§ 3.13 p.m.
§ Order of the Day for the House to be again in Committee read.
§ Moved, That the House do resolve itself again into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD MERTHYR in the Chair.]
§ Clause 1:
§ Loitering or soliciting for purposes of prostitution
§ (2) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding ten pourds or, for an offence committed after a previous conviction, to a fine not exceeding twenty-five pounds or, for an offence committed after more than one previous conviction, to a fine not exceeding twenty-five pounds or imprisonment for a period not exceeding three months or both.
§ (3) A constable may arrest without warrant anyone he finds in a street or public place and suspects, with reasonable cause, to be committing an offence under this section.
§ (4) For the purposes of this section "street" includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a throughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street (as hereinbefore defined), and any ground adjoining and open to a street, shall be treated as forming part of the street.
§ LORD MESTON moved in subsection (2), to substitute "five" for "ten" [pounds]. The noble Lord said In the absence of my noble friend Lord Grantchester, I ask your Lordships' permission to take the various Amendments standing in his name. I may say that my noble friend is delegate to the Assembly of the Western European Union now meeting at Strasbourg, and therefore he is not able to be present to-day. With your Lordships' permission, I should like to talk about Amendments Nos. 6, 7 and 8 together. The object of these Amendments is to reduce maximum fines from £10 to £5 and £25 to £10. I submit that the present figures are too severe. Furthermore, it has been brought to my notice by a welfare worker that if fines are raised to their present level, it may happen that some particularly unpleasant types of men will pay the fines for the unfortunate women 1092 and then put them upon their nefarious payrolls. That is an aspect which has been brought to my notice, and I now bring it to the notice of your Lordships. The whole thing is a matter of opinion, and therefore, without saying any more, I beg leave to move the first Amendment.
§ Amendment moved—
Page 1, line 9, leave out ("ten") and insert ("five").—(Lord Meston.)
§ LORD CHESHAM
I am obliged to the noble Lord for taking these Amendments together, and if your Lordships will permit me to do so, I will comment on these Amendments and also on No. 9, as it is difficult for me to deal with them without making some reference to Amendment No. 9, although I realise that that Amendment will have to be taken separately on its own merits when we reach it. The effect of these three Amendments, taken by themselves, would be to provide that the penalties for convictions under subsection (1) shall be a fine not exceeding £5 on a first conviction, a fine not exceeding £10 on a second conviction, and a fine not exceeding £10 or imprisonment for a period not exceeding three months, or both, for each subsequent conviction. Taken together with the next Amendment put down by the noble Lord, Lord Grantchester, their effect would be that the maximum penalty would be £5 for a first offence and £10 for any subsequent offence, and that would be the lot. It may be that that was what was in the mind of the noble Lord, Lord Grantchester, who unfortunately is unable to be with us to-day. If that is so, I can only say that it is a powerful example of extracting the teeth. This is a case in which the Government are trying to set up a live and active watchdog, and if these Amendments were accepted, they would have the effect of reducing the hound to a mumbling, toothless animal which would be of little avail for its duties.
The object of the Bill has been repeatedly stated, both by my noble and learned friend on the Woolsack and by my self, to be to clear the streets of a nuisance, and in spite of what the noble and learned Lord, Lord Denning, said on Second Reading about the virtual impossibility of doing anything about the problem of prostitution, I can see no 1093 reason for not doing what we can. As I have pointed out to your Lordships before, if it is possible to achieve any secondary or, perhaps I should say, ancillary effect by this Bill, I think that it is proper to do so. One of the ancillary objects of the Bill is to discourage girls anti women from becoming prostitutes. It is hoped, by making the trade unprofitable, by providing for increased money penalties, and by making them liable to imprisonment if they should persist, to persuade more of these women to accept probation. Even if we were to retain imprisonment, this would be less likely to be achieved if the maximum fines that could be imposed were £5 for a first conviction and £10 for every subsequent conviction. As maxima, these are insufficient sums, having regard to current money values and to the amount which can be earned by prostitutes. So it would he no effective deterrent until a woman had been twice convicted; and the penalties on the earlier convictions would probably be not sufficient to induce a woman to accept probation, as we all wish. By the third conviction, she may have been a prostitute for some considerable time and become quite hardened to that life. If imprisonment is also to be deleted, I think it is clear that the object we all have in mind will not be achieved.
The provisions of subsection (2) are based on the recommendations of the Wolfenden Committee, in paragraph 275 of their Report that the maximum penalties for street offences should be increased and that a system of progressively higher penalties should be introduced. The actual penalties provided are those recommended by the Committee, and the Government do not regard the fines as excessive, having regard to current money values.
I would make this final point. The fines provided in the Bill are maxima—they are not automatic—and it will be for the court to select the appropriate sum in any particular case. It may well be that in many cases the courts will consider something less than the maximum to be appropriate, but I think the power to impose the more substantial fines ought to be available to the courts. I shall have a word or two more to say in reference back to this point when we come to Amendment No. 9, but in the meantime, I hope I have shown to your 1094 Lordships the undesirability of reducing these proposed maximum fines.
I thank the noble Lord for his reply. I am only a deputy in this matter, and I do not propose to waste time. I beg leave to withdraw Amendment No. 6; Amendments Nos. 7 and 8 I shall not move; but, so far as Amendment No. 9 is concerned, other noble Lords may wish to speak on that.
§ Amendment, by leave, withdrawn.
§ BARONESS WOOTTON OF ABINGER moved, in subsection (2) to delete "or imprisonment for a period not exceeding three months or both". The noble Baroness said This is an Amendment to which we attach great importance. The Bill as it now stands proposes to impose in certain cases, after conviction, a penalty of three months imprisonment or a fine of £25 or both. The first point I should like to make is that these penalties are extremely high for an offence which is essentially one of nuisance or causing annoyance. They are not penalties for prostitution, but penalties for soliciting for the purpose of prostitution in the street or in some similar place. My second point is that the whole trend of opinion to-day is against the value of short terms of imprisonment; that is to say, terms of imprisonment of one. two or three months. I think there is a good deal of evidence that in those cases in which already women are in prison for offences connected with prostitution the results have been most disappointing. The noble Lord opposite referred to imprisonment as being a live and effective watchdog. I would ask him to observe what in fact has been the success of his watchdog in trying to deal with women convicted of other forms of offences connected with prostitution.
§ LORD CHESHAM
I apologise to the noble Baroness for interrupting, but when I mentioned "watchdog" I was referring to the whole provisions of the Bill and not to any one item.
§ BARONESS WOOTTON OF ABINGER
I should imagine that the watchdog of imprisonment must be very much the more formidable part of this team of watchers to which the noble Lord refers.
Finally, I would say this. The penalties prescribed in the Bill, if I read the Report of the Wolfenden Committee correctly, are not precisely in keeping 1095 with the recommendations of that Committee. The noble and learned Viscount opposite referred (if I may put it this way) with great reverence more than once last week to the recommendations of this Committee. In passing, perhaps one may observe that this reverence must be tempered by the fact that Her Majesty's Government apparently are interested only in those parts of the Committee's Report which follow page 78. But if I read the Report correctly, the Committee recommended penalties of three months imprisonment or a fine of £25, not both. I think that the final words "or both" have slipped into this Bill. On those three grounds, I beg to move this Amendment.
Page 1, line 13, leave out from ("pounds") to end of line 14.—(Baroness Wootton of Abinger.)
§ LORD STONHAM
I am inclined to agree with the noble Lord, Lord Chesham, with regard to his comments in dealing with the early Amendments which related purely to fines. It was for that reason that my noble friend and I did not support those earlier Amendments. We feel, in any case, that they are merely more or less an adjustment to the value of money, although it is true that they are graduated and not a flat rate fine. However, we have totally different feelings with regard to this question of a sentence of imprisonment. This really is a savage punishment for a street offence. Although I keep harking back to this point, I must come back to it again. This will be the fourth time that I have asked—but I have not yet had a reply—what Her Majesty's Government are doing in the administrative sense. The noble and learned Viscount the Lord Chancellor said at an earlier stage of the Committee that he would make inquiry and let me know. I regard this aspect as most important and completely wrapped up with the matter that we are now discussing. If these prostitutes can be moved from places like Stepney simply through public outcry, it must be, I imagine, through administrative action.
The noble Lord, Lord Chesham, mentioned that this was a watchdog. The watchdog does not seem to be very effective. Last week I ventured to give 1096 an indication of how prostitutes were advertising by means of cards, and I learned from a London evening newspaper the next day that they had made a search and found that the cards had been removed simply because of a mention of them here. It would appear that your Lordships are somewhat better watchdogs than the minions of the law. I hope that that point will be cleared up, because this is a savage thing to do when you are applying it only to one party to the offence—namely, the woman, and not to the man.
My noble friend Lady Wootton of Abinger mentioned the fact that these short-term sentences do little good. I think that in these cases they will do harm and not any good. The warning given by the Advisory Council on the Treatment of Offenders underlines the evils of short-term imprisonment, and in my view this applies with greater force in the case of prostitutes. It cannot possibly be any help to reform them morally. We have constantly been told that this is to be a deterrent but that at the same time we are hoping to reform these women. I think these short sentences are far more likely to cause them to corrupt other prisoners, who are aware of the difficulties of finding employment when they leave prison and may more readily turn to prostitution on the advice of in prison prostitutes. Or, conversely, the prostitute who has had three or more convictions under this Bill and then received a prison sentence may the more readily accept prison tutorship in a life of crime of another kind.
A prison sentence in these cases cannot do any good. It is incomparably more savage than the sentence for any other similar offence. It is discriminatory, in that only the woman is charged and convicted; and all these convictions, if they are made, will depend entirely on the opinion or word of the constable without any need to prove annoyance. Therefore, I submit that a prison sentence of this kind is bound to add to the possibilities and to the scale of corruption, because prostitutes in danger of imprisonment are far more likely to attempt to bribe the police either to overlook them, or to accept a substitute, in the same way as is done by street bookmakers. In those circumstances, I believe that imprisonment will prove 1097 neither a deterrent nor a means of reformation, and I hope that the Government will accept this Amendment.
§ 3.29 p.m.
§ LORD BOOTHBY
Perhaps I might say a word or two in support of this Amendment. I should like to begin by emphasising the point made by the noble Baroness, Lady Wootton of Abinger, that we are always apt to forget that prostitution, as such, is not an offence in this country. That is why my objection to branding a class of people as "common prostitutes" on the evidence of one policeman remains. What we are punishing here is annoyance in the street—soliciting for the purpose of prostitution—and I submit to your Lordships that the punishment of imprisonment for annoyance, and not for an act of prostitution itself, is far too excessive.
I should like to ask the noble and learned Viscount, if he is going to reply, what purpose the Government have in mind in this matter. Does he think that a short sentence of three months applied to the case, as it evidently will be, only of the hardened prostitute is going to reform her? I cannot conceive that that is possible. On the contrary, I entirely agree with what noble Lords have already said that the dangers of hardened prostitutes corrupting other inmates of the prison are very great. It is for the same reason that I am greatly concerned—and always have been—about sending homosexuals to prison, because I believe that can do definite damage to the other occupants. Sending hardened prostitutes to our overcrowded prisons—because they are overcrowded—will do the prostitutes themselves no good, and will he a source of great danger to the other occupants of the prison. I do not see what is going to be achieved by means of this step. I do not object to the fines for street annoyance. I think they are pretty "tough"; but having regard to the changed value of money and the recommendations of the Wolfenden Report, and the necessity to get some of the streets, particularly of this town, cleared up. I do not object to the increase in the lines. But I cannot for the life of me see what good imprisonment is going to do, and I genuinely believe that it may do considerable harm.
I should like to support the noble Baroness and her Amendment, for two important reasons. One is that for my sins or virtues—I do not know which—I spent quite a long time in Marienburg gaol, and the Germans had a practice of bringing in the prostitutes late at night. It was a terrible moment in the prison. They were all wildly hysterical, and it had a very bad effect throughout the prison. As anybody who knows anything about prisons will appreciate, hysteria is the one threatening cloud that hangs over every prison. That is the first reason. If the Government insist upon imprisonment, I hope they will accept the Amendment which will be moved by my noble friend Lord Arran.
There is another reason. If you consider what the life of a prostitute is—a life of intermittent, solitary association with one man after another, whose character she can only dimly grasp, and most of them much stronger than she—she is always exposed to the risks of robbery and murder. I know that in fact there are not a large number of prostitutes murdered, but when they are, the murderer is not very often brought to book. If we think of it, the only time a prostitute can practise her trade in security is when she is in a brothel or some sort of licensed house. I do not want to be taken to be advocating that. but I should like to point out that the dangers have been imposed upon her by the rather brutal virtue of the British public. It is a tough life, and if she is taken and put into prison I think she may well take to crime. I am told by the police, and by other people who know, that when women take to crime they are far worse than men. It is an extraordinary thing that prostitutes do not generally take to crime. They are generally a good-natured class. But if you put more pressure upon them and put them in prison, I think it is likely that the criminal classes will get a lot of recruits.
