ROAD TRAFFIC BILL [H.L.] (Hansard, 13 June 1961)

§ VISCOUNT BRENTFORD
My Lords, if I may detain your Lordships for a few moments longer on the Motion that this Bill do now pass, there are two observations that I should like to address to your Lordships. The first is an expression of appreciation to the Government for their courtesy and constructive reception of the criticisms which were made of the Bill, to a certain extent by myself. They were intended to be helpful, and were, I think, received in that spirit, and they were to a great extent incorporated into the Bill so as to make it a vastly improved measure from what it was originally.
The second observation I make with great trepidation, particularly in your Lordships' House, because it is a reflection more of a legal character than of a transport matter character, and in your Lordships' House, where there are so many noble Lords who are not only technically but also very practically exceedingly learned in the law, I approach the subject with grave apprehension. It arises out of Clause 2 (1) and this introduction which we have included there of what to me has always been a rather fearful and, as I think, a novel principle—namely, the provision that a person who refuses to provide a specimen for analysis or measure may find that his refusal, unless reasonable cause therefor is shown, is treated as supporting any evidence given on behalf of the prosecution or as rebutting any evidence given on behalf of defence with regard to his condition at that time.
From time to time during the Committee stage of this Bill we debated the 130 immediate and practical effect of that provision. But what worries me rather more is the fundamental or underlying effect of that provision upon the Constitution of our country as a whole, and upon the basic acceptance of the principle that a person is not guilty until his guilt has been proved. Flowing from that basic principle, I have always understood it to be fundamental to our legal Constitution that, having regard to what I believe is called an accusatorial system of law, as opposed to an inquisitorial one, it is fundamentally improper for the prosecution or any of its agents to seek to cause an accused person to convict himself or to assist towards his own conviction by anything that he himself says.
So much is that so that if there has been an accident and a police constable is taking a statement from a witness who may himself have been involved in the accident, and may possibly be liable to prosecution, he is immediately warned of the circumstances which may arise in the event of his giving a statement. I think that has been laid down in one way or another by many noble Lords who have held legal positions in this House. There is a quotation going back some years, in which it was stated in the speech of a judge—which I think has since become tradition in this country—that by the law of this country no person ought to be made to incriminate himself. A more recent and up-to-date statement, which I think is exceedingly well known, was made by Mr. Justice Devlin (as he then was) in 1956, when on this question of the freedom of silence of an accused person he said: So great is our horror at the idea that a man might be forced to speak and perhaps codemn himself out of his own mouth that we grant everyone suspected of crime that benefit at every stage and until the very end the right to say Ask me no questions. I shall answer none. Prove your case'. The law in this matter reflects the natural thought of England. My Lords, in applying that principle to what we are proposing should go into this Bill, it appears to me there is a very close analogy indeed; we are asking the individual, instead of making a statement which may incriminate an individual, to give a specimen which may incriminate him. We are not stating that if he does so he does so at his free option, and with the warning that if he does so it may be used in evidence, but we are saying at the same time that if 131 in fact he refuses to do so, his refusal may be treated as supporting any evidence given on behalf of the prosecution. That seems to me to be a distinct diversion from the fundamental principles upon which our law has progressed in the past.
I am raising the matter now in your Lordships' House because we understand that Her Majesty's Government are to have the opportunity of a somewhat prolonged, or more prolonged, consideration or reconsideration of this Bill than they had originally anticipated having at this stage, and in the hope that, if and when the Bill reappears, in this or another form, in this or another place, they may have given further consideration to this point along the lines which I have endeavoured, I fear in all too amateur a way, to lay before your Lordships.

§ LORD LATHAM
My Lords, may I ask the noble Lord who is to reply whether he would be good enough, in the course of his remarks, to say whether it is the case, in connection with the emission of black smoke, that there are injection means of avoiding that.

§ VISCOUNT HAILSHAM
There are.

