HL Deb 29 November 1962 vol 244 cc1307-19

3.28 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Craigton.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1:


(3) Where a court of summary jurisdiction other than a sheriff court or a stipendiary magistrate's court imposes detention on an offender under twenty-one years of age, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and the reason shall be entered in the record of the proceedings along with the finding and sentence.

LORD HUGHES moved, in subsection (3), to leave out from "jurisdiction" to "imposes". The noble Lord said: In Clause 1, subsection (3), it is laid down: Where a court of summary jurisdiction other than a Sheriff court or a stipendiary magistrate's court imposes detention on an offender under twenty-one years of age, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and the reason shall be entered in the record of the proceedings along with the finding and sentence.

It seems to me that this is a very worth-whlie change in the law. It presupposes that imprisonment or detention should be imposed on someone under the age of 21 only in exceptional circumstances; and, in furtherance of that, that it is reasonable, presumably for the guidance of judges or magistrates thereafter, that they should know what these exceptional circumstances were.

That being the case, I cannot see that the principle should be brought into operation only if the man has appeared before a police court or a bench of justices of the peace. I think that it ought to be applied generally in summary courts, even though in the two cases excepted, in the sheriff court and the stipendiary magistrate's court, these are not lay magistrates but are qualified legal judges. If my Amendment were accepted, it would mean that in all summary court cases there would be a record laying down for subsequent guidance the exceptional circumstances in which imprisonment or detention had been imposed. It is for that reason that I now move this Amendment.

Amendment moved— Page 2, line 9, leave out from ("jurisdiction") to ("imposes") in line 10.—(Lord Hughes.)


May I ask the Minister whether this proposal is peculiar to Scotland or whether a stipendiary magistrate in England has this privilege? I just do not remember. I do not remember this being in the English Act.


The noble Lord, Lord Hughes, has argued that in cases where the detention of a young offender seems to be the appropriate sentence, the requirement on a court of summary jurisdiction to starte the reason for its opinion and to have that reason entered in the record of its proceedings should be applied also to the sheriff summary court and to the stipendiary magistrate's court. I feel I must tell the noble Lord that the Government do not feel able to accept this Amendment. The reasons for that decision are these. The purpose of requiring counts of summary jurisdiction to state and record their reasons when they decide how best to deal with young offenders is, as the Committee will be well aware, and as the noble Lord pointed out, to make sure they give due weight to the provision of Clause 1, subsection (1), of the Bill, which states that detention should be imposed only after all other alternatives have been considered. If this requirement were not there, the Government feel there might be a danger of courts being unaware, or at any rate vague, about the provisions of Clause 1, subsection (1), and possibly passing sentence in ignorance of them.

However, as the noble Lord mentioned, the position of the sheriff summary court and the stipendiary magistrate's court is different. These courts are staffed by legally-trained, professional judges, and in the Government's view there is no danger that they will be unaware of the provisions or fail to give them due weight. Art the same time I must make it clear that this is in no way a reflection on the ability or integrity of lay burgh magistrates or justices of the peace. It is merely an acceptance of the fact that sheriffs and stipendiary magistrates are legally qualified persons. I must also remind the Committee that Sheriffs operate as judges in Scotland under both solemn and summary procedure. In each case, the sheriff is the sole judge of sentence, it would surely be anomalous in the case of the same judge to require him to state his reasons if sitting in summary procedure but not so to require him if he were sitting in solemn procedure.

Will the noble Lord, Lord Chorley, repeat his question?


My memory does not allow me to remember whether this applies in England to courts of stipendiary and metropolitan magistrates, which, after all, are courts of summary jurisdiction.


Yes. In England it does apply to stipendiary magistrates. Of course, as the noble Lord is aware, the situation in England is that the vast majority of courts are staffed by lay magistrates. Therefore the Government have not felt that in this case they need follow the English procedure, because in Scotland fully half the summary cases, the most serious half, are tried by the sheriffs. There is in Scotland a distinction between the two types of court. These briefly are the reasons why the Government are resisting this Amendment. Moreover, we are endorsing the decision taken by the Labour Government in 1949 when the same point was discussed during the passage of the Criminal Justice (Scotland) Act, 1949. I hope therefore that, on reflection, the noble Lord will consider, as we do, that his political colleagues in those days showed wise judgment in resisting the Amendment.