I hope Her Majesty's Government will reject this Amendment. First of all, £25 in a trade of this nature, entirely tax free both to the woman and the man who collects the money, is nothing. If the Bill provides for a prison sentence I am perfectly certain that nobody will ever go to 1099 prison, because to start with the woman will not want to go and the man will have the greatest inducement to keep her out. Therefore, the fears of noble Lords who have spoken do not avail anything, because I do not believe there will be a single prison sentence. Nobody will risk it. On the other hand, if the Bill goes out with just a plain penalty of a fine, which is a meagre penalty in comparison with the big money involved in this trade, then the nuisance will still continue on our streets.
If the noble Lord will read the Bill he will see at line 14:… a fine not exceeding twenty-five pounds or imprisonment for a period not exceeding three months or both.
§ LORD CHESHAM
The purpose of this Amendment has been made very clear to us, and I do not think there is need for me to waste my time any more by talking about the extraction of teeth. It has been accepted that soliciting in the streets is a nuisance amounting at times to a scandal, and that it should be stopped. If we will the end we must will the means. The business of prostitution, as I have already said once, is profitable, and the advertisement by women on the streets can be stopped only if the penalties constitute a real deterrent.
I have been asked to state what are the Government's purposes in suggesting imprisonment, and I will now do so. The first purpose is to make it apparent to a girl on the threshold of a life on the streets that among the risks she takes is the possibility of eventual loss of liberty, and that if she goes on that loss may be repeated. The second purpose is to induce a woman to accept probation and the help which the probation officer will give her to abandon prostitution, by making it clear that she will probably end up in prison if she goes on with it. The third purpose is to enforce the law effectively against persistent offenders. I do not think it can be said properly that a monetary penalty alone is likely to be an effective deterrent. Women will tend to regard it as a form of tax and pass on as much as they can of it to the customer. This might have a good effect in reducing demand, but it might also have a corresponding, even outweighing, bad effect, that in order to re-coup herself 1100 of the fines she may start to solicit more actively in order to try to increase trade.
As I understand it, it was for these reasons that the Wolfenden Committee thought that increased and graduated fine; would be inadequate by themselves, and that imprisonment must be available in the last resort for the repeated offender. Paragraph 277 of the Wolfenden Report says:We believe that most of the prostitutes loitering in the streets are those who are well established in their habits, whom repeated fines have failed to deter. We therefore feel justified in recommending that deprivation of liberty, which would be particularly unwelcome to these offenders, should be available as a sanction when, in an individual case, monetary fines have failed.That puts the point I am trying to put over in a well-defined nutshell. Deprivation of liberty is a penalty which a prostitute cannot pass on. Not only is it likely to be particularly distasteful to her personally (I understand that one of the reasons for which women are said to go into prostitution is their dislike of a regular. ordered life) but it will make it more difficult for her to carry on her trade. She is bound to suffer loss of income, and possibly through that loss of her business premises. It is these inconveniences, combined with the prospect that if she continues on the streets it may happen again, that should form a powerful deterrent. It has the merit—and this is the important point —of being something which the prostitute cannot effectively escape by accepting the help of an organisation, unless, of course, the organisation set her up as a call-girl, because while the organisation may pay fines for these women it certainly cannot go to prison for them.
Now I should like to deal with one or two points that were raised. The noble Lord, Lord Boothby, said that the prisons were overcrowded. I am sorry to say that they are not—sorry in the sense of having to contradict the noble Lord. The latest figures are that as at June 2 there were 736 prisoners in a total number of places in ordinary women's accommodation of 1,299. In Holloway in particular there were 323 people out of a total possibility of 695. So I think that that must be said to deal with the question of overcrowding.
§ LORD CHESHAM
The very interesting argument has come up once more about the question of contamination of other prisoners by prostitutes and vice versa. That is an argument against imprisonment generally and I cannot see why it should have any particular significance in relation to prostitutes. Segregation of them would be impracticable, because women who are prostitutes are sent to prison for other reasons at times. In certain cases, in certain parts of the country—notably in Edinburgh and Aberdeen, which I believe are not without their interest to the noble Lord, Lord Boothby the position is this. I quote again from the Wolfenden Report (paragraph 243):In Edinburgh, every prostitute or streetwalker who loiters about or importunes passengers for the purpose of prostitution is liable to a. penalty of ten pounds or alternatively to imprisonment for sixty days; and Aberdeen has a similar provision.There are in some places quite a number of prostitutes who, for one reason or another, are in prison already, and I am certainly not aware that the prognostications that have been put forward are as serious as they are said to be. I can understand the general argument, but I certainly do not fully follow or, indeed, accept the specific one.
On the subject of reform, I am not contending, and the Wolfenden Committee did not expect, that three months' imprisonment—which means, subject to remission for good conduct, two months' effective detention—would in itself be reformative. The Committee thought that the existence of imprisonment in the background—and this is the important point which I hope the noble Lord, Lord Stonham, will bear in mind—might enable reformative influences to be effective at an earlier stage, because it is obviously desirable that they should be effective at as early a stage as possible, and it is Government policy to try to make them so. A short sentence of imprisonment is not necessarily to be condemned because it is not reformative. I would quote what the Advisory Council on the Treatment of Offenders said on alternatives to short terms of imprisonment. They said:In our view there is nothing to justify such sweeping condemnation."—that is, of short terms of imprisonment.… There are many cases in which a sentence of imprisonment is inevitable but the 1102 nature and circumstances of the offence do not require a long sentence … Nor is there any reason why a short sentence should not he socially and penally useful in some circumstances.I submit to your Lordships that the circumstances that we are talking about to-day are circumstances where a short sentence is socially and penally useful, both as a means of diverting women from prostitution and as a means of securing obedience to the law. Fines could not be equally effective for this purpose, and if we are in earnest about achieving the objects of this Bill I ask your Lordships not to accept the Amendment.
§ BARONESS WOOTTON OF ABINGER
I could not agree more with the noble Lord when he says that if we will the end we must also will the means, but I think the dispute between us is whether the means proposed will achieve the end. The noble Lord has expressed some doubts about the unfortunate results of imprisoning prostitutes. If he will refer to some statistics that were given in the debate on this topic in another place I think he will find some convincing evidence as to the recidivist effect of terms of imprisonment upon women in connection with prostitution. Let us remind ourselves that this Bill proposes to impose a term of three months' imprisonment upon a woman who solicits in the street. It does not propose to impose any term of imprisonment upon a woman who exhibits her card in a shop window, as described by my noble friend Lord Stonham last week, or the woman who makes her appointments by telephone. It discriminates solely against the woman who creates what is, after all, only a nuisance in the street.
I would add that not only is there no evidence that a short sentence of imprisonment has a deterrent effect, still less a reformative effect, in this context, but it does make it very much more difficult for a woman when she comes out of prison to enter upon a respectable occupation in that sense it gives a very strong inducement to follow the only occupation she knows and the only one that may be easily open to her.
As for the argument that a woman who has taken to life on the streets should accept probation, on that I am sure on 1103 all sides we are agreed. As the noble Lord, Lord Chesham, has said, the important thing is that these reformative measures, such as probation, should be put into operation at the earliest possible moment, and that moment is when the woman is brought before the court and convicted for the first time; not when she is faced with the alternative of imprisonment on the third conviction. Finally, it is not perhaps a major point, but the noble Lord, Lord Chesham, did not, I think, deal with my observation that the penalties proposed in this Bill go beyond those recommended by the Wolfenden Committee, inasmuch as the Wolfenden Committee recommended only alternatives of imprisonment or fines; and I notice that in the Scottish law which the noble Lord quoted again imprisonment and fines are alternative.
§ On Question, Amendment negatived.
BARONESS WOOTTON OF ABINGER moved, in subsection (2), after "pounds", where that word last occurs, to insert:
Provided that on first and second convictions the court shall remand the offender for social and medical reports before determining sentence".
§ The noble Baroness said: I am very hopeful that this is an Amendment which will commend itself to noble Lords on all sides of the House. It has been repeatedly said in the course of this debate, and it is common ground among us all, that our first wish is to redeem women who may have embarked upon a life of prostitution, and particularly to use the provisions of this Bill to reform those who are convicted of soliciting in the streets.
§ The object of this Amendment is, I think, completely self-explanatory it is, that upon a first or second conviction for soliciting the court should be obliged to make a remand for the purpose of obtaining social and medical reports. The only criticism that I can think of that can be made of such a provision might relate to remand on a second conviction. I appreciate that a second conviction may, on occasion, follow quickly after a first conviction, and it might conceivably be argued that the report already received was sufficient. But in proposing this Amendment my noble friend and I had very much in mind that if a first conviction and the consequent 1104 penalty has failed, there ought to be a second opportunity for a probation officer and a medical officer not only to report on the woman's antecedents and the causes that have led her to take to a life of prostitution, but also to refer to or give reasons for their failure.
§ For that reason, we feel that it should be mandatory upon the court to ask for such reports, on the occasion both of a first and of a second conviction. Therefore I strongly commend this Amendment, or at least any alternative in the same sense that Her Majesty's Government might prefer. I strongly commend such an Amendment in order that we may fulfil the object which has repeatedly been said to be common to all sides of this House and is, I think, shared by every noble Lord who has spoken in this debate at any stage—namely, that our first object is to ascertain, if we can, why women have taken to a life of prostitution, and to give them every possible medical and social help in changing to a respectable career. I beg to move.
Page 1, line 14, at end insert the said proviso.—(Baroness Wootton of Abinger.)
§ 3.53 p.m.
§ LORD STONHAM
In supporting the Amendment of my noble friend, I hope that this time the Government are going to live up to their observations in the discussions that we have had on earlier Amendments. The noble Lord, Lord Chesham, said in the previous discussion—these are not his exact words, but I think a fair paraphrase—that if prostitutes go to prison the sentence is not mainly reformative, but reformative influences are in the background and that the sooner that they can get to work the better. I would submit that this is precisely what this Amendment ensures: that they shall get to work at the earliest possible moment—namely, before sentence. If these reports are asked for they will come back to the magistrates, and on the basis of the reports a decision will be reached as to whether or not to send to prison.
Another thing that the acceptance of this Amendment will do in my view, is to provide greater uniformity by magistrates in their dealing with the prostitutes who come before them and who, having been charged three times, are thereby liable to imprisonment. It does 1105 not mean that they will not go to prison—the noble Lord, Lord Hawke, said earlier that he would be amazed if any prostitute went to prison under this Bill. It is surprising that the Government should have put the penalty of imprisonment in the Bill if nobody was to go to prison. But it is obvious that different magistrates will put different interpretations on the need to send a woman to prison. Therefore, we think it imperative, if there is any real seriousness about trying to reform these women, that it should be done when they come to their third conviction and there is a strong possibility of imprisonment.
We must have regard to the fact that nobody is coming to the court on this charge unless she is a confirmed prostitute. She will not be arrested unless, in the knowledge of the police officer, she is a common prostitute who has been seen many times. As the noble Lord, Lord Chesham, indicated or implied, many of these women, although they have been many times fined, have not been to prison, except in Aberdeen or Edinburgh, unless they have been convicted for something other than prostitution. So that here we have women who are confirmed prostitutes. It is the hope of every one of us that they can be put to some decent life. I believe that we all agree and admit that if they are sent to prison it is not going to help them to come to a decent way of life. But if there are these reports, and if the women will submit themselves genuinely to the kind of supervision and help which can be given to them, there is a chance of reform.
As my noble friend mentioned, we have said "on first and second convictions" because it is obviously going to be difficult for women of this kind to go straight. Many of them have never done any serious work; many of them have never led a regular kind of life. It is easy for them to fall down, even though they may try to improve. That is why we should like this remand on both the first and the second convictions. I remind the noble Lord that the Wolfenden Committee was in favour of the maximum use of remand for this purpose, and the right honourable gentleman the Home Secretary obviously had this in mind when, to use his words, he urged the exercise of "every art of 1106 redemption". He suggested that when a girl comes before the courts she should at that stage be given every available assistance. I would submit that "at that stage" must mean before sentence.
That is precisely what this Amendment seeks to achieve. We are entitled, I think, to ask that it should go into the Bill; that it should not be dependent upon Home Office circulars or statements by the Home Secretary of what he would hope to achieve, but that it should be there in the Bill, so that there should not be the inevitable disparity that otherwise there will be between sentences passed by different magistrates. If there is any serious intent in any part of this Bill towards reform, I submit that the Government should so arrange matters in this Bill before it becomes an Act that every possible course shall be tried before a prostitute is sent to prison. I think that they should accept this Amendment.
§ LORD BOOTHBY
I should like to suggest to my noble friend Lord Stonham that this Amendment is really consequential upon every single opinion that he has expressed throughout the passage of this Bill. He will really be carrying out his own intention completely if Her Majesty's Government accept all the things he has said in this Amendment. I have nothing to add except that, for his information, the number of prostitutes sent to prison in Aberdeen durine many years past has been absolutely negligible.