§ LORD CHESHAM
My Lords, may I be allowed another moment or so to take up one or two points your Lordships have made? I should like to deal first with the point raised by my noble friend Lord Conesford at the end of the Report stage, land repeated to-day. He reminded us that a report of the observations made by the Court of Criminal Appeal appeared in The Times on June 6, I think it was. To-day is June 13, and I think it is a little much to expect that anything that arrives on the scene quite so late as it is in relation to consideration of this Bill could be included. I think the noble Lord would agree with that. But I should like to point out to him that if he will look at paragraph 6 in Part I of the Schedule his point would be met by a provision under the Bill whereby the maximum period of imprisonment which may be given for the offence concerned would go up to twelve months. I do not know what he would think about that, but I can certainly tell him that Her Majesty's Government will look at the 132 point again in the light of the observations that he has made to-day.

§ LORD CONESFORD
My Lords, I am most grateful to my noble friend for what he has said. It was not really that I wanted the details to-day, but the promise to deal with the matter. I may say that, when I consulted a most learned noble Lord with great judicial experience on this subject, he expressed the view that the minimum amendment required would make two years the maximum penalty for this offence.

§ LORD CHESHAM
My Lords, naturally I am not in a position to give my noble friend any kind of assurance to-day beyond what I have already said: that we shall look at the matter very carefully in the light of what he has said.
The noble Lord, Lord Airedale, again raised in some detail the question of fully licensed drivers who drive cars with L-plates exposed, and I listened carefully to what he said. We discussed this very fully at an earlier stage and while I think now, as I thought then, that there is some force in what the noble Lord said, I still do not feel that there is sufficient in it Ito warrant legislation and the creation of another offence. However, I am quite prepared to say to the noble Lord that we will watch this situation carefully and see if it seems to be anything like what he said. I think it is more a point to watch than a point to do something about at the moment; and we certainly will watch it.
My noble friend Lord Teynham dealt briefly with the question of diesel smoke, the emission of which, as your Lordships know, is already an offence. It is the enforcement which is the difficulty. My noble friend is right to the extent that there is a type of meter—indeed, there are two types, employing different principles, neither of which I can say to your Lordships is fully effective for its purpose at the present time. What I can say is that certainly one is showing considerable promise in this field—and probably both are—and it is our intention in the Ministry shortly to start making some tests under field conditions to see whether, with improvement to the meters, we can come to some satisfactory system of measuring smoke emitted and thereby be able to enforce the law.

§ LORD LATHAM
My Lords, I hope the noble Lord will pardon me. That is not the point I was on. I was not on the point of meters capable of measuring black smoke emitted, but on methods of injection of the diesel oil which avoids, or largely reduces, the emission itself.

§ VISCOUNT HAILSHAM
Perhaps I may help the noble Lord: it is always a question of bad maintenance.

§ LORD CHESHAM
I do not think the noble Lord, Lord Latham heard—it is a question of bad maintenance. A properly maintained diesel vehicle does not emit smoke. It is really as simple as that. The device I mentioned is intended to help with the enforcement of the law against not emitting smoke; smoke which is not necessary anyway.
May I turn for a moment very quickly to what my noble friend Lord Brentford said regarding refusal of the test? I am not in a position to argue law with him, neither do I wish to do so at the present time, but I can, and think must, say this: I am advised that this provision makes no difference to the present accepted position in our own law whereby you remain innocent until proved guilty. I am advised that it does not even infringe that position. It is a matter of treatment of evidence and it does not, I am again advised, even infringe the principle of the undesirability of self-conviction. It seems to me that it is no more than an extension of being asked to walk along a straight line or say, "The Leith police dismisseth us," or whatever it is you are asked to say. I do not want to go further into that to-day, but I shall certainly consider what the noble Viscount has said. I do not think I can add anything, either, to what the noble and learned Viscount the Leader of the House has said about the Bill, except that I think I may personally join with noble Lords who hope, as we do, that the Bill will become effective for its intended purpose and will begin to make its contribution to road safety as soon as possible.