CRIMINAL JUSTICE BILL

HL Deb 03 July 1967 vol 284 cc376-485

3.45 p.m.

Report stage resumed.

THE LORD CHANCELLOR moved, after subsection (3), to insert: ( ) Any sheriff or other officer having power to summon persons to serve on juries in criminal proceedings shall send to every person so summoned a notice stating the effect of the foregoing provisions of this section.

The noble and learned Lord said: My Lords, I beg to move Amendment No. 10. The "sheriff or other officer" referred to in the Amendment is in fact the sheriff, in the case of assizes and county quarter sessions, and the clerk of the peace, in the case of borough quarter sessions; and sheriffs and clerks of the peace, as your Lordships know, are extremely responsible persons. An Amendment in somewhat similar terms was tabled by the noble Lord, Lord Brooke of Cumnor, at the Committee stage. I then said that it was arguable whether an Amendment to this effect was really necessary but that there was no objection to it in principle, and we would consider it, subject to any question of drafting. Having considered it, we have now been persuaded by the noble Lord's argument that perhaps, on balance, such a provision ought to be included.

I am told that for practical reasons it would not be possible to put the warning notice on to the summons, but it is intended that the warning notices should be produced centrally in standard form by Her Majesty's Stationery Office and made available, free of charge, to all summoning officers; and it is the intention that the warning notice should be sent in the same envelope as the summons. If that were done it would, I think, meet the point raised by the noble and learned Viscount, Lord Dilhorne. He is entitled to say that the draft does not make it mandatory for the warning notice to be sent in the same envelope, and I do not know whether he will be content with an assurance that that is what is intended. If not, and if the House were to accept the Amendment, I should be prepared to give an undertaking to look at that point again, because that could be dealt with on Third Reading if the House thought that the new subsection ought to provide for that as well. I beg to move.

Amendment moved— Page 11, line 40, at end insert the said subsection.—(The Lord Chancellor.)

VISCOUNT DILHORNE

My Lords, I think that this will certainly be a great improvement. I had hoped that it would be possible to accept the suggestion made by the noble Lord, Lord Rowley. I am a little puzzled as to why one cannot have a notice of this disqualification printed on the bottom of the jury summons. I should not have thought that that presented any insuperable difficulty. I think I am right in saying that when applying for a road fund licence, for instance, a motorist gets a notice stuck at the bottom of the form drawing his attention to the iniquities of having a radio in his car without a licence, and things of that sort. I should have thought the same principle might apply with regard to a notice of disqualification of this sort. But I welcome this Amendment, and perhaps further thought might be given to it between now and Third Reading.

LORD BROOKE OF CUMNOR

My Lords, I should like to thank the Government for having accepted in principle the idea of the Amendment which I moved in Committee. I will not seek to argue further the case of my noble and learned friend Lord Dilhorne, who has put his argument very well; but, in so far as the Government have by this Amendment met the point I raised, I am very much obliged.

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved, after Clause 14, to insert the following new clause:

Validation of verdict where juror disqualified

" It is hereby declared that the verdict of a jury in criminal proceedings (as in other proceedings) is not void by reason only that a member of the jury is disqualified from serving on the jury in those proceedings."

The noble and learned Lord said: My Lords, on the Committee stage of this Bill the noble and learned Viscount, Lord Dilhorne, raised the question whether it would invalidate the whole of the proceedings if, despite the new provisions of the Bill, a juryman sat who was in fact disqualified. I said in reply that I did not think that that was so, and I referred him to a particular case, which he said he would consider. Since then, I have considered this point further, and, while I do not think that there is any real doubt that the disqualification of a juryman would not invalidate the trial, it is clearly desirable to make certain about a point like this. It can do no harm to put it in, and the Government have therefore tabled this Amendment, which meets the point which the noble and learned Viscount raised. I beg to move.

Amendment moved— After Clause 14, insert the said new clause.—(The Lord Chancellor.)

VISCOUNT DILHORNE

My Lords, I should like to thank the noble and learned Lord the Lord Chancellor. I looked at the case to which the noble and learned Lord referred, and I remember an argument some time ago in this House in which it was said that a case which has not gone to the House of Lords may always be reversed when it gets there and really it is no substitute for statutory provision. That was the line of the argument. Quite apart from that, it would be desirable in this clause, dealing with disqualification, to have a clear statement as to what the consequences are should a juror sit when disqualified. It would be easy of access, should the occasion arise, for people who have to deal with the administration of the law. I am grateful to the noble and learned Lord the Lord Chancellor.

On Question, Amendment agreed to.

Clause 17:

Restrictions on refusal of bail

17.

(5) The foregoing provisions of this section shall not require a magistrates' court to remand or commit a person on bail—

(c) where he is charged with an offence alleged to have been committed while he was released on bail;

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STAIT, HOME OFFICE (LORD STONHAM) moved, in subsection (2) after "indictable offence", to insert: and is punishable on summary conviction with not more than six months' imprisonment".

The noble Lord said: My Lords, I beg to move the Amendment standing in the name of the noble and learned Lord the Lord Chancellor. Clause 17 deals with restrictions on bail, and this Amendment would enlarge the field of discretionary bail and thereby limit the field of mandatory bail. Subsection (2) of the clause which I am now seeking to amend provides at present that in cases of indictable offences triable summarily under Section 19 of the Magistrates' Courts Act, or a hybrid offence triable under Section 18 of that Act, either on indictment or summarily, if the court decides to try the case summarily, then after the defendant has pleaded guilty to the charge the court, if it adjourns the trial and remands him, must, subject to the following provisions of the clause, remand him on bail.

There is at present in subsection (2) no provision, as there is in subsection (1), limiting mandatory bail to those offences which carry a maximum of six months' imprisonment. It seems to the Government generally desirable, for the sake of consistency, that no offence punishable by magistrates with more than six months' imprisonment should come within the terms of the clause, which restricts the power of magistrates to remand in custody only in the case of offences punishable with not more than six months' imprisonment.

I gladly acknowledge that we are indebted to the noble Lord, Lord Derwent, for what I hope your Lordships will agree is a substantial improvement. During the Committee stage of the Bill, while we were considering an Amendment moved by the noble Lord, Lord Derwent, anxiety was expressed that in certain circumstances magistrates might be obliged to grant bail to defendants accused of offences under the Dangerous Drugs Act 1965, which are punishable on summary conviction with twelve months' imprisonment. I could not accept the noble Lord's Amendment on that occasion for several reasons, the first of which was that we did not want to make the whole family of drug offences subject to discretionary bail and exclude them from the mandatory provisions, because many are for quite minor offences dealt with by fines or in other ways. But we were very much impressed by Lord Derwent's argument that the pedlars and the pushers might be favoured by the clause as it now stands. The gravity of offences of that kind can be measured by the much heavier punishment which can be imposed on summary conviction, with the maximum of twice the normal maximum that can be imposed by magistrates.

The Amendment now proposed will take care of these gentry, because it will have the effect that a defendant who is being tried summarily for a drugs offence against the 1965 Act and whose trial is adjourned need not be granted bail if the magistrates consider that it would be undesirable to do so. The Amendment will not affect the offences under the Drugs (Prevention of Misuse) Act 1964, but they are less serious offences than those under the 1965 Act. The Amendment will embrace other enactments which enable magistrates to impose more than six months' imprisonment for single offences. An example is offences against the Customs and Excise Act 1952.

In general, it is right that where magistrates are dealing with a case summarily bail should be refused only for exceptional reasons. Where, however, a particular offence is sufficiently serious that it can be punished with more than six months' imprisonment on summary conviction, the rationale of Clause 17 no longer seems to apply, and we think it is right that magistrates should have the same discretion to remand in custody as they would have if they considered that the offence was sufficiently serious to merit a trial on indictment. I beg to move.

Amendment moved— Page 13, line 13, after second ("offence") insert the said words.—(Lord Stonham.)

LORD DERWENT

My Lords, I am extremely grateful to the noble Lord for having taken so much trouble to meet the points I raised in Committee. May I also express my appreciation to his advisers for the skill with which they have dealt with this point by a quite different Amendment from the one I moved? It does what I asked, in effect. In the more serious drug trafficking offences bail will not have to be granted by the magistrates unless they think fit. Even under the 1964 Act the more serious offences may be tried on indictment, and again are not affected. In the comparatively minor offences under the 1964 Act, where the maximum penalty, if dealt with summarily, is only six months' imprisonment, bail will have to be granted, but in those circumstances this is, I think, a very reasonable compromise, and I am grateful for it. I am not pretending that this is going to stop drug trafficking, but it is another useful weapon in our fight against that beastly trade.

This Amendment goes much farther than the subject of drugs. It goes a long way to meet the criticism of some of my noble friends on the Committee that too much discretion was being taken away from the magistrates. It now means that in the serious type of case the magistrates will have the power of remanding in custody if they think fit, but not in the minor type of cases. I know some of my noble friends might like to go further and not take any discretion away from the magistrates. Speaking purely for myself, this Amendment is a compromise, but I think it is a very fair compromise, because the Government have made out their case in regard to the minor offences. I hope your Lordships will acept the Amendment.

On Question, Amendment agreed to.

VISCOUNT DILHORNE had given Notice of an Amendment to insert, after paragraph (c): ( ) where he is charged with driving when disqualified and has twice been convicted of that offence in the last three years; The noble and learned Viscount said: The Home Secretary has very kindly written to me and satisfied me that this Amendment is not necessary. Therefore I do not move it.

VISCOUNT DILHORNE had given Notice of an Amendment to insert as a new paragraph in subsection (5): ( ) Where it appears to the court that unless he is remanded or committed in custody, there is likely to be interference with witnesses or potential witnesses; The noble and learned Viscount said: I can say the same with regard to this Amendment, except that it was the noble and learned Lord the Lord Chancellor, who wrote me a letter, for which I am very grateful.

THE LORD CHANCELLOR moved, after Clause 17, to insert the following new clause:

Restriction on justices sitting after dealing with bail

".—(1) A justice of the peace shall not take part in trying the issue of a defendant's guilt on the summary trial of an information if in the course of the same proceedings the justice has been informed, for the purpose of determining the question of the defendant's admission to bail, that he has one or more previous convictions.

(2) For the purposes of this section, any committal proceedings from which the proceedings on the summary trial arose shall be treated as part of the trial."