§ VISCOUNT MASSEREENE AND FERRARD
I should like to support the noble Baroness in this Amendment. It is easy for us here to condemn some of these prostitutes, but many of them have been brought up in the most hard and unhappy conditions, with broken homes and so on, and I think that everything should be tried before they are sent to prison. I personally cannot understand why the Wolfenden Committee never took the evidence of any prostitutes. I should have thought that if you were a Committee dealing with stockbrokers, the first people you would invite to give evidence would be stockbrokers. Here you have a Report on prostitution and nobody seems to have interviewed any of them. I cannot see how the Government can possibly object to this Amendment.
§ 4.0 p.m.
§ LORD CHESHAM
The noble Lord, Lord Stonham, did his best to put me on the spot by saying I could not possibly resist this Amendment because it backed up entirely everything that I had said; and I certainly do not deny that those are my views and that: the noble Lord represented them perfectly correctly. I should like to make it absolutely clear —I believe I have already made it abundantly clear—that I have the greatest sympathy with the spirit behind this Amendment, and, if I may say so to the noble Baroness, Lady Wootton of Abinger, the boot has now changed on to the other foot, and if one has sympathy with the end (which I have) the difference between us lies in the means.
I can quite understand the spirit in which this Amendment was put down. I believe it stems—apart from the natural desire for early reformative action—from a slight misunderstanding which, if I remember correctly, was also made by the Church of England Moral Welfare Council. It was thought that the opinion of the Wolfenden Committee was that the law should specifically enjoin the courts to remand when dealing with early offenders. It is not very different, but it is a little different, and this is what the Wolfenden Committee said, in effect, in paragraph 280 of their Report: that they understood that some courts were reluctant to use their power of remand in relation to an offence for which that court could imhose only a fine and they recommended that courts should be given an explicit power to remand, in custody if need be, for not more than three weeks, any prostitute convicted for the first or second time—which would be the occasions on which she could be fined only. But the magistrates' courts already have power under Section 14 (3) and (4) and Section 105 of the Magistrates' Courts Act, 1952, to remand a convicted offender in custody for up to three weeks, if necessary, for the purpose of enabling inquiries to be made which may be of a social or a medical nature, or both, or of otherwise determining the most suitable method of dealing with the case.
In addition, in case any further clarity were required the case of Boaks v. Reece in 1956 established clearly that remand in custody could be ordered, even 1108 though the offence of which the offender had been convicted was one that did not carry a sentence of imprisonment or, in other words, carried only a fine. I thought it would be of interest to your Lordships to know what happens at Bow Street now and I have found out. It is impossible, of course, to give your Lordships a complete picture of what happens all over the country, but merely as an indication I can give an illustration of what I understand happens there now.
When a prostitute is convicted for the first time she is put back for an interview with the probation officer. If this interview indicates that she has no background that can be ascertained and that there is no certainty of her appearing again if she is remanded on bail, she is then remanded in custody for social and, if necessary, medical inquiries. If, either on the first interview with the probation officer or as a result of further inquiries while on remand, it appears that the girl is willing to abandon prostitution and take a job, she is then put on probation. At the moment it is not usual to remand a prostitute convicted of a second offence because the inquiries made after the first and any subsequent report by the probation officer are usually thought to give the courts sufficient indication of whether or not she is willing to be helped to give up prostitution.
Apart, however, from the existing powers, there are one or two other objections to the means which I fear I must put, the first of which is that I believe it is wrong in principle to confer on the courts a specific power for a particular purpose when they already have a general power which can be used for that purpose. Secondly, to require a court to remand unless it considers a remand would serve no useful purpose has one of two meanings: first, it means no more than the present law, which enables the court to remand if it is felt that to do so would serve a useful purpose; or secondly, it means something more: it would mean severely limiting the discretion of the court on a matter which it is eminently for the court to judge (guided by the results of the probation officer's interview, that is), and to decide on the best course. Thirdly, since remands for medical reports in particular are usually in custody, a provision that would require a court to remand in cases where it would not 1109 otherwise do so would surely result in an unjustifiable deprivation of personal liberty.
I hope, therefore, that with the powers which the courts already have and which I have just explained, and the results to be obtained by the proposed cautioning system under the Bill, such unfortunate women will have every chance they need; that the reformative action, which we are all agreed shall be applied as soon as possible will therefore be applied; and that, therefore, the result of the provisions of the Bill and the existing law is almost exactly the same as that which the noble Lady wishes to achieve and which is the spirit of her Amendment.
§ BARONESS WOOTTON OF ABINGER
In the course of this debate noble Lords opposite have performed some remarkable feats of agility in dodging backwards and forwards behind the Wolfenden Report, remembering it when it suits them and forgetting it when it does not. The noble Lord, Lord Chesham, in replying to this Amendment, made it the burden of his observations that there was some misunderstanding on the part of the movers of the Amendment as to the recommendations of the Wolfenden Committee. That it not so. This Amendment stands in its own right and is not based on any recommendation of the Wolfenden Committee.
The noble Lord, Lord Chesham, has remarked that the magistrates' courts already have power to remand for medical and social reports, not only in these but in other cases as well; and that, indeed, is so. He has described how this power is in fact exercised at Bow Street. But the purpose of the Amendment is not that the court should have that power but that it should be obligatory upon them to use it; and that is an entirely different thing. The noble Lord has pointed out that if the remand is always a remand in custody, with cases where the court would not otherwise have wished to remand in custody there might he an infringement of liberty. But I would point out that there is nothing in the Amendment which mentions custody. The Amendment requires that there will be a remand and such remands are possible, in magistrates' courts, even without custody. The long and the short of it is that if this Amendment fails we are faced 1110 with the position that in spite of everything that has been said about the earnest wish to give every opportunity of reform, a woman can legally be brought before a court and convicted and fined a first and a second time; and convicted a third time and sent to prison for a period of up to three months by a court which knows absolutely nothing whatever about her circumstances or how she came to take up the way of life into which she has fallen.
§ THE LORD CHANCELLOR
I want to say only one word. I think that the noble Baroness, who has given so much thought (for which we are all indebted) to these problems, has not paid sufficient attention, if she will allow me to say so, with the greatest respect, to the limiting of the discretion of the court. I should like her to consider that point again. I think it is a very important point. Our position is that we are very anxious for these remedial measures to succeed.
On the cautioning system, I have already spoken more than once, but I want the noble Baroness to consider that point. Here there is power to remand. It is then for the magistrate to consider whether in the case he will use it. There are grave difficulties, which, again, I should like her to consider, as to a remand that is not in custody. She will appreciate that in this case. I ask her between now and the Report stage—I promise that there will be a Report stage, whether Amendments are made or not—to consider the question of discretion. I think it is a very important one. I do not put this point in any argumentative way at all, but as something which I think has not really had sufficient consideration (I say it with all respect) by the mover of this Amendment.
§ 4.12 p.m.
§ THE MARQUESS OF SALISBURY
I do not know whether I might say one word on this Amendment. I had not formed any view on it before I came to the House, and such view as I have formed has been entirely as a result of the discussion and, in great part, as a result of the speech of my noble friend Lord Chesham. He described the practice which I gather at present obtains in Bow Street with regard to first offenders; and he explained, as I understood it, that 1111 in practice first offenders are always remanded for a medical report, He said that this is the present practice—I believe those were his words, or something of that kind. It seems to me an admirable and humane practice for a first offender.
What I want to ask is whether it is the—perhaps the word "universal" is very strong, but the common practice at Bow Street and in other courts; and, if it is not, why not? Does my noble friend Lord Chesham think, and does my noble and learned friend the Lord Chancellor think, that a lack of uniformity in this matter is a good thing that if some lady happens to be brought up in Bow Street she gets one treatment, and if she happens to be brought up in another court, perhaps not far away, she gets a different treatment? It seems to me, after listening to my noble friend Lord Chesham, that the argument he used about Bow Street was in effect an argument for the Amendment so far as the first offender is concerned.
I see a difference between the first offender and the second offender—though I may be wrong—and I should have thought that the noble Baroness, Lady Wootton of Abinger, might quite possibly agree before the Report stage to reconsider that portion of her Amendment which relates to a second offence. But I should have thought that the Government might give further consideration to making what is apparently the practice at Bow Street the practice in these courts with regard to first offenders. I submit that point, very diffidently, for consideration.
§ LORD STONHAM
I wonder whether the noble and learned Viscount the Lord Chancellor could be persuaded to say another word arising out of what has been said by the noble Marquess, Lord Salisbury. Also, if I might say so, there is just one more point about the difficulty we are in. My noble friend and I, and I am sure all noble Lords, would sooner accept the substance of some kind of assurance or concession compared with the shadow of a Division that we shall probably lose. But when we mention first offenders in the context in which it was mentioned by the noble Lord, Lord Chesham—that is, a prostitute brought up the first time and then 1112 remanded—what we have to consider now is the common prostitute brought up for the first time under this Bill when it becomes an Act. An offence then, although it will be the first offence under this Bill, might well be the 101st offence for which the particular person has been brought up in that particular court. Her face may be as well known to the magistrate as it is to the officer who arrested her. Our Amendment would care for that kind of person who, it may be, as my noble friend Lady Wootton of Abinger said, has never had a chance or has never had someone to attempt to reform her.
Can the noble and learned Viscount tell us whether, in his consideration of this question of discretion that he has mentioned, he intends to have a look at that problem? And will he also have a look at the point of uniformity which the noble Marquess, Lord Salisbury, mentioned? There will not be many magistrates' courts concerned, but we think there should be uniform treatment of these women, and we think that our Amendment would secure it.
§ 4.17 p.m.
§ THE LORD CHANCELLOR
First of all, on the question of uniformity, which my noble friend Lord Salisbury raised and which the noble Lord, Lord Stonham, has mentioned, the practice that my noble friend Lord Chesham described is the practice of which we were informed by the Chief Magistrate at Bow Street. I do not think either of us had any idea that it was confined to Sir Laurence Dunne. I understood that it is the practice of the stipendiary magistrates of London, who usually act together. I should like to verify that point, but that is certainly my understanding. I should think—though I do not know—that it is also the practice of the stipendiary magistrates in the big cities. Other benches of magistrates probably have their own ideas, but this is largely (as I think the noble Baroness, Lady Wootton of Abinger, will agree) a problem in places where there are stipendiaries, because it is largely a big city problem. But I should like to verify that point. On the first point, my noble friend Lord Salisbury may take it that, unless I communicate with him 1113 to the contrary, Sir Laurence Dunne was expressing the practice of the London courts.
On the more general point, it is important (and it is rather difficult when one is dealing with a specific point) to remember that we are now dealing with a Bill which depends on the cautioning procedure, if I may anticipate matters. My right honourable friend the Attorney General said in another place—and on the Second Reading my noble friend Lord Chesham quoted his words—that the cautioning procedure is a fender in front of the legal procedure in the Bill. It is a well-known fact that it has been the practice in London for the last seventy years for women to be given one caution before being charged with loitering and soliciting.
Now, as I said on Second Reading—and I explained to the House that my right honourable friend the Home Secretary had been given undertakings by the Chief Commissioner and by the heads of the biggest forces that this practice would be followed—we propose that the existing system should be made more effective as a means of diverting the newcomer by giving two cautions instead of one, and by linking the caution with a definite attempt to bring redemptive influences to hear. There, I think, we are following not only the Wolfenden Committee but also the general view of people who are anxious that redemptive influences should be brought to bear. So that is the first step in the procedure which we envisage after this Bill: that there will he two cautions; and the cautions will he administered in the way I described in detail in my speech on Second Reading, in order to give a chance for the woman to meet some moral welfare society or a probation officer who will put her in touch with helpful people.
Then, after the two cautions, assuming the woman goes on, she is arrested and is brought up: and, of course, she is then subject to a £10 fine. Now the issue on this Amendment is that it shall be compulsory and not discretionary that she should be remanded. I venture to ask the House to consider the danger of limiting a discretion in that way. I put it rather shortly to the noble Baroness, because she is very familiar with these problems; but there 1114 is a real difficulty in these cases of remanding on bail, because, in many cases, the woman in question has no solid social background or place where she can be kept in touch with. Therefore, if a remand must be ordered, it will, in most cases, be a remand in custody; and I think that that is a severe limitation to put on the magistrate. This is a very serious question, not from the point of view of a difference in views, but in trying to find out what is best to be done. That is why I asked the mover and seconder of the Amendment to consider whether, on reflection, they thought there was something in my point on limiting the discretion; and, if they did not think it was a good point, to put an Amendment down on Report, when we could consider it again.
The only reason I have intervened is that I was anxious to remind my noble friend Lord Salisbury of the importance that we attach to the preliminary, cautionary proceedings, before the girl comes to the courts at all. We hope that it will be possible to deal with her before she has been taken up; arid that is why we have the two cautions. Further, of course, as my noble friend Lord Salisbury will be aware, there is the procedure, introduced at the instance of Parliament, that she may complain about the caution in an appropriate case, and even go to the courts with it. As I say, I do not consider this as a controversial matter at all. I make the suggestion in the spirit of giving us the chance of reflection, and entirely without prejudice, of course, to the noble Baroness's right to return to the charge if she does not think there is much in my point. That is the suggestion that I beg to make at the moment.
