HL Deb 21 March 1957 vol 202 cc696-712

3.20 p.m.

Amendments reported (according to Order).

Clause 1:

Plea of guilty in absence of accused.

(2) Where the clerk of the court receives a notification an writing purporting to be given by the accused or by a solicitor acting on his behalf that the accused desires to plead guilty without appearing before the court, the clerk of the court shall inform the prosecutor of the receipt of the notification and if at the time and place appointed for the trial or adjourned trial of the information the accused does not appear and it is proved to the satisfaction of the court, on oath or in the prescribed manner, that the notice and statement of facts referred to in the foregoing subsection have been served upon the accused together with the summons, then—

  1. (a) if the court thinks fit after considering the notification and statement of facts aforesaid, including any submission received with the notification which the accused wishes to be brought to the attention of the court with a view to mitigation of sentence, the court may proceed to hear and dispose of the case in the absence of the accused, whether or not the prosecutor is also absent, in like manner as if both parties had appeared and the accused had pleaded guilty; or
  2. (b)if the court decides not to proceed as aforesaid, the court shall adjourn or further adjourn the trial for the purpose of dealing with the information as if the notification aforesaid had not been given:

Provided that— (ii) if, and only if, the court accepts the plea of guilty and convicts the accused in his absence under this subsection, the court shall cause the aforesaid statement of facts and any such submission as aforesaid to be read out before the court and, except on a resumption of the trial after an adjournment under subsection (3) of section fourteen of the Magistrates' Courts Act, 1952 (which confers power to adjourn after convicting the accused but before sentencing him), shall not permit any statement to be made by or on behalf of the prosecutor with respect to any facts relating to the offence charged other than the statement of facts aforesaid;


My Lords, I beg to move the first Amendment which stands in my name. Your Lordships will appreciate that it deals with a very refined (in the proper sense of the word) point, which my noble friend Lord Merthyr brought up on the Committee stage—namely, the difference in the meaning of "together with" and "simultaneously". I have given great consideration to this serious point, and I see that someone might think that "together with" means "as well as", although I myself do not take that view. On the other hand, there might be difficulties about "simultaneously" because one document might be taken up before the other. Having considered the noble Lord's doubts, I have come to the conclusion that the best way of dealing with this would be by the two Amendments which appear on the Marshalled List in my name. Accordingly, I beg to move the first of those Amendments.

Amendment moved— Page 1, line 13, leave out from first (" the ") to end of line 14 and insert (" following documents have been served upon the accused with the summons, that is to say—").—(The Lord Chancellor.)


My Lords, I should just like to say how grateful I am to the noble and learned Viscount for moving this Amendment and dealing with the point which I ventured to raise on the Committee stage. The noble and learned Viscount says that "simultaneously" means the same as "together with", and I would be the last to dispute that assertion—I respectfully agree. But it is true that some other people are inclined to put upon the word a looser interpretation. Perhaps I might support that contention by mentioning the fact that from three different sources in different parts of the country I have already received doubts about the meaning of this word. As the Lord Chancellor has just said, some people, incorrectly but nevertheless sincerely, think that "together with" means "as well as" and for the purpose of removing all possible doubt I greatly welcome the passing of this Amendment. May I again say how grateful I am?

On Question, Amendment agreed to.


My Lords, I beg to move the second Amendment, which is consequential.

Amendment moved— Page 2, line 8, leave out (" together ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

3.25 p.m.

LORD MERTHYR moved, in subsection (2), in proviso (ii), to leave out "and any such submission as aforesaid to be read out" and to insert: to be read out, and the substance of any such submission as aforesaid to be stated,". The noble Lord said: My Lords, this Amendment deals with the question of whether the submission which is made by the absent defendant has to be read out in full, word for word, or whether the substance of it would be sufficient. The Bill as drafted compels the reading out of the submission in full, however lengthy it may be; and I am informed by those that know that in some cases defendants are rather apt to be voluble in putting their case before the court in writing. They are, of course, absent so that they will not waste time, but the court has got to deal with the question.

