§ 3.43 p.m.
§ Debate on Second Reading resumed.
§ LORD GREENHILL
My Lords, what ever dangers there may or may not be about a mushroom cloud arising from the Criminal Justice (Scotland) Bill. I am sure that those who remain in the House will be interested in what the noble Lord, Lord Craigton, said, and I hope in what I have to say too. First of all, I should like to associate myself with the observations made by Lord Craigton on the reasons why my noble friend Lord Hughes, who had intended to be present to-day, is not present. He was torn between two considerations: that of maintaining as much business in Scotland as is possible from certain talks he is having about Glenrothes, and the fact that I found myself well enough to come down to-day and thereby play my little part in Scottish affairs.
May I say at the outset that I accept in full the description that the noble Lord, Lord Craigton, has given in regard to the intentions of this Bill. One does not want to belittle for Party reasons any efforts made the effect of which, one hopes, will be to the benefit of social conditions in Scotland, or indeed in any other part of the country. But when one looks at the Bill as a whole one finds a variety of matters of interest included in it, from the first reference made in the Explanatory Memorandum to the sentences which may be imposed on young offenders from 17 to 21, the preliminary work that was done by the body which the noble Lord described as SACTO—the Scottish Advisory Council on the Treatment of Offenders—and the part played by Lord Guthrie's Committee, representing, I think, the Law Society of Scotland, which dealt with the one item which was given 551 to them by way of remit, and upon which they reported, upon the extending of legal aid in criminal cases.
Taking all in all, I do not think there is anything of a controversial nature that one would consider it necessary to air at this Second Reading After all, in so far as there are items which may need amendment later, that can well be done in the Committee stage; therefore, with your Lordships' permission, I will confine myself briefly to one or two observations of a general kind. My attention has been drawn, for example, to what in the Explanatory Memorandum is headed Item 8, which says:Part IV contains miscellaneous amendments to the law relating to criminal procedure. Clause 30 abolishes the concept of libelling an offender's convictions for previous offences 'in aggravation of the offence before the court at the time and also the' cognate offences rule, and empowers the prosecutor to inform the court of previous convictions for any offence.It is perhaps because I have been, in my capacity as baillie and police judge, as we call them in Scotland, impressed by the risk of ascertaining or asking for previous convictions that this seems to me to be a somewhat major change in policy. Now it will be within the power of the court to obtain information about previous convictions for any offence, and one wonders whether that may not tend to prejudice the judgment, certainly of the police court judge and even, one would say, of the sheriff's substitute, if he knows the whole picture of a man's misdeeds before the one that he is trying at the time in the court. Perhaps, therefore the noble Lord will try to ease my mind on that particular point.
Then there is a power taken in this Bill, not perhaps in line with the general purposes of the Bill, to appoint two additional Court of Session judges. It has been, perhaps wickedly, suggested to me that there may be some kind of political escape in this particular clause, in the sense that the Lord Justice Clerk vacancy has now been filled, and this may be some kind of indirect way of filling a political vacuum. I just say that because it has been suggested to me that it may be a possibility.
On other grounds I am a little disturbed about something which appears in the Custodial Sentences for Young 552 Offenders Report of the Scottish Advisory Council, and which I think is reflected in the present Bill. As the noble Lord will be aware, on page 25 of their Report, in more prominent type than normal, appears this statement:Proposed withdrawal from Justice of the Peace Courts and Burgh (or Police) Courts of the power to impose Custodial Sentences on Young Offenders.It is true that the judge in a burgh police court has not the power to give an accused person a penalty of more than 60 days' imprisonment, and that the present statutory maximum detention is three months; therefore he could not possibly, as it were, give the whole of that term. But, it seems to me, speaking not only for my own native city, that not only has there already been a reduction in the number of burgh police courts, but there has also been a tendency to reduce the amount of work which they are asked to do and which they would perhaps like to continue to do. That applies also to justice of the peace courts, of which, as a justice of the peace, I have a little experience. There, too, while I am not pretending that they have so high a standard of judgment as to warrant their continuing the whole of their present functions, I nevertheless view with regret the taking away of some of these powers, which in any event were not excessive.
