HL Deb 12 March 1957 vol 202 cc462-81

House again in Committee.

4.5 p.m.

LORD LUCAS OF CHILWORTH moved to add to subsection (3): Service of a notice of adjournment shall be effected in accordance with the requirements of Rule 76 of the Magistrates' Courts Rules, 1952, applicable to the service of a summons.

The noble Lord said: As I mentioned when speaking on the last Amendment, this Bill brings in a somewhat new procedure, and in my view, there is one serious omission from it. A magistrates' court cannot, without giving notice to the defendant and requesting his presence before the court, send hint to prison or any other form of detention or order him to be subject to any disqualification. He cannot have any disqualification of his driving licence unless he has been notified by the magistrates' court that he has been found guilty and that he must go to the court for the purpose of receiving sentence. But in the Bill there is no machinery and no procedure for notifying the defendant of the adjournment—notice of the adjournment in this case being equally as important to the defendant as service of the original summons.

I have another Amendment following this one to revise the rules for the service of summons, but that does not alter the point that I tin now arguing, that in this Bill no procedure is laid down for the proper serving of a notice of adjournment. Perhaps the noble and learned Viscount the Lord Chancellor intends to tell me that it is taken for granted that in regard to notice of adjournment in these cases, the procedure shall be precisely the same as obtains in the serving of a summons. If he says that, I am quite satisfied. But if he does say that, might I suggest that it should be written into the Bill and then there can be no mistake about it? That is the simple case for the Amendment which I am moving. It is a procedural one and it is intended to safeguard the defendant. I am certain that the noble and learned Viscount is with me in desiring that the interests of the defendant shall be safeguarded at all points. I will not now mention the reason why I have put down this next Amendment. I will do that later. I now beg to move.

Amendment moved— Page 3, line 13, at end insert the said words.—(Lord Lucas of Chilworth.)

LORD WINSTER

As I understand the Amendment, notice of the adjournment would have to be served in the same way as a summons—that is to say, by hand, personally, or by registered post. I understand that to be the purpose of the Amendment, and if that is so I think it would be a great improvement to the Bill and I strongly support it.

THE LORD CHANCELLOR

I agree with the noble Lord, Lord Winster, as to the effect of the Amendment. The Amendment would have the effect that where a court adjourns, either because they decide not to accept the accused's written plea of guilty in his absence or because they have it in mind to impose imprisonment, detention or disqualification, or where they intend to impose a large fine or are in doubt about means, then notice of adjournment should be served, first, personally; secondly, by being left for the accused with some person at the last known address; or thirdly, by registered post. With regard to one of these cases the noble Lord's other Amendment "bites" later on.

Let me remind your Lordships that the general power of adjournment of magistrates' courts is contained in Section 14 of the 1952 Act, subsection (2) of which provides that the trial shall not be resumed unless the court is satisfied that the parties have had adequate notice thereof. That is an important provision which should be borne in mind. But no method of service is prescribed in that section or in the Magistrates' Courts Rules. All that subsection (3) of Clause 1 of the Bill does is to require that the notice required by Section 14 (2) of the Magistrates' Courts Act shall, where a court adjourns by virtue of the provisions of the Bill, include notice of the reason for the adjournment, but makes no special provision for service.

The noble Lord has urged, and I see the force of it, that where a person has been encouraged, so to speak, by this Bill to keep away from the court and has to be brought to the court on another occasion, we ought to be careful about it. I have given thought to that point. Under Rule 76, if service is effected by registered post and the defendant fails to appear, service may not be treated as proved unless it is proved that the summons came to the defendant's notice. If the service of a notice of adjournment had to be proved in the same manner, a defendant could prevent the court from proceeding in a case merely by refraining, either wilfully or negligently, from acknowledging the notice, and the court would be prevented by proviso (a) of Section 15 (2) of the Magistrates' Courts Act, 1952, from issuing a warrant of arrest in these circumstances. In other words, while admitting the difficulty which the noble Lord sees for the defendant, in that he is encouraged to keep away from the court and is now brought back, if we do this we are making it possible for a malevolent defendant to upset entirely the working of the court. That has been my difficulty in the matter.