§ LORD SILKIN
Before the noble Baroness replies, it does seem to me, as the result of the discussion we have had, that there is so little difference between the views expressed on the other side of the House and the views expressed on this side that there ought to be a possibility of some accommodation—unless the Government are determined to get this Bill through without amendment, whatever happens but, knowing the noble and learned Viscount the Lord Chancellor as I do, I do not believe that he would be a party to that. However, 1115 so far, of course, in spite of strong views that have been expressed in Committee, not a single Amendment has been accepted: nor has the noble and learned Viscount even offered to consider any of the Amendments that have been put forward. At any rate, whether the Bill is amended or not, we are to have a Report stage.
It strikes me that the real point the noble and learned Viscount the Lord Chancellor is asking my noble friend to consider is the question of the magistrate's discretion: otherwise, we are all agreed. He also says that in fact that discretion is exercised, so far as his information goes, in one way—in the way in which this Amendment is drawn: that is, that what we want done is almost invariably done. The exception he gave is that of the prostitute who has no fixed home and who, therefore, if allowed out on bail, would not be likely to return. I would say, in parenthesis., that in so far as that does happen, one of the objects of this Bill will have been achieved, because you will then have effectively cleared this woman off the streets; though, of course, if she has committed an offence, she has to be dealt with. I should not have thought that that in itself was a justification for rejecting the Amendment entirely. It may be that the Amendment could be revised so that the words "unless there are strong reasons to the contrary", or something of that kind, could be added. That would still leave some discretion to the magistrates, if they really had some strong reasons to the contrary: or we could even define the reasons—"if they have good reason to believe that the woman will not reappear", or something of that kind. But I do suggest that we ought to have something of this kind in the Bill; and if the noble and learned Viscount the Lord Chancellor would be prepared to consider a revised version of this Amendment, I am sure that my noble friend would be prepared to withdraw the Amendment on that understanding, and to come back again on the Report stage.
§ THE LORD CHANCELLOR
I am always prepared to consider it. I have not changed my view. I am a believer in the maintenance of discretion: but when I ask noble Lords and the noble 1116 Lady opposite to consider a matter, that naturally means that I am equally ready to consider their point of view. On the other hand, as I say, I am not convinced on the point of discretion. As always, I do not want to avoid a Division by false pretences, but I do promise consideration.
§ BARONESS WOOTTON OF ABINGER
In view of what the noble and learned Viscount the Lord Chancellor has said, and in the hope that discussions may produce some accommodation, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.29 p.m.
THE EARL OF ARRAN moved to add to subsection (2):
Provided that a person sentenced to imprisonment under this subsection shall be confined in a place set apart for prisoners so sentenced, where she will not mix with prisoners confined for other offences.
§ The noble Earl said: I beg to move the Amendment standing in my name. This is intended to be a constructive Amendment. I am for the Bill—reluctantly and anxiously, like others of your Lordships, but still for it. My aim is simply to prevent the increase of wrongdoing among women by the segregation of our new London criminal, the prostitute—and indeed, of all prostitutes—from the other criminals; from what I may call the real criminals. We know that evil, particularly when it is attractive and profitable, begets evil; and I believe that, with the best of intentions, we may, as the noble Lord, Lord Boothby, has said, be about to breed more crime by a simple process of cross-fertilisation.
§ I wonder whether your Lordships knew, until to-day, of the happy situation in regard to female crime in this country. As the noble Lord has said, there are only about 700 women in prison in the United Kingdom as against 21,000 men. This is a proud record, and we may well be content to know that only one in every 30,000 British women is serving a sentence. We are always reading about bad things here is something good. Because the record is so good, should we not do everything we can not to spoil it?
§ Do we ever stop to think what goes on in prison? For most of us a prisoner is someone safely out of harm's way—by which we mean someone who cannot harm 1117 us; and we conveniently forget about him. But, of course, life goes on in prison, as it does everywhere else. One may assume that prisoners spend most of their spare time in talking, because they have little else to do. What do they talk about? Will they not discuss over and over again the crimes which brought them there, many of them defiantly and boastfully? Will not the pretty lady, with her talk of men and big money and smart clothes, be the idol and envy of all the others? Surely a greedy woman—and most of them are greedy women—will say to herself, "When I come out, I will give up shoplifting or forging cheques and walk the streets." Then, of course, there will be the other prisoner who will demonstrate the best way to use a cosh.
§ There is the positive side, too. I believe, as do other noble Lords, that there is a real chance of rehabilitating prostitutes, particularly young ones. if these women are kept in a place apart away from bad influences, clearly the chances will be greater. I do not propose to elaborate the point. I do not think that anyone would disagree with me. I hope that I have not over-stated either the dangers or the chances of redemption. Surely no one is going to deny that they exist and since they do exist, should we not do all we can to meet them? There is nothing revolutionary, or even new, in discriminating between prisoners. It goes on all the time. There are different prisons for different lengths of sentence. Prisoners sentenced to three years or more go to one of the central prisons; those with shorter sentences, to local prisons. Then there are regional prisons set aside for training purposes, and the famous "open" prisons, the prisons without bars. These practices are generally accepted and, indeed, taken for granted; so why not extend them just a little further? Administratively, the difficulties do not appear to be over whelming. At the present moment, there is a completely unoccupied wing at Holloway Prison. It might cost a little more to open it up and run it, but the expense will not be unduly great, for the number of prisoners, actual and potential, is small.
§ What, then, are the arguments against segregation? So far I have heard none which has greatly impressed me. The noble Lord, Lord Chesham, suggested on Second Reading that the segregation of 1118 prostitutes would create a "corps d'élite." He has not produced this argument today, I am glad to say; and surely it is unrealistic. No one would propose that prostitutes should be given preferential treatment over others, and prison is still a bad place to be in, in whichever wing you find yourself. The noble Lord has pointed out that a proportion of the prisoners sent to Holloway have also been prostitutes at some time in their lives, and it is the case that Holloway does contain prisoners sentenced for prostitution in the provinces. But I do not think that these facts are vital. The fact that things are bad is absolutely no reason to make them worse.
§ Finally, it has been argued that classification has to stop somewhere, and that if we segregate prostitutes, we should equally segregate blackmailers or burglars, which is clearly impracticable. There are two answers to that point. First, prostitution, unlike other crimes, is in itself a positively attractive thing and liable to make converts. The second is that, try as I may, I just cannot regard the prostitute as an ordinary criminal, though it has been administratively necessary to make her one. Depraved she may be: contemptible, offensive if you like; but not a criminal in the ordinary sense. For those two reasons, if for no others, I believe that she has a special claim to segregation.
§ I know that it is not easy. I know that if this proposal for segregation is adopted, as I earnestly hope it will be, either inside or outside the Bill—it does not matter which—it will cause much inconvenience to many busy people and will cost some money. But if, as a result, one prostitute does not turn thief, and one thief does not turn prostitute, then I believe that the inconvenience will have been worth while and the money well spent. I beg to move.
Page 1, line 14, at end insert the said proviso. —(The Earl of Arran.)
§ LORD CHESHAM
The noble Earl has moved his Amendment eloquently; but, as in most cases, there is another side to the matter. In presenting that other side to your Lordships, I feel some embarrassment. I hardly dare risk incurring the displeasure of the noble Baroness, Lady Wootton of Abinger, by quoting the Wolfenden Report, but I 1119 think that I had better be brave and do so. The Wolfenden Committee considered this suggestion and in paragraph 282 of their Report stated their views in clear and firm words. I apologise to your Lordships for the length of my quotation, but I think it is necessary for me to quote it for the sake of complete clarity. This is what the Committee said:It has been suggested to us that there might, with advantage, be a special system of punishment to include a period of detention in a special residential establishment, with a view to rehabilitation. We do not think that this would be desirable, practicable or equitable. In particular, we think that it would be undesirable to segregate prostitutes in a residential establishment. It is clear from the evidence we have received from witnesses experienced in dealing with prostitutes detained in establishments of various kinds that it would be very difficult, in any establishment with this particular population, to provide any programme of rehabilitation which would be at all likely to succeed; nor do we believe that a community composed entirely of prostitutes is at all an encouraging background for the restoration of any one of them to a more normal form of living. It is in any event doubtful whether a programme of rehabilitation would succeed against a background of compulsory detention; rehabilitation measures, in this as in other fields, depend to a large extent for their success on the willing co-operation of the person concerned".The Government accept these arguments, which apply to imprisonment in a special establishment, or a separate part of an establishment, just as much as they do to the proposal that instead of imprisonment there should be a special sentence of detention.
It has been argued a little earlier this afternoon—and the noble Earl has renewed the argument by referring to the "cross-fertilisation of ideas"—that the committal of prostitutes to prison is likely to contaminate other inmates. Despite the eloquent words which he used to-day and on Second Reading, I simply cannot see and cannot accept the argument that prostitutes should be singled out, except for one thing that he said that personally he could not see a prostitute as any form of criminal. But surely that applies to a number of categories. I simply cannot see how we can accept that argument and why the prostitute should be singled out for this special treatment. As I said before, as a generality one can perhaps argue that it is undesirable to mix up 1120 any categories whatsoever if we are to avoid their teaching each other their own bad habits.
On Second Reading he said, if I may paraphrase the noble Earl's words, that in return for learning about violence, thieving and roguery in all its forms she will teach prostitution. I do not know that the opportunities are all that great, although obviously they exist. I cannot understand why she should wish to teach prostitution, particularly as she would, presumably, thereby create a considerable number of competitors at a later stage, if indeed she returns to the life. And, in any case, I should not have thought that her advocacy of this life—"The pretty lady", the noble Earl called her, "with the smart clothes"; she would not look like that in prison, I fear—would be particularly strong, in view of the fact that as a result of it she was in prison, anyway.
Again, I should have thought that, if we were to create a category which is to have what appears to be special or preferential treatment in the prisons, that would be more likely than anything else to encourage the particular thing the noble Earl does not want—namely, a sort of envy of the prostitute. I think we have dealt with the question of rehabilitation quite sufficiently, and in view of the fact that we know that it is unlikely in that time that anything worth while in that line can be carried out, I think it can be said to be better not to take any special notice of the convicted prostitute but to absorb her as anyone else into the ordinary life of the prison.
THE EARL OF ARRAN
I am aware of the paragraph in the Wolfenden Report referred to but frankly it struck me as being rather defeatist. As I said before, I think these things are at least worth trying; and the fact that there is a bad situation is no reason not to try to make it better. I still feel whatever the noble Lord, Lord Chesham, says that there is a difference between the prostitute and the ordinary criminal. We are putting the prostitute in prison not because we morally condemn her but because she is a nuisance and is offensive. I wonder whether I am not echoing other opinion in this House when I say that this is simply the case of a woman who is a public nuisance; and as a public 1121 nuisance she is not like the others. Birds which are not like each other are best kept apart. That is all I have to say. I am still not convinced and unless there is further argument against me I should like to press the Amendment.
§ On Question Amendment negatived.
§ 4.45 p.m.
§ LORD MESTON moved to leave out subsection (3). The noble Lord said On behalf of my noble friend Lord Grantchester, I beg to move the next Amendment. This, again, is purely a matter of opinion. It is submitted that subsection (3) of Clause 1 is far too robust and arbitrary. In the ordinary course of events, a constable would arrest after issue of a summons, and I submit that that is the procedure which should be followed in cases of this description.
§ Amendment moved—
§ Page 1, line 15, leave out subsection (3).—(Lord Meston.)
§ THE LORD CHANCELLOR
The question of powers of arrest was raised by my noble friend Lord Salisbury on Second Reading, and he asked me to look at that matter before the Committee stage. As I think I said on Second Reading—but I should like to clarify it if I did not make this matter clear—the provision in the Bill replaces earlier similar provisions of Section 54 of the Metropolitan Police Act, 1839, and Section 28 of the Town Police Clauses Act, 1847, and reproduces what is believed to he the effect of those provisions. I am sorry to inflict some legal learning on your Lordships, but as I was asked by my noble friend to look into this point, perhaps you will bear with me if I refer to the position.
It was held by the Court of Appeal in 1925 in the case of Isaacs v. Keech that the provision in Section 28 of the Town Police Clauses Act, 1847, which is similar to that in the Metropolitan Police Act, 1839, and provides thatany constable … shall take into custody without warrant … any person who within his view commits any of the offences listed in the action "—my noble friend will note that the words there were apparently different, because they said "commits any of the offences "—enabled the constable to arrest without warning a woman whom he had reason 1122 able cause to believe to be committing such an offence. There was a subsequent case in the .House of Lords called Barnard v. Gorman, where your Lordships, sitting judicially, held that the word "offender" in the Customs Act meant "somebody reasonably suspected to be an offender" on the wording of that Act; but the general question was left open because the case was being decided on the wording of the Customs Act, although there were some obiter dicta. So that as the law stands at the moment, the test has been that which is put in the Bill—namely, that the officer had reasonable cause to believe.