The general purpose of this Bill as the noble Lord, Lord Craigton, clearly indicated, is of a twofold nature. One is that because a crime or an offence has been committed, therefore a punitive measure Should be taken against the offender. The other is, that although he has deserved some punishment for his offence it should nevertheless be associated, particularly in the 17 to 21 group, with some kind of what the noble Lord called rehabilitation—what we might call some kind of reform; some kind of re-adaptation to a better way of life as the result of a period in one of these detention places, prisons or approved schools, or whatever they may be.
While the Scottish Advisory Council indicated rather strongly the imperative need for the remand home, that position has now been greatly improved, as indeed the noble Lord has indicated, by the opening of one home, which I think has already been completed at Polmont, and by others to which he referred. So 553 that, I suggest, no longer remains a matter of such importance as it was at the time the Committee were dealing with it.
One point I should like to make, because I think there is a tendency to assume that the rate of crime has increased considerably in Scotland, although I myself do not think that that view is wholly justified. Let me quote some figures which are published in the 1961 Report of the Scottish Home and Health Department, Prisons in Scotland. In chapter 6, under the general beading "Accommodation and Building Works" and under the sub-heading of "Overcrowding" they say—I refer to paragraph 114:with the increase in the prison population there had to be increasing resort at Barlinnie and Edinburgh to the expedient of accommodating three or more prisoners to a cell.I will not enlarge upon that statement because I think it is enough for the purpose. But I think we should bear in mind also the figures given in Appendix No. 10 of their Report under the general beading "Average Daily Number of Prisoners." I think the situation shown is by no means as bad as the impression that is sometimes given. They begin, for example, with the years 1909 to 1913, when the average estimated total population of Scotland was 4.9 million and the total number of every class of prisoner was 2,817. Between 1928 and 1937, a decade, when the average population was 4.9 million, the number goes down to 1,700; and in the last year, 1961, when the estimated total population was almost 5.2 million, the total was 2,997. I suggest, therefore, that this impression that there are far more prisoners to-day to be dealt with than formerly is due not so much to the numbers having increased as to the fact that the buildings in which they were housed, the accommodation provided for them, was so old-fashioned and so totally inadequate that the only means of accommodating them was by increasing the number per cell. And noble Lords will know that the number was increased to three, instead of to two for fairly obvious reasons.
I think that is all I want to say at this stage. I give the general trend of this Bill my favourable comment, but I ask your Lordships to remember that we are passing through times when the 554 very concept of the criminal is far different from what it was many years ago: nowadays, it is recognised that the criminal is not an anti-social person so much because he is wilfully destructive or criminal in intent, as because there is in him a measure of—how can one put it?—lack of control, often due to circumstances not within his own control. Indeed, a consultant psychiatrist told me only the other day that he was quite sure that, of those he was to visit at Wormwood Scrubs just about now, four out of five that he would be examining had a history of some bad early home upbringing; some bad parentage, if you like; some kind of fault in the home that conditioned these chaps into a state in which they found themselves at cross-purposes with the police force.
Therefore, one sees with a good deal of interest and a good deal of hope, references in the 1961 Report, Prisons in Scotland, to increasing steps that are being taken—and not merely to get supervisors. I am, if I may say so, a little sceptical about the worthiness of supervision by those whose training may be good, up to a certain point, but not adequate for the particular purposes for which they are appointed. One does ask oneself whether the supervisors themselves ought not to be under some measure of supervision in order to ensure that they are doing their job adequately—and an important job it is.
I should like to convey to your Lordships my own personal impression, and what I believe to be the impression of my colleagues, especially those who come from Scotland, on this whole matter. We are certainly faced, in these troublous times, with problems with which we feel it is now a public duty to cope. We cannot do too much in order to counteract the harm to society caused by these people, unless some public remedy is taken in the way of making our citizens better than they are to-day. Let us remember always that we are dealing with a very small minority of people, rather than with the generality.
§ 4.1 p.m.
