§ 3.41 p.m.
§ Order of the Day for the Second Reading read.
My Lords, I beg to move that this Bill be now read a second time. A little under six centuries ago your Lordships passed an Act from which I should like, with permission, to read a short extract, because it sets out in words much more eloquent than any I could use the powers of justices of the peace which had then been created and which I seek to-day to comment upon and, in one sense, to limit. It is as follows:In the Parliament held at Westminster on the Sunday next before the feast of the Conversion of St. Paul, A.D. 1360–61.In every county of England there shall be assigned for the keeping of the Peace, one Lord, and with him three or four of the most worthy of the Counties, together with some learned in the Law; and they shall have power …"—then comes the particular power which I want to bring to your Lordships' attention this afternoon—to take all of them that be not of good Fame, where they shall be found, sufficient Surety and Mainprise for their good Behaviour towards the King and his People, and others duly to punish; to the Intent that the People be not by such Rioters troubled nor en-damaged, nor the Peace blemished nor Merchants nor others passing upon the Highways of the Realm disturbed, nor beset by the Peril which may happen of such offenders.The position to-day is that the justices of the peace still have that power, and still use it.
Now I wish to take your Lordships, by rather a big jump in legal history, to the year 1907, when your Lordships passed the Criminal Appeal Act. That Act gave convicted defendants the right of appeal to the court of quarter sessions against conviction. But your Lordships will observe that, under the Act of 1361 there need be, and indeed usually is, no conviction. Under the old Act, it is possible to take sureties from a man who has never been convicted at all of any offence. It is sufficient that it is apprehended that he will commit an offence, or even may commit an offence or be a danger to the peace or to other individuals. Therefore, there being no conviction, it follows that there can be no appeal.
936 If there is any doubt about that, I can quote two recent cases in the Court of Criminal Appeal which have quite firmly established that there is at present no right of appeal against the taking of sureties under the 1361 Act. I suggest to your Lordships that on the whole, in modern circumstances, it is desirable that there should be a right of appeal. One cannot blame your Lordships' predecessors of 600 years ago, because appeals against criminal convictions were then, I suppose, unthought of. But it has so arisen, and I suggest that it is desirable that a man who is convicted should have a right of appeal. Therefore, I am asking your Lordships to give a Second Reading to this Bill.
Subsection (1) of Clause 1 gives this right of appeal to a court of quarter sessions. Subsection (2) (a) establishes that the other party to the original proceedings shall be the respondent on appeal. Subsection (2) (b) does two things: it brings this procedure within the ambit of the legal aid scheme, and it also enables justices to grant release on bail to an appellant, pending his appeal. I think it necessary to include that power in the Bill because otherwise there might be a doubt as to whether there was power to grant such release.
That is the Bill as it stands now, but I have one more thing to add. Since this Bill was introduced into another place it has been brought to notice that, in addition to the powers which justices possess under the 1361 Act to take sureties on a man to be of good behaviour, they also possess powers—which, indeed, they use, I should say, a little more often than the other—to bind over a man to keep the peace under the Common Law and not under any Act of Parliament at all. Again, because they have power to do that without convicting, there is no right of appeal. I suggest that it is desirable to bring that matter also within the scope of this Bill. If your Lordships give a Second Reading to this Bill this afternoon, I propose on the Committee stage to introduce a short series of Amendments the effect of which will be to extend this Bill to cover the Common Law power of justices to bind over a person to keep the peace, thus giving a right of appeal to a man who is bound over under the Common Law, as well as to a man who is ordered to find sureties under the Act of 1361. I think that is all I need say. 937 It is a short Bill, and although it may be of some little interest there is little more to be said about it. I beg to move that the Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Merthyr.)
§ 3.48 p.m.
§ LORD SILKIN
My Lords, the noble Lord, Lord Merthyr, was right when he said that there is not much more to be said in support of this Bill than he himself has said. But it is right, I think, that we should all thank him for sponsoring this Bill and for bringing it to the notice of this House. It may not be of the first importance. The law has apparently been jogging along since 1361 without much hardship to anybody, but the fact that, as he himself pointed out, it is possible for a person to be in prison without having been convicted, and without having a right of appeal, makes this a worthy Bill, and one which I think we ought all to support. It is strange that a person could find himself in prison without having been convicted of an offence and, indeed, without having committed an offence—unless one regards a threat to commit an offence as an offence itself, or a danger that a person may commit an offence. It is possible for a person to be subjected to this procedure of being required to give sureties simply because it is apprehended that he will do something contrary to law.
One of the things may he, for instance, to warn people of the danger of being arrested or charged. I remember that, certainly before the war—I do not know whether it has been done since—a certain organisation used to have patrols on the road to warn their members, by the simple, expedient of not saluting them, of the possibility of trouble occurring if they exceeded a certain speed. I do not know whether those patrols could have been apprehended, brought before a court and charged in some way with interfering, or threatening to interfere with the course of justice. While it is, on the face of it, no offence not to salute a person, such a patrol could be, required, I imagine, to give sureties for good behaviour, and, in default, could be sent to prison without any right of appeal. Therefore, while I do not think the noble Lord himself would pretend that this is a major measure, it is one which this House will wish to support, particularly in view of 938 the Amendments which the noble Lord, Lord Merthyr, has told us he proposes to introduce at a later stage.
