COMMENS AMENDMENT (Hansard, 31 July 1962)

§ VISCOUNT HAILSHAM

My Lords, it might be convenient if we take Amendments Nos. 5, 6, 7, 8, 9, 35 and 59 together. This is of slightly more sub-stance than the Amendments which have just been considered, and I should like to explain quite shortly what has been happening. The series of Amendments, of which I am now moving the first, relates to the Whole question of special reasons, which were debated quite fully by the House on the two previous occasions when the Bill came before the House, I think both on Report and Committee stage. I successfully persuaded the House that it would be best to leave special reasons, as they then were, and to leave the courts to interpret the meaning of the phrase according to their own learning, which had been developed for some time after two rather well-known judgments of Lord Goddard, when he 184 was Lord Chief Justice, relating to special reasons which are very well known to the profession.

When this Bill reached another place the provisions ran into a certain amount of criticism very similar to and parallel with the kind of criticisms which came from certain of your Lordships when it was before your Lordships' House. Broadly speaking, they were two quite separate strands of criticism. The first was the strand of criticism which said that the provision for special reasons, coupled with the nature of the offences contained in the Second part of the First Schedule, provided too draconian a code, and your Lordships will remember the moving speeches which were made about offences which might in themselves be trivial but which, none the less, infringed the provisions of the second part of the First Schedule to the code; and I think this was the more powerfully urged set of criticisms. A second and more esoteric, but equally powerfully urged, set of criticisms running in parallel really amounted to the proposition that Lord Goddard was wrong in the series of decisions that he had initiated, and that lawyers thought that by now they really amounted to nonsense. This was most strongly urged by the lawyers in another place. At one stage in the proceedings the discussion between the Committee and the Minister became so warm on these interesting topics that I was actually sent for and had to address an informal meeting which I think was in close touch with honourable members of another Party, so that no one was kept out of the discussion. I undertook at that meeting that I would try to do something to mitigate, to meet, those criticisms. I think it was accepted by another place that my bond had been kept by these Amendments, although I am not pretending that I regard them as absolutely ideal.

Broadly speaking, what has been done is to take the second part of the First Schedule—that is, the offences which come in for the cumulative penalty and automatic endorsement only—and to apply a new formula to them, putting the burden upon the defendant to mitigate, but otherwise giving the court a discretion, retaining, however, the full draconian nature of the Goddardian special reasons for the more serious offences 185 in Part 1, on the hypothesis that these are intrinsically so serious that there is no need to mitigate the severity of the code in the fear that a purely trivial or technical offence might have been committed. This proved acceptable to another place. As I told your Lordships when it was before your Lord-ships, I should have been prepared to accept the more severe interpretation myself. But Parliamentary discussion leads to concessions, and I cannot say that I think this is an altogether unreasonable one. I would urge the House to accept it. I think justice will be done, and those who pressed upon the Government here that we were taking too severe a line will, I think, accept the fact that there is quite considerable concession being made to their point of view. Therefore, I beg to move that this House doth agree with the Commons in Amendment No. 5.