It has been the invariable practice since 1937 to confer a power of arrest without warrant in terms similar to those used in the Bill, and the subsection does not, as is sometimes suggested, confer any wide new powers on the police. That is the first point: that it has been the view of the law that there must be a power, and you should interpret a power to arrest where there are reasonable grounds to believe. As I told my noble friend in the Second Reading debate, the reasonable grounds must be objective grounds. They must be held by the court to exist in fact, and must not merely be subjective grounds in the mind of the person arresting. Again at the risk of wearying your Lordships, might I remind my noble friend that in an action for wrongful imprisonment the plaintiff has only to prove the imprisonment. It is then for the defendant to show that he had reasonable grounds which, as I say, must be objective grounds existing in fact.
I wish to make clear how the thing will work. I argued at great length on our last Sitting in the Committee stage that the effect of having the words "common prostitute" in the Bill will be to protect the innocent woman. Your Lordships heard my argument, and I am not going into that again. The other point I should like to underline is that of course the officer in question in this case must have reasonable grounds for believing not only that the woman in question was a common prostitute, but that she was loitering for the purposes of prostitution. If he cannot show that lie had reasonable cause to believe that, then on her acquittal he would be liable to an action for false imprisonment. 1123 Equally, it is part of the cautioning procedure that an officer will not arrest a woman unless he has good cause to believe that she has been cautioned twice. That will be the administrative role. If he is found to have made a mistake then, of course, it will be open to the station sergeant to refuse the charge if he so wishes. I am sorry to have been so tedious, but I was anxious to show my noble friend Lord Salisbury that I have carefully considered the matter, and I hope I have shown him so. I ask my noble friend Lord Meston, not to press the Amendment.
§ THE MARQUESS OF SALISBURY
I do not want to add anything to what I said on the last occasion. If I may say so, I was convinced by the arguments of my noble and learned friend, and that was why I supported the Government in retaining the words "common prostitute." I think that that provides some protection for an innocent person, and for that reason I feel it is justified. I therefore entirely accept the argument of my noble and learned friend.
I wish to thank the noble and learned Viscount for the great care with which he has answered this question, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
LORD MESTON moved, in subsection (4), to omit all words after "public". The noble Lord said On behalf of my noble friend Lord Grantchester, I beg to move this Amendment. It is submitted that the present definition of "street" is too wide. It should read as follows
For the purposes of this section 'street' includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public …
I do not understand why the definition goes on to deal with doorways and entrances to premises, which are really private property and not part of the street at all. As I have said before, these things are matters of opinion, and it is for your Lordships to say what is best in the public interest. I beg to move.
§ Amendment moved—
§ Page 1, line 21, leave out from "public" to end of line 24.—(Lord Meston.)1124
§ THE LORD CHANCELLOR
The words that this Amendment proposes to delete provide that the doorways and entrances of premises abutting on a street (as defined in the subsection) and any ground adjoining and open to a street, shall be treated as forming part of the street. If these places are not expressly included, there is a risk that it will be possible for prostitutes to ply their trade from such places as the doorways of houses and blocks of flats (in which they themselves may live, or have rooms which they use for the purpose of prostitution) open arcades, bombed sites or other unfenced ground and similar places of that kind. In all such places they will be in full view of passers by, and will thus continue to create the nuisance at which the Bill is aimed. I think that to say that you have cleared the streets if you drive them on to bombed sites and doorways would be playing with words. The prostitutes would constitute almost as great a scandal to passers by, and equally as great a temptation to young men and incitement to young women as we have mentioned before.
The effect of the phrase, "street or public place" in subsection (1), coupled with the definition of "street" given in subsection (4), will be similar to the effect of the present law as it is administered in practice. I do not think that the Bill applies to places such as hotels or cinema foyers, to which the public have access. I think that they are on the other side of the line, and it is not intended that they should be included. I hope the noble Lord, Lord Meston, will be satisfied with that explanation, and will not press the Amendment.
As I said before, I am only a deputy in this matter. I thank the noble and learned Viscount for his clear reply, and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2
§ Right of woman cautioned for loitering to apply to court
§ 2.—(1) Where a woman is cautioned by a constable, in respect of her conduct in a street or public place, that if she persists in such conduct it may result in her being charged with an offence under section one of this Act, she may not later than fourteen clear days 1125 afterwards apply to a magistrates' court for an order directing that there is to be no entry made in respect of that caution in any record maintained by the police of those so cautioned and that any such entry already made is to be expunged; and the court shall make the order unless satisfied that on the occasion when she was cautioned she was loitering or soliciting in a street or public place for the purpose of prostitution.
§ (2) An application under this section shall he by way of complaint against the chief officer of police for the area in which the woman is cautioned or against such officer of police as he may designate for the purpose in relation to that area or any part of it; and, subject to any provision to the contrary in rules made under section fifteen of the Justices of the Peace Act, 1949, on the hearing of any such complaint the procedure shall be the same as if it were a complaint by the police officer against the woman, except that this shall not affect the operation of sections forty-seven to forty-nine of the Magistrates' Courts Act, 1952 (which relate to the nonattendance of the parties to a complaint).
§ (3) Unless the woman desires that the proceedings shall be conducted in public, an application under this section shall be heard and determined in camera.
§ (4) In this section references to a street shall be construed in accordance with subsection (4) of section one of this Act.
§ LORD DENNING
I do not intend to move Amendments Nos. 14 to 24 inclusive which are all consequential.
BARONESS RAVENSIDALE OF KEDLESTON
There are many people more learned than I am on this subject, but I would ask your Lordships to consider the words "his or her". In pressing for this, I know that we have already lost the point. I took the trouble the other night to walk from Leicester Square all the way down Piccadilly, past Rootes, which is one of the worst places frequented by the common prostitute. On Sunday night there were no women about at all; there was nobody but men. That is why I was so distressed that alteration of the words to "his or her" was not agreed to.
§ 5.0 p.m.
§ LORD STONHAM moved to leave out Clause 2. The noble Lord said It may perhaps occasion some surprise that we are moving to delete this clause which deals with the right of a woman who is cautioned for loitering to apply to the court. But this clause is, as it were, an amelioration of subsection (3) of Clause 1, which the noble Lord, Lord Meston, has just moved to delete. In 1126 my view, and in the view of my noble friend—and, I hope, in the view of other noble Lords when I have put the points I have to make—this provision is both useless and a menace to innocent women. I am fully aware that the clause is to some extent supported by such weighty viewpoints as that put forward by the Church of England Moral Welfare Council, who are otherwise in many respects strongly opposed to the Bill. They apparently think that although the Bill itself is fundamentally wrong and grossly unfair, and perhaps dangerous, the giving of a caution is some amelioration. I know that that view is shared by other opponents of the Bill, but, with respect, I think that the view is held because the actual practical position has not been sufficiently considered.
§ I know that I have stressed this point before, but I would say again that we are dealing in this Bill with common prostitutes, people who are recognised and known, and therefore when a policeman sees one of these women whom he himself or others may have arrested scores of times there is absolutely no possibility that he can mistake her for someone else. In my view it is useless to talk of these cautions with a confirmed prostitute, a woman who may have had scores of convictions; the constable who knows her very well is just going up to her to utter a word and a day or two later to say the same thing before he arrests her. She is either going to give a false name and address or attempt to bribe the policeman. What I just cannot understand is why at no stage during Committee or on Second Reading has there been a reply to the question that I have repeatedly addressed to the Government that is, why has this matter not been dealt with by administrative means; why cannot it he dealt with by administrative means, in the same way that it has been dealt with successfully in places like Stepney or Paddington, when these women are known?
§ The Wolfenden Report refers to a well-behaved woman, and a well-behaved woman, of course, is not likely to be the subject of a caution from a policeman. But the difficulty is that with the elimination of the requirement to establish annoyance and with the provision that loitering without soliciting constitutes an offence any woman who, presumably in the 1127 opinion of the constable, is not dressed as a well-behaved woman should be or is not quite behaving as a well-behaved woman should behave is liable to be cautioned or perhaps arrested. Any lone woman, in fact, who is waiting for a friend in a street or any public place, who is window shopping, or out for a walk or sauntering along, is potentially in danger of caution or arrest; and if she—a decent woman—is cautioned, then she is subject, in my view, to the grossest indignity. It is, I think, a hideous danger that respectable and innocent women will suffer this shocking indignity of a caution. It will no longer be safe for them to stop or shop or saunter or ask the way in particular districts of the West End.
§ The provisions for application to a magistrate to have the record expunged arc in practice no protection at all. Just imagine a frightened young woman of 18 or 20, or even the average suburban housewife, facing the court with no means of rebuttal except her own good name. It is, I think, truly barbarous. We have only to think of our own wives and daughters, who could be put in such a position, to realise that we cannot allow this provision to remain in the Bill. That there is grave danger of mistakes we know from recent cases. Indeed, the Home Secretary obviously thinks there is a danger of mistakes being made, because it is for this reason that he has regarded it as necessary to keep the term "common prostitute" in the Bill. This means that he doubts the ability of the police to distinguish between the loiterer for prostitution and the loiterer for innocent purposes. Otherwise, why have the term "common prostitute" in the Bill?
§ In the established areas and with experienced policemen, I do not see any possibility of an experienced policeman mistaking a common prostitute whom he knows for anything other than she is. That is why it makes this whole Bill so farcical. But with a young policeman not so experienced and perhaps exceptionally zealous, it is possible—and he would be just the one, innocently, as it were—to submit an innocent woman to this indignity, a deep insult that she would never forget. I am extremely serious about this. I think that the whole Bill is indefensible at every point, and it has indeed been significant during the 1128 Committee stage this afternoon that the noble and learned Viscount, the Lord Chancellor, and the noble Lord, Lord Chesham, in replying to our Amendments have found it necessary to refer to a provision at a subsequent stage of the Bill, one thing leaning on the other; but all of the provisions, I think, will not stand up. If we retain this caution for the sake of a Bill which cannot be defended we are openly acknowledging the possibility that we are subjecting decent, innocent women to this particular indignity of having said to them in effect, "You are a prostitute. You are walking about, standing about, with the object of soliciting for the purposes of prostitution". That is a horrible thing to put in any Bill and a thing we ought not to contemplate.
I do not always find myself in agreement with the Sunday Express, but something that Mr. John Gordon wrote on this subject a month or two ago expresses my view perhaps better than I can myself. He wrote
I hope the House of Lords—a more reliable defender of the liberties of the citizen these days than the House of Commons—will amend the Street Offences Bill or throw it out altogether. For it could prove perilous to respectable women.
Under one of its clauses, a suspicious policeman may caution a woman for ' loitering' or ' soliciting '. He records the caution in his notebook and registers it at his station.
What happens when the policeman makes a mistake? And policemen do make mistakes in these sex cases, as court records show. Then the woman has the right to go to the police station and try to exonerate herself.
If she does not get satisfaction she can go to the Commissioner of Police. Should she get no satisfaction from him she may demand a judicial hearing.
Can you imagine a terrified, respectable woman, distraught at such a horrifying allegation being made against her, taking the risk of making her plight worse?
Yet if she does not do so, and receives at any time in the future a second caution, which may be equally ill-founded, she goes automatically on the register as a ' common prostitute ' and if arrested will face a heavy fine or imprisonment. She may even be `framed'. What blackmail possibilities that opens!
I do not think that that is an overstatement in any way. I agree with every word, and I do not think it can or will be answered. Some noble Lords may have been thinking that these cautions make a bad Bill not so bad.
In my view they make a bad Bill impossible, and I trust your Lordships will support the Amendment and throw out this clause. I beg to move.
§ Amendment moved—
§ Leave out Clause 2.—(Lord Stonhatn.)
I should like to ask a question of the Government in connection with this Amendment. On Second Reading, I think, I pointed out that women and girls who are accosted by kerb-crawlers are naturally terrified at this sort of situation. Men are not terrified about it. I should like to ask whether, in such a case as described by Lord Stonham, an action for damage would lie.
§ 5.11 p.m.
§ LORD DENNING
May I say a word on this Amendment. For myself, I would suggest that this system of cautioning now statutorily recognised is a protection for the innocent woman. The caution gives the new recruit a chance before anything more is done. It gives a chance to the respectable woman in regard to whom there may have been a mistake, to recognise and to safeguard her reputation. But we must realise that the clause itself gives statutory recognition to the administrative practice of cautioning which has been in existence, in Glasgow for many years and in London here as to a single caution for many years. In effect, the fact that the practice is recognised in this Statute will mean that in every case which comes before the court it will be permissible for the prosecution to adduce before the magistrate evidence of these previous cautions, evidence that they have been registered in the police book. It will amount, in effect, to evidence against the woman of previous convictions—not, mark you, convictions by a magistrate, but by a police officer, recorded in his book and proved against her, that she has been bound over by the policeman to be of good behaviour.