I should like to point out that at this point in the proceedings the submission has already been considered by the court, and this is the second occasion upon which the submission is brought to the notice of the court. It is a fact that some clerks to justices and magistrates in large towns, especially in London, are a little alarmed about the possible result of making it compulsory, under the Bill as it stands, for the whole submission to be read out every time, however long it may be. So I have put down this Amendment which I mentioned on the Committee stage. I should again like to say that I am most grateful to the Lord Chancellor for his assistance in this matter. I said that some courts are a little alarmed about the Bill as it stands; and some of them, indeed, have expressed the view that this Bill, which is designed to save time in courts, may result in having the exactly opposite effect. I do not myself think that, but the mere fact that some people have seriously thought that is, I think, an indication that if we can shorten the proceedings without doing any injustice—a purpose which I think this Amendment will achieve—we ought to do so.

I should just like to point out one other thing. If this Amendment is passed it will enable the court to dispense with the reading out of the whole submission. It will make it legal for the court to be content with the substance. If this Amendment is not passed, it will be compulsory to read out the whole submission. The point I should like to make is that the passing of the Amendment will give the court a greater discretion. In exercising that discretion the court could still, if it were so minded, insist on the reading out of the whole submission, so that any magistrate who is a little worried that the defendant will not be given a fair trial or anything of that sort, can say, "Well, we ask our clerk, in spite of the Bill, to read out the whole submission." That will not be illegal if the Amendment is passed. If the Amendment is not passed, however, the reverse procedure would be illegal. I beg to move.

Amendment moved— Page 2, line 34, leave out line 34 and insert the said new words.—(Lord Merthyr.)


My Lords, I am sure that the noble Lord who moved this Amendment would be the last person in this House who would wish to do anything which might prove to be a difficulty for a defendant. It seems to me, however, that if a defence is going to be summarised, that introduces what I should have thought would be a most dangerous practice. Who is going to produce the summary? Who is going to say that this, that and the other is an important point? Surely we ought to be careful to preserve the complete right of the defendant and not prejudice him one little bit in his defence. It seems to me that if a summary of the defence is made, it may have exactly that result.

It has been represented by the noble Lord that it is essential to save time. I am quite sure that it is essential to save time; but to leave the matter to the court or to the magistrate who is trying the case, whoever he may be, or to a bench of magistrates, is surely a rather haphazard way of doing it. I do not like the idea. Quite frankly, I think it is likely to lead, or could lead, to abuse. There might be a magistrate who was completely prejudiced against a defendant or his case, and he might decide that to save time he would summarise the matter. We all know what people will do sometimes in the interests of saving time. I suggest that this Amendment is going rather too far. I do not know whether there are any precedents for such a procedure in our legislation—I am afraid I do not know enough about it to know. It is true, as the noble Lord has said, that this is the second occasion upon which this document will have been encountered. No doubt it is true that some defendants are a nuisance, and are sometimes verbose, but surely it is a little dangerous to give anybody the right to summarise their defence for them, because it might mean that the really important point was omitted from the defendant's case. I am sorry that, although I should like to agree with the noble Lord, I cannot agree with this Amendment.


My Lords, I should like to support the Amendment which has been moved by the noble Lord, Lord Merthyr. As he has said, and as I understand it, the object of this Bill is to save the time both of the magistrates and of the police. I have had a fair amount of experience of hearing read out in court letters written by defendants in minor speeding offences, and they are frequently long rambling statements dealing with a great many matters that have nothing whatever to do with the case in issue. For instance, a great many of them frequently write several lines, about how nice was the policeman who stopped them; how charming he was; what nice manners he had and how pleasantly he dealt with them; and that they very much hope that the magistrates will notice what a nice young man he is. All kinds of matters of that kind are read out in these letters when the only relevant part of the letter is the admission or the plea of guilt.

This is not a matter of summarising even a plea in mitigation. The Amendment seeks only to provide that the substance of the letter dealing with the offence shall be read out. I am sure that my noble friend Lord Howe will not mind my saying this, but very frequently, in matters concerning motoring offences, he seems to have the idea that magistrates are bitterly prejudiced against motorists who commit these offences. I apologise if I have stated it too highly, but I thought it was noticeable.


My Lords, I hope the noble Lord will forgive me for interrupting him. I am sure he would not wish to misrepresent me, but I have never in my life spoken in this House or in another place on this subject.


My Lords, of course I accept what the noble Earl says, but in the remarks which he has just made, he rather raised the point that a magistrate might be prejudiced against a motorist and might seek to summarise what the motorist had to say to the prejudice of the motorist. That is very clear in my mind.