May I say a word about this? We feel the noble Marquess's reply is a quite unsatisfactory one. Whatever was decided in 1949 a good deal of water has flowed under the bridges since then, and it is absurd to suggest that stipendiaries and metro- politan magistrates in this country do not deal with a very large proportion of the cases. After all, in the London district there are hundreds of these cases and the great provincial capitals have stipendiary magistrates too, and it seems to me ridiculous that an obligation which is quite properly imposed upon these professional lawyers—they are just as much professional lawyers in England as they are in Scotland—should not be applied in Scotland too. I myself cannot see there is any reason why, because a man happens to be a professional lawyer, he should not bring his mind to this point and give a reason in this sort of way. It brings home to him the fact that the law requires him to do it; and I should not in any sort of way myself, as a lawyer of considerable standing, feel I was being slighted if an obligation of this kind were put on me, as indeed I have never heard any metropolitan magistrates or stipendiary magistrates in England ever suggest they were slighted. It seems to me all the more reason why the rule should apply in Scotland as in England.


Before raising the point I wished to raise, I should like to offer my congratulations to the noble Marquess, this being the first occasion on which I have seen him at the Box in his capacity of junior Minister. My reason for rising at all is this. I am not at all questioning the ability of stipendiary magistrates or sheriffs to write their reasons for coming to a certain decision in cases of this kind. I am rather concerned with the implication on the ability of police judges and justices of the peace, in both of which capacities I have served, that they perhaps are not capable of giving the reasons for the decisions they arrive at. I only want to say that, even if that were the reason, some of us in our early days were advised that, whereas your decision may be perfectly right and just, the reasons you give for your decision may not be.


I find the noble Marquess's reasoning very difficult to follow. He argued that because the sheriffs are legally trained, therefore they should not disclose reasons for their actions. I would ask whether this is because they act irrationally and have no reasons or whether their reasons are so bad that they are not fit to be disclosed. Those are the natural inferences the public will draw. Surely the argument is not one relating to the sheriff's knowledge of the law or his ability to observe it. Surely the argument for disclosing reasons is for the satisfaction of the accused person and his friends, and for the satisfaction of the public at large, that both justice and mercy are being duly considered.


May I thank the noble Lord, Lord Greenhill, for his kind references to myself? I should like to repeat what I said in my opening remarks, that there is absolutely no reflection at all on the ability, integrity, knowledge or wisdom of lay justices in Scotland. We are merely accepting the fact that the sheriffs are legally trained people. I would make that quite clear. I would not want him to think that we are in any way slighting lay justices in Scotland or indeed in England or Wales. Regarding the point of the noble Lord, Lord chorley, this has been very carefully considered and I do not think I can go further to-day than to say there is not a great deal of parallel between the two countries, because there are, as he knows, no sheriffs in the English system. I hope, therefore, that the noble Lord will not press me.


I should like to associate myself with what my noble friend Lord Greenhill said in congratulating the noble Marquess on his getting in at the deep end. There has been reference to bailies. I would remind the noble Marquess that it is the tradition in Scotland, when a bailie appears on the bench for the first time, for the powers-that-be to arrange that a suitably innocuous case wild be the first one to appear before him, so that he can be generous and let the man off with an admonition. I carefully found a simple Amendment to put down, in the hope that a Minister appearing for the first time would be given an opportunity for similar generosity. In the hope that the precedent will not be lost, I would just say that, while I am prepared at this stage to withdraw my Amendment, I do not accept that it should finality go, because, like my noble friends, I think that the reasoning advanced by the Gov- ernment is sound but that they have not perhaps considered this matter as fully as they might have done.