§ LORD CHORLEY
My Lords, I hope that my Scottish friends will forgive my intrusion into their little "tea party". It is sometimes regarded as not quite tactful for an Englishman to interfere in 555 Scottish affairs. I might say, my Lords, that up to a point I have been encouraged to take part in this "tea party" owing to the absence of my noble friend Lord Hughes. But I was very happy to do so, because this Bill deals with a problem in which I am very interested, and perhaps particularly so in my capacity as chairman of quarter sessions in a Northern county. The Bill is, of course, a non-controversial measure, as the noble Lord, Lord Craigton, indicated, and, while I am not sure I go quite so far as he does in the encomium he paid to it, I do agree that, on the whole, it is a Bill which deserves commendation. There are blemishes in the Bill, many of which, I hope, may be removed at the Committee stage.
I am particularly glad to see that this Bill gives a lead against what I personally regard—and I think most people who are interested in penology would agree with me—as the pernicious habit of passing short-term sentences on prisoners. This has been condemned by people who are really concerned with this problem, and yet magistrates up and down the country—and I am sorry to say that this is particularly true in Scotland—have never, in my view, given adequate attention to the dangers of this system of short-term sentences.
As chairman of quarter sessions in a Northern county, I frequently have had to deal with lads who stray across into our part of the country, where they get into mischief and are brought before my bench. In the great majority of these cases there is a history of short sentences—two, three, four, and even more, sentences of two, three, or up to six months' imprisonment. So much is this so that when we retire into our room, one or other of my fellow magistrates almost invariably makes a sarcastic comment to the effect: "One of these Scottish short-sentence cases again!" I see from the excellent Report of the Scottish Advisory Council, Use of Short Sentences of Imprisonment by the Courts, that in 1958 no fewer than 11,000 offenders were received into prison to serve these short sentences. This represents 90 per cent. of the whole of the prison population—a very high proportion—compared to a figure of 70 per cent. in England. That is a very remarkable difference, if I may say so. I do not wish to hold up the 556 English as being perfect in this regard, because I think that far too many of these short sentences are passed in England as well.
My Lords, would the noble Lord forgive me? Is there an official definition of what is a short sentence? It seems to me that at the receiving end a nine months' sentence is quite long.
§ LORD CHORLEY
The Council, I think, took six months. There is no official definition, but they regarded six months as being a short sentence. That, in effect, means four months, because, on the whole, such prisoners earn remission, which is one-third of the sentence. So that in most cases the sentence served comes to four months.
My Lords, the Scottish Advisory Council backed the opinion of penologists generally, I think, when they said (I quote from the Report) that:… the short sentence has only limited value …I think (they might have used a very much stronger expression than "only limited value". I should have been prepared to say that, in very many cases such sentences were bad, if not pernicious, in that frequently they have the effect of manufacturing criminals. Going in and out of prison every few months for periods of three or four months, I think your Lordships will agree, is likely to have the effect of manufacturing criminals, because it means consorting all the time with the criminal population.
The truth of the matter in Scotland, as the Council bring out very clearly, is that the probation system is not sufficiently used. It is not used to anything like the same extent that it is in England. I think this comes out very clearly on page 17 of the Report. I have the impression over a number of years—it may be that it is a wrong impression—in dealing with cases of this sort, that these short-term sentences are frequently passed as a matter of routine by the magistrate responsible, without any real thought about the effect of such a sentence and as to what perhaps would be a more appropriate method of handling the young criminal in question. Such sentences are often, perhaps, imposed with a feeling, "He is a bad lad and 557 ought to be punished." That is a very short-sighted policy, something one would have thought that, in this century, we were getting away from—and I believe that the Advisory Committee feel that to some extent that is happening in Scotland. Yet, according to the figures issued by the Council, no fewer than 1,500 first offenders were dealt with in this way in 1958. That is a very substantial figure, when we put it against the total population of Scotland and the total prison population. No fewer than 1,114 young people of under 21 were dealt with in this way. It really makes one ashamed—or it should make one ashamed—that these sentences are still being imposed, or were still being imposed as late as the year 1958.