The noble and learned Lord said: My Lords, the Government are moving this new clause in response to anxieties which were expressed during the Committee stage about the possibility of prejudice being caused to a defendant by the disclosure of his previous convictions when magistrates are determining whether, under Clause 17(5) of the Bill, they have discretion to refuse bail. It may in future be the case that the courts will feel bound to inquire into a defendant's antecedents for the purpose of deciding whether any of the four paragraphs, of (a), (b), (c) or (g) of that clause applies, when in normal circumstances they would not wish to hear evidence of a defendant's previous convictions. The Government have therefore considered it proper to amend the Bill so that a magistrate who at the same proceedings, when determining the question of bail, has learned of a defendant's previous convictions should not subsequently try that defendant. To a large extent magistrates' courts now attempt to arrange their business in this way, and the clause gives statutory force to the principle that the tribunal deciding the issue of a defendant's guilt should not know of his previous convictions lest prejudice may be caused. Since the Committee stage of the Bill the Government have consulted a number of clerks to justices, both in town and in country areas, about the proposed Amendment and it seems clear that it can be made to work. I beg to move.

Amendment moved— After Clause 17 insert the said new clause.—(The Lord Chancellor.)

4.2 p.m.

VISCOUNT DILHORNE

My Lords, I think this is a brave attempt to meet a very difficult problem. Will it be the case that bail will be dealt with by a single justice (I exclude courts having a stipendiary), or will there have to be more than one? I do not think anyone would dispute that the principle of this is right; that a justice who has heard the previous record of an accused on an application for bail should not thereafter adjudicate on the case. But, my Lords, I can see that it is going to lead to pretty considerable difficulties in some parts of the country.

I imagine that occasions will arise where a case which is being dealt with summarily cannot be finished on the same day, and the hearing has to go over to the next day, or to the next week, or perhaps to a fortnight's time. In such circumstances there would be the question of bail. In the ordinary way an application for bail would be made to the court where the case was being heard; and it is difficult to see how other justices could be found at that time, which might possibly be late in the day, to deal with the application. If the application were made to the magistrates at the hearing, the case would later have to be started all over again before a fresh bench of justices, because the original justices would have heard about the man's criminal record. This could lead to quite considerable difficulties in country districts, or, indeed, where there is a stipendiary sitting, because some other stipendiary would have to be found to hear the application. All the same, whatever may be the difficulties, I am sure that the principle is right, and I am glad that it has been recognised by this clause.

LORD LEATHERLAND

My Lords, I seem to recollect raising this point during the Committee stage discussions, and I recall saying that in the court over which I preside it would become obvious to me, having regard to the particular door by which a defendant entered the court, that that defendant had come from a prison adjournment. I recollect a case a few years ago when a woman prisoner was escorted into the court by a very beautiful, golden-haired woman prison officer—of whom I took judicial notice—and it was obvious to me from that moment that the prisoner had been remanded in custody since the previous hearing. I think that if there is any risk of a prisoner being identified as a person with a record through any such circumstance as I have mentioned, the possibility of the person getting a fair trial may be prejudiced.

I certainly agree that this Amendment goes a long way towards wiping out any risk which might exist, but is there not still a possible risk? Is there not the possible risk that a justice trying a case to-morrow will have read in last week's local paper that the defendant had been remanded in custody until the full hearing? That might be possible. I know one of the conditions relating to publication in the Press as laid down in Clause 3 of the Bill is that there should be no reporting until the case had been finally disposed of, one way or the other. But it seems to me that there may be a loophole in Clause 3 (4)(h) which makes provision for certain matters to be published before the time authorised by the previous subsection. One of those is that they can publish: any arrangements as to bail on committal or adjournment". May it not be that any arrangements as to bail on committal or adjournment might include the committal of a person on remand in custody until the next hearing? It may be that I can be assured that there would be no publication in the local weekly paper between the two hearings of the case, but if there is not such an undertaking, I think that a loophole probably still exists.

THE LORD CHANCELLOR

My Lords, if I may reply to the points which have been made, I would say, first, that there may be only one justice sitting, but it would be left to each court to make its own arrangements; and, on balance, while it is possible in a small minority of cases that local habits may have to be adjusted, it is thought that generally this will be perfectly practicable. In answer to my noble friend I would say that this new clause does not apply to committal proceedings but only to summary trials; and, of course, in any case, and every day, anything that happens in court is ordinarily published and no one should draw adverse inferences against somebody merely because he has been remanded in custody.

The only alternative is to do very much what we do now, which is to leave the question of bail to the police. If magistrates apply their minds to the question whether bail ought to be granted, in accordance with the provisions of the Bill, it will be they who decide whether a citizen is or is not to have bail. But I am afraid that all too often what happens now is that magistrates, for what may seem to them perfectly proper reasons, do not want to know about a prisoner's past and do not apply their minds to the relevant facts. If the police do not oppose bail, they grant bail; but if the police say, "We oppose bail", the magistrates do not like to ask the reason, fearing to hear the answer: "He has seven previous convictions." In effect, instead of the justices' exercising the discretion they should on the question of bail, we get the worst of all worlds by leaving it to the police. This Bill in this form and with this new clause means that from now on it really will be the justices who apply their minds to the matter; although the point taken on Committee stage, that then other justices ought to hear the case, was a perfectly good point.

On Question, Amendment agreed to.

Clause 23:

Restriction on issue of search warrants under Obscene Publications Act 1959

23. A justice of the peace shall not issue a warrant under section 3(1) of the Obscene Publications Act 1959 (search for and seizure of obscene articles) except on an information laid by or on behalf of the Director of Public Prosecutions or by a constable.

4.8 p.m.

LORD BROOKE OF CUMNOR moved to leave out Clause 23. The noble Lord said: My Lords, this is a very different matter from all that we have been discussing, and to my way of thinking it is an important issue. I put down an Amendment to leave out Clause 23 for discussion on Committee stage, but as it was reached one evening when we were running rather late with the Bill I thought it more considerate not to move it then but to keep it for Report stage. The clause which I am seeking to delete from the Bill is designed to remove one of the defences set up by Parliament to check the publication and distribution of material likely to deprave and corrupt. In the present state of society I should have thought that those defences ought to be strengthened rather than weakened. That is my personal view. If your Lordships share it, you will vote to remove the clause from the Bill.

The Cabinet appear to take a different view and to hold that those defences should be weakened rather than strengthened. That is what this clause does. In any case, the clause is quite out of place in this Bill, which has been introduced to improve the main structure of our system of criminal justice. This clause has no relation at all that I can see to any of the other 98 clauses in the Bill. Its proper place would be in a Bill to amend the Obscene Publications Act, not inserted into a Bill which is otherwise concerned with the whole field of criminal justice. It is sandwiched between clauses on granting bail and process for minor offences, and on restrictions on passing sentence in the absence of the defendant. Clause 23 is a quite different animal from these. It is like a fox that has got in among lions.

Rather significantly, it was not included in the original Bill presented to Parliament. That makes one ask how it has got in. By way of explanation of that, I would remind your Lordships of the two procedures available under the Obscene Publications Act 1959, Section 2 of that Act provides for criminal proceedings against the authors publishers or purveyors of obscene articles. The case will be heard before a jury, expert witnesses may be called on the literary or artistic merit of the work that is alleged to be obscene, and if the jury are satisfied that the work is obscene they may find the accused guilty of a criminal offence. That procedure, which is punitive, is quite distinct from the other procedure under Section 3 of the Act, which is preventive, and this is the section which this clause seeks to amend. The clause was moved into the Bill in Standing Committee in another place and carried on a Division. There was a Motion on Report stage to take it out, and that Motion was defeated on a Division. The matter was hard fought at every stage of the Bill, because it is a subject on which people feel strongly at any rate, in one direction.

Section 3 of the 1959 Act, which this clause amends and weakens, provides at present that anyone may lay information on oath before a magistrate about an allegedly obscene article being kept in certain premises for publication for gain. The magistrate, if satisfied that there is reasonable ground for suspicion, can issue a search warrant for the article to be seized and brought before him. If the magistrate is then convinced that the article is obscene, he can order it to be forfeited, and that, in its ultimate effect, will apply to all copies within his jurisdiction. This is not a criminal proceeding in the normal sense, because there is no person on trial. What is on trial is the book, magazine or photograph, or whatever it may be. There are these two distinct procedures available.

To complete the picture, I should like, with your Lordships' permission to quote a statement which was made with authority by the then Solicitor General, Sir Peter Rawlinson, in Standing Committee F of another place on June 16, 1964. I feel obliged to quote this because in the proceedings on this Bill in another place this quotation was adduced in argument in favour of Clause 23. In my view it tells, if anything, the other way. What the Solicitor General of the then Conservative Government said in column 77 of the Standing Committee proceedings on the Obscene Publications Bill 1964 was this: I must make it clear that I am not speaking on behalf of the Government who as such have no control over prosecuting authorities. I am speaking on behalf of the Attorney General in his independent quasi-judicial capacity in this field. I am not giving an inflexible assurance about the way in which the Director of Public Prosecutions will act or advise the police to act in any particular circumstances. One has only to consider the case in which a person is found in possession of hundreds of obscene articles to see that no such assurance could properly be given. But, subject to those qualifications, with the approval of the Attorney General, I say that where the prosecuting authorities have evidence of deliberate breach of the law, or of a breach of the law accompanied by a determination to persist in that breach, they will ordinarily proceed by way of prosecution rather than by way of proceedings for forfeiture. In other words, they will ordinarily, and subject to all these qualifications, proceed under Section 2 rather than under Section 3.

That was said by the Solicitor General in the course of proceedings on the Obscene Publications Bill which, as Home Secretary, I introduced in 1964 to strengthen the working of the law against obscene publications. As it so happened, the opposition to the Bill was lead by Mr. Roy Jenkins, then a distinguished Back Bencher on the Opposition side, and now Home Secretary. We had a long debate on the provisions of that Bill, but at that time no one suggested the change in the law which is proposed in Clause 23. This is something quite new. The then Attorney General, Sir John Hobson, on whose behalf the Solicitor General made the statement which I have just read to your Lordships, has condemned this clause in this Bill both by speech and by vote.