That being the position, the point which has been raised by my noble and learned friend Lord McNair, who cannot be here to-day because he is at present at the European Court of Human Rights, is this: ought not any woman, when she is cautioned, to be told of her position; to he told that she can apply to the 1130 magistrate for this caution to be expunged? Will she know, if she is not told, of her legal rights? Will she have the money to make an application, or will she be able to instruct a solicitor to apply to set aside the caution which has been registered against her? Lord McNair tells me that he has asked my noble and learned friend the Lord Chancellor this question can he give an assurance that the facilities for legal assistance normally available in a magistrates' court, either under the Poor Persons' Defence Act or otherwise, will be made available to a woman cautioned by a constable in respect of her conduct, and indeed for the purpose of applying for an entry to be expunged? At the moment the occasions when anyone charged in the police court can obtain legal aid are strictly limited. The person has to be someone not having sufficient means, and the case must be one of exceptional gravity. A woman who is cautioned may well go away thinking "I cannot take it up." Lord McNair asks Ought there not to be some machinery to protect a woman, by telling her that she can get a caution expunged and by securing for her legal aid for that purpose? This is one additional safeguard for innocent women upon which I hope some assurance will be given us.
§ BARONESS WOOTTON OF ABINGER
We appreciate the reasons which led the Government to insert this clause in the Bill, but I think those reasons only illustrate how desperate are the straits to which the Government have been reduced in trying to patch over the worst places in what is fundamentally a bad Bill. If I may again quote the metaphor that was used in another place, and has been quoted here, this clause is intended, we understand, to be a kind of fender pushed in front of the engine of the law to prevent people from being caught in its machinery. That represents a view of the machinery of the law which I should have thought would be thoroughly shocking to the noble and learned Viscount and his colleagues opposite. And in view of the admonitions which the noble and learned Viscount addressed to me on an earlier Amendment, to beware of interfering with the discretion of the courts, I am greatly surprised to find that this clause commends itself to Her 1131 Majesty's Government, and I am naturally particularly glad to find myself now in the position of defending the functions of our courts against noble Lords opposite.
Surely the courts expect to establish guilt or innocence when a charge is laid. Under this clause we seem now so unsure that guilt or innocence will be established that we are going to dispense with the laying of a charge, and we are going to set up what amounts to a full trial, without any charge being made at all, merely on the basis of a police caution which, as the noble and learned Lord, Lord Denning has said, amounts to a police conviction. Moreover, this caution, though recognised in a very anomalous way in this clause, is still of an administrative nature. The giving or the non-giving of it is surely subject to ministerial discretion, and we appear to be drifting into a position which is surely a violation of our most fundamental constitutional rights—a position in which a Minister of the Crown gives dispensations against prosecution, or gives instructions that prosecutions shall or shall not be undertaken. For all these reasons it seems to us that. while we recognise the intention behind the clause, in effect it undermines the basic principles of justice, and it puts the police caution on a footing upon which it ought never to stand.
§ THE LORD CHANCELLOR
Although this Amendment is directed at an improvement in the cautioning procedure introduced in another place, it is directed at the cautioning procedure existing at all. I think that is a fair way to deal with it, because to remove a remedial part of the Bill is not something that amuses me. I propose to deal with the point on that general assumption. I have been asked about two specific matters with which I should like to deal before I come to that. The first was put by my noble friend Lord Saltoun, who asked whether, in the case of a kerb-crawler who puts a woman in fear, a civil action would lie. It is difficult to generalise about these matters without having a particular case in mind, but I hope that my noble and learned friend Lord Denning will agree that if the woman in question could prove that 1132 she had been put in fear, that would be grounds for civil action for assault, provided, in order to make it worth going on with, that she could show that she suffered some damage. I think that if those two constituents were there, an action would undoubtedly lie. In fact, damage would be imputed by trespass of person.
May I interrupt the noble and learned Viscount? I am sorry if I have explained myself badly, but what I meant was this supposing a respectable woman is stopped by a police constable and cautioned. That is a very damaging thing to her. Can she bring an action against him for damages?
§ THE LORD CHANCELLOR
I am sorry; I thought my noble friend was dealing with the question of the kerb-crawler. With regard to the question of a police officer, of course if there was somebody there who heard him say to an innocent woman the words which my noble friend. Lord Saltoun. mentioned"— You are a common prostitute "—and he did that without believing that was so, then I certainly think (although here again I am speaking very much in immediate answer) an action would lie; in these circumstances when he was doing his duty, evidence of malice would be required, meaning really that he did not believe what he was saying. I see that my noble and learned friend Lord Denning is good enough to nod agreement with me.
My noble and learned friend Lord Denning asked me about the question of legal assistance on the procedure in this clause. I went into that matter, and I had a letter from my noble and learned friend, Lord McNair. I believe that an amendment of the Legal Aid and Advice Act, 1949, would be required in order to bring that in, but obviously one of the matters which I must consider relatively soon in this regard is legal aid and advice on proceedings in the magistrates' courts, the quasi-judicial procedure of affiliation, and husband and wife; and I shall certainly consider this at the same time. I feel that it is a perfectly reasonable request, and while I cannot promise that there will be legislation, I can promise that it will be considered, and sympathetically considered, by me when I make these amendments.
1133 On the general point, I feel that there is a wide divergence between us. The noble Baroness, Lady Wootton of Abinger, has said that there is a reflection on the courts. Again, I am sorry that I cannot agree with her. She thought back into the days of King James II when, it is generally recognised, his use of the suspended powers was bad; but I do not think the noble Baroness can put it on that high constitutional plane, interesting though I found it. After all, the practice of cautioning is not confined to this sphere. It is used in respect of motoring offences, and generally I should have thought that responsible opinion regarded it as useful and common sense. As my right honourable and learned friend put it. it is the fender to the engine of justice. That is the a priori argument.
The inductive argument is that, as I have said, it has, in fact, been used for over seventy years in London and. I believe, in many of the larger cities, and if it has been used on the basis of one caution, I should have thought it was an improvement to use it on the basis of two cautions, as I described on Second Reading. There are certain worries in regard to that with which I should like to deal, and one that was inherent in the speeches—to which I listened with care—even though it was not mentioned, was will there be a national register of prostitutes which brands a woman for ever?
§ BARONESS WOOTTON OF ABINGER
Before the noble and learned Viscount goes on to that aspect, would he be good enough to deal with my point that what is new in the clause is that there can now be proceedings before a magistrate to expunge a caution, and that that really gives the caution the status of a charge?
§ THE LORD CHANCELLOR
I thought it was logical to deal with the caution first and cone on to the clause, but I will follow the noble Baroness with the greatest of pleasure. Broadly, the caution procedure was well received in another place, but there was a strong feeling there that, even though cautions were administrative and not statutory, there should be some provision for a woman who claimed she had been wrongly cautioned to challenge the caution and, if successful, to ensure that 1134 it was not recorded. It was in response to that that Her Majesty's Government, on the Report stage, moved Clause 2, which was accepted.
I believe I said on Second Reading that we very much hoped that in a high proportion of the few cases where there were mistakes it need not go as far as that, because, as I said, the Commissioner of the Metropolitan Police has given an assurance that he will be very ready to investigate any such complaint, as he does at present on the very rare occasions when a respectable woman is spoken to in error; and if it should happen that an officer was mistaken the Commissioner would make sure that the entry was expunged from the register of cautions. So that there is that safeguard at the moment. It was felt in another place, however, that that was insufficient and that reliance should not be placed on good will; that people and personalities change. Therefore, they asked, "Give us the right to apply to the courts", and that has been done.
I believe one then comes back to the question is cautioning a good or bad thing? I hope the noble Baroness will ask me to deal with any points which I may omit to deal with, as I am anxious to help as far as I can. It is important to consider the possibility of the prostitute being branded, and there has been some discussion as to whether there will be a national register of prostitutes. The answer is, "No". Registers will normally be kept in each police district although arrangements will vary from place to place according to need. In London, registers will be kept at each police station, but there will also be a central register for the Metropolitan Police District, since it is easy for prosstitutes to move from the area of one police division to another. The registers and other records will be police documents and no one other than the police will have access to them. In London, at any rate, the entries will be removed from the register after one year.
There is, therefore, no risk that once a woman has been cautioned her name will be entered on police registers all over the country and that for the rest of her life she will be subject to the risk that it will become known that she was cautioned for loitering or soliciting. The only documents that are likely to remain 1135 are perhaps the correspondence between the police and the moral welfare society, which will be kept for the ordinary time that correspondence is kept; but that is something which one cannot really deal with and is not, I think, a very serious matter. So I wanted to make it quite clear that the system does not include the central register and that in London the name will be removed after a year.
I have said that the essence of the caution is that it should not be formalised, and I want to make this clear because one is apt to get the position of the police wrongly out of proportion in debating a particular issue. The caution is in essence part of the preventive work which the police do in relation to young people who may be in trouble or in danger of getting into trouble of one kind or another, and that is not necessarily in relation to prostitution. I think it would be unfortunate if it went out that your Lordships' House did not approve of such action. Such action is designed to operate at the earliest possible stage and to divert a girl from prostitution before she has become committed to it and without getting her involved in the machinery of the courts, which might well result in the fact that she was on the edge of prostitution becoming known. That is a point which, again, I should like the noble Baroness, Lady Wootton of Abinger, to consider that this can be done quietly and without its becoming known, and it may be just that influence on the girl, at an impressionable time, which is worth giving.
So far as I know, the non-statutory cautioning system already operates without complaint, and we believe that much of its value would be lost if it were formalised. But it is only fair to the police to remind the Committee how much of that sort of work they do. The idea, as no one knows better than the noble Baroness, that all policemen are trying to get convictions for their own purposes is quite an unfair view of the modern police officer. The caution is part of their preventive work, and it is in that spirit that the police will try to carry it out.
I have tried to deal with the system of cautioning. Once we have the system of cautioning, then I agree with the majority of another place that something like this clause is a protection, and I think it would 1136 be very unfortunate not to have it in the Bill. Therefore, I shall ask the noble Baroness and the noble Lord, Lord Stonham, not to press this Amendment to-day.
§ LORD DENNING
May I ask my noble and learned friend the Lord Chancellor one question? When the police officer gives the caution will he—although I do not wish it to be formalised—tell the woman that she has a right to go to the magistrate to get it expunged from any record? Otherwise she may be quite ignorant of any right in the matter.
§ THE LORD CHANCELLOR
I do not think I could possibly tie the officer. I do not think it would be real to do it. There are an infinite variety of circumstances involved. I think we must take it with the defect and assume that it will not be possible to do it. I am not trying to gild it; I am trying to give as dispassionate an account of the system as I can, and I think that that is a fair answer to my noble and learned friend.
I am grateful to the noble and learned Viscount for his explanation. I think it is satisfactory.
§ LORD STONHAM
I, too, am grateful to the noble and learned Viscount for his detailed explanation, but I am not quite clear as to whether he thinks any Amendment would be acceptable in respect of the point raised by the noble and learned Lord, Lord Denning.
§ THE LORD CHANCELLOR
I do not think any Amendment is possible here, because it is part of the plan that the cautioning should not be statutory, not part of the Bill, in order that it is kept informal. If the cautioning system is not part of the Bill, then I do not see how we could put in the Amendment that my noble and learned friend suggested.
§ LORD STONHAM
It seems to me that when we consider the whole of the discussion this afternoon we realise that we have had reverse arguments put to us to convince us that our Amendments were not acceptable. On this point of cautions the noble and learned Viscount told us that we have already had the cautioning system, but it was necessary to put a special cautioning 1137 system in this Bill. When my noble friend raised earlier the point about remanding on first and second convictions, then we had the whole thing the other way round and we were told we should not put it particularly in this Bill; there was no special reason for it. I am bound to say I have found both arguments equally unconvincing. Nevertheless, we feel that the discussion has been useful and has clarified certain points of doubt. We are grateful for that and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3:
§ Punishment of offences in connection with night cafés
§ 3.—(1) The following provisions of this section shall have effect in relation to the punishment of offences to which section twenty-six of the Licensing Act, 1949. applies (being certain offences in connection with refreshment houses, that is to say, houses, rooms, shops or buildings kept open for public refreshment, resort and entertainment between ten o'clock at night and five o'clock on the following morning. not being licensed for the sale of beer, cider, wine or spirits).
§ (2)The maximum fines which may be imposed by virtue of subsection (3) of the said section twenty-six for offences against sections eighteen and thirty-two of the Refreshment Houses Act, 1860 (which provide for penalties for obstructing the police from entering refreshment houses, for allowing unlawful gaming therein, for allowing prostitutes, thieves or disorderly or drunken persons to be therein and for permitting contraventions of licences under that Act), shall be—
- (a) in the case of a person not previously convicted of an offence to which the said section twenty-six applies, twenty pounds (instead of five pounds); and
- (b) in the case of a person previously con- victed as aforesaid, fifty pounds (instead of twenty pounds).