My Lords, that is possible.


My Lords, I should like to assure the noble Earl that, in my experience, magistrates are not actuated in any way by such prejudice. Magistrates and magistrates' clerks seek to see that justice is done in the case before them, and I believe that it is most unlikely—indeed, practically impossible—to think that magistrates or magistrates' clerks would agree to anything in this procedure which in any way prejudiced the defendant. On the contrary, they would be more likely to strain every point they could in his favour. The Amendment proposed by the noble Lord simply seeks to save time, not by suppressing anything which might be to the advantage of a defendant but by providing that only the relevant points of a defendant's letter need be read to the court. I therefore beg to support the Amendment.

3.33 p.m.


My Lords, we have had the benefit of hearing two magistrates on this question, and we have heard the views of one layman. I should like to speak as a layman. I think that too much can be made of the desire to save the time of the magistrates. It is equally important that the position of the defendant should be taken into account; and if a defendant has taken the trouble to state his case in writing, he is surely entitled to have the whole of his statement read out before the court. I know that some defendants are illiterate and that some, certainly in the minds of magistrates, are troublesome. I also know that if a defendant quietly pleads guilty it may save a lot of time.

Some people have a way of expressing themselves at length—I was going to say that even some noble Lords in this House find it a little difficult to say what they want to say in the briefest possible terms; but they are heard and listened to with great respect, and I feel that a defendant is entitled to have his whole statement read out to the court. It is suggested that someone—I imagine that it will be the clerk—should read out the substance of the letter. But who is to decide what is the substance? The more incoherent the statement is, the more difficult it will be for the clerk to discover what is the substance of a defendant's letter or of his case. A defendant may have a good deal of substance in his case, but if he feels that his case has not been properly presented to the court, that only the substance of it has been given, he may well have a grievance and, very often, a legitimate grievance. I feel it is much more important that a defendant should feel satisfied that his case has been presented fully than that a little of the magistrates' time should be saved, so I hope that this Amendment will not be accepted.

3.36 p.m.


My Lords, the noble Lord, Lord Merthyr, in moving this Amendment, produced some very powerful reasons for it. He mentioned the saving of the time of the court, but it was his second point that impressed me—that this would be the second time that the whole matter had been submitted to the court. One thing which did not impress me was his statement that the magistrate who has to decide might feel unhappy. But surely the person we have to look after is the accused. He will feel unhappy if he feels that he has not had a proper chance. I can visualise, for example, a case involving a "Halt" sign, where a defendant has written saying that because of certain tree branches sticking out he did not see the sign. The magistrates' clerk might quite easily say: "Oh, it is the same old story; he says that he did not see the ' Halt ' sign," and might not put the defendant's statement in full. I feel that it would be a mistake to accept this Amendment, and I hope that if it goes to a Division your Lordships will resist it.


My Lords, this Amendment raises a very fine and difficult point, and I was personally anxious to get the views of your Lordships before making up my mind. One has to start with the point that the Amendment of the noble Lord, Lord Merthyr, will have the effect that while the statement of facts, which is really the case of the prosecution, must be read out, it will be necessary for the substance only of the defendant's submission to be stated. I said that the arguments were well balanced and, if your Lordships will bear with me, I should like to put them as they appear to me.

In favour of the argument, there is the point which my noble friend, Lord Merthyr, has made, that the court will already have considered the defendant's submission before making up their mind whether to allow a trial in his absence. Your Lordships will see that that is the effect of Clause 1 (2) (a). That must have been done before the court decide to accept the plea of guilty. There is therefore no question that the bench will not have seen the submission. On the question that has really been common ground in the consideration of this matter—namely, that defendants are inclined to send long, rambling letters, especially when dealing with their personal circumstances—there again there is a difficulty. While, on the one hand, the defendant may think that all he has said is extremely precious to him on the other hand he may feel that, although he desires to have it put before the court—and the court do not know what he had thought—it would not necessarily be desirable for his full expressions to be read out and then to appear in the local paper. I am not trying to invent arguments, but to get into the mind of a defendant who has to consider this position.