§ 3.52 p.m.
§ VISCOUNT HAILSHAM
My Lords, I too should like to say a few words in support of this measure. I am not sure that I should endorse everything that has fallen from the noble Lord who has just spoken. My recollection is that the A.A. patrols were actually convicted of a criminal offence—namely, the obstruction of the police in the execution of their duties. But it seems Gilbertian that the offence which constituted obstruction should be that of not saluting somebody else. As I say, I do not support everything that the noble Lord has said, but there is a very strong case to be made for this Bill. What has held up this reform for a very long time has been two arguments. The first is that there has been no conviction to complain of, and the second is that if a man is merely asked to find sureties for good behaviour, so long as he behaves himself there is nothing much to be afraid of. Both those arguments have turned out to be somewhat specious and a number of people have been aggrieved when justices have thought it right to demand sureties under the Act of 1361. So much bitterness has that caused from time to time among those who felt aggrieved that some people have gone so far as to ask for the abolition of these powers of the justices. That would be a mistake. Those powers are in constant use and are of great value, particularly when neighbours fall out. It would be a pity to interfere with them.
There has been engendered a feeling of injustice. My own feeling is that, although it is never wise to encourage unduly appeals against matters of discretion, yet this is a matter about which we can say with great confidence that the discretion of the justices, good as it almost always is, is not so infallible that the discretion of the quarter sessions may not be a little better. I would beg the House to support my noble friend in his Bill.
§ 3.55 p.m.
§ LORD MILNER OF LEEDS
My Lords, whilst ill general, like the other noble Lords, I fully agree with the purpose of this Bill, there are one or two 939 factors that we ought to have in mind. I think I am right in saying that under the Act of 1361 one can be bound over only by consent: that is to say, the magistrates have to ask the defendant whether he agrees to be bound over. There have, of course, been cases —a great many, I imagine—where not only the defendant but also the complainant, although not himself or herself subject to any charge, has agreed to be bound over. The noble Viscount, Lord Hail-sham, has mentioned the question of disputes between neighbours, and so forth. Frequently, one neighbour brings a complaint against another and, to make things equal, the magistrates persuade both to be bound over. If the Bill passes, as I expect it will, it will give a right of appeal to those who have consented to be bound over. No doubt, in some cases they consent under a misapprehension. Then there is a good deal of publicity in the newspapers and so on, and people, as is not infrequently the case, perhaps put a wrong interpretation on the case. As a result of all this, the defendant who has agreed to be bound over desires to appeal and to remove, as he or she hopes, the stigma from his or her name. That is one of the factors which we ought to bear in mind.
Furthermore, of course, an appeal would be only for one purpose—namely, with a view to having the original charge dismissed. There is presumably a risk, in having a retrial, as in fact it would be, before a court of quarter sessions, of having the penalty increased. That is a factor that appellants will presumably bear in mind. The third consideration which occurs to me is that I presume we do not want the court of quarter sessions, any more than the Court of Appeal proper, the Divisional Court, cluttered up with a great number of rehearings of quite small matters. One hopes that one result of the passing of this Bill will not be a vast number of appeals. Otherwise, subject to those considerations being borne in mind, I quite agree that there are numerous cases where a defendant would wish to appeal and where the provisions of this Bill will be useful.
§ LORD HADEN-GUEST
My Lords, I intervene only to ask a question. In view of the fact that the Act to which this Bill refers has been in operation since 940 1361, is there really any particular reason for altering the present arrangements? Does it not work very well at the present time? Is it necessary to do anything?
§ 3.58 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords. I intend to trespass for only a few moments on your Lordships' time in regard to this Bill. In another place the Government intimated their sympathy with the objectives of the Bill and I am merely underwriting that to-day; but I should like to deal with the general point which was raised, first by the noble Lord, Lord Milner of Leeds, and then in a slightly different form by the noble Lord, Lord Haden-Guest. I am not going to deal with the doubts of the noble Lord, Lord Milner of Leeds, about the law, because I am sure that my noble friend Lord Merthyr will be able to deal with that in his reply. On the general point, the reasons why the old Act has continued for nearly 600 years and has not been altered are really two. The first, as stated by my noble friend, Lord Hailsham, is that a conviction was not imposed and therefore the conception of an appeal did not occur to people's minds.
There is the second point which I think was in the minds of the noble Lords, Lord Milner of Leeds and Lord Haden-Guest, that, where you have the operation of what is really precautionary or preventive justice, it is arguable, and perhaps strongly arguable, that that ought to be concluded and brought to a final state in the shortest possible time, in order that it may carry out its purposes of being precautionary and preventive. Certainly, I think anyone in considering this matter ought to take that into account. I have tried to myself. The answer to that is also two-fold. It has certainly brought me to my decision in the matter. Whatever be the technical position, in the minds of innumerable people who read the report in a local newspaper there is the belief that the person who has been ordered to enter into recognisances, with or without sureties, to be of good behaviour or to keep the peace has been convicted; and even where there is more legal knowledge there is a general feeling that behind this order is a piece of discreditable conduct. Where that impression goes forth, I think it is right that the person concerned should have a chance 941 in a suitable case of going on and clearing his name and reputation.