Last year the Director of Public Prosecutions declined to initiate proceedings under either the Section 3 or Section 2 procedure of the 1959 Act in respect of a book called Last Exit to Brooklyn. Many people said that it was grossly obscene. Others said that it was not. I believe, for example, that the Irish Times spoke well of it. The present Attorney General was pressed in another place to instruct the Director of Public Prosecutions to act. The Attorney General refused. As a result of that, a member of the public personally initiated proceedings under Section 3 for forfeiture, as he had a right to do. Those proceedings were successful: the magistrate declared the book to be obscene. He was reported as saying: This book in its descriptions goes beyond any book of that kind we have seen in this court. One passage I am thinking of is more likely to deprave and corrupt than any of those cyclostyled horrors. This is the book against which the Attorney General and the Director of Public Prosecutions had declined to take any action. I could say a great deal about that situation. I will confine myself to saying that it is one which the present Home Secretary does not wish to allow to occur again. In consequence, in Standing Committee of another place the Home Secretary introduced this clause, designed to deprive a private citizen of the right to lay information before a magistrate of a book that he thinks obscene. The Home Secretary says in defence of the clause—at any rate, he said it in another place—that private persons will still have the right to initiate criminal proceedings under Section 2 of the 1959 Act. But only a very wealthy man can afford to do that, knowing that there is before him the risk of long, hard fought and probably very expensive proceedings at the Old Bailey.

What the Government are seeking to do if they retain this clause in the Criminal Justice Bill is to prevent any proceedings being taken against an obscene book or magazine if the Attorney General of the day is unwilling that proceedings be initiated. I cannot believe it right that the Attorney General and the Director of Public Prosecutions should be in the position of being the real censors, without whose permission the obscenity or otherwise of a publication cannot in practice be tested in the courts. It is wholly wrong to deprive the private citizen of his rights in this matter, and this is why I strongly urge your Lordships to vote against this clause. I beg to move.

Amendment moved— Leave out Clause 23.—(Lord Brooke of Cumnor.)

4.23 p.m.

VISCOUNT DILHORNE

My Lords, I rise to support my noble friend on this Amendment. It is common knowledge, I think, that the present Home Secretary was one of the chief authors of the Obscene Publications Act 1959. I must say that I have never regarded that as a satisfactory Act of Parliament. I quite agree that the law wanted changing a great deal, but I do not think that that Act provided the right answer. When you bring proceedings before a jury, under that Act the jury have to decide first of all whether a book—and I take a book as an instance—taken as a whole tends to deprave and corrupt persons who are likely to read it. Then, if this is established to their satisfaction, they have to consider whether the publication of the obscene book, if they have decided it is obscene, is justified, as being for the public good on the ground that it is in the interests of science, literature, art or learning or other objects of general concern. The two things do not go in the balance against each other; that is, obscenity, on the one hand, and interests of "other objects of general concern", on the other. On that issue, as your Lordships may remember, expert evidence is called, and it is by no means uncommon for right reverend Prelates to come forward as experts on this issue.

There have been several prosecutions for books under this particular Act, and I cannot remember one which has resulted in a conviction before a jury. I have had to read some of them, and I must say that I have been astonished that a verdict of guilty has not been returned. I very much doubt whether a Director of Public Prosecutions would again embark on a prosecution before a jury in relation to a book, because the history since the 1959 Act was passed has been one of a series of unsuccessful prosecutions.

So one is concerned with this alternative preventive procedure, which, after all, was included in the 1959 Act, for which the Home Secretary was so largely responsible. Why is it now that this new restriction is sought to be brought in? The Home Secretary, the sponsor of that Private Member's Bill in 1959, obviously thought it was right at that time that any individual could, if he wished, institute proceedings. It is a right which we in England have in the vast majority of cases, and it is a very important right. I believe it is one which should be preserved, and one which should be taken away only when the strongest possible case is made out for doing so.

If I may give one instance of a case where prosecution can be instituted only with the consent of the Attorney General or the Director of Public Prosecutions, it is a prosecution in relation to what are commonly called "horror comics". The reason for the restriction then was that it was quite impossible to define a "horror comic" in an Act of Parliament. But the Parliament of the day was confident that the Law Officers and the Director of Public Prosecutions, jointly and severally, would be able to make up their minds what a "horror comic" was. Since then there have been no prosecutions, and "horror comics" have disappeared.

But this is a case in a very different category. It was thought right in 1959 to say that any individual could start these proceedings. What has happened since then to make the Home Secretary change his view? My noble friend has said what has happened since: there has been a private prosecution when the Director of Public Prosecutions and the Attorney General refused to institute proceedings, and a private prosecution which succeeded; and the conviction was not quashed. Why should that right to institute these proceedings now be taken away? Is it because of a desire that the law shall not be enforced? Is it a roundabout way of securing that the trial of these issues can only be brought before a jury when a jury have to balance these two matters, which really do not balance one against the other? Whichever it be, I am sure that it is absolutely wrong to deprive the British citizen of the right himself to institute proceedings in this field, as he can in so many others, and that the right should be restricted solely to the Director of Public Prosecutions.

4.27 p.m.

THE LORD CHANCELLOR

My Lords, as the noble Lord, Lord Brooke of Cumnor, has said, this clause was a Government clause, moved in Standing Committee in another place, and naturally, therefore, your Lordships will not be surprised if I say that the Government are not prepared to accept the Amendment. I do not think, if I may say so, that there is anything much in what the noble Lord, Lord Brooke of Cumnor, said about this clause being in this Bill. This is a Criminal Justice Bill, and it transpired, as the Bill was passing through Parliament, that there was a loophole in our law which ought to be put right. The other place, as your Lordships know, are more particular about what Amendments are within the scope of the Bill. It was accepted by the Table. Experience tends to show that if you do not put your law right on discovering an anomaly when you have the chance of doing so, it may be another five or ten years before you can do it. So, with respect, I do not think there is anything in that point.

On the merits, I would say that I would regard this clause as a very important provision in our law relating to freedom of speech. I think it has been the common experience of all those who have had to do with pornography that nearly everything which is pornographic can be quite easily divided into two classes. There are, first, what I may call serious books, by which of course I do not mean the solemn ones, because they may be funny books or any kind of books which are written for ordinary respectable reasons. On the other hand, there is about an appalling amount of pornographic trash, nearly all paperbacks, which is written and sold simply in order to make money out of the market for pornography. These are books which have no literary quality of any kind at all. And, as I have said, I do not think anybody who has been concerned with pornography has the slightest difficulty in dividing the works in question into what is often called—and rightly— "dirt for dirt's sake," and books which are published for perfectly legitimate reasons. This is not a modern view. This, I think, is the view which those of experience have always taken.

May I remind the House that, as compared with a great deal of our law, our law against obscenity is fairly recent? There was, of course, no law against obscenity, whether statutory or Common Law, in Shakespeare's time. You could publish exactly what you liked. Although there is a certain amount of matter about sex in Shakespeare, it is not anything like as bad as the Bible, and is mostly lighthearted stuff, which takes the same sort of place in Shakespeare as it does in life. I do not believe that anybody really thinks there is anything in Shakespeare which has done anybody any harm. One reason, perhaps, for the tolerance shown in those days is that if you do not have a line there is nothing very exciting about reading anything in particular; but, as soon as you have a line, people will always want to read what is next to the line. So we went on, without any line, during the 16th century, during the 17th century, and through most of the 18th century. Indeed, in the 18th century Chief Justice Holt ruled that there was no law against obscenity, no Statute, and there was no Common Law offence. It was only towards the end of the 18th century that the judges, for the first time, began to invent (if that is not an improper word) a Common Law of obscenity.

It was not until 1857 that in the Obscene Publications Bill of that year we had a Statute. It was introduced in this House by the then Lord Chief Justice, Lord Campbell, and it was violently assailed by the learned Lord Chancellor and past Lord Chancellor, Lord Brougham and Lord Lyndhurst. It did not constitute a criminal offence of which anybody could be convicted. It did not say anybody was to be punished. All it said was that the police could seize and destroy obscene works. Lord Campbell painted the most awful pictures of the shops which sold this sort of thing in particular streets which he named. But Lord Brougham, I see, said: For example, how did he"— that is Lord Campbell— propose to define what was an obscene publication? He did not wish to treat the measure with any kind of disrespect, but he thought that unless the details were greatly altered, the Bill would fail to remedy the evil complained of. He would remind his noble and learned friend that in the works of some of their most eminent poets there were some objectionable passages which under this measure might cause them to be considered obscene publications. And there was reference to Congreve and Dryden and translations of Ovid's Art of Love, and other well-known works of literature.

In answer, Lord Campbell said that he had not the most distant contemplation of including in the Bill the class of works to which the noble and learned Lord referred. The measure was intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in any well-regulated mind. Your Lordships will observe what the test of obscenity was to be. It was to be in two parts: first, what we call "dirt for dirt's sake", to apply exclusively to works written for the single purpose of corrupting the morals of youth"; and then, secondly, as to its effect, works of a nature calculated to shock the common feelings of decency in any well-regulated mind". And ultimately your Lordships accepted that.

This shows that the House is very unwise to trust what Lord Chancellors or Lords Chief Justices say as to how a particular Statute is going to be administered; because only a few years afterwards Chief Justice Cockburn laid down what was to be the test of obscenity for the purposes of that Act, and he laid it down in entirely different terms from what Lord Campbell had said it would be. That was the test of obscenity, and the only test of obscenity, up to 1959. The well-known test, which has been put before every jury which has ever tried such a case since, was this. The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands such a publication might fall". Your Lordships will observe that gone altogether is the mind or intention of the author, which becomes entirely irrelevant. As those of us who have been concerned with these cases know, the author goes into the witness box and is not allowed to say anything at all on the question whether it is obscene, because the sole question until the present Home Secretary's Bill in 1959 was whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands such a publication might fall". Of course, I should not pretend ever to have known myself whether, if people read works of this kind, the well-written books or the paper-backs are the ones which do the most harm. I remember in the Lady Chatterley case saying to my solicitors that I was a bit concerned by arguments which I had known to be advanced by the prosecution, without any evidence, that the better written a thing is the more harm it does. I did not know whether that was true or not, so I said to them, "I think what you had better do is to go and see three or four very Right-Wing psychiatrists, because they are the people who know about this; they are used to treating the sexually corrupt; you had better go to three or four Right-Wing psychiatrists in the teaching hospitals, and ask them whether they will be kind enough to tell you: 'Is it the paper-back stuff, or is it the well-written books, which do the most harm?'". They each came back with the same answer—I do not know whether other psychiatrists would have other answers—which was, "We are used among our patients to treating the sexually corrupt. There are, of course, several causes of sexual corruption. We have been all through our records, but cannot find a single case of anybody having been corrupted by anything he has read."