My noble friend Lord Howe asked me about a precedent. It is not quite on all fours, but take the sort of letter that often comes to a court to-day, a letter in which a defendant says that he is guilty and recites some mitigating circumstances. The only legal effect of that letter is that it is an admission that the summons has been served upon him, and this document is given statutory authority by the provision in the Bill which we are now considering. That is one side. On the other side, I think one must bear in mind that, if this procedure is followed, the effect may be that, unless magistrates exercise their discretion differently, the prosecution's statement is read out in full and the defendant's statement is only summarised. Therefore, the public will not know the full facts on which the penalty is imposed.

The noble Lord, Lord Merthyr, gave notice of his intention to move this Amendment, and the Home Office were glad to help in finding a proper form of words. I think it was made clear to my noble friend (I hope he has not been misled in any way) that the Government were very anxious on this point—which is a very personal point concerning the confidence of the defendant, who may be poor and illiterate, in the administration of justice. Having considered the matter and having heard the views of the House, I think it would be safer to come down on the side of the defendant. It is most important that confidence in the administration of justice should be maintained. Therefore, having given my best consideration to the matter, and having very much in mind desire to help magistrates for whom I am responsible, I still think that on balance it would be better to let the scales of justice, when they hang anything like even, come down, in the words of a distinguished Member of your Lordships' House, "on the side of mercy"—that is, on the side of the defendant. Therefore, I hope that my noble friend will not press his Amendment. If the result of the rejection of the Amendment is that further information comes in with regard to the difficulties of magistrates, I am sure your Lordships would not mind if I communicated with my right honourable friend the Attorney-General and be reconsidered it when the Bill came up elsewhere. On the information before us at present, I should be grateful if my noble friend would not press the Amendment.


My Lords, I shall certainly concur with the suggestion that has just been made by the noble and learned Viscount. I venture to think that this little debate has been worth while, because it has ventilated this point which has worried several people outside the House already and may worry others later on. The fact that we have debated this point will, I think, help others to give proper consideration to this part of the Bill. I think the real difficulty arises from the fact that conditions in a busy London court are very different from those in a rural court in the depths of the country. Over and over again in my experience I am struck with the difficulty of laying down a procedure which shall be common to both these kinds of courts. I sit myself in a court in a very rural part of the country in a town of less than 1,000 people, and anything more different from the whole atmosphere and procedure in that court and the atmosphere and procedure in a busy court in the West End of London is difficult to imagine by anyone who has not been to both. That, I think, is the kernel of the difficulty with which we are dealing, I am most grateful to all noble Lords who have taken part in the debate. I am not a little impressed by the arguments which have been put forward on the other side. I beg leave to withdraw the Amendment.

Amendment, by leave withdrawn.

Clause 3:

Proof of previous convictions

3. Where a person is convicted of a summary offence by a magistrates' court, other than a juvenile court, and it is proved to the satisfaction of the court, on oath or in the prescribed manner, that not less than seven clays previously a notice was served on the accused in the prescribed form and manner specifying any alleged previous conviction of the accused of a summary offence proposed to be brought to the notice of the court in the event of his conviction of the offence charged, and the accused is not present in person before the court, the court may take account of any such previous conviction so specified as if the accused had appeared and admitted it.

3.46 p.m.

LORD MERTHYR moved to leave out "a summary" where those words occur a second time, and insert "an". The noble Lord said: My Lords, I should like to apologise to the House for the fact that I did not raise this matter on the Committee stage. I am afraid that I overlooked this particular point at that time. The Bill, as drafted, enables the prosecution to put before the court, in the absence of the defendant, a list of his previous convictions. But it limits those convictions which may be mentioned to summary convictions, and the question at once arises: why not all convictions?

In passing I would say this. Whatever may be said here to-day, whatever legal decisions or opinions are given, there will, I think, remain a difficulty in interpreting the word "summary". I should like to ask Her Majesty's Government what exactly is contemplated by the word "summary", used in this sense and in these circumstances. Does it include indictable offences tried summarily? Does it include summary convictions after trials with juries at quarter sessions? I expect the answers to both those questions are really quite easy to give. The point is: will the answers to those questions be apparent to clerks to justices and magistrates up and down the country? At least I shall have done something to-day, I hope, by raising this point and obtaining answers to those questions, if I can.