I am very glad indeed to see that this Bill takes care of these youthful offenders in the same way as has been practised in England now for twenty or thirty years, in that a youthful offender of this age must not be sent to prison by a magistrate without a certificate that, in his opinion, there is no other possible effective way of dealing with the person in question. That brings the magistrate up against the problem, and prevents his dealing with it in that routine sort of way which I have the feeling has so often been adopted by the Scottish courts with these young fellows. Even with the older first offenders, I should like to see something of the kind, although I can appreciate the difficulties standing in the way of so doing. It is not easy to frame a requirement, particularly in an Act of Parliament, which would insist that nobody shall be sent to prison unless that is the only effective way of dealing with the case. I am not suggesting that the short sentence is altogether bad; there are cases where no other remedy is available. But I am suggesting that it is used far too much: in Scotland particularly, and also in England. This, I think, appears very clearly from the Advisory Council's Report.
§ LORD STONHAM
My Lords, would my noble friend allow me to interrupt? There has been no difficulty in defining the circumstances, in England and Wales, in the First Offenders Act for adults. The magistrates have to show reason why they send first offenders to prison.
§ LORD CHORLEY
My Lords, that is just what I am saying, and this Bill applies just to Scotland. To this extent I think it is a very considerable advance, because in my view, obviously, many of the Scottish magistrates have not approached this problem with that attitude of mind. It may sometimes be very right to use a short-term imprisonment, so to speak, for the purpose of backing up the probation officer, giving a lesson to the probationer who is kicking over the traces. In my view the golden rule in sentencing is to keep a man out of prison as long as is reasonably possible, and I think that more and more magistrates are coming to that conclusion.
For prison is an expensive business. It is expensive both positively, in that it costs the community a great deal of money to keep a man in prison, and negatively, in the sense that his services to the community as a workman are suspended during the time that he is in prison. And, at any rate in the short-term sentence cases, it has no reformative effect whatever. Of course, in long-term sentences it is possible—and the whole system is now directed to the aim of trying to do this—to reform people in prison. But reforming a man in prison is a very difficult job. The surroundings are bad, many of the people with whom he is consorting are bad bits of leather, and I think it is very much easier to reform him outside. A good probation officer has a very much better opportunity of doing so than the prison officers, however wholeheartedly and self-sacrificingly they may be trying.
The Advisory Council rather took the view that many of these short sentences are imposed because the court has no power of sentencing for longer periods. I doubt whether this is quite as often the case as they think, but no doubt it is so in a substantial number of cases. I think that the increased power of sentencing up to twelve months, which the Bill provides, is a considerable improvement on the present position, and I am glad that the Government have accepted the view of the Council to that effect. The Council are satisfied that other penal methods are more effective than the short sentence, and I a sure that they are right about that.
It is rather interesting to notice that at one stage in their Report they draw 559 attention to the fact that the statistical officer at the Home Office, Mr. Wilkins, found in an investigation he made in connection with house-breaking offences and offences of violence, that the English courts sentenced on an average to three-and-a-half times as long terms as the Scottish courts. You may say that the English courts are altogether too rigorous, perhaps, but it has seemed very significant to me that so many of these young fellows who have come before my own court have, in fact, been sentenced to the short terms in respect of just this sort of offence. It is the type of offence which needs to be dealt with pretty severely, and my impression is that the longer and severer sentences of the English courts are probably more to the advantage of justice than the procedure which has been followed in Scotland.
The Council point out—and I am sure that they are right—that in many cases a swingeing fine is more likely to be effective than a short term of imprisonment. It teaches the lad a lesson, and it does not deprive the community of the value of his work. It means that he continues at work, and he may, in fact, work harder, because he has to pay the fine and in order to get rid of it he may be prepared to work overtime. In that way the community, at any rate, does not lose his services and may gain as a result.
Often fining has not in recent years been effective, because of the decline in the value of money, as the noble Lord pointed out. I am therefore very glad indeed that in putting up the maximum of these fines a pretty generous attitude has been taken, so to speak, and the maxima have been increased by four and five-fold, which certainly will enable the court to impose really swingeing fines, instead of the rather negligible amounts which have been imposed of recent years. But I feel that some effort will have to be made to bring home to the magistrates that they have now got these powers, and some encouragement given to them to use them. I frequently have found, particularly in country districts, that magistrates still think in rather old-fashioned terms, and by no means always impose up to the limits of the present possibilities in respect of fines. It is absurd to find in respect of quite serious offences fines of £3 and £5 being imposed on men who are earning £20 or 560 £25 a week, and even more. It is a bagatelle, and I hope that the magistrates will take advantage of their new powers, and will make an effort to punish by means of these fines.