But, apart from that, I think there is a great deal in the point which my noble friend Lord Merthyr and the noble Lord, Lord Silkin, emphasised: that if he fails or refuses to find sureties, he may then he committed to prison for a period up to six months. To-day, when we have done so much to ensure exactitude in justice, the idea of someone going to prison for up to six months without a right of appeal is again repugnant to us. I hope that that summary of the considerations, though a very brief one, has at any rate quieted the doubts which existed in the minds of these two noble Lords, and I hope that the House will give the Bill a Second Reading. If I may say so, I entirely agree with the intended Amendment which my noble friend Lord Merthyr has mentioned. It was only because of the difficulties of procedure in another place in amending the Title that the Amendment was not made there, and I think it is an admirable thing that the freer rules of your Lordships' House should enable the Common Law position to he dealt with. My Lords, as the noble Lord, Lord Silkin, said, the subject of this Bill is not a great matter in itself, but to me it is never a small thing if Parliament can not only improve legal matters but make lighter their burden on the citizen. I think we are doing both the improving and the lightening of the burden, and I commend this Bill to your Lordships for a Second Reading.
§ 4.4 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, it may seem strange to your Lordships that I, not a practising lawyer at all, should have had perhaps as much experience of this particular matter as those of your Lordships who know more about the law. As your Lordships will recollect, I was at one time in my life closely associated with those women who were fighting for the vote in what was called a militant manner and who were known as Suffragettes. At the beginning of the campaign they often committed minor technical offences, and instead of being convicted of the charge which was brought against them—it was generally one of obstruction—they were bound over. As the noble and learned Viscount on the Woolsack has said, in default of agreeing to be bound over they could be 942 sent to prison for a period of no less than six months, which was a much larger punishment than they would have been accorded for the offence itself and though they did not always receive a sentence of six months, they did receive a considerable sentence for refusing to be bound over.
What was the result of that? I am quite prepared to admit, certainly at this late period after the events, that these women were seeking a certain amount of notoriety for their cause by a technical breach of the law. But they said, "We do not want to be sentenced for these Icing terms for what is only a small offence. It will be much better for us if we commit some real offence in regard to which the magistrate will not feel himself justified in binding us over but will definitely send us to prison. The advantage of that will be, first of all, that the sentence will be much shorter, and secondly, it will give us a right of appeal." So the effect of the law as it then stood, which the noble Lord who has sponsored this Bill in your Lax-ships' House intends to alter, was that the women deliberately committed a much more serious offence in order to escape w hat seemed to be the thoroughly unjustifiable sentence which was given because of their refusal to be bound over. With that most vivid recollection in my mind of events which affected hundreds of women at that time, I certainly have the greatest regard for the course adopted by the noble Lord who has sponsored this Bill.
§ 4.6 p.m.
My Lords, I should like first of all to say that I am most grateful to the noble Lord, Lord Silkin, for emphasising a point which I had rather neglected—that on failure to find sureties under the old Act a man may be sent to prison for up to six months. I think it is right and proper that your Lordships' attention should have been drawn to that fact.
The noble Lord, Lord Haden-Guest, asked whether any action was really necessary. Although I had nothing whatever to do with the case, or with any case under this Act—and I do not even know the details of it—I do know that this Bill was introduced largely because of one particular case. It may have been completely unjustified, but there was a grievance based solely on the fact that there 943 was no right of appeal. I should also like to draw the noble Lord's attention to the fact that comparatively recently—namely, in 1948 and in 1951—there were two attempts to appeal. In each case the matter was taken to the High Court, and in each case the High Court decided that there was no right of appeal. The mere fact that two such attempts have been made so recently may be a sufficient answer to Lord Haden-Guest who suggested that there was no ground for complaint or need for action. But if that is not sufficient, then I suggest that his point has really been answered by his colleague on the Front Bench opposite, who pointed out that it actually caused an increase in crime about forty years ago.
The noble Lord, Lord Milner of Leeds, had some doubts about the wisdom of this measure and suggested that the courts might be cluttered up with appeals. That is possible, but I hardly think it likely that there will be so many appeals as to cause an appreciable difference in the amount of work cast upon the appellate courts. He also mentioned, rather to my surprise (he may be right, but I did not know it), that a man could not be ordered to find sureties unless he consented. But I should have thought that if he refused to agree the magistrate could certainly send him to prison; otherwise I think the whole scheme falls to the ground. That is the alternative: if he does not want to be bound over he need not be so bound over, but he is liable to go to prison.
My Lords, I think that covers most of the points that have been raised in this debate. I am most grateful to your Lordships for supporting the Bill, and I am especially grateful to the noble and learned Viscount the Lord Chancellor for saying that he supported the Bill.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.