance which it makes are, first, that it will enable the Secretary of State to return to prison a person who has been ordered to be detained there and who has subsequently been placed under guardianship as a mental defective, as well as a person who has been ordered to be detained and has subsequently been transferred to an institution for defectives. Secondly, it will restrict the Secretary of State's powers under Section 10 of the 1913 Act and this clause to those inmates of State mental hospitals who were sent there at His Majesty's pleasure. I beg to move.
the Secretary of State may remit him to any prison or other place in which he could have been detained if the order under the said Section ten had not been made; and such person shall be liable accordingly to be dealt with as if he had never been transferred to the institution for defectives or placed under guardianship.
§
Amendment moved—
Page 37, line 30, leave our subsections (1) and (2) and insert the said new subsection.—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Fourth Schedule [Borstal training]:
§ 5.10 p.m.
§ LORD MORRISON moved, in paragraph 3, to omit "three years from the date of his sentence, or the expiration of." The noble Lord said: My Lords, this Amendment and the next one relate to the period for which a Borstal licence-holder, who is recalled while under supervision, will be liable to further Borstal detention. Their effect will be to fix that period at a maximum of one year from the date of the return of the licence-holder to custody. As the Bill stands, the maximum period is one which ends one year from the date of his being taken into custody or three years front the date of 743 his sentence, whichever is the later. The second of these alternatives, now to be omitted, may be difficult of definition in view of the provisions of Clause 61 about periods when a person is unlawfully at large. It would, therefore, be more satisfactory to fix the maximum period definitely at one year. The person concerned may, of course, be released on licence at any time and he will not normally be detained for the full period of a year. I beg to move.
§
Amendment moved—
Page 57, line 42, leave out from ("of") to ("one") in line 43.—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I thank the noble Lord for these Amendments which substantially meet a point I raised during the Committee stage.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 58, line 1, leave out ("whichever is the later").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Seventh Schedule [Forms of notices to accused in criminal proceedings]:
§ LORD MORRISONMy Lords, this Amendment and the next one will, I hope, give effect to proposals made by the noble Earl, Lord Selkirk and Lord Reid during the Committee discussion. They will secure that the second and third forms of notice prescribed by the Schedule will require prosecutors not only to mention the sections of Acts in which penalties for statutory offences are contained but also to specify these penalties. I beg to move.
§
Amendment moved—
Page 61, line 26, leave out from ("Act") to end of line 27 and insert ("namely (set forth shortly the penalties)").—(Lord Morrison.)
§ THE EARL OF SELKIRKMy Lords, I would again like to thank the noble Lord. These Amendments appear to me to meet entirely a point which I raised previously, and I am sure they are right and proper.
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 62, line 9, leave out from ("Act") to end of line 9 and insert ("namely (set forth shortly the penalties)").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Tenth Schedule [Consequential and minor amendments]:
§ LORD MORRISONMy Lords, this Amendment and the next one will be similar in effect to that proposed at Clause 35, page 24, line 21, but they apply to summary proceedings instead of proceedings on indictment. I beg to move.
§
Amendment moved—
Page 67, line 8, leave out the second ("and").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 67, line 10, at end insert ("and in paragraph (8), after the word 'herein', there shall be inserted the words 'or in Section forty-two of the Criminal Justice (Scotland) Act, 1949,'").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, this Amendment and the next go together. Under Sections 5 and 10 of the Mental Deficiency and Lunacy (Scotland) Act, 1913, the Secretary of State is empowered to deal with defectives in a prison, criminal lunatic asylum or the criminal lunatic department of a prison, approved school, place of detention, or inebriate reformatory. The effect of these Amendments will be to substitute for the provisions of these sections provisions defining the various types of institution in the appropriate terms, having regard to the changes in the law made by the Bill. I beg to move.
§
Amendment moved—
Page 67, line 41, after ("1937") insert ("or").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ LORD MORRISONMy Lords, I beg to move the next Amendment.
§
Amendment moved—
Page 67, line 42, column 2, leave out ("State Mental Hospital") and insert ("detained in a State Mental Hospital in pursuance of an order that he be kept in strict custody until His Majesty's pleasure be known.
In Section ten, for the words from 'undergoing a sentence' to 'department of a prison'
745
there shall be substituted the words 'detained (otherwise than while awaiting trial or sentence or under civil process) in a prison or other institution to which the Prisons (Scotland) Acts, 1860 to 1926, apply or in a remand home, or in a school approved under Section eighty-three of the Children and Young Persons (Scotland) Act, 1937, or in an inebriate reformatory or who is detained in a State Mental Hospital in pursuance of an order that he be kept in strict custody until His Majesty's pleasure be known'.").—(Lord Morrison.)
§ On Question, Amendment agreed to.
§ Eleventh Schedule [Enactments repealed]:
§ LORD MORRISONMy Lords, this Amendment relates to a section which provides that statutory offences punishable by penal servitude may be tried in the Sheriff court. It is proposed to repeal that section by this Amendment because 746 of the abolition of penal servitude by Clause 15 (1) of the Bill. I beg to move.
§ Amendment moved—
§ Page 74, line 54, at end insert—
| ("1 & 2 Geo. 6. c. 48. | The Criminal Procedure(Scotland) Act, 1938. | Section ten.") |
§ —(Lord Morrison.)
§ On Question, Amendment agreed to.