I would ask the House to contemplate just what will happen under this Bill. There will be cases in which a man is convicted, and he will have against his name convictions of indictable offences. Let us suppose that he is convicted of the crime of failing to sign his driving licence. Let us further suppose that he is a confirmed housebreaker, with half a dozen convictions for breaking and entering. The question is: ought those convictions for housebreaking to be read out to the court, if the prosecution want them to be, or not? And if they are read out, the question arises, what harm will be done by their being read out? To this last question your Lordships may at once retort: what good will be done by their being read out? So there are several questions to be considered. On the question, what harm will be done if all the convictions that the prosecution chooses for reading out are allowed to be read out, I submit that really no harm will be done. If there are, in fact, convictions which ought to be taken into account by the justices, I submit with confidence that there is no harm in reading them out.

If, on the other hand, there are convictions which ought not to be taken into account, I say with equal confidence that justices can be trusted and relied upon to ignore them. Time and time again in every justices' court the magistrate convicts a man who is present and then asks, as a matter of routine, "Are there any previous convictions?" The magistrate does not say, "Are there any summary convictions?" but simply, "Are there any convictions?"; and the prosecutor gets up, if he chooses to—not otherwise—and reads out a list of previous convictions. Normally, though not always, he reads out all convictions, but often he says to the court, "These are the summary convictions, though in addition there are a number of others of an entirely different nature and I do not propose to trouble the court with them." That is done every day. Why should it not continue to be done?

The Bill as drafted imposes a rigid rule which prohibits its being done and makes it illegal for the prosecution to tell the court, when a man is charged with a summary offence, that he has been convicted of an indictable offence. What is the necessity for that rigid restriction? My Amendment seeks to make it more pliable. As I said before, magistrates can be trusted to disregard what they choose to disregard, and in my submission it is not necessary to restrict this to summary offences. If this Amendment is passed, it will empower the prosecution to read out all convictions but will not compel them to do so. It will still be entirely voluntary and it will leave to them the discretion which, in my submission, they ought to have. I beg to move,

Amendment moved— Page 4, line 15, leave out "a summary" and insert "an".—(Lord Merthyr.)


My Lords, I am not sure that any great purpose would be served by this Amendment. As I understand the Bill, at present it relates only to convictions for summary offences, and this Amendment seeks to relate to all offences, such as larceny, housebreaking, assault and so on. If two motorists were before the Bench charged with exactly similar offences, the magistrates are not going to fine one of them because he has a conviction for house-breaking against him, more heavily than the other motorist who has no such conviction against him. Although I cannot say that this is universally the case, it is usually the practice for convictions for motoring offences and for crimes such as those I have mentioned to be kept on separate files and in the case of a motoring offence only the file relating to motoring offences would be examined. For those reasons, I do not feel that the Amendment, if carried, would yield any very practical result and I feel unable to support it.


My Lords, may I deal first with the point my noble friend, Lord Merthyr, asked on what are some of the offences under the Bill? If my noble friend will look at Clause 5 (2), he will see that the Bill attracts the Magistrates' Courts Act, 1952, and therefore the definition of summary offences in Section 125 of that Act, which includes cases where the accused is convicted before a magistrates' court of the hybrid type of offence which is triable either summarily or on indictment. My noble friend's Amendment does not affect the scope of the operation of the clause in this respect. Convictions that may be cited by means of this procedure are previous convictions for summary offences in that sense, because, by virtue of the definition of "summary offence", they include offences triable by indictment as well as summarily whether they are in fact tried at quarter sessions or in a magistrates' court.

The effect of my noble friend's Amendment would be that convictions for purely indictable offences and indictable offences triable summarily with the consent of the accused under Section 11 of the Act could also be cited. That is the problem before your Lordships. It is interesting to note that the Departmental Committee made no recommendation about the scope of the procedure for proving previous convictions, but the Bill excludes purely indictable offences and Section 19 offences because it is thought that a procedure which involved sending particulars of alleged previous convictions by post, even by registered post, ought to be limited to what is strictly necessary for the purpose in view. The Departmental Committee frankly recognised that these convictions might occasionally become disclosed to a wife or to an employer, because the envelope might be opened in error or out of curiosity. My noble friend will see that point dealt with in paragraph 55 of the Report. Whatever system was devised, there was a possibility that previous convictions might be wrongfully attributed (paragraph 58). In view of these risks, it was considered undesirable that alleged previous convictions for such crimes as murder or manslaughter or rape should be sent through the post.