While it is true that a police judge or bailie is a lay magistrate, he is advised on matters of law by a legal assessor, who keeps him right on all points and who makes perfectly clear to him what he can and cannot do in the matter of imprisonment or detention; so that, from this point of view, there is a great similarity between the police court and the court of the stipendiary magistrate, of whom there are very few in Scotland. By and large, the stipendiary magistrate does much the same work as the bailie, the police judge and the justice of the peace. I do not put this forward as a justification for the legal ability or wise judgment of bailies, as against what would be done by a sheriff or stipendiary magistrate. It seems to me that the Government, by accident or otherwise, have stumbled on a good provision to put into the law and it seems to me to be so good that they ought not to limit it only to the police court and the court of the stipendiary magistrate, but should take greater advantage of their own wisdom. In these circumstances, I will withdraw the Amendment at this stage, but I ask that the Government will give the matter further consideration before the next stage of the Bill.

Amendment, by leave, Withdrawn.

On Question, Whether Clause I shall stand part of the Bill?

3.43 p.m.


I should like to make one or two observations of a rather more general character. We have been debating the obligation placed by subsection (3) upon the court, in cases where offenders under 21 years of age are sentenced to imprisonment, to give its reasons for its decision. I have never been able to see why in cases of sentencing generally the court should not be required to give its reasons. In almost all cases, at any rate in English courts, the court does give its reasons, and at some length, so that not only the prisoner but everybody else is aware of the reasons for the sentence. I should like to see this made obligatory in connection with all sentencing.

I was interested to find, in an article by an Israeli judge, which appears in the current issue of the British Journal of Criminology, that the law in Israel requires that reasons shall be given in all cases. It is not limited to cases of young people under 21 years of age. It would be most valuable to sentencing courts, when they came to deal with a man up for some offence, to know the reasons that have been given for previous sentences.

As chairman of a quarter sessions, I have often felt this difficulty. I felt inclined to put down an Amendment on this point, but this is a Scottish Bill and it seemed to me unwise for an English Peer to intrude; and perhaps, because this is a wider proposal, it might be better to air it and hope that in a little time notice will be taken of it and that it will become the law of the land. It appears from the Report of the Streat-feild Committee (paragraphs 304–305) that they go some distance in this direc-tion. They suggest that the sentencing court should be entitled to have information provided as to how the sentence which they have imposed works out—in effect, that they should be kept in touch with the way a prisoner is getting on. It would seem that we are getting to the position which Samuel Butler suggested in his famous book: that from many points of view crime is a disease, and the physician ought to be kept in touch with the patient.

If I may, I should like to give an illustration by quoting a case which came before my court recently, one which shows how valuable it might be to have material of this kind. We had before us a man with a bad record, which qualified him for preventive detention. He almost certainly would have received a sentence of preventive detention, if it had not been for the fact that the warden of the hostel to which he had been released on licence for a period wrote to the court to explain how well this man had been doing for months, and that, but for the fact that he had come up against one of his old prison comrades, who led him away, so to speak, he would have carried on with the useful work he was doing in a local workshop. The warden went on to say that if he could have him back after not too long a sentence, there was a good chance of doing something for him. Obviously, that made a good deal of difference to the bench, and instead of sentencing him to preventive detention, we decided to give him a shortish sentence, so that he would be able to go back to this hostel. Not only was it of great value to us to have this information before us in reaching our decision, but obviously, if the man failed again, it would be of great value to the next court dealing with him to know what happened in my court only the week before last. If the reasons for sentencing could be made part of the records, it would be of great advantage. I beg your Lordships' pardon for bringing before you something which is perhaps a little extraneous, but I think that it is something which ought to be borne in mind; and perhaps in due course, the Government will take it up and decide to make it part of the law of the land.

Clause 1 agreed to.

Clause 2 [Young offenders institution]:

On Question, whether Clause 2 shall stand part of the Bill?


should like to comment on Clause 2. I apologise for not being present at the Second Reading, but unfortunately I had a delegate conference to attend. This proposal for having some institution to which young offenders can be sent is an admirable one. It arises out of the Report of the Advisory Council on Custodial Sentences for Young Offenders, but there seems to be no indication in the Bill of the kind of institution that was thought of. I hope very much that this will be something really new in the approach to this type of offender and not just a new type of sentence using old buildings which were previously used for sentences of another kind. I am thinking of the detention centre in Perth, which is housed in the old prison and which, although it does splendid work, would be much better if it could be in less prisonlike conditions. I hope that when this institution comes to be set up, something imaginative and constructive in the way of conditions under which these young people live will be thought of and that we shall not be faced with the position of using old institutions, painted up to look different, when in fact they are identical. I hope that on this we may have some hopeful and original thinking about the type of institution that is to be provided.