This is very relevant to the question now before the House, for this reason. I had always rather wondered about this point because the barristers and solicitors have to read the books, and nobody suggests they are corrupted; the judge reads the book, and nobody suggests he is corrupted. Distinguished literary experts are written to and asked, "If we send you a copy of this book would you be prepared to read it in order to say whether you think its literary qualities are such that, even if it is obscene, it ought to be excused?" I remember that in the Chatterley case the expert witnesses all said, "You need not bother to send me a copy of the book, because I have had it for years." This is relevant, because when, in 1959, the present Home Secretary tried to bring some sense into this law by the Act of 1959, by sweeping away Lord Campbell's old Statute and by setting out a statutory definition of "obscenity", he divided the cases into Section 2 cases and Section 3 cases. Section 3 cases were intended to deal with "dirt for dirt's sake", in that stipendiary magistrates could order a quantity of pornographic filth to be destroyed in summary proceedings. Section 2 was intended to be used for works which had some literary quality; and where it could be argued before a jury that such expert evidence as might be called would say, first, whether it was obscene, and, secondly, whether, if it was, or if it would otherwise have been, it was saved by its literary or scientific quality.

This state of affairs went on until 1964, when the noble Lord, Lord Brooke of Cumnor, when he was Home Secretary, thought that extended powers were needed primarily in the refuse disposal section—Section 3—so that not only those who published something but those who kept it for gain might be prosecuted and convicted, or their works might be destroyed. But nobody thought at that time of the position of a private prosecutor.

In the discussions on the 1964 Act, as the noble Lord has said, an undertaking was given by the Solicitor General, on behalf of the Attorney General, to the broad effect that prosecutions in serious cases would be under Section 2, giving the author or publisher concerned the right to trial by jury, and a trial by indictment, while the pornographic stuff would still be dealt with under Section 3. But nobody thought of the fact that there might be a private prosecutor. That was a loophole, because what happened in the recent case was that there was a book, which I have not read—Last Exit to Brooklyn—which some writers, and I rather think The Times, or a paper of that quality, said was the best novel of the year. Some literary critics have a high opinion of it. I express no opinion at all, but that was the sort of book, which, having regard to the sort of opinions expressed about it by reputable literary critics, the author or publisher ought to have been entitled to defend before a jury. The object of this Amendment is to stop that loophole, but it does not, in fact, stop a private prosecutor from prosecuting. It says that he must prosecute in a case of that kind by indictment. Of course that procedure is a little more expensive for him than prosecuting summarily.

The latest authority on all this is a report signed quite recently by the noble Lord, Lord Brooke of Cumnor, who was a member of the Joint Committee on Censorship in the Theatre, set up by Parliament. Perhaps I may quote from paragraph 47 of that Report. What the Committee say is: The Committee recognise that the law should find a means of deterring effectively the production of grossly offensive plays while at the same time according to serious playwrights proper protection for their work. Legislation should, therefore, have regard to the following considerations:—

1. (a) The prevention of frivolous prosecutions.
2. (b) The right of trial by jury.
3. (c) The admissibility of expert evidence.
4. (d) The effective treatment of obscene plays.
5. (e) The uniform application of the law."

Paragraph 48 says: The prevention of frivolous prosecutions would most effectively be achieved by the introduction of a procedure for establishing whether a prima facie case for a prosecution exists. Under Mr. Benn Levy's Bill of 1949 this would have been done through the medium of a judge in chambers. The Arts Council Committee supported this proposal, but the full Arts Council preferred to leave the matter to 'a suitable expert committee'. Most of those who gave oral evidence felt that it would be preferable to leave the matter to the Attorney General, since there might be a wide discrepancy of views among the judges. The Committee accept this argument and recommend that no criminal prosecution whether under statute or common law arising out of the performance of a play should take place without the order of the Attorney General having been first obtained. Subject to this provision, any individual would have the right to take legal action against a stage performance which he considered contravened the law. Paragraph 49 says: The Committee also accept the view of the playwrights that any trial should be heard before a jury. This would be the case if proceedings were taken under Section 2 of the 1959 Act, and the then Solicitor General gave an undertaking in 1964 that the Crown would always proceed under this section if the defendant indicated his intention of trying to prove the merit of the work. The Joint Committee then drew attention to the anomaly to which I have already referred, that private prosecutions may still be taken under Section 3 of that Act. It is not proposed by the Government that we should take so drastic a step as to say that nobody may prosecute unless he has the consent of the Attorney General. All we are saying is that where it is a Section 2 case there should be a right to trial by jury, and if a private prosecutor wishes to prosecute he should take the same course as the Attorney General would take, and as he has undertaken to take, if he had to prosecute. If I have been a little long in dealing with this Amendment, my Lords, it is because it affects the freedom of speech. And it is on those grounds that the Government cannot accept this Amendment.

4.45 p.m.

LORD BROOKE OF CUMNOR

My Lords, I am sure nobody will take exception to the fact that the Lord Chancellor should have spoken at length, because this is an important matter. But he did not begin to demolish the case I had made. If I may speak quite frankly, he first sought to fog the issue by speaking of a loophole in the law, and of the discovery of an anomaly. Apparently it is argued that the present Home Secretary failed to perceive what he was doing when he piloted the 1959 Act through Parliament. That was a Bill which was discussed at great length and for which he personally was responsible, and he himself handled all the discussions on the construction of that Bill.

As to the discovering of an anomaly, I think an anomaly was discovered in that a book was held by a magistrate to be grossly obscene after the Director of Public Prosecutions and the Attorney General had refused to move against it. I am informed that, now that the magistrate has given his decision, and it has not been appealed against, the Director of Public Prosecutions proposes to institute Section 2 proceedings.

The noble and learned Lord sought to bolster his case with a quotation from the recent Report of the Joint Select Committee on the Censorship of the Theatre, which has not yet been discussed by your Lordships. I cannot disclose what happened in that Committee, but it was taken for granted by all of us in the Committee that we were discussing censorship of the theatre and not other forms of censorship, and we might have put in a number of safeguarding words if we had thought that arguments we used with regard to the theatre were going to be torn out of that context and applied to books, films, and all kinds of other things. There is a distinction between theatrical performances, some of which are extremely expensive to put on, and the publication of books or articles, which has been recognised in the law for many hundreds of years.

I did not wholly follow the argument of the noble and learned Lord when he referred to "Right-Wing psychiatrists used to treating the sexually corrupt". I do not know in what sense he was using the term "Right Wing", but so far as I know there is no great political dividing line between various categories of psychiatrists who treat the sexually corrupt. I am sorry for them all.

THE LORD CHANCELLOR

My Lords, will the noble Lord allow me to interrupt him? All I meant was that there are psychiatrists and psychiatrists, and if one wants to have a psychiatrist's evidence accepted by the court it is usually preferable to call the more conservative kind.

LORD BROOKE OF CUMNOR

My Lords, I am sure that even under the noble and learned Lord's definition there is no correlation between the Right-Wing psychiatrist and the psychiatrist who is used to treating the sexually corrupt. I cannot accept the argument that until the Last Exit to Brooklyn case nobody had thought of the fact that, in the case of a book, a private person could institute proceedings under Section 3 of the 1959 Act. As I say, the Bill that became the 1959 Act was discussed at length in Parliament. I was responsible for the 1964 Bill and was present throughout the discussions on it, which were quite prolonged; and nobody rose to suggest either that the undertaking given by the Solicitor General ought to be wider than it was or that there was an undesirable loophole left open for the private person initiating proceedings. It seems to me to stand to reason that in a field like this there should be scope for the private person to act.

One may make a distinction on paper between pornographic trash and books written with serious purpose; but it is not so easy to decide on which side of the line a particular publication may fall. You cannot decide by looking at the material of the cover or at the price of the book, or anything like that; you cannot look into the author's mind and be absolutely certain whether he is offering this to the public as a serious work of literary merit or as a book that he thinks will sell better and bring in larger royalties because it titillates people's sexual fantasies. There is a judgment that has to be made; and the case I am putting to your Lordships is that the whole of this ought not to depend solely on the personal judgments of the Attorney General and the Director of Public Prosecutions in a matter of this kind.

We all accept that this is a matter for the courts—under Section 3 for the magistrates' court or under Section 2 for trial by jury. What I am not prepared to accept is that it should be a matter for the Attorney General's "No" or for the Director of Public Prosecution's "No". The Last Exit to Brooklyn book is certainly well spoken of by some. It was utterly condemned by others who were regarded as good authorities; and I am not speaking of the individual who launched the prosecution. Some people who have read it say that its purpose is unquestionably to corrupt the morals of youth and that there can be no doubt whatever that it would deprave and corrupt; and that was the view that the magistrate took. It seems to me that we should be better advised to trust to a decision of the courts, instigated if necessary by a member of the public, than to leave it wholly to the Attorney General or the Director of Public Prosecutions to say, "No! No action is to be taken before the courts about this doubtful book". I must press this Amendment, and I ask your Lordships to support me.

THE LORD CHANCELLOR

My Lords, would the noble Lord explain to us why in the case of obscene plays he thought—because trial by jury was so important, the prevention of frivolous prosecutions so important, and the uniform application of the law so important—that there should be no private prosecution unless the Attorney General agreed?

VISCOUNT DILHORNE

My Lords, before my noble friend answers that, could he say whether, since 1959, there has been any prosecution which could be described as frivolous?

LORD BROOKE OF CUMNOR

My Lords, I am not aware of any prosecution of a book since 1959 that could have been described as frivolous. In answer to the noble and learned Lord the Lord Chancellor, I see a clear distinction between books and plays in this matter. One knows what is the maximum amount at risk with a book. The maximum amount at risk in the event of a play (which is extremely expensive to put on) being challenged by a private individual is very great indeed; and it appeared to my colleagues and to me that it was desirable, because of the great expense of putting on certain plays, that it should not be open to anybody to come along and start proceedings against a play on the ground of obscenity.