My Lords, I do not want to say a great deal more. I think that the provisions in some of the clauses in the middle of the Bill giving greater elasticity—which I believe exists already in England—in respect of transferring young offenders from one institution to another, to which the noble Lord referred, are of very great value. Not only in prisons and reformatories, but outside the sphere of criminal justice altogether—in workshops and factories—it is astonishing what an evil effect two or three people can have throughout a large institution. We often see that great strikes are brought about because of a little knot of disaffected men, and that is undoubtedly a difficulty which the people who are in charge of approved schools, borstals and other institutions of this kind, have all the time to meet. The best and most self-sacrificing efforts of the housemasters and others may be entirely ruined as a result of two or three bad lads in the institution. If they can be picked out and got rid of, it may make all the difference. I am very glad, therefore, to see that these powers of transfer are now provided in this Bill.
Finally, I should like to refer to the proposed increase in the possibilities of supervision after release. I think that the extension of this to people who are released after short-term sentences can be of considerable value, but, again, it must be used with discretion. In many of these cases it ought not to be used, and if it is used it may very well have the reverse effect to that desired, because many people come out determined to go right, and they will resent what they feel is an extension of the punishment by putting them under supervision for twelve months. I think that, as in all modern penology, the thing must be fitted to the individual man himself, rather than imposed in a routine way. The great danger with all these things is doing them in a routine way and not having regard to the personality of the man in question. But for a certain type of young fellow, it is of the greatest value to keep him under control after he has been released from the prison or the institution, such as it may be.
561 The Bill is not very explicit about who is going to do the supervising. It says that he can be released to a society or can be released to an individual. I should like to see the probation officers brought into this very much more. I am not altogether pleased with some of these after-care societies. Many of them do very valuable work, undoubtedly, but quite often there is some religious slant about it, or something of that kind, which the lad does not like and which may upset him and destroy the whole value of it. In some cases, no doubt, it is the best thing, but by and large the probation officers are the people who are trained in this sort of work. Very often it will mean a man's going back to a probation officer with whom he has been in the habit of working and who he knows is taking a fatherly interest in him, and that would be very much the best way of handling it. So I hope the Government will be able to see their way clear to bring the probation service into this side of the business a great deal more than appears at first sight to be contemplated by the Bill. With those remarks, it gives me great pleasure to welcome this Bill, and I hope it will be as successful in practice as it appears, on paper, that it will be.
§ 4.22 p.m.
§ LORD GUEST
My Lords, I intervene in this discussion only to give, as a Scots lawyer, my general support for the provisions of this Bill. I might say that I would hesitate to describe the noble Lord's introduction of this Bill as being in a mushroom cloud. Personally, I thought—and I hope your Lordships will agree—that his exposition was extremely clear and helpful. So far as Parts I and II of the Bill are concerned, these are matters of policy upon which I wish to say nothing except that I think Sheriff Harald Leslie deserves congratulation for the excellence of his Report and for the thoroughness with which he went into all the matters which were concerning him. I have only a few comments to make upon some of the other clauses in the Bill.
Clause 16 extends the sheriff's power of imprisonment on summary trial to one year in the case of persons who are convicted of an offence involving dishonest appropriation of property for the second time—that is, a second offence, with one previous conviction. The 562 sheriff's summary powers at present are limited in general to imposing three months' imprisonment, and in 1954, by the Summary Jurisdiction (Scotland) Act of that year, his powers were increased to the imposing of six months' imprisonment for this offence where there were two previous convictions and certain other offences—namely, those involving personal violence. It is now proposed, under this clause, to increase the sheriff's power in connection with offences involving dishonest appropriation of property, upon a second conviction, to imprisonment for one year. That power is given to a sheriff only in regard to statutory offences, and in Common Law it is as I have already described.