I wish I could give the noble Lady the answer that I know she would like, but this Bill, as I said on Second Reading, sets a pattern for the years to come, and one of the great difficulties is to provide the bricks and mortar to build the institutions that we shall have in the end. We need a young offenders institution now. The only building we can employ is the Dumfries Borstal. Although I can give an undertaking that we will do the best we can, the noble Lady and I both know what happens when yon have to take the only available place. I take careful note of what she has said, and I agree with every word of it. When we come to build new young offenders institutions, we must make them suitable for the job that they are meant to do. In the meantime, we must make the best of what is immediately at hand and, as I have said, that is the borstal institution at Dumfries.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4 [Term of detention and supervision under a sentence of borstal training]:

On Question: Whether Clause 4 shall stand part of the Bill?


I have one small query on this clause. In subsection (1) there is a reference to "section 33 (2)", and in subsection (3) there is a reference to "section 33 (4)". Why, therefore, in subsection (2) do we talk about "under subsection (3) of the said section 33"? Why is the same pattern not followed? Is it merely to introduce a little light variety?


I could not answer that without notice.


I thought that generally the draftsmen had a passion for tidiness, and it seemed that if two to one was a good ratio, they might achieve unanimity in this clause.


If there is anything wrong, I will have it put right. But I think it is right.

Clause 4 agreed to.

3.53 p.m.

LORD HUGHES moved, after Clause 4 to insert the following new clause:

Amendment of Prisons (Scotland) Act, 1952 .Section 34 of the Prisons (Scotland) Act 1952 (which authorises the temporary deten- tion in other premises of persons requiring to be taken to a borstal institution) shall cease to have effect.

The noble Lord said: This Amendment is to insert a new clause taking out of the Prisons (Scotland) Act, 1952, the power to lodge persons intended for a borstal institution temporarily in other premises. It may be that the Government have sound reasons for not putting this Amendment in the Bill, but as they have not stated anything about this particular recommendation of the Advisory Committee other noble Lords, as well as myself, will be completely in the dark on this matter. It was a point in which the Committee on Custodial Sentences for Young Offenders expressed themselves quite strongly. With your Lordships' permission, I will read what they had to say on the matter. It is in paragraph 62 of the Report, where it says: The authority given in section 34 of the Prison (Scotland) Act, 1952, for the detention of borstal inmates in premises other than a borstal institution, until such time as they may be transferred to an institution, should be withdrawn. It is most desirable that the young offenders should go direct from the court to begin the training which he has been ordered to undergo and that he should not have experience, however short, of any prison or penal institution other than a borstal institution.

As I have said, the Report indicates that the Committee felt fairly strongly on this matter. It seems a reasonable proposal to put forward, and, as the Government in the matter of these Reports have felt it possible to accept virtually everything else that the Committee have recommended, it may be that there is some sound reason for not accepting the recommendation in this case. I would hasten to add that I should not necessarily consider it a sound reason that the Government have not provided enough facilities. I beg to move.

Amendment moved—

After Clause 4, insert the said new clause.—(Lord Hughes.)


I am grateful to the noble Lord for giving me an opportunity to explain why we did not act on this recommendation. If he will look for a moment at the present practice, he will see that it is that after conviction and before sentence a boy is sent to a remand institution. This is at present a prison, but in future it will increasingly become a remand centre. He is sent there for a suitability report, and once the borstal sentence is passed the offender is passed to a remand institution pending the finding of a place for him. Exactly how long it takes to find a place has varied over the years. The number of youths received into borstal increased from 257 in 1955 to 328 in 1960, and to 404 in 1961. It is hardly surprising, therefore, that while until 1958 the waiting period was seldom more than 14 days, during the next two years lads were kept in prison sometimes for two months or even longer before going to borstal. In 1961 the situation eased and the period dropped to between 7 and 14 days. But during the last three months the rate of committal to borstal has increased, and the present period is about 3 weeks.