The same argument does not apply to the publication of a book. Indeed I want to repeat that we on that Select Committee were concentrating wholly on the question of plays; and I do not think I shall be causing offence in any quarter if I say that we deliberately excluded from our consideration anything that was not within our terms of reference. We were, of course, aware that our findings with regard to plays might be quoted as supporting efforts to alter the law in other respects—for example, with regard to books or articles—and we were prepared, all of us, I know, to stand up and say that our arguments applied to theatres, and to theatres alone.

VISCOUNT ADDISON

My Lords, I do not think the noble Lord is quite convincing on this. A great many plays are read, as books are read, without being produced at all. It may be that there is a technical difference. In regard to a stage production, I can quite see the argument; but I think the noble Lord misses a very large part of the issue in regard to plays which are read.

LORD BROOKE OF CUMNOR

My Lords, if I may have permission to speak again, the 1959 Act as I understand it applies to a play which is published in the form of a book.

LORD BOOTHBY

My Lords, I want to say only a word or two. I am a lay- man; not a lawyer. I came to the debate with an absolutely open mind. I have listened to every word of it, and I come down on the side of the noble and learned Lord the Lord Chancellor, for one simple reason. I have come to the conclusion that the idea of a private prosecutor is not a good one. I do not think it is the right of a citizen of this country to bring private prosecutions; I think it should be left to the Law Officers of the Crown and the Director of Public Prosecutions. I do not believe in private prosecutions at all. The noble and learned Lord the Lord Chancellor has explained to us that under the terms of this clause any private citizen could bring a prosecution provided that it went before a judge and jury. Personally, I am not very keen on that, but I certainly think that to allow a private citizen to bring an action for summary conviction by a magistrate without a jury, as happened in the Last Exit to Brooklyn case, is going far beyond the lengths of propriety.

I come back, as I so often do, to Scottish law, which I think is so immeasurably superior to the English law. We are content in Scotland to leave these things to the Lord Advocate and his agents the procurators-fiscal. They decide. I do not think there has been any private prosecution in Scotland for the last fifty years—at least, I do not know of one. That is why we have no problem of homosexuality in Scotland, because the Lord Advocate decides what is in the public interest; there is no prosecution without his ipse dixit. We should not be bothered with this Bill if only the English would follow Scotland, as they have done so often before. We are based on the Roman Law, which has very respectable antecedents, and it is much better. I think that in the modern world this whole system of private prosecution is wrong; it should be left to the Law Officers of the Crown and the Director of Public Prosecutions. I would only add that I hope that one day the noble and learned Lord the Lord Chancellor will give me an opportunity of meeting simultaneously a Right-Wing and a Left-Wing psychiatrist.

5.0 p.m.

On Question, Whether the said Amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 52, Not-Contents, 65.

CONTENTS
Ailwyn, L.	Drumalbyn, L.	Mancroft, L.
Albemarle, E.	Dudley, L.	Merrivale, L.
Ampthill, L.	Dundee, E.	Merthyr, L.
Atholl, D.	Ebbisham, L.	Milverton, L.
Audley, Bs.	Emmet of Amberley, Bs.	Nugent of Guildford, L.
Bessborough, E.	Erroll of Hale, L.	Oakshott, L.
Blackford, L.	Goschen, V. [Teller.]	Redmayne, L.
Brooke of Cumnor, L.	Grenfell, L.	St. Helens, L.
Brooke of Ystradfellte, Bs.	Grimston of Westbury, L.	Sandford, L.
Buckton, L.	Horsbrugh, Bs.	Sempill, Ly.
Carrington, L.	Howard of Glossop, L.	Somers, L.
Colville of Culross, V.	Iddesleigh, E.	Strange of Knokin, Bs.
Cork and Orrery, E.	Inglewood, L.	Stuart of Findhorn, V.
Daventry, V.	Jellicoe, E.	Templemore, L.
Denham, L. [Teller.]	Lambert, V.	Thurlow, L.
Derby, Bp.	Latymer, L.	Tweedsmuir, L.
Derwent, L.	MacAndrew, L.	Windlesham, L.
Dilhorne, V.

NOT-CONTENTS
Addison, V.	Hall, V.	Rea, L.
Amulree, L.	Harvey of Tasburgh, L.	Rhodes, L.
Archibald, L.	Henderson, L.	Rowley, L.
Asquith of Yarnbury, Bs.	Hilton of Upton, L.	Royle, L.
Beswick, L.	Hughes, L.	Sainsbury, L.
Blyton, L.	Hurcomb, L.	St. Davids, V.
Boothby, L.	Kennet, L.	Samuel, V.
Bowles, L. [Teller]	Latham, L.	Segal, L.
Buckinghamshire, E.	Leatherland, L.	Serota, Bs.
Burden, L.	Lindgren, L.	Shepherd, L.
Cawley, L.	Macpherson of Drumochter, L.	Silkin, L.
Champion, L.	Maelor, L.	Snow, L.
Chorley, L.	Meston, L.	Sorensen, L.
Citrine, L.	Mitchison, L.	Stonehaven, V.
Clwyd, L.	Monson, L.	Stonham, L.
Crook, L.	Morris of Kenwood, L.	Summerskill, Bs.
Darwen, L.	Moyle, L.	Taylor of Mansfield, L.
Falkland, V.	Ogmore, L.	Teynham, L.
Fraser of North Cape, L.	Pargiter, L.	Walston, L.
Gaitskell, Bs.	Peddie, L.	Wells-Pestell, L.
Gardiner, L. (L. Chancellor.)	Phillips, Bs. [Teller.]	Winterbottom, L.
Granville-West, L.	Raglan, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.9 p.m.

THE LORD CHANCELLOR moved, after Clause 27 to insert the following new clause:

Period of adjournment under sections 14 and 26 of the Magistrates' Courts Act 1952

" The maximum period for which a magistrates' court may adjourn a case at any one time—

1. (a) under section 14(3) of the Magistrates' Courts Act 1952 (adjournment after conviction and before sentence) for the purpose of enabling inquiries to be made or of determining the most suitable method of dealing with the defendant; or
2. (b) under section 26(1) of that Act for the purpose of enabling a medical examination and report to be made on the defendant;

shall be a period of four weeks instead of three weeks except where the court remands the defendant in custody."

The noble and learned Lord said: My Lords, in moving Amendment No. 17 may I also refer to Amendment No. 126 which is consequential? Section 14(3) of the Magistrates' Courts Act 1952 enables a magistrates' court, after convicting a person, to adjourn for up to three weeks to enable inquiries to be made and to assist their determination on how best to deal with the offender. For the period of the adjournment the court may remand the offender either on bail or in custody. Under Section 26 of the 1952 Act the court may, after convicting a defendant of an offence punishable on summary conviction with imprisonment, adjourn for up to three weeks, so that a medical examination and report on the defendant's physical or mental condition may be made. Again, the court may remand the defendant either on bail or in custody and may make his co-operation in a medical examination a condition of granting bail.

It has frequently been represented to the Government by such bodies as the Justices' Clerks Society and the Magistrates' Association that the three weeks' restriction is most inconvenient. This is because the majority of magistrates sit at fortnightly or four-weekly intervals. This does not mean that most courts sit at these intervals; but most courts of magistrates work on a rota, and the magistrates themselves will sit either once a fortnight or once a month. As it is obviously desirable that after the adjournment the same justices who tried the case should consider the reports and proceed to sentence, what happens is that at the end of three weeks the offender comes up and, as the justices then sitting are not the ones who were sitting three weeks earlier, there is a further adjournment, probably only for a week, until the original justices are sitting again.

It is right that the defendant should have his case dealt with as expeditiously as possible, and the most effective way of ensuring this is that the matter should be kept under constant judicial scrutiny. But to extend the maximum duration of an adjournment from three to four weeks should have little effect on the court's sense of urgency, and in any event if the justices are there only at two-weekly or four-weekly intervals, that will be the effective length of the adjournment. Extension of the adjournment would save the offender an abortive appearance before the court merely for the purpose of complying with the existing law. The new clause therefore provides that, where the defendant has been remanded on bail, the maximum duration of the adjournment under Sections 14 and 26 of 1952 Act may be four weeks, instead of three. Where the offender is in custody, however, the Government would be reluctant to increase the time during which he may be held without being brought before a court and the present limit of three weeks is considered to be long enough.

Amendment moved— After Clause 27, insert the said new clause.—(The Lord Chancellor.)

LORD MERTHYR

My Lords, this Amendment will be widely welcomed by a large number of magistrates' courts, particularly those which sit in rural parts of the country. Whether it ought to be so or not, there are still courts which sit only once a month. In such cases, in particular, this new clause will be very useful. I thank the Government for introducing it and give it my wholehearted support.

On Question, Amendment agreed to.

Clause 28 [Extension of Costs in Criminal Cases Act 1952]:

LORD STONHAM

This Amendment and Amendments Nos. 23, 24, 39 and 103 are all drafting Amendments. Their main purpose is to transfer the definition of "suspended sentence" from Clause 35 to 97. I beg to move.

Amendment moved— Page 19, line 1, leave out ("within the meaning of Part II of this Act").—(Lord Stonham.)

On Question, Amendment agreed to.

Clause 29 [Amendments of Costs in Criminal Cases Act 1952]:

VISCOUNT COLVILLE OF CULROSS moved, after subsection (3), to insert as a new subsection: ( ) Where a registered medical practitioner makes a written report on the medical condition of an offender or defendant and the report is put before the court by or on behalf of the prosecutor or accused, subsections (2) and (3) of this section shall apply as if the report had been made to the court in pursuance of a request by the court.

The noble Viscount said: My Lords, Clause 29 of the Bill was substantially amended on the Committee stage by Amendments put down by the noble and learned Lord the Lord Chancellor. One of them, which now appears in subsections (2) and (3) of the clause, was to deal with the question of paying for a report of a registered medical practitioner asked for by the court when the doctor himself did not appear. In other words, his report was put in writing before the court without his being bothered to come and give evidence in person. I asked the noble and learned Lord whether he could be satisfied that in the way the Bill is at present drafted all the possibilities had been covered. I know from experience that it is not necessarily quite clear that the report in writing is always asked for by the court. The Bill says that the request must be a request made by a court. I asked the noble and learned Lord to look at it again. I am grateful to him for having done so, and for having written to me on the subject, but in order to get publicity for his answer it was necessary for me to put down this Amendment in order to give me a platform.