§ (3) In section nine of the said Act of 1860 (which imposes a penalty of twenty pounds for keeping an unlicensed refreshment house) for the words "shall forfeit a sum not exceeding twenty pounds" there shall be substituted the words "shall be liable on summary conviction to the penalties provided by section twenty-six of the Licensing Act, 1949", and subsection (3) of the said section twenty-six, as amended by subsection (2) of this section, shall apply, so far as it relates to fines, in relation to the said section nine as it applies in relation to sections eighteen and thirty-two of the said Act of 1860; and accordingly in subsection (1) of the said section twenty-six for the words "is adjudged liable to forfeit any sum" there shall be substituted the words "is convicted".1138
§ (4) The powers conferred by subsections (1) and (2) of the said section twenty-six to make on a person's conviction of an offence under the said section nine of the said Act of 1860 a disqualification order or an order for the forfeiture of a licence under the said Act of 1860, and the powers conferred by subsection (3) of the said section twenty-six to make such an order on a person's conviction of an offence under the said section eighteen or thirty-two of the said Act of 1860, shall be exercisable on a conviction, whether or not the person convicted has been previously convicted of an offence to which the said section twenty-six applies; and any power to make such an order under the said subsection (3) as so amended shall be exercisable also on a person's conviction of any of the other offences to which the said section twenty-six applies, that is to say, certain offences by a person keeping a refreshment house against section one hundred and twenty and subsection (3) of section one hundred and forty-nine of the Licensing Act, 1953 (which relate to the sale of intoxicating liquor without a licence, and to the consump- tion of intoxicating liquor at parties organised for gain).
§ (5) This section shall not have effect on a person's conviction of an offence committed before the commencement of this Act.
§ 5.37 p.m.
§ LORD SALTOUN moved to leave out Clause 3. The noble Lord said We were told at the commencement of the debate on Second Reading that this Bill was not a Bill to penalise the prostitute but a Bill to clear the streets; and as such I accept it right through. For that reason I am moving to delete Clause 3. I should not like the Committee to be under the impression that I think Clause 3 changes the actual law in any way; so far as I can see, it does not change the law at all. All it does is to increase the penalties under the Act of 1860 and other Acts concerning restaurants and bars and places where prostitutes might congregate.
§ I can quite understand how, when drafting this Bill, having drafted Clauses 1 and 2, the draftsmen naturally said, "Of course, if we are going to increase the penalties in the street we must increase the penalties for all these places under the Act of 1860", and so on, in order to make a nicely balanced Bill. But I should like to remind the Committee that equilibrium is a tendency not to move, which is not what we want, and if we are putting pressure on one place we should have less pressure in another; and if the object of the Bill is to clear the streets then Clause 3 cannot add to that effect in any way.1139
§ If this Bill were merely a preliminary of the Government to shelving the Wolfenden Report altogether; if this Bill had been brought in to placate the people who want something done about it, then I could understand its present form. But I do not understand the effect of Clause 3. I pointed out on the Second Reading of the Bill that the law was pretty quiescent between 1860 and 1895, and that it was only in 1896 that all the parish councils put their heads together and decided to have a concentrated drive, in the course of which they pitched all the prostitutes into the street. Then later on, at a time I do not remember—I was not taking much notice of it —they had a new drive and cleared places such as the Empire and the Alhambra and pitched the girls who were there into the street and turned them out to endure in the street the winters of over sixty years. Now, the very people who did this turn round and complain of the state of the streets and say, "We must clear the streets." Perhaps it was because I was young at the time, but I have never forgotten my horror as a young man at that virtuous action; and I think it was quite as big a crime as the ill-doing that formed the motive of the action. I am perfectly aware that, in the state of politics to-day, no Government can change the law in any material respect from what it is now; but the only thing I would suggest—and it is the best thing I can suggest—is that the law should be left as it is.
§ This is not really a new problem it comes up in all ages. When Henry VII obtained the throne he found in the little London of his own day no fewer than eighteen brothels on the South Bank alone. Being the man he was, he closed them all. The results were so unpleasant that before the end of his reign he had reopened twelve. He realised that it was much worse to have this evil in the streets than to have it under cover. The noble and learned Viscount who introduced this Bill on Second Reading seemed to think that it was a kind of Pied Piper's flute that was going to compel all the unpleasant denizens of our streets to follow him. To follow him where? Where are they going to be put? In the Thames? Even the Pied Piper had somewhere to put the rats and the children. I suggest that if this 1140 Bill is really intended to clear the streets it is very important to accept my Amendment, or something very like it.
§ Some of my friends have said to me, perfectly frankly, that they do not worry about that effect of the Bill as they put it, they are out to "harry the whore". I do not think that that is a good thing. One reason is a reason of a kind that I am very reluctant to put forward in your Lordships' House; but it is applicable in this case, and it meets a matter on which I have been challenged that is that we are, officially, at least, a Christian country. We have an Established Christian Church; and though I often have reservations about the pronouncements of that or any other Church on various subjects, I have no hesitation in accepting the example of the Founder of our religion. On many occasions He said very severe things about a great many people, but it will be noticed that He was uniformly courteous, considerate and gentle to women; even the worst women—even the type of woman we are dealing with now. Although I have never heard that pointed out by any clergyman—possibly because they think their flocks are only too ready to associate with prostitutes already—none the less, I think it might be remembered when we are legislating on this point in a Christian country.
§ My other reason seems to me to have very great social importance, and it is this. Can anybody say that over the last sixty years, during which every effort, and increasing effort, has been made to suppress this traffic, any of this effort has been successful? Have not things grown worse and worse? And have not the very efforts to suppress it made things worse? If what I am told goes on in our streets to-day and what I am told is the normal practice is true, it makes one long for what one might call the decent, honest prostitution of the beginning of the century. I cannot very well give examples; taboos which I respect prevent my going into those details. But I can at least say this that at the beginning of the century a girl who wished to leave her profession could do so without any let or hindrance; today she gets her face slashed. There is a very old tag which I think the noble and learned Viscount the Lord Chancellor 1141 will remember as well as I do, and that is, "Drive nature out with a fork, and it comes right back again"—and only the other day George Meredith caustically remarked that when it did return it generally returned bottom upwards. The most reverend Primate and the noble and learned Viscount the Lord Chancellor have themselves declared London the worst city in Europe; and I believe that to be true. It has become so and I do suggest that it would be better to try to control and regulate this business than to make greater efforts to suppress it. In that way one would be more likely, I think, to remedy the evil and to mend the reputation. I beg to move.
§ Amendment moved—
Leave out Clause 3.—(Lord Saltoun.)
§ 5.47 p.m.
§ THE LORD CHANCELLOR
Everyone who sits in your Lordships' House acknowledges with respect—and, indeed, affection—the broad humanity which always inspires my noble friend Lord Saltoun in his approach to any social problem; and I think that was particularly apparent in his speech on Second Reading from the genuine pity and worry which he expressed with regard to the position of prostitutes. For that reason. I approach his Amendment in an attempt to recognise the spirit in which it is moved.
The difficulty is that Clause 3 does not arise out of the Wolfenden Report at all. It is not a question of going on with the purity campaigns which dealt with the well-known haunts that my noble friend Lord Saltoun has mentioned. This Clause 3 arose out of the cri du cæur from Stepney. We received so many complaints from Stepney, and elsewhere, about the proliferation of disreputable all-night cafés frequented by prostitutes that my right honourable friend had to consider the matter. The police and the local authorities consider that there are many more all-night cafés than are needed to meet the genuine demand for refreshment at late hours, and that they are a source of much trouble. They are recognised meeting places for thieves and other undesirables, as well as for prostitutes; though the presence of the latter tends to attract the former.
That was the situation with which we were faced that these cafés cause a considerable nuisance to respectable people 1142 in the neighbourhood, not only because of the noise but from the type of people; and I think I quoted on Second Reading the difficulty that certain mothers and fathers had in letting their boys and girls go to youth clubs because they had to pass these cafés in frequented streets. There they are, as an attraction just to the sort of person we are all thinking about: the girl who may be persuaded to become a prostitute, or the boy who may be tempted to go with a prostitute when they see them in these cafés. As my noble friend frankly and candidly said, it was for that reason that we felt it necessary to strengthen the hands of the police by. making the remedies more effective.
We think that the method we have taken, of increasing the penalties and enabling licences to be taken away at an earlier stage, is the fairest way of doing this without interfering unduly with the rights of many people who carry on legitimate businesses to meet a genuine need. My real answer is that these cafes in Stepney are not the same sort of places as the Hyde Park Rooms and the Empire Rooms which the noble Lord mentioned. I know that your Lordships will think it curious that I cannot remember anything this side of the Flood; but, though it may be strange, I am too young to remember the l-Iyde Park Rooms and the Empire Rooms, though I see from the records that these were places where people went who either wanted to find a woman for themselves or were not affronted by the presence of women who were catering for other people. This is quite a different problem. This is a problem of cafés in Stepney, and in some other places. that have become a nuisance. We have been trying to deal with them and I do not think that this discloses a general desire to harry. It is an attempt to deal with a specific problem which has been strongly represented to us.
I am sorry that I cannot be more helpful because, like all noble Lords, I was attracted by the spirit in which my noble friend put this Amendment before us. But I really think that it would be unfair to a district which has suffered quite a lot if we were to expunge this clause from the Bill.
When I came to move this Amendment, there were so many people outside who sympathised 1143 with the views I expressed that I felt I ought to divide your Lordships' House. The noble and learned Viscount's answer, however, has shaken me. I think that we are in the position now where one hopes that the authorities will act with a little common sense. I recently came up against a previous Act passed by Parliament and after a little talk came to the conclusion that a little common sense was all that was required. I hope that the same rule will be adopted in this case. In that hope. I beg your Lordships' leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4
§ Punishment for living on earnings of prostitution
§ 4. The maximum term of imprisonment to which a person is liable if convicted on indictment of an offence under section thirty of the Sexual Offences Act, 1956 (man living on earnings of prostitution), or under section thirty-one of that Act (woman exercising control over prostitute) shall, for offences committed after the commencement of this Act, be seven years; and accordingly, for offences so committed, in the Second Schedule to that Act, in items 30 and 31, "seven years" shall be substituted for "two years" in the third column.
§ 5.55 p.m.
§ LORD PETHICK-LAWRENCE moved to leave out Clause 4. The noble Lord said We have been talking in the previous Amendments of giving effect to the Wolfenden Report. On this occasion I am rising to point out that Clause 4 of the Bill is in direct contradiction to the recommendations of the majority of the Wolfenden Committee. The persons who would benefit by any change I am proposing are perhaps the most unpopular people in this country, and it may be thought rather odd that anyone in your Lordships' House should attempt to improve the position in their case, but the fact is that there is a great misunderstanding with regard to the people who are living on the earnings of prostitution.
§ There is a certain number who fill the picture which is generally represented with regard to them. They are ponces, either men or women, who use the trade in prostitution to make considerable sums of money, and they batten on the misbehaviour and the lust of men and women. 1144 But there are a number of persons who come under this category who are quite different people. They are men who are, in effect, the husband of one particular prostitute, and though that may he a very undesirable position and though they, in a sense, may be living on the earnings of prostitution, they are not persons whom we should pursue with a particularly vindictive attack. The Wolfenden Committee recognised this fact and, as I shall quote briefly later, definitely decided that the penalty with regard to certain ponces should be left where it was and not increased.
Before I come to that, I want to read a passage from a periodical called Encounter, of May of this year in which the author, Wayland Young, described this position. He says as follows
The ponce—in London to-day: always with that reservation—is neither more nor less than the whore's husband. He provides stability for her, a bit of discipline, someone to listen to her adventures. He makes love to her as much for her sake as for his own, and takes trouble over it. He is also a gauge of her prestige. if she keeps him well"?
I need not read that passage—
Economically. he corresponds to the wife of the normal citizen. But the fact that he is living on her earnings and not she on his is only of secondary importance to either of them.
That may be regarded as the opinion of one man who was writing a graphic description of what he found in regard to prostitution. But perhaps your Lordships will remember that on the Second Reading of this Bill the noble and learned Lord, Lord Merrivale, quoted an extract from the Wolfenden Report. In view of the late hour, I do not propose to quote the whole of that paragraph, but I should like to read this. To be quite fair, this is not a statement by the Wolfenden Committee; it is the repetition of a statement which reached them.
that is, the ponce—
is frequently the only person in the world towards whom she feels affection and a sense of possession; he is usually her champion in disputes and her protector in a skirmish. He is deeply despised by the police and by the public outside his trade; but he may be nevertheless the one humanising element in the life of the woman on whom he lives.
I have been quite fair to your Lordships. These are not the words of the Wolfenden Report. But in the concluding paragraph (307) of Chapter X, dealing with this question, the Report says
It has been suggested to us that the present penalties provided by the law for living on the earnings of prostitution are inadequate and should be increased. We feel that the maximum of two years' imprisonment for which the law provides is adequate for this offence.
So that this Bill in putting in this clause is going directly contrary to the advice of the Wolfenden Committee.
§ I never try to mislead your Lordships, and I am not going to do so on this occasion. It is quite true that there was a Minority Report by the three women members of the Committee, who said that there were different kinds of persons living on the proceeds of prostitution, and the people to whom I have been referring are only one type. There is also the type that mentioned earlier in my speech, and those may be worthy of very severe penalties. The three women said that, in view of that, and in view of the fact that these were maximum penalties, they did not agree with the Majority Report, and they thought that the maximum penalty should be increased.