LORD LUCAS OF CHILWORTH

If I understand the noble and learned Viscount's argument, to prevent the abuse of the court by a malevolent offender, we are going to inflict injustice on those who do not fall into that category.

THE LORD CHANCELLOR

I do not think I am inflicting injustice, because I am maintaining the position as it exists already. May I remind the noble Lord of what I was relying on to prevent injustice—that is, the provision in Section 14 (2) of the Act, that the trial shall not be resumed unless the court is satisfied that the parties have had adequate notice thereof. That is matter of fact, and a trial cannot be resumed unless the court is satisfied on that point. I am not submitting the defendant to any injustice, but, to put it frankly, I am not being as generous to the defendant as the noble Lord would have me be.

LORD LUCAS OF CHILWORTH

What would "adequate notice" be? When a summons is issued, adequate notice is laid down under Rule 76. Here we have a case where the court must adjourn in the circumstances that are laid down in the Bill. If it is intended to send a man to prison or impose any restriction on his licence or, as the noble and learned Viscount said, a substantial fine, the court cannot do that without adjourning for him to be present. What does the noble and learned Viscount consider to be adequate notice of adjournment, when nothing is laid down about it in the Bill?

THE LORD CHANCELLOR

The noble Lord will appreciate that this is a situation which arises frequently at the moment. I will give examples of what I should accept as adequate notice if I were sitting in a magistrates' court. One would be that the offender was represented by a solicitor at the time the case was adjourned and it would be for the solicitor to inform him. Secondly, and I think this is the usual method, though the noble Lord, Lord Winster, will correct me if his experience is different, where an officer was sent round to say that the case had been adjourned to such-and-such a date and the officer saw the defendant. Thirdly, where the clerk of the court has sent a letter to the defendant to say that his case was adjourned to such-and-such a date. If ally one of these three things were proved, I should say that that was adequate notice.

LORD LUCAS OF CHILWORTH

I am not worrying about the man who goes to court originally or about the man who is represented by a solicitor. I am worrying about the man who has written to court pleading guilty and has been persuaded not to attend by this Bill. In this case, what would be adequate notice that the court has adjourned and desires his attendance? If the noble and learned Viscount requires notice to be given, why not put it in the Bill? At present, there is no period of notice in the Bill. The noble and learned Viscount is relying on the words of another Act—namely that the court must be …satisfied that the parties have had adequate notice thereof. But there is nothing in this Bill to say what constitutes adequate notice.

THE LORD CHANCELLOR

That is the point between us. I should prefer that to be left for the magistrates to say, as a question of fact, whether it was adequate notice in the circumstances. That might easily tell both ways. On one occasion they may say: "Clearly, the letter has been sent, and we have no reason to believe that he was not at the house, and that is adequate notice." On another occasion they may say that there was reason to suppose that he was not at the house, or that the evidence that he was at the house was shaky and they wanted something more than that evidence; that he had been seen personally, or that someone had been to the house and found out whether he was still staying there. It is difficult across the Floor of the House to imagine all cases. Therefore I think there is something to be said for flexibility.

As I indicated, these Acts must be read together. We tried in the 1952 Act, when we consolidated, to get a code to work to, and that is why I referred to that Act. Of course, this Bill when it is an Act will be read together with these other Acts. Therefore I would ask the noble Lord to rest content with that at the moment, because there are a number of important reasons for which adjournments are given, apart from this one. It is a matter which courts have to take into account. It should be loth to disturb a flexible procedure which, on the whole, I think, has worked well, in favour of another, unless I had very good reason. I would ask the noble Lord, Lord. Lucas of Chilworth—he is always so ready in these matters—to consider what I have said to-day, and if he still feels doubt, if he will have a word with me I will, if necessary, get the people from the Home Office and we might consider it together. However, I think he will see that flexibility is quite a reasonable end in itself.

LORD LUCAS OF CHILWORTH

am ever ready to meet the noble and learned Viscount, who is always so helpful. I am not going lo discuss this point further now, but will withdraw the Amendment. We shall then proceed to the next Amendment, which I think may have a bearing on the whole problem. So may I ask the noble and learned Viscount whether he, on his side, would also give close consideration, not only to the arguments I have now advanced, but to those I am about to advance on the next Amendment, because I think they are all tied up together.