I wish only to sound a note of caution in this connection. In Scotland, unlike in England, an accused person has no right to elect to go to jury trial. As we describe it in Scotland, the Lord Advocate is master of the instance. It is for him to decide, either through his advocates depute or through the procurators fiscal, in what form the prosecution is fit to take place. I think it would be desirable—and I put this forward to the noble Lord for his consideration—that, in cases involving serious issues of credibility which would now normally go to trial by a sheriff upon an indictment (that is, for jury trial), then, notwithstanding the sheriff's increased powers, they should still go to jury trial. I say that for this reason: that it seems to me to be fair that, in cases where serious issues of credibility are involved, the accused should have the opportunity of a trial by his peers, and should be given the wider right of appeal which is given to those convicted on indictment: and, if it were thought desirable, I think it would be welcomed that the Lord Advocate should possibly give such as assurance as that.
Clause 30, which is the one which has already been spoken to by the noble Lord, involves a radical departure from Scottish criminal practice. At present, the practice in Scotland is to libel in the indictment cognate offences as aggravations of the offence which is being charged. That practice is now to cease under subsection (1) of Clause 30, and, as a corollary, the prosecutor is given power to put before the court any previous convictions, even though these may not be cognate to the offence charged. I 563 pause here to observe that in Scotland, unlike in England, previous convictions are not before the judge before the accused has been found guilty. We consider that this is a good practice, because it prevents any possible bias in the mind of the judge in assessing the accused's credibility before the jury have arrived at their verdict. I realise that there are two views upon this matter, and that the practice in England differs. I do not wish to be contentious about it, but I am personally relieved that the Scottish practice of preventing previous convictions from coming to the knowledge of a judge before a verdict of "Guilty" is being preserved.
Under this Bill, as will be observed from this clause, after a verdict of "Guilty" the prosecutor is allowed to put the whole picture of the offender's record before the court in order to enable the judge, before sentencing the accused, to be in possession of all the history, so that the most appropriate punishment may be meted out. It may be thought that this is a wise provision and would aid rehabilitation, because it may well be that an accused person has been sentenced for an offence wholly dissimilar to the offence with which he is charged, and it may not be irrelevant to inquire as to the reaction of the accused to the sentence imposed after that previous conviction when sentencing him for the offence with which he is charged and which is wholly dissimilar. I feel certain that procurators fiscal will exercise a wise discretion in deciding what previous convictions should be laid before the court, and will not pile up these against an accused person so as to act to his detriment.
The next clause which I wish to make comment about is Clause 35, and that is a clause which gives power to a constable to search for forfeited articles. He is given this power without the necessity of obtaining a warrant; and he is also given power, in his search for forfeited articles, to open lock-fast places. This is a considerable inroad upon private rights. Normally, a search warrant is required from a magistrate, and this is a safeguard to the liberty of the subject. Under the proposed clause, a constable could, at his own hand, open a lock-fast place without any warrant and merely say that he was searching 564 for forfeited articles. The noble Lord did not indicate what necessity there was for this clause, and I would suggest for his consideration before the Committee stage that the matter might be looked into with a view to considering whether some limit should be put upon a constable's powers in this connection. For example, it might be thought suitable that, (before a constable was authorised to search and to open lockfast premises, he should have the warrant or authority of the chief constable. There is precedent for this in the Prevention of Crimes Act, 1871, Section 16, in the case of a search for stolen property, which is a somewhat similar problem.
Finally, my Lords, I wish to say just a word in regard to Part V, Clause 47, which brings into operation in connection with criminal proceedings the provisions of the Legal Aid (Scotland) Act, 1949. Scots lawyers, I am certain, will welcome this Part of the Bill. For too long have Scots advocates and solicitors laboured under a disadvantage vis-à-vis their English brethren, in defending criminals who have no means. From time immemorial in Scotland advocates and solicitors have given free legal assistance to persons accused of serious crime. Recently this has been seen to operate as a severe hardship to the profession, who have often to pay out-of-pocket expenses and receive no fees for their professional assistance. It was recognised by Parliament in 1949 that legal aid should be given in these cases, but it is not until this year, 1962, that it has been thought suitable to apply this Act to Scotland. And, as I say, I feel that Scottish lawyers will welcome this as a reform long overdue.