It is true that there may be some cases dealt with in the defendant's absence in which it might be relevant to the choice of sentence to know that the defendant had previously been convicted of purely indictable offences. My noble friend had in mind the case of motoring manslaughter, where it might well be relevant. That is the difficulty, and, if I may say so, one of the strengths of my noble friend's position. But we have considered the matter and I am advised by the Home Office that such cases would be a small minority of the large number dealt with in the defendant's absence, and we have come to the conclusion that it is better that the more serious offences should not be cited in that small minority of cases than that they should be cited, or should be capable of being cited, in the much larger number of cases in which it is not essential for them to be known. I have in mind the case of someone who was convicted of murder many years ago but who is living a perfectly good, useful and quiet life, and it really does shock the imagination that that may come out per incuriam in this way. That is the basis of our decision.

There is one other point to which I should like to draw the attention of my noble friend, because I know how carefully he has considered the matter. Clause 3 procedure is not restricted in terms to the same field as Clause 1 procedure, since it will apply wherever there is a conviction for a summary offence, including an offence that is also triable on indictment, and irrespective of whether the defendant has pleaded guilty under the Clause 1 procedure where it is applicable, or has appeared by solicitor or counsel. But where the defendant appears in court in person there will be no need for the Clause 3 procedure, since the difficulty about the proof of previous convictions arises only where the defendant is absent, and the offences with which the court would be prepared to deal in the accused's absence would be largely, though not entirely, road traffic offences. On that, as I said, the offences that we have really got in mind are, in the majority of cases irrelevant for the reasons that I have given.

I have tried to consider the point that my noble friend had in mind about the motor manslaughters. I have not discussed this matter, but I should have thought, on first impression, that if a motor manslaughter were relevant to the charge then before the court it would be relevant, because the court would then have to consider the driver's previous record and would also have to consider imposing a heavy penalty. As I ventured to indicate in answer to an Amendment of the noble Lord, Lord Lucas of Chilworth, on the Committee stage, I think that that would be a proper case to adjourn for the defendant's attendance. So, again, I think it narrows the field, and in the circumstances I would ask my noble friend to agree that we have considered this matter carefully and again, on balance, we think it would be better to follow the line which is indicated in the comments of the Committee, although they did not pronounce upon it. I would ask him not to press the Amendment.


My Lords, when the noble Lord, Lord Winster, was speaking I made a note of the very point which was later raised by the noble and learned Viscount on the Woolsack. It is, of course, quite true to say that in most cases previous convictions for indictable offences would be irrelevant and need not be taken into account. But when the noble Lord, Lord Winster, mentioned his two motorists, it crossed my mind, as it apparently also occurred to the Lord Chancellor, that if two motorists are charged at the same time with exceeding the speed limit of 30 m.p.h., and one of the two had previously been convicted under Section 8 of the Road Traffic Act, 1956, of causing death by dangerous driving, and the other had not, it might indeed decide the magistrates to impose a different penalty. But I must concede that that is rather an extreme case and not likely to happen very often.

The noble Lord, Lord Winster, made another point which I think is not without some importance, though I do not draw the same conclusions from it as he does. He said, and he may be right, that the records are kept in two separate files, one summary convictions and the other indictable. I do not dispute that, although my experience is to the contrary: that the previous convictions of a defendant are all kept on one blue card—at least we can agree that it is blue, because we all know it very well. If I should be right about that, one of the small points I want to make is this: that this Bill will make for more, and not less, work in the office, because when the clerk in the police office is preparing a list of convictions to produce to the court he will have to sort out the summary ones from the others. If the noble Lord, Lord Winster, is right, of course it will not apply. It may be a small point, but again, the main purpose of this Bill is to save time.


My Lords, I am sure the noble Lord will recollect that I was careful to say that I did not know if the practice was universal, but I had good reason to believe it was one which was commonly followed.


I am obliged to the noble Lord. Again, I expect the real answer is that the practice varies in different parts of the country; so many of these things vary in that way. I am certainly going to accede to the request of the Lord Chancellor and not press this Amendment. I should like to say once again how grateful I am to him for giving obviously careful attention to it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.