THE LORD CHANCELLOR

I only want to tell the noble Lord, as we are discussing it in this friendly way, that on his next Amendment I shall put forward a procedural suggestion for his consideration to meet his point.

LORD LUCAS OF CHILWORTH

am grateful to the noble and learned Viscount, and ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.17 p.m.

LORD LUCAS OF CHILWORTH moved, after subsection (3) to insert: (4) As from the date when this Act comes into operation the provisions of subparagraph 1 (b) of Rule 76 of the Magistrates' Courts Rules, 1952, shall cease to have effect. The noble Lord said: This is a thorny problem. We now arrive at the stage where the magistrates have decided that they are going to inflict a penalty; either they have found a defendant guilty, or he has pleaded guilty, and it now becomes necessary for the previous convictions to be presented to the court. This is where I quarrel with the procedure laid down in Rule 76 of the Magistrates' Court Rules, 1952, which I have just mentioned. That Rule says: (1) Service of a summons issued by a justice of the peace on a person other than a corporation may be effected, (a) by delivering it to the person to whom it is directed;"— that is, physical delivery—

  1. "(b) by leaving it for him with some person at his last known or usual place of abode; or
  2. (c) by sending it by post in a registered letter addressed to him at his last known or usual place of abode."

To paragraphs (a) and (c) I have no objection but to paragraph (b) I have.

This matter relates to his previous convictions. They may be left with somebody who might open them—possibly his wife, who may be entirely ignorant of them; and they may date back to the time when he was a juvenile. Or his last known address may be that of his employer, who may open them. The Sharpe Committee did not like this procedure at all. I will not read out the whole of paragraph 55, at page 23 of their Report, because it goes into detail, but it starts: We think that special precaution should be taken to see that a defendant's previous convictions do not come to the notice of anyone other than the accused. This is one of the objections commonly raised to a system of the kind which we recommend. Then they go on to say …we do not consider that the second of the three methods "— that is, the one I mentioned to your Lordships as the one to which I object— of effecting the service of a summons which are prescribed by Rule 76 of the Magistrates' Courts Rules, 1952, namely, leaving it for the defendant with some person at his last known or usual place of abode, should be a permissible way of effecting service of a notice of previous convictions. The proof of service would appear to be already covered by Rule 55 (2) of the Magistrates' Courts Rules, 1952. What I say to cover that point is that the notice of the previous convictions should be sent to the defendant at the same time as the original summons. I think it would be helpful to him.

Suppose that a man receives a summons to appear at a certain court to answer a charge of careless driving, I think that at the same time he should receive a notice stating that, if he is convicted by the court, or if he pleads guilty and the plea is accepted, "these are the previous convictions which will be placed before the justices". I think that would help him to decide whether he should plead guilty or not guilty, because that would help him to assess, at the first stage of the proceedings, whether he is likely to receive a heavy or a light sentence. I think that is common justice, because nobody would know of his previous convictions other than the police, who issued the summons. The court would not know of the previous convictions, unless the police told them; and they would be very much out of order in so doing; but it would ensure that the defendant knew all the facts of the case that was going to be made against him, and that, I think, is an essential element of English justice. If, as the Bill reads at the present time, they are sent within seven days after the adjournment, they may be lost. If they are sent with the summons, then from the word "go" the man knows all the facts that are going to be put against him, because the statement of case has been sent to him and he knows that if the magistrates decide to convict on that statement, what are the offences that will be read out to the court before it passes sentence. I hope the noble and learned Viscount will consider that point.