§ 4.32 p.m.
§ LORD CRAIGTON
My Lords, I am grateful for the welcome given to this Bill. I will follow Lord Greenhill's suggestion in not making a long speech in reply. I will try to answer specific points, and we can get down to details in Committee. There are, however, one or two points to which I should refer. The noble Lord, Lord Greenhill, referred to the SACTO recommendation which he felt would take away the custodial powers of the inferior courts. I should like to point out that this recommendation was not accepted by the Government. The Government think that a 565 court should normally have sufficient powers to deal with the offences it is empowered to try. SACTO would have reduced the inferior court's power while maintaining its jurisdiction. Instead, in the Bill we have increased the inferior courts' powers, inasmuch as the Bill enables them to send to a detention centre for three months, although otherwise they can only sentence to custody for 60 days.
The noble and learned Lord, Lord Guest, raised a very important point, in expressing misgivings about the extension of the powers of imprisonment of the sheriff court in Clause 16, particularly on the grounds that where there was real doubt about the credibility of the evidence against the accused he might be deprived of: the safeguards arising from prosecution under solemn procedure. I can assure your Lordships—and the noble Lord gave me notice he was going to make this point—that the Lord Advocate intends to issue to procurators-fiscal instructions that in any case to which Clause 16 applies, where they are aware of any real doubts about the credibility of the case against the accused person, they should refer the case to the Crown Office so that a decision can be taken as to whether the proceedings should be under solemn procedure.
The noble Lord, Lord Chorley, whose speech I enjoyed so much, referred to short sentences, I am sure we all agree that short sentences, particularly in the case of persons who have already been detained for other offences, do not allow an opportunity for remedial treatment. The difficulty, of course, is to find alternatives. The Bill does increase the possibilities of using alternatives: I will go no further than that. First, powers of fine are increased in Clause 26; secondly, Clause 16 increases the sheriff court's powers of imprisonment in some cases, so as to avoid the necessity for short sentences. Thirdly—and the figure of 11,000 quoted by the noble Lord includes 4,000 imprisoned for nonpayment of fines—there are provisions in Part III improving the machinery for the enforcement of fines. I must also mention Clause 1 (1) which requires the court to consider all the alternatives before sentencing a young offender to detention.
The noble and learned Lord, Lord Guest, referred to the differing practices 566 in England, and it is perhaps one of the finest examples of the flexibility of the Constitution of the United Kingdom that, 250 years after the Treaty of Union in 1707, we have within one State two separate systems of law, each satisfactory to the inhabitants of the country to which it applies. I sometimes wonder whether, if we undertook a careful study of each other's system, both systems might not benefit. And this is something that should be done sooner or later.
In much the same context, the noble Lord, Lord Chorley, made comparisons with England and welcomed the cross-Border provisions. There has been some cross-pollination between the English and the Scottish law. It is always going on. In the last few years there have been several examples in which the Scots law has been taken to the improvement of the English law; for example, diminished responsibility and the attachment of wages. This Bill shows signs of the reverse process—in Clauses 25 and 30 and in the linking of the cross-Border provisions covered by Clauses 26 and 40. We are learning from each other and learning to get closer together. This is a point we should all bear in mind: there is more to be learned from each other.
The noble Lord, Lord Greenhill, saw some politics in the powers to appoint two more Judges. I can assure him that that is not so. It is a question of sheer volume of work; and in any case it is only the power to appoint: the decision on appointments has not yet been made. On Clause 16, the noble Lord, Lord Greenhill, said—and I think he is right—that this is a major change of policy. But my noble and learned friend, Lord Guest, adequately answered the point, and there is nothing more I shall add. Finally—and it is always good to finish a Second Reading debate on a satisfactory note—I appreciate what the noble and learned Lord, Lord Guest, said about Clause 35. In principle, I agree with him, and I will see to it that an Amendment is put down at the Committee stage to try to take up the point he has made and for which I am very grateful.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.