The noble and learned Lord says in his letter to me that the difficulty of seeing that these written medical reports are always able to be paid for where it is necessary on the grounds that they have been made at the request of the court, can be cured in the case of a prosecution report by asking the clerk of the court in advance before one gets the medical practitioner to write it. So that if it is then produced as part of the prosecution's case it is nevertheless to be covered by this Bill as having been made at the request of the court. This is an important practical point, and I hope some guidance will be given to those who have to deal with those matters; otherwise I believe that some of the benefit of the Bill will not be realised, because of the difficulty upon which, I hope, I have put my finger.

The Amendment itself is intended to clarify the matter even further and goes beyond what I have been saying, in that it also deals with a medical report produced by the defence. It seemed to me that if the court had discretion, as it has, whether or not to order payment out of public funds for these written reports, then it did not much matter whether one pinned down exactly the circumstances in which it could use that discretion. I have put down the Amendment in case it might be an improvement on the Bill, but in any event I hope that the noble and learned Lord will repeat in the House what he has told me so that it may be known by what machinery the benefit of this new clause can be obtained. I beg to move.

Amendment moved— Page 21, line 3, at end insert the said sub section.—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

My Lords, I gladly confirm on behalf of the Government what I said in my letter to the noble Viscount. I think that the Bill as it now is will result in medical reports being paid for out of public funds in all cases in which they ought to be paid for out of public funds. I am afraid the view of the Government is that the Amendment now before the House really goes too far. Clause 29 is sufficiently wide as it stands to enable payment for a written medical report to be made out of public funds where it is appropriate, and this Amendment is therefore unnecessary and, in our view, also undesirable. The courts can be expected to remand an offender for the provision of a medical report whenever the need for such a report is apparent. Of course, it is always open to the defence to suggest to the court that a remand for this purpose is desirable. It would be much less frequently that the prosecution would ask for a medical report.

If the solicitor acting for a legally-aided defendant submits a written medical report in mitigation, the cost should normally be borne by public funds as part of the expenses of legal aid. If, on the other hand, a well-to-do defendant who is privately represented submits a written medical report in mitigation, there appears to be no reason why the cost of obtaining the report should, for the purpose of reimbursement from public funds, be treated any differently from any other costs of the defence. If such a defendant is acquitted the court has power in an indictable case to order payment of defence costs out of local funds, but otherwise he is left to bear the costs himself. Therefore I suggest to the noble Viscount that with the Bill as it is the cost of a medical report will be paid for out of public funds wherever it is proper that that should be so, but not where it would not be proper to do so.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am obliged to the noble and learned Lord. However, what he has not mentioned is the contents of the letter which he wrote to me. I appreciate that this is the Report stage of the Bill and that he would need the leave of the House to speak again, but perhaps I can leave it like this. I do not wish to press this Amendment, but will the noble and learned Lord see that what he said to me in the letter—which is that a request made by the court will be interpreted flexibly in practice and that if, for example, the probation officer considers it desirable that a medical report should be furnished before a case is heard no difficulty should arise, provided that he obtains authority from the clerk of the court—is sent round to county prosecuting solicitors' officers, to the probation service and other interested people, so that they may go right through the machinery and ask the clerk of the court before the medical report is provided? I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.21 p.m.

THE DUKE OF ATHOLL moved, after Clause 29, to insert the following new clause:

Display of case lists, etc., of magistrates' courts

" Before the start of each day's proceedings of all magistrates' courts excluding juvenile courts the clerk of the court shall cause to be displayed in a part of the court to which the public attending that court have access a list of all cases, applications and appeals to come before the court giving details of such charges, applications and appeals, full names, ages if known and addresses of all defendants, applicants and appellants. The publication of such information shall carry the same privilege as the publication of the other proceedings of the court."

The noble Duke said: My Lords, the effect of this Amendment would be to write into the Bill that in all magistrates' courts other than juvenile courts, before each day's proceedings a list should be displayed containing the names, addresses and ages of all defendants et cetera, and that this list should have the same degree of privilege as all other proceedings in the court. An Amendment on similar lines was discussed in another place, and the Minister replying for the Government agreed to send a circular letter to the clerks of all magistrates' courts asking that something on these lines should be done. This has been done, so the position is undoubtedly somewhat better than it was when this Bill left another place. But the circular letter is all right only so far as it goes, and there are one or two snags which I should like to point out to your Lordships.

The first snag is that these circular letters tend to have only a limited effect, and after six months or a year they are usually quietly forgotten. I am sure that, while magistrates' clerks start off by being very co-operative in this matter, as time goes on they probably get less co-operative, simply because it is a practice which is not laid down by law and which they may feel they can drop. But I believe that this practice is followed at many courts and that it is only in a minority where this is not already done.

Secondly, when the names are read out in court it is possible, when there is not a published list, for the reporters present to take down a name wrongly or to get an initial wrong. This is undesirable as it is just possible that there is another Mr. Smith, who has slightly different initials but otherwise fits the particulars in most, if not all, respects, and who might consider it a stain on his character if it was thought that he was being committed for a particular crime. Therefore, in the interests of accuracy it is desirable for these lists always to be published.

Thirdly, newspapers are extremely worried—and perhaps I should here declare an interest, in that I am a director of a group of newspapers—by the fact that they could be laid open to libel actions, through no fault of their own, if the clerk of the court read out something wrongly or got an initial wrong or something like that, when he was reading out the lists of defendants who had been committed. Therefore if this clause could be included in the Bill it would be an improvement; it would make the report of the proceedings more accurate, and would cover the newspapers in regard to libel, provided that they copied down accurately what was on the list. I should like to point out that it is already agreed that all the items stipulated in the Amendment can be included in reports of committal cases, so I feel that this does not introduce any new principle and, as I say, it would be for the convenience of the court, the public and the newspaper reporters. I beg to move.

Amendment moved— After Clause 29, insert the said new clause.—(The Duke of Atholl.)

LORD RAGLAN

My Lords, I should like very strongly to support the noble Duke's Amendment. I know that he is associated with a group of local newspapers, and one should be glad that the editors of newspapers are so anxious that such a list should be available. I am not associated with a newspaper, but I am a reader; and nothing can be more irritating than an inaccurate newspaper report. In the matter of court proceedings which feature very strongly in local newspapers, it is surely most important that the correct facts be given, because of the possibility of defamation and the harm done to someone by local gossip founded on a mistaken report.

I should also say that there is never any reason to tolerate inaccuracy when accuracy can so easily be obtained. Journalists are only too well aware of the harm and trouble caused by inaccurate reports of court proceedings, but too often they have to rely purely on what they hear, or on a chance contact with a friendly official, so that the opportunity of making mistakes is enormous. As the noble Duke has said, many magistrates' courts are now getting round to the idea that lists should be issued, and if some courts can do it then it seems reasonable that all can.

The list should be a comprehensive list, such as is set out in this Amendment, and it is most important that it should carry the same privilege as other court proceedings. However, the same remarks may apply if this Amendment is accepted as the noble and learned Lord the Lord Chancellor used on Amendment No. 4, when he said that certain matters already carry privilege. I urge the Government to accept this Amendment. We depend so much on our newspapers for interest and information, and it seems to me that any measures which we can take—and this one would be both cheap and simple—to help them with information of this sort, and to improve their accuracy, can be only to everybody's benefit.

THE LORD CHANCELLOR

My Lords, I am afraid that this Amendment would be absolutely impracticable, and I am hoping that on this matter the noble Lord, Lord Merthyr, who has been such a distinguished Chairman of the Magistrates' Association may be able to help us. Clause 4 of the Bill requires magistrates' courts to post up a notice giving the results of committal proceedings. That clause is intended to deal with a special problem arising in committal proceedings, in that the public might be deprived of Press reports because of the Clause 3 restrictions on reports. This provision does not, of course, apply to ordinary proceedings. We are saying that there may be nothing much said in court at committal proceedings and, while the Press representatives do not want to sit there while nothing much is happening, they want to be able to come along at the end and see what has happened.

But this new clause goes a great deal further, in that it deals with all criminal proceedings in magistrates' courts. As we know, there are about 1,400,000 cases a year. The proportion of committal cases is, of course, very small indeed, and this Amendment would require courts to post up in advance of the day's business a list of all cases due to be heard on that day. Not only would the identity and description of the defendant, and the charges, have to be included, but also the name, address and age, if known, of the person who laid the information or complaint, or who lodged the application or appeal. It is true that over recent years the Press have from time to time represented that in some magistrates' courts reporters have had difficulty in obtaining advance information of the cases to be heard, and, secondly, in being able to report the full identity of defendants, including their addresses, because, they have said, addresses are not always mentioned in court.

The Press acknowledge that to-day most courts, though by no means all of them, provide charge sheets or court lists for the information of magistrates, court officials and Press representatives; but these forms vary considerably in content. Some give names only; others names and towns of residence of defendants. Comparatively few record both names and home addresses. These lists are, of course, subject to error through incorrectly given information or mistakes in compilation, and, since even the most accurate charge sheet is still not a privileged document, the Press use it without the protection which, they say, the law visualises in its grant of privilege to court reporting. That is because, just as everybody is entitled to attend proceedings which are held in public, so the Press are entitled to attend and report whatever goes on. As far as defamation is concerned, their reports are privileged if they are fair and accurate reports of proceedings publicly heard in a court of justice. By analogy, the same thing would be true, of course, if one said that for a particular reason, as in this Bill, a notice is to be published after proceedings have been heard. As I said on an earlier Amendment moved by the noble Lord, Lord Brooke of Cumnor, I thought that, too, would be the subject of qualified privilege.

But, of course, strictly speaking the Press have no right to dig around and find that somebody is going to be charged with something, or that a case is going to be heard. One can understand that it is convenient for them if lists which are got out for the convenience of the police are given to journalists, so that they know when something is coming on; but strictly speaking they have no right to publish that somebody is being charged until the person accused appears in court. Indeed, the degree of association between some journalists and the police in that respect to-day goes rather far.

I remember a case only about three years ago in which my client was said to be a millionaire industrialist. I do not know whether he was; but the report of his arrest was in the newspapers and on sale in the streets before he even got to the police station. And when he got to the police station all the Press photographers were there. According to the newspapers he had been arrested in his office, when in fact he was not. He was late that day, and the police arrested him as he got out of his car. But in law people have no right to report criminal proceedings unless they take place, and this new clause seeks to deal with the point that the Press should, in publishing reports based on the information in the notice proposed in the new clause, have the protection of privilege. Noble Lords will remember what I said about that in answer to the Amendment moved by the noble Lord, Lord Brooke of Cumnor.