There is one other point. As the noble and learned Viscount has already indicated, he may have some procedural suggestion to make. Although this is not strictly with my Amendment, it has a bearing on it. I suppose that the defendant will have to acknowledge receipt of the list of previous convictions, whether it comes with the summons or at any other time. I am rather apprehensive as to what form that receipt will take. I envisage that the list might not be an accurate list. If he signs a receipt that it is a correct and proper list of his previous convictions, is there any obligation upon him to point out that it is not and that he has some more? That is rather a difficult position in which to put the defendant. If he does have to acknowledge receipt, I should like to ask for an assurance that he is not going to be trapped into committing perjury. If the list he has been sent by the police contains only two previous convictions, when he knows that he has half a dozen others of which the police do not know, or have forgotten, is he to admit them, and to say, "You must treat me more harshly than this"? That is another point that is niggling in my mind. I suggest to the noble and learned Viscount that it would be advisable that, at the time of the serving of the summons under this new procedure, the defendant should be told also all the facts that are to be stated against him, and, if he is found guilty, what are the previous convictions that will be taken into consideration. I beg to move.

Amendment moved— Page 3, line 13, at end insert the said subsection.—(Lord Lucas of Chilworth.)

LORD WINSTER

I do not feel quite certain about this Amendment. The subparagraph which it proposes to repeal altogether gives the power to serve a summons by leaving it for the defendant with some person at his last known or usual place of abode. I feel it is important that this provision should be retained for summonses, otherwise it would mean either personal service in each case or service by registered post. The latter service is, of course, ineffective unless the bench have evidence that the registered letter has come to the attention of the defendant. If this sub-paragraph were repealed altogether, would it not mean that the police would have to serve a summons mainly at night, and sometimes, late at night, when a defendant has returned from work? Surely, that is not an altogether desirable procedure. In some cases, the police would be quite unable to serve the summons at all except by registered post, and the defendant might ignore such service so that it became ineffective. If this Amendment were limited to notices under the Bill, I do not think I should see any objection to it, but as it stands I see the objections which I have mentioned.

THE LORD CHANCELLOR

As I said earlier, I think I can go a long way to meet the difficulties of the noble Lord and, incidentally, to take the noble Lord, Lord Winster, with me, by three suggestions which I should like to put forward to deal with this problem. I think one ought to realise the valuable side of the proposal which the Amendment of the noble Lord, Lord Lucas of Chilworth, would admit. It is much better, with an important document in this field, that it should be given into the possession of somebody who will, one hopes, bring it to the attention of the accused, rather than that it should be put through the letter box. I am taking it only at that stage. One knows the awful risk of anything that is put through the letter box, at times other than the regular post, going under the mat, or being swept up, and that sort of thing. It goes beyond that, and means that it is left with someone, and that someone knows that an important communication, to which the addressee's attention should be drawn, has arrived. Equally, it means that if the man is not living there, the odds are that the person who intends to use this method will be told he is not living there, which may be useful. But, of course, I admit that no method other than personal service gives a complete guarantee—we all must admit that. But again, I think we shall all admit that to insist on personal service in every case would be too laborious and expensive for the general use.

I had in mind a point which I mentioned on the last Amendment—that if service is effected by registered post, it may not be treated as proof unless it is proved that the summons came to the defendant's knowledge. Your Lordships will remember that I mentioned that point. It is usually proved, of course, because it draws forth a letter from the defendant from which that can be found. My first suggestion is that we should apply that rule to the kind of service with which the Amendment deals, because at the moment there is no provision in relation to service by delivery to some person at the defandant's last known or usual place of abode, such as there is with regard to registered post. There are historical rea tons for the difference, with which I need not trouble your Lordships today. But on this point I should like to undertake to consider amending Rule 76 to require proof that the summons came to the defendant's notice, if either form of service, other than personal service, is employed. I cannot go further than saying that it will be considered, because it is a matter for the Rules Committee. They must exercise their discretion on it. I think that goes a long way on the first point.

The next point I want to deal with concerns previous convictions. I noted that the noble Lord, Lord Lucas of Chilworth, dealt with that point in his speech on the Second Reading of the Bill. He made the point that notice of such convictions ought not to be sent by post, since, in the absence of the addressee, it might be opened and read by anyone. He referred, as I think he did to-day, with approval to the recommendation in paragraph 55 of the Committee's Report, that leaving the notice with some person in the defendant's last known address should not be a permissible method of service. With regard to that, I should like to assure the noble Lord, Lord Lucas of Chilworth, that this recommendation has been accepted and it is proposed, again subject to the advice of the Rules Committee, to restrict service of this notice to personal service or service by registered post.