The majority of lads are kept in Barlinnie, where they are in a separate section, out of contact with, but not out of sight and hearing of, convicted adult prisoners. This is a state of affairs of which no right-thinking person can approve. I am sure the noble Lord will agree that the ideal is immediate transfer after sentence to borstal. But this cannot and would not be achieved by accepting this Amendment. The right and only course is for the powers to remain on the Statute Book, and for my right honourable friend, by good administration and new building, to ensure that they are used less and less, until they remain, as they should, only either for emergency use or for an overnight stop on a long journey, for which these powers will always be necessary.

On the question of administration, I can assure the noble Lord that my right honourable friend has taken, and will continue to take, every possible step to ensure that borstal institutions accept youths on as short notice as possible. Borstal training is necessarily a complicated function. It is sometimes difficult in the lad's own interest to give him at short notice the essential proper introduction to the busy and sometimes crowded institution which is to be the centre of his life for the next fourteen or fifteen months. All I can say is that the situation is vastly better than it was in 1958–59, and we will make the most strenuous efforts to effect further improvement.

On building, the problem undoubtedly will be eased when the new borstal at Noranside in Angus opens in April or May of next year. There will be 40 places at once, and room for extension up to 80 places. In view of the assurance that I have given, and because these powers are still necessary in any case for overnight detention, and still, regrettably, for those awaiting reception, I would ask the noble Lord to withdraw his Amendment.


The noble Lord says that if this Amendment were passed it would not affect the situation. Does he mean that, quite apart from the Prisons (Scotland) Act, there would be power to send these lads to prison? This section gives power to keep these boys in prison. When the noble Lord says that if it were repealed it would not affect the position he must mean that there are some other powers under which they could be kept in prison.


What I was implying was that the buildings are not there to do what this Amendment would require.


May I suggest that it really is wicked that this should be going on? I appreciate that there is this difficulty about buildings, but the whole object of borstal is to keep it apart from prison; and if the boy starts in prison at Barlinnie for two or three weeks the object is half defeated. The boy cannot understand that there is any difference. He is kept in prison for some weeks and then goes on to borstal. It is all part of the same business. He ought not to go to prison at all, and it ought to be possible to provide some houses. After all, most of the boys are not going to run away. It is true that some abscond, but the great majority do not. The whole object is to persuade them that they are not going to prison but are going to be trained. If you send them to prison for two or three weeks it breaks the thing at the beginning. I hope the Government will find a way round this problem. I am sure there are administrative difficulties, although they should not be insuperable.


I go nearly all the way with the noble Lord. Administratively we will do everything possible, but there must be provision to allow the boy to go into prison if there is no other way.


I think it would be churlish of me to insist on the Amendment in the circumstances. I had a strong suspicion that the reason why nothing was said about this subject on Second Reading was that the Government had a certain feeling of guilt in the matter. After all this time they are still in the position that they have to impose upon these young offenders a set of circumstances which, as the noble Lord, Lord Craigton, has said, is not one which any right-thinking person would seek to defend. In view of the noble Lord's statement that the place at Noranside will be available in the spring, it may well be that when this matter comes along after the lapse of these few months it will be possible for the Secretary of State, by administrative action, to ensure that advantage is not taken of this Section of the 1952 Act. In those circumstances, I beg leave to withdraw the Amendment.

While I am on my feet I should like to say that my noble friend Lord Morrison of Lambeth, who has now left for another engagement, was rather foxed by some of the references made in the discussion. He asked me what the noble Marquess meant when he talked about "solemn procedure". I tried to explain it, and I am glad I did, because my noble friend Lord Morrison of Lambeth was otherwise going to be under the erroneous impression that summary courts in Scotland were considered a mere frivolity.

Amendment, by leave, withdrawn.


I beg to move that the House do now resume.

Moved, That the House do now resume.—(Viscount Hailsham.)

On Question, Motion agreed to, and House resumed accordingly.