My Lords, the Government are anxious to help the Press so far as they can, and it is for that reason that a circular was sent out in accordance with a promise given when this Bill was in another place. The Minister of State, Home Office, Mr. Taverne, said: That circular will be issued. The Chairman of the Press Council agreed with the terms of the circular and expressed satisfaction that it should be sent out. That would be an administrative direction of the kind which the honourable Member sought and would cure the main difficulty which the Press has to meet to-day. If we went on to ask for other matters to be published we would be imposing a considerable burden on the courts. Legislation should impose precise obligations and one of the difficulties is that the defendant's address would have to be given on the notice, but a court does not always have a complete and accurate information of the address. It would have to be the last known address which might not necessarily be the current home address. The legislation would have to apply to all proceedings and would cover all the numerous minor traffic offences which come before magistrates' courts. This would mean that in certain cases in large towns the courts would have to post up hundreds of names. It is true that most courts prepare for their own purposes certain lists, but they do not go so far as to include all the particulars asked for. To provide all those particulars on the notice would mean imposing a very considerable extra burden on magistrates' courts staffs."—[OFFICIAL REPORT, Commons, 26/4/67, col. 1636.] In accordance with that, a circular has been sent out by the Home Office to clerks to the justices pointing out that some journalists have said that addresses are not always mentioned in their courts, and so forth, and ending: The Secretary of State also desires me to refer to the supply to reporters of advance information about the day's proceedings. In most courts reporters are supplied in advance with lists of cases to be heard and the efficiency with which the Press can fulfil their function of reporting proceedings is thereby enhanced. The Secretary of State is anxious not to add to clerical work in court offices, but advance information for these reports can usually be made available without additional work by supplying reporters with copies of lists already prepared for court purposes, and he hopes that all courts will take all reasonable steps to provide these useful facilities. Therefore, while the Government are unable to accept this Amendment, I hope that the noble Duke will feel that by the administrative action which has been taken he will have substantially gained the object he had when he put down the Amendment.

THE DUKE OF ATHOLL

My Lords, before the noble and learned Lord sits down, will he deal with the case where committal proceedings are adjourned overnight? I know that this is one of the main worries of the newspapers.

THE LORD CHANCELLOR

My Lords, I should not have thought that any difficulty would arise about that. Either it has been adjourned or it has not been adjourned, and merely reporting that it has been adjourned would not, I should have thought, give rise to any difficulty at all. It would be difficult, when a court is over for the day, for the clerks to have to sit down and type out, so to speak, the state of the day's play. I should not have thought that there would be difficulty in a newspaper stating the mere fact that a case had been adjourned or finished.

LORD MERTHYR

My Lords, the main difficulty in this matter arises from the fact that circumstances vary so enormously between courts in large cities and courts in small rural areas. To do this in the latter case would be very easy indeed. In fact, in would merely mean posting up in the court a copy of the information which would in any case be sent to every justice who was sitting that day. It would cause very little trouble, if any at all. However, I recognise, as I have said, that in large cities, where the cases are very numerous, it might cause a great deal of extra work.

When I saw this Amendment on the Order Paper I wondered what the purpose behind it was; but, of course, when I heard the noble Duke's speech I recognised and remembered the fact that the Magistrates' Association have for a number of years received requests from newspaper interests and reporters that matters should be made easier for them in court—and for those requests I must say that I have a good deal of sympathy. I cannot help feeling that some compromise could be achieved here. I cannot think that this should be completely turned down without some compromise being put in its place; and I hope that if this Amendment is not accepted, some further effort will be made to try to meet the requests, which I am quite satisfied are proper requests, of the reporters in magistrates' courts, who have a difficult task to perform anyway in the performance of their obligations.

LORD PEDDIE

My Lords, am I right in taking it from the comments which have been made by my noble and learned friend who sits on the Woolsack that the major if not the sole objection to this Amendment is the administrative difficulty of operating it? I was not quite sure whether that was the case. It seemed to be so from the first comments that my noble friend made, but from his latter comments it appeared that he was objecting to the principle. I should like to have an assurance upon that point.

THE LORD CHANCELLOR

My Lords, if I may speak again, it is in the main the administrative difficulties. The noble Lord, Lord Merthyr, is quite right. There may be no great administrative difficulties in one place but, of course, at the moment the provisions in the Bill extend only to a notice which relates to indictment cases and committals for trial, and then only because of matters not taking place in court which normally would do so. One has merely to bear in mind the great numbers of motoring offences to realise that it would really be impossible to provide that for every criminal case, of whatever kind, there should be published this enormous list of particulars.

It is very difficult now to recruit not only justices' clerks, but also their staffs; and there is the same difficulty everywhere. This is partly because it is not a national service: the county court staffs are centrally administered, and have a proper promotion system. But this is not the case with justices' clerks, and their clerks, who are appointed by the local magistrates' courts committees, and are overburdened with clerical work at the present time. This is the administrative difficulty.

LORD ROYLE

My Lords, I appreciate the difficulties; but there is one other to which the noble Duke did not refer. My noble friend Lord Merthyr mentioned the differences between rural courts and courts in large cities. The problem in some of the large cities and towns, where as many as four and five courts are sitting in one day, is that not only members of the Press, but members of the public who are interested in particular cases, have sometimes the utmost difficulty in finding out in which court a particular case is being heard. This creates tremendous difficulties; and confusion is confounded in some courthouses because the accommodation is not very good.

I hope that a compromise may be reached by legislating that the clerk should issue a list, not so comprehensive as that which the noble Duke envisages, but merely to include the names of the defendants or, in the case of the domestic courts, the names of the contestants. Such a list was exhibited on the door of the court where I used to sit, where quarter sessions were held periodically, for the benefit of interested people: Press, public, or even lawyers. It seems to me that it would not entail a great deal of work for the clerks and their staffs to post such a list on a notice board, so that people would know in which court a particular case was being tried. My objection to the noble Duke's comprehensive list is, with due respect to the Press, that they might look for the "spicy" case and go dashing to that particular court. A compromise solution is the one I suggest.

THE DUKE OF ATHOLL

My Lords, we have had a useful discussion on this point. I am not going to press this Amendment to-day because I can appreciate the administrative difficulties to which the noble and learned Lord on the Woolsack has drawn attention. I agree with him that there are difficulties over the addresses of many of these people; they are not always the best citizens and their addresses are not usually the most reliable. Possibly this Amendment goes rather too far. But it seems to me that the feeling of the House is that we should try to reach some compromise on this point. I wonder therefore whether the noble Lord would be prepared to think over the matter, as I shall, before the next stage of the Bill. With that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 34 [Supplementary provisions as to persistent offenders]:

LORD STONHAM

My Lords, I beg to move this Amendment, which is a purely drafting Amendment. Subsection (6) of Clause 4 now appears in paragraph 3 of the proposed new Schedule after Schedule 4. I beg to move.

Amendment moved— Page 24, line 9, leave out subsection (6).—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM

My Lords, this is also a drafting Amendment, consequent on the removal of subsection (6) to paragraph 3 of the proposed new Schedule after Schedule 4.

Amendment moved— Page 24, line 20, leave out ("so treated") and insert ("treated for purposes of detention, release, recall and otherwise").—(Lord Stonham.)

On Question, Amendment agreed to.

Clause 35 [Suspended sentences of imprisonment]:

LORD STONHAM: My Lords, I beg to move Amendment No. 23.

Amendment moved— Page 24, line 42, leave out from beginning to ("subsequent") in line 43.—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM: My Lords, I beg to move the next Amendment.

Amendment moved— Page 25, line 1, leave out ("this section") and insert ("the foregoing subsection").—(Lord Stonham.)

On Question, Amendment agreed to.

5.46 p.m.

LORD STONHAM moved, after subsection (2), to insert: ( ) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under the next following section if he commits a subsequent offence. ( ) Where a court has passed a suspended sentence on any person, and that person is subsequently sentenced to borstal training on being convicted of an offence, he shall cease to be liable to be dealt with in respect of the suspended sentence unless the subsequent conviction or sentence is quashed on appeal.

The noble Lord said: I beg to move Amendment No. 25. The first of these two new subsections requires a court which passes a suspended sentence to explain to the offender in ordinary language what his liability is. There are similar provisions in the Criminal Justice Act 1948 which require a court that makes a probation order, or an order for conditional discharge, to explain to the offender the effect of the order.

The second new subsection deals with cases where an offender on whom a suspended sentence has been passed is subsequently sentenced to borstal training. None of the four methods of dealing with a suspended sentence under subsection 1(a) of Clause 36 really fits cases of this kind, and the court would probably feel obliged to order that the suspended sentence should take effect under subsection (1)(a) of Clause 36. The result would be that the offender would serve the suspended sentence of imprisonment in borstal, concurrently with the borstal sentence. This would be satisfactory, but it might not be clear to the courts what they were supposed to do in these cases. The imposition of a sentence of imprisonment to run concurrently with a borstal sentence would be inappropriate, and the new subsection will relieve the court of any obligation to deal with the suspended sentence in these cases. In effect, it secures that a suspended sentence is deemed to be executed along with the borstal sentence.

Moreover, a borstal sentence is essentially a training sentence, in a way that a short sentence of imprisonment cannot be. A borstal sentence is indeterminate between a minimum of six months and a maximum of two years, and the date of release depends primarily on the offender's response to training. When a court sends an offender to borstal this is a new start. The offender's record, including the suspended sentence, will have been taken into account, and any liability under a suspended sentence of imprisonment should be regarded as swallowed up in the borstal sentence. The offender will in any case be subject to supervision when released from borstal training. I beg to move.

Amendment moved— Page 25, line 6, at end insert the said subsections.—(Lord Stonham.)

LORD BROOKE OF CUMNOR

My Lords, both these new subsections seem to me to have considerable clarifying value, and I am grateful to the Government for having introduced them. I would only say that this kind of Amendment shows the value of discussing a Bill like this at a number of stages separated in time; because, although this Bill has been very closely examined for many days in a Standing Committee in another place, and has then been through the Report stage there, and has been examined here in Committee, it is possible even now to detect matters in respect of which, if we did not make Amendments of this character, a court would be left in some doubt about the position that would arise if they took a certain action. This seems to me additional justification of the value of what is sometimes regarded as our long-drawn-out Parliamentary procedures. I hope that noble Lords will agree to accept this Amendment.