The third main point which the noble Lord made was with regard to receipt. The noble Lord asked whether the defendant can be expected to acknowledge a receipt of the notice, and whether such a receipt would be an admission that the list of convictions was correct. The noble Lord will remember (if he cares to verify it, he will find it in paragraph 57) that the Committee pointed out that it would not be practicable to require the defendant to return a receipt, since he can effectively block the procedure by not doing so. If the noble Lord will look at paragraph 58, he will see that the Committee recognised that previous convictions might very occasionally be wrongly attributed, but considered that this possibility should not stand in the way of a system which would in most cases work satisfactorily.

Having reminded the noble Lord of the Committee's views, I should like to tell him that the form which it is proposed, subject again to consideration by the Rules Committee, should be prescribed will advise the accused to write to the police at once if he maintains that any of the alleged previous convictions is wrongly attributed to him. They will not say anything about the obverse of the medal which was put before your Lordships by the noble Lord, Lord Lucas of Chilworth, so the man will not be drawn into any trap. It will simply be: "If you say that any of these is not attributable to you, then write and say so." I think that is the fairest way of dealing with it. I hope that, although it is not put in statutory form, I have shown the noble Lord that we have tried to meet what he has in mind, and that these procedural methods will go a long way to deal with it.

May I refer to another point, if it is not trespassing on Amendment No. 9, about the service? It is very difficult to serve notice of previous convictions with the summons. There is a great deal to be said for issuing summonses in good time, but there are many nervous people in the world, who worry terribly about whether they are to be summoned. The noble Lord will appreciate that, with regard to previous convictions, the chief constable who is applying for the summons may not be the chief constable of the district where the defendant lives. I think the noble Lord, Lord Lucas of Chilworth, made that point in regard to many matters in the Road Traffic Bill. Therefore, he has to write to him; inquiries have to be made and checks have to be instituted—because, of course, previous convictions are a matter on which one wants to use the greatest care. Therefore, that is why I do not think it is possible to issue notice of them at the time of the service of the summons. I hope the noble Lord, Lord Lucas of Chilworth, will forgive me for anticipating the point. As he raised it, I thought it only right and courteous that I should mention it.

4.36 p.m.

LORD LUCAS OF CHILWORTH

I am grateful to the noble and learned Viscount. I think he has adequately met my point. I am glad he recognises it. With regard to previous convictions, I think we must leave out sub-paragraph 1 (b) of those Rules. I am glad he has met me on that point. Of course, it is far better for this to be done by rules than by being put into the Statute—I agree with the noble and learned Viscount there. I put the Amendment down because I could not think of any other way of wording it. It is always a difficulty. When one wants to raise a point, perhaps one does something which is completely wrong, because it is the only wavy of drawing attention to it.

If I may have your Lordships' consent, and to save your Lordships' time, I will formally move Amendment No. 9 subject to any of your Lordships wanting to speak upon it. I am not quite so happy about that Amendment. I wish the noble and learned Viscount would look at that again. I do not think that seven days' notice is adequate. When a motorist—I am thinking of the motorist, I must confess—is stopped and given notice by the police that he will be reported, sometimes a long time elapses before he receives the summons, because notice at the time that he may receive a summons lets the police out of the old 14-day rule. I have known it to be three weeks or more. If it takes three weeks to get out a summons, seven days' notice of previous convictions does not seem to me to be very long.

I would ask the noble and learned Viscount to be kind enough to look into the other point that I raised. It is far better for this new procedure to start off with the defendant not thinking he is to be victimised. Let him see the whole of the case at the start. He must have a statement of the case against him in far fuller language than that on the summons to day. That is implicit in this Bill. Surely it would be common justice to let hint have it at the same time, even if it means a little delay—because, after all, there is an unconscionable delay now. Sometimes it is three weeks, and it has been known to be much longer than that, from the time the police give notice that he will be reported and may receive a summons. It has been a month. Surely in that month the police have time to consider when they are issuing this summons and to collect the previous convictions. It is only justice to the individual that the whole of the case should be sent him at the same time. Then he knows whether to plead guilty or not. I think it is wrong that a man should be tempted by this new procedure and that, to save the time of the court, he should plead guilty. As the noble and learned Viscount, Lord Hailsham, informed your Lordships' House when I raised this point on the Second Reading, once a man has pleaded guilty there is no withdrawal from it.