§ In the course of the next few minutes I propose to deal with the question of maximum penalty. It is true that where there is a maximum penalty the judge is not bound to inflict it on people who have been guilty of only a smaller offence than is contemplated in proposing the maximum. But I want to submit this to your Lordships. If this maximum penalty is available for the kind of person about whom I am speaking, you have to remember that he is rather a contemptible man; he is admittedly utterly unpopular with everybody; he is probably subject to an inferiority complex, which makes him bumptious and unpleasant; and he may very likely have had a quarrel with the woman on whose earnings he is living, and she may well give evidence in court. Therefore, the judge, facing all this, and feeling that the man has created a most unfortunate impression in court—as he probably will do, and probably with the judge himself—may be tempted to give him a larger sentence than the two years which the Wolfenden Committee recommend1146
§ I venture to think that society in this matter is really trying to find a scapegoat. I have met a number of people who like or do not like this Bill on the general terms, but they say "One thing with which I do agree is that these scoundrels who batten on the proceeds of prostitution ought to get it in the neck." That may be right in regard to those people of whom that description is correct. But I want to put it to your Lordships that it is not correct in regard to the people I have in mind. However despicable one may regard them, they have not committed a grave offence and they should not be liable to this very heavy sentence. It is a kind of posthumous case of a hypocritical nineteenth century trying to find a scapegoat for the sins of society.
§ I should like to see this clause amended so that it separates these two classes of persons who are covered at the present time by these provisions. Your Lordships may say to me "Why have you not put down an Amendment of that kind?" I think it would be a difficult Amendment for a person not in the Government to put down. It should take something of this shape. It should be a proviso to this clause that this increased penalty should not apply to the particular persons about whom I am talking. Therefore, before putting down an Amendment of that kind, I thought it would be much better to put down a general Amendment which would give an airing to the subject; and I thought that perhaps the noble and learned Viscount the Lord Chancellor would help me in the matter. I shall be guided as to the future position by what he says. I thought it desirable to tell him in advance exactly what I was driving at, and I hope that thereby I have given him a little time to think the matter over.
§ The noble and learned Viscount may say "I do not agree with this at all, but if you choose to put down an Amendment, that is your affair." Or he may say that the Government are prepared to consider making a distinction between these two kinds of offenders. If he is prepared to go as far as that, then I should be quite willing to put down an Amendment in any form which the Government might think suitable, or to support any Amendment which they themselves might care to put down 1147 which would make a distinction. I admit that a great many people covered by this clause are thorough scoundrels and the community is perfectly justified in giving them a thumping penalty—whether it will do any good or not is another matter. But, at the same time, I do not think it is right for people, however obnoxious they may be and however contrary they may go to public morality, who have not been guilty of any grave offence, to be liable to this severe penalty. I beg to move.
Leave out Clause 4.—(Lord PethickLawrence.)
I should like to say a word or two on this Amendment. I am not very versed in the history of this subject, although I have taken some trouble to find it out. So far as I can remember, for the first ten years after 1896 these people practically did not exist, but before the 1914 war they had come into being. The real danger of a prostitute's life has been pointed out, and how, there being no licensed houses in this country, and the laws being what they are, she is always in personal peril. However vile you may think this fellow, he does provide the only shadowy protection that she has got. For that reason, too, I think that what the noble Lord, Lord Pethick-Lawrence, has said deserves consideration.
§ LORD BALFOUR OF BURLEIGH
I should like in a sentence or two to support the noble Lord opposite. I think he has dealt with a difficult subject in an extremely wise way, and I hope the Lord Chancellor will do his best to provide for this real and necessary distinction between the classes of people who are hit at by this clause. I wish the Bill went much further than it does in making things unpleasant for the people who profit from prostitution in a third party way. By drawing attention to this matter the noble Lord, Lord PethickLawrence, has done a real service, and I hope the Lord Chancellor will be able to meet him in the way suggested.
I, too, should like to support my noble friend. As he has said, the class of people with whom we are dealing here is probably the most unpopular class in the whole country, 1148 but for that very reason I think we should be careful to see that no injustice is done. This is something about which a short time ago I should not have dreamed of addressing your Lordships but would have accepted the provisions in the Bill. Then I happened to read a book called Wotnen of the Streets and this opened up to me an entirely new view of a part of society with which I have had no close personal acquaintance. Since then I have also read the Encounter article, to which my noble friend referred, and in addition we have the recommendations of the Wolfenden Committee. The noble and learned Viscount the Lord Chancellor has repeatedly thrown up a defence of the Wolfenden Report. On this occasion he cannot hide behind the Wolfenden Report, and I hope that he will give further consideration to this matter. It is one about which I am quite sure any of your Lordships who read the book and articles to which I have referred would certainly find himself in doubt.
I think it can be said that these men do form, in the lives of these women, who are by nature rather unstable—indeed very unstable—the one stable element. For that reason, I feel that not only must we be very cautious, but we must not in any circumstances be influenced by our immediate and obvious reaction against them. I hope that the Government will see their way on this occasion to think again, and to assure us, as my noble friend has suggested, that they will help us to put down an Amendment which will catch the brutes whom we all desire to see punished as severely as possible, but not to penalise those who are in a sense the husbands of the prostitutes. I hope for a favourable answer.
§ 6.12 p.m.
§ THE LORD CHANCELLOR
This is a difficult point, and it has been put most attractively by the noble Lord, Lord Pethick-Lawrence. I think it is right that I should refer your Lordships to the arguments in the Minority Report of the Wolfenden Committee, which the Government accepted in preference to that of the Majority. After saying that they do not agree, in paragraph 2 of the Fifth Reservation the three members say:As explained in paragraph 92 of the report, the law must, in prescribing maximum penalties, have regard to the worst case that 1149 could arise, and we feel that the present maximum of two years' imprisonment is quite inadequate to deal with a person who makes a business of exploiting prostitution on a large scale.That view has found complete agreement with your Lordships. I do not think anyone would say that two years was enough to deal with a person who makes a business of exploiting prostitution on a large scale.
The Report goes on, in paragraph 3The possibility that the increased penalties for street offences might encourage closer organisation of the trade and result in new classes of middle men' also seems to us to call for increased penalties for living on the earnings of prostitution; and we think that increased penalties would counteract to some extent the dangers envisaged in paragraph 26 of the report.We accordingly recommend that the maximum penalty for the offence of living on the earnings of prostitution he increased to five }ears' imprisonmentThat was provided for in the Bill as first introduced. The increase was generally welcomed in another place, and it was suggested that the maximum penalty should be even higher. At the Committee stage the Government accepted an Amendment increasing it to seven years. The lady Members made it clear that one of their criticisms of the Bill, and, of course, of the recommendation of the whole Committee on which the Bill was based, was that it is likely to increase the organisation of prostitutes, to lead to greater organisation and to an increase in the activities of middlemen. Therefore I think there is no answer to the point of view which says that the penalties of middlemen working on a large scale should be increased.
Then one comes to the much more difficult position put to-day by the noble Lord. Lord Pethick-Lawrence. Can you find two categories? I think that it is a very difficult thing to do. How far are you to rely on what actually happens? How far are you to rely on intention? How far are you to take the qualities of treatment? The noble Lord, Lord Pethick-Lawrence, painted a picture—. and I do not say this in any critical way—of the man who was the stand-by of the woman. Of course, there is the other man who thrashes the woman and knocks her about. How far is that to be taken into account? I find it a very difficult problem.
1150 There is one factor which is not decisive, but which is helpful on this matter. Of course, the old law, under the Sexual Offences Act, as the noble Lord, Lord Pethick-Lawrence, will remember, provided for a sentence of six months on summary trial and two years on indictment. Of course, it is the two years on indictment which has been increased to seven years. I should have thought, from my own experience of police action, both at the Bar and as Home Secretary, that the type of case which we are worried about—the petty case; the squalid case where there is no organisation of vice—would be dealt with by the police in the ordinary way by the summary procedure in the magistrate's court. In that way there would be a practical distinction. I know that that is not an answer to the matter, because it leaves it subject to police discretion. I can only say that I think a wise Commissioner or chief constable, in preferring offences, would be inclined to draw the same sort of distinction as the noble Lord in his speech, and his case of squalidness would probably be dealt with summarily and the organised vice on indictment. That is, of course, taking each case as it comes and making up one's mind on the particular facts.
I know it is at the end of the day, but the noble Lord was good enough to give me notice of this matter. Frankly, at the moment I find it very difficult to draw the distinction. I remember the occasion when I was arguing a point in the Court of Appeal on the question of When does a difference of degree become a difference in kind? One is driven to the old answer that nobody can say how many grains make a heap, but everyone knows a heap when he sees it. I find here that to state criteria is extremely difficult. I will have a look at the matter, but I ought to warn the noble Lord—I always try to be frank with your Lordships when I see difficulties ahead—that I see difficulties here. All I can say is that I will consider it with my right honourable friend and my advisers at the Home Office; but, to be honest and frank, I cannot hold out great hopes.
I hope that the noble Lord, Lord Pethick-Lawrence, will not feel that I have dealt too superficially with a difficult point. I should like to assure him that I have a constitutional objection, 1151 which is nothing to do with Party, to sacrificing a ram caught in a thicket. It is too easy. There is just one other danger that one must always remember: I say, with great respect, that it is easy to vary from that into the position that you champion a disreputable cause because you know that very few other people will do it. The noble Lord, Lord Pethick-Lawrence, will acquit me of anything personal—there is nothing personal in it at all I am merely putting the dangers of the way the human mind works. I should like to say that his approach was so full of understanding of the difficulties of the people involved, no less than the difficulties of legislation, that I wish I could do more. I can only promise consideration without extending hope.
I wonder whether the noble and learned Viscount, the Lord Chancellor, would think, as a rough rule of thumb, that perhaps the more or less innocuous section of this community might be those who had relations only with one woman, whereas as soon as it was two I think most of us would agree that implies a degree of exploitation.
§ VISCOUNT MASSEREENE AND FERRARD
Might I ask the Lord Chancellor whether, for instance, porters—not necessarily porters, but general touts who give the addresses of prostitutes for payment—would be liable for these penalties?
§ THE LORD CHANCELLOR
I hope that my noble friend, Lord Massereene and Ferrard, will not take this to the foot of the letter, because there is a considerable amount of law on this subject and I do not want, in addressing your Lordships at a Committee stage, to prejudice the development of the law in any way. As I understand it, the test is that a person has to be taking part in or encouraging the organisation of the prostitution or has to be drawing from the earnings of the prostitute. May I take the noble Viscount's case of the porter? A porter who merely supplies someone with information for a tip, expecting that he will get ten shillings or a pound from 1152 the man if he gives him the address of a prostitute, I should have thought would not he in great danger on this count. But if he drew a commission from the prostitute of so much a week for disseminating her address, then he would be in part living on the earnings of prostitution. That is the broad distinction.
In one of the leading cases it was a man who arranged for a motor car, got the women to live in his house, kept them and then himself took the money from the men who wanted the women. Curiously enough, all that he gave the prostitutes was a roof and food and entertainment; but he was convicted. Another man who let accommodation at an extortionate rate, knowing that he let it to prostitutes, was also convicted, although in the latter case it was argued very strongly that he was living on his own earnings and not on the earnings of the prostitute. But that did not "get by" the learned judge. I think I have given a generally correct definition to my noble friend Lord Massereene and Ferrard, although, as I say, I should not like him to take it to the foot of the letter, because this is a difficult subject.
§ LORD PETHICK-LAWRENCE
I am very grateful to the noble and learned Viscount the Lord Chancellor for considering this matter, and I am not altogether surprised that he has found a difficulty in phrasing any Amendment which would fully meet the case. I have tried myself, without much success. The Lord Chancellor knows so much more about it that he might have succeeded where I failed, but it has not altogether surprised me that he has had difficulty. At the same time, though I fully accept that he is not making any pledge of any kind that he will find anything, I shall be grateful if he will look at it and think it out, and possibly consult his right honourable friend the Home Secretary, who is of course primarily responsible for this Bill. If he will represent to him that there is a feeling that there is a danger that this penalty might be applied to people in respect of whom it would be quite inappropriate, if he could express that as far as he feels it himself, I feel that what I have done in raising this Amendment will have borne fruit. I will, of course, myself try to see whether there is any Amendment which would be appropriate, and possibly the 1153 noble and learned Viscount will be good enough, if he finds any form of words which would in any way improve the position, to inform me so that I may know where I stand. I realise the difficulty, and I hope that, because it is difficult—difficulties in the way of Cabinet Ministers are spurs to action—he may be able to find some help in this very tricky and difficult matter.
§ THE LORD CHANCELLOR
I will certainly bring the noble Lord's words to the attention of my right honourable friend the Home Secretary, and we will consider it again. Of course, I will write to the noble Lord on the result.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Remaining clause and Schedule agreed to.
§ House resumed.