On Question, Amendment agreed to.

Clause 36 [Power of court on conviction of further offence to deal with suspended sentence]:

VISCOUNT DILHORNE moved, in subsection (1), to leave out from "facts of the subsequent offence", to the end of the subsection, and to insert: and where it is of that opinion the court shall state its reasons. The noble and learned Viscount said: My Lords, Clause 36(1) provides that the court shall make an order under paragraph (a) of that subsection—that is to say, that the suspended sentence shall take effect with the original term unaltered: unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the fact of the subsequent offence in which case the court shall state the reasons for its opinion. The last twelve words were added as a result of my drafting efforts. I have often found that, whenever one drafts anything which expresses one's meaning to one's complete satisfaction, the Parliamentary counsel nearly always find a formula which, for reasons they cannot disclose, they prefer. I understand that the Amendment I am now moving is in language which more nearly meets the approval of Parliamentary counsel, for whom I have the greatest respect. With the Amendment the sentence would read: … unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, and where it is of that opinion the court shall state its reasons. My Lords, I believe that this is another way of saying precisely the same thing, but I beg to move the Amendment, and I hope that the language of the Bill will be improved.

Amendment moved— Page 26, line 4, leave out from ("offence") to end of line 5 and insert the said new words.—(Viscount Dilhorne.)

LORD STONHAM

My Lords, the noble and learned Viscount is perfectly accurate in his account. He moved an Amendment in Committee with such conviction that I was moved to accept it; but out of his great experience the noble and learned Viscount suggested that the words might not be right, although the sense was obvious to everyone. This has proved to be the case, but I am glad to be able to say, on behalf of the Parliamentary draftsmen, that this is not a distinction without a difference. These words have quite a different effect. The reason for the new form of words is that there are really two cases detailed in the four methods set out in Clause 36(1).

First of all, there is the order under paragraph (a) and then there is the use of one of the other three methods of dealing with an offender where an order under paragraph (a) would be unjust; and therefore it would not be appropriate to introduce by the words, "in which case" a requirement which cannot apply to (a), and is intended to apply only to the second case where (a) would be unjust; namely, when the court is of opinion that it would be unjust to insist that the suspended sentence should take effect. I hope that the noble and leaned Viscount will agree that not only honour but wisdom is now satisfied. I hope that your Lordships will accept the Amendment.

VISCOUNT DILHORNE

My Lords, I had better say, "Thank you", straight away. I am completely mystified by the information given by the noble Lord, Lord Stonham, but I will study it in Hansard, and I certainly shall not put down another Amendment to this subsection.

On Question, Amendment agreed to.

5.54 p.m.

LORD STONHAM moved, after subsection (2), to insert: ( ) Where under subsection (1)(a) or (b) of this section a court orders that a suspended sentence shall take effect with a term of not more than six months and the court would have had power to sentence the offender to be detained in a detention centre for that term if it had convicted him of the original offence on the occasion of the order, the order may include a direction that he shall serve the sentence in a detention centre. ( ) Without prejudice to the last foregoing subsection, where under the said subsection (1)(a) or (b) a court orders that a suspended sentence shall take effect with a term of less than three months, the court may include such a direction in the order if the offender is then liable to be detained in a detention centre by virtue of an order or warrant made or issued by that or any other court. ( ) An order under the said subsection (1)(a) or (b) which includes a direction that an offender shall serve his sentence in a detention centre shall be treated for all purposes as an order under section 4 of the Criminal Justice Act 1961 (detention of offenders aged fourteen to twenty) for his detention in a detention centre, and subsection (2) of this section shall not apply in relation to any such order. ( ) Where a court deals with an offender under this section in respect of a suspended sentence the clerk of the court shall notify the clerk of the court which passed the sentence of the method adopted.

The noble Lord said: My Lords, this Amendment seeks to add four new subsections to Clause 36. The first three deal with detention centres, and the fourth requires the court which deals with the suspended sentence to notify the court which passed the sentence. The first of the new subsections enables a court which orders a suspended sentence to be executed to order that the sentence shall be served in a detention centre. This power will be exercisable only where the court would have had power to send the offender to a detention centre for the term of the suspended sentence if it had just convicted him of the offence for which the sentence was originally passed; that is to say, the power will be subject to the usual restrictions on the passing of detention centre sentences.

I can best illustrate this by an example. Suppose a court passes a suspended sentence of three months' imprisonment on a young person. The young person commits a further offence some time later, and the court which deals with the further offence wishes to send him to a detention centre. At the same time it is obliged by the provisions in this Bill to take some positive action with regard to the suspended sentence. It could not make the new detention sentence concurrent with, or consecutive to, a sentence of imprisonment. The only way of giving the court the discretion it needs is to enable the court to convert the suspended sentence of imprisonment into a sentence of detention in a detention centre. A further consideration in favour of the proposal I am now making is that the court which passed the suspended sentence might have wished to pass an immediate sentence of detention but might have been prevented from doing so by the fact that there was no detention centre vacancy available; so they passed a suspended sentence. If, when the suspended sentence had to be executed, there was a vacancy, there is no reason why the court should not take advantage of it and send the offender to a detention centre. Your Lordships will appreciate that these arguments are particularly cogent because one of the objects of detention centres is to provide an alternative to the short-term imprisonment of young offenders.

The second of the new subsections which I am moving is a technical provision to deal with the case where a suspended sentence is to take effect with a term of less than three months, in which case there is no reason why a court should not order the sentence to take effect concurrently with another sentence of detention imposed, for example, for a subsequent offence. Under the Criminal Justice Act 1961 a court may not sentence a person of 17 or over to detention for a term of less than three months, unless the sentence is to run consecutively to another term of detention. The effect of the new subsection will be that the restriction would not apply to cases where a suspended sentence of imprisonment is converted into a sentence of detention. In such a case the detention centre sentence of less than three months will be able to run concurrently with another detention centre sentence.

The third subsection provides that where a suspended sentence of imprisonment is converted into a detention centre sentence it shall be treated as an order under Section 4 of the Criminal Justice Act 1961. This attracts the provisions of the 1961 Act relating to after-care, consecutive sentences and so on. Consequently, Clause 36(2) can be disapplied without anything being put in its place.

The last of the four subsections provides that where a court deals with a suspended sentence it shall notify the court which passed the sentence. A provision on these lines has been suggested by the Justices Clerks' Society and it will ensure that the court is enabled to keep a check on the subsequent performance of an offender on whom it passed a suspended sentence. I think it is becoming increasingly recognised that follow-up information of this kind is valuable to a court. The subsection will also ensure that a court is kept informed of how other courts exercise the discretion in Clause 36(1) when dealing with its suspended sentences on re-conviction. I beg to move.

Amendment moved— Page 26, line 11, at end insert the said subsections.—(Lord Stonham.)

LORD BROOKE OF CUMNOR

My Lords, the fourth of these new subsections seems to me thoroughly sensible and practical. The other three are largely of a technical nature. There is just one point about which I am not quite certain. At the moment the age limit for detention centre is under 21. The original sentence on a man may have been suspended in respect of a period up to three years, and if towards the end of that period the man commits a further offence, he may be 22 or 23. Will it be open to the court under these provisions to say that he is to serve the suspended sentence in a detention centre? If so, he may be two years older than anybody else there. Or is there anything in the Bill or in the law as it stands that would prevent the court from making him serve his suspended sentence in a detention centre?

LORD STONHAM

My Lords, the first three subsections are to provide the court with discretion in this matter. In the case which the noble Lord has mentioned, if an offender was 22 when he came before the court again, then the court would not send him to a detention centre. It may send him to prison or take some other course. These Amendments enable young offenders who are eligible for detention centre and whom the courts would like to send to a detention centre to be sent there, without the courts being precluded from doing so by technical difficulties in the law as it now stands.

On Question, Amendment agreed to.

Clause 40 [Restriction on magistrates' courts' power to impose imprisonment for default in payment of fines, etc.]:

6.3 p.m.

LORD STONHAM moved, in subsection (3), after "not", to insert: in advance of the issue of a warrant of commitment".

The noble Lord said: My Lords, I beg to move this Amendment and should like your Lordships to consider with it Amendments Nos. 29 and 30. These are drafting Amendments. I found it difficult to understand them without looking at the clause and inserting the words proposed in the Amendments, and perhaps your Lordships would allow me to read the clause as it would be when amended: A magistrates' court shall not in advance of the issue of a warrant of commitment fix a term of imprisonment which is to be served by an offender in the event of a default in paying a sum adjudged to be paid by a conviction except where it has power to issue a warrant of commitment forthwith but postpones issuing the warrant under section 65(2) of the Magistrates' Courts Act 1952 (power to fix a term and postpone the issue of a warrant). That seems to me to make the meaning clearer.

Subsection (3) defines the circumstances in which a magistrates' court may, in advance of the issue of a warrant of commitment, fix the term of imprisonment which is to be served by the offender if he defaults in payment. A court will be able to do this only when it has power to commit the offender to prison straight away but, instead of doing so, exercises its power under Section 65(2) of the 1952 Act to fix the term and postpone the issue of the warrant. This power is quite frequently used by the courts to give the offender a last chance to pay. This is another of those cases to which the noble Lord referred when, by continually going through a Bill and sifting it, we are able to make improvements. These words expand the subsection a little, but state the effect of the subsection rather more fully.

On Question, Amendment agreed to.

LORD STONHAM: My Lords, I beg to move this Amendment.

Amendment moved— Page 29, line 35, after ("except") insert ("where it has power to issue a warrant of commitment forthwith but postpones issuing the warrant").—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM: My Lords, I beg to move the next Amendment.

Amendment moved— Page 29, line 36, leave out from ("of") to ("a") in line 37.—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM moved, in subsection (10), to leave out all words from "Where a" to "means" and to insert fine has been imposed on conviction of an offender by a magistrates' court, the court may, on inquiring into his".

The noble Lord said: My Lords, I beg to move Amendment No. 31, and with it I hope your Lordships will agree to consider Amendments Nos. 32 to 35 and No. 127 in Schedule 5. These are all Amendments to Clause 40(10). Again, as they are rather complicated, I should like to read the subsection as it would be if these Amendments were accepted