The defendant may have forgotten. I do not know how many previous convictions I have—it may be two or three, but memory is short when one reaches the age of sixty and when one has been driving a motor car for forty years or more. I should think I have had two or three convictions, but I may be hopelessly wrong in making that estimate. Having pleaded guilty, I am told suddenly, when I have no chance of putting forward another plea, "These are the convictions that will now be laid against you." Included in those convictions may be indiscretions of boyhood that one has forgotten. This list is not confined to motoring convictions. They are all there—some of which may have passed from the memory. I do not think that that is right. If we want this new procedure to work and to carry the confidence of the public—we all want that and we all want this Bill—then I suggest that it would be only justice if the noble and learned Viscount would reconsider this point. I feel sure that he as much as anybody wants this Bill to work.

I will withdraw the Amendment now. I do not know whether the noble and learned Viscount has anything further to say in answer to my plea in regard to Amendment No. 9, but I move that Amendment formally when it is called. I am grateful to the noble and learned Viscount for meeting me on this Amendment, and I ask permission of the Committee to withdraw it.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

4.42 p.m.

LORD MERTHYR

I should like to raise one small point on this clause. I do not want to alter any of the words, but I am not entirely happy about the arrangement of the provisos in subsection (2) of the clause. I apologise to the noble and learned Viscount for not giving him notice of this point, and I certainly should riot dream of pressing it, but I should like to ask this question. Would it not be an improvement if the second proviso to subsection (2), beginning at line 31 and extending to line 42, were made into a separate subsection? If that were done, I would further suggest that the third proviso as it stands now should be transformed into a proviso to the new subsection. I am suggesting this because it seems to me—though I am well aware that I may be wrong, because I do not think this is an easy matter—that whereas the first proviso is a genuine exception to what has gone before, the second proviso is apparently not an exception to what has gone before; it appears to be leading on to the next step in the procedure. The third proviso, about which I have a little doubt, I would have said was really a proviso to the second proviso. I may be quite wrong about this matter, but I hope that it may be looked at before the next stage of the Bill. I think it will be agreed that this subsection is not entirely an easy one because it extends over more than a page, and it might do no harm if it were subdivided into an additional subsection.

To sum up, my suggestion is that the second proviso in line 31 should be made into a separate subsection, and consequently proviso (iii) dealt with, possibly, as a proviso to the new subsection. I wonder whether the noble and learned Viscount would have a look at that suggestion before the next stage of the Bill.

THE LORD CHANCELLOR

I will do so with great pleasure. I appreciate the care which my noble friend has given to the Bill, and I will see that the draftsman and those in the Home Office fully consider his points. It goes without saying that I, too, will give them the same consideration.

Clause 1 agreed to.

Clause 2 [Proof of identity of driver of vehicle]:

4.45 p.m.

LORD LUCAS OF CHILWORTH moved to delete the proviso. The noble Lord said: I raised this matter upon Second Reading, but I must say, with respect, that I was not satisfied with the answer I received from the Government, so I have put down this Amendment. The whole object of this Bill is to simplify the procedure, to make it cheaper, and not to waste the time of the police. The Committee's Report goes into the pounds, shillings and pence, and the police hours that are wasted through magistrates' courts being packed with policemen when these trivial offences are being tried. In this Bill there is a simple procedure outlined by which the identity of the driver of the vehicle can be taken as proved if the individual who was driving the vehicle admits in writing that he was the driver. But in the proviso to Clause 2, these words appear: Provided that this section shall not apply in relation to any offence mentioned in the Fourth Schedule to the Road Traffic Act, 1956 (which relates to offences in respect of which disqualification for holding, or endorsement of, a driving licence may be ordered). Quite frankly, I cannot see the sense in this proviso. If I am summoned for leaving my motor car for an undue length of time by the kerbside, thereby causing an obstruction, I can write to the police and say that I am guilty because I was the driver of that vehicle. But if on the same day I am stopped for driving at 35 m.p.h. in a 30 m.p.h. limit area, and I receive a summons from the police, I cannot by writing them a letter prove to them or satisfy them that I was the driver of the vehicle. It may be that the offence took place in Edinburgh—perhaps I had better not speak in terms of Scotland, as the noble and learned Viscount may tell me that there the law is different. Let me say that perhaps the offence occurred in Newcastle, and I may be living in London. I have to go all the way to Newcastle—

THE LORD CHANCELLOR

May I let the noble Lord into a secret? We ought really to have here one of those Shakespearean directions—" Enter Kilmuir with drum and colours ". I am going to accept his Amendment.

LORD LUCAS OF CHILWORTH

What can I say to that, except "Thank you very much".

On Question, Amendment agreed to.

Clause 2, as amended, agreed to.

Clause 3 [Proof of previous convictions]:

LORD LUCAS OF CHILWORTH

I do not want to waste the time of the Committee by arguing this point all over again. I hope that the noble and learned Viscount will at least say that he will reconsider the matter. I beg to move this Amendment.

Amendment moved— Page 4, line 18, leave out (" not less than seven days previously ") and insert (" at the time of service of the summons ").—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR

Having explained the difficulties in regard to this matter, I am sorry that the experience of the noble Lord has been that there has been delay in issuing summonses. I have put my views on that, and I should like to look into the whole matter. For the reason that I have given, I cannot hold out any great hopes, but I will look into it. I am glad to think that the noble Lord will be content with that assurance.

LORD LUCAS OF CHILWORIH

I ant grateful to the noble and learned Viscount for saying that. I, too, will consider very carefully what he has said, and if I feel obliged to put down the same Amendment on the Report stage I know that he will consider it. I will put it down only after very careful consideration. Now, with your Lordships' permission, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

4.50 p.m.

LORD MERTHYR moved, after Clause 3 to insert the following new clause:

Mitigation of penalties .Section twenty-seven of the Magistrates' Courts Act, 1952 (which confers upon a magistrates' court certain powers with respect to tit:, mitigation of penalties in the case of offences under any enactment passed before the commencement of that Act) shall have effect, and be deemed always to have had effect, as if in subsection (1) of that section for the words passed before' there were substituted the words whether passed before or after '.

The noble Lord said: In order to make this little picture complete, may I first say that Section 13 of the Criminal Justice Act, 1948, gave the power to any court (I think for the first time in history) to impose a fine for felony. Following upon that, Section 27, subsections (1) and (3), of the Magistrates' Courts Act, 1952, gave to magistrates' courts the power to fine for misdemeanours in the case of offences: under any enactment passed before the commencement of this Act "— that is, before 1952. This latter power had originated in the Act of 1879. So from 1879 to 1952 magistrates had power to impose a fine for misdemeanours or, as the case might be, to reduce the maximum fine for misdemeanour in any case brought before them. But because these words were inserted is follows that if a punishment is imposed under a Statute passed since 1952, unless there is an expressed power to fine, the magistrates cannel now impose a fine whether they want to or not.

lf, for example, a penalty of imprisonment is laid down in an Act passed since 1952, then there is no power to reduce the penalty to a fine. Prior to 1952, it was possible for a draftsman of a new Bill to omit any reference to a fine in laying down the penalty to be imposed because he had in mind the fact that there was a general power to mitigate the penalty to a fine. Since 1952, the draftsman has had to be extremely careful to remember that, unless he expressly gives the power to fine, the court will be unable to do so. I do not find it easy to understand why these words were ever put into the 1952 Act. They seem to me merely to have created the possibility of difficulties and of breaches of the law being committed, quite inadvertently, by the courts; because I am sure that many magistrates are tempted in such cases to impose a fine and might be very surprised if they were told that they had no power to do so. That being so, I seek to leave out these words, thereby restoring the position to what it was before 1952 aid had been, as I understand it, since 1879. The effect of the Amendment, if passed, would be that if a new Statute were passed in the future creating a criminal offence and not specifically authorising the court to impose a fine, nevertheless the justices could do so by virtue of Section 27, subsections (1) and (3) of the Act of 1952. I have been unable to find any real objection to this Amendment. I beg to move.

Amendment moved— After Clause 3, insert the said new clause.—(Lord Merthyr.)

THE LORD CHANCELLOR

I am very grateful to my noble friend Lord Merthyr for correcting the slip that has been made in the Consolidation Act; and, as I explained to your Lordships, this Bill, by Clause 4, is to be construed as one with the Magistrates' Courts Act. 1952. This is, therefore, an appropriate time to make the correction, and I gladly do so.

On Question, Amendment agreed to.

Clause 4 [Citation, construction, extent and commencement]:

LORD MERTHYR

This Amendment is almost consequential. The Bill as drafted comes into force two months after the passing of the Bill into an Act, but I take the view that it is desirable that the new clause which your Lordships have just agreed to should come into force at once, in case it is desired to reduce the penalty to a fine. I am therefore proposing that, whilst the rest of the Bill should not come into force at once, this new clause should do so. While I agree that the Amendment is almost, if not quite, consequential, I thought I ought to explain why I want this clause of the Bill to come into force before the remainder. I beg to move.

Amendment moved— Page 4, line 33, at beginning insert (" Sections one, two and three of ").—(Lord Merthyr.)

THE LORD CHANCELLOR

In accepting this Amendment, may I say that, clearly, if we are to make a correction in the law that correction should be made as soon as possible, and I entirely agree with this Amendment.

On Question, Amendment agreed to.

LORD MERTHYR moved in subsection (4) to leave out (" two ") and insert (" three "). The noble Lord said: Clause 4 (4) provides that this Act shall come into force at the expiration of a period of two months beginning with the date of its passing. It has teen represented to me from more than one quarter that two months is rather too short a time. After all, this Bill has to percolate down from Parliament to all the justices' courts in the country. Every justices' clerk has to get a copy of the Bill, digest it and act upon it and pass it on to his justices; and thousands of magistrates have to get to know this Bill so that they may act on it properly. I am inclined to agree with the representations that have been made to me that two months is rather too short a time. Sometimes people have difficulty in getting hold of copies of Acts of Parliament immediately they have been passed, and I would suggest to the Committee that little harm would be done if this period was somewhat extended. I do not want to extend it too much, although one person has suggested six months instead of two. I should have thought that three months instead of two would be fair. I move accordingly.

Amendment moved— Page 4, line 34, leave out (" two ") and insert (" three ").—(Lord Merthyr.)

LORD WINSTER

From a working point of view, I should certainly like to support this Amendment. In fact, I would go further and suggest an extension to four or six months instead of three, because after this Bill becomes an Act a great deal of work will have to be done. Rules of Procedure will have to be made and Magistrates' Courts Act forms will have to be printed; and when the Act and Rules are received, as my noble friend has said, they will have to be studied carefully and digested, and the police will have the quite lengthy job of preparing the necessary forms under the Act. I feel that for all these reasons three months at least is desirable. Three months might be sufficient for all this work to be done, but I believe that perhaps four or even six months would be preferable. So I would ask the noble and learned Viscount, if he is disposed to accept the Amendment, to consider whether three months would give sufficent time for all this practical work to be done.

THE LORD CHANCELLOR

I am grateful to the noble Lords, Lord Merthyr and Lord Winster, for putting these practical aspects of the matter. In coming to a conclusion on this Amendment, I have taken into account all the points that have been raised. From the Home Office point of view, they are anxious that the Bill shall come into operation as quickly as possible, and they think that they can deal with the points adequately in the time suggested in the Amendment. Therefore I propose to accept the Amendment. I will draw the attention of the Home Office to what Lord Winster has said. I think the extra month is a good thing, and therefore I suggest that we agree to settle for three months.

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

In the Title.

LORD MERTHYR

This Amendment is consequential upon the passing of Amendment No. 10. I beg to move.

Amendment moved— Line 4, after (" matters ") insert (" and the mitigation of penalties by magistrates' courts; ").—(Lord Merthyr.)

THE LORD CHANCELLOR

I accept this Amendment.

On Question, Amendment agreed to.

Title of the Bill, as amended, agreed to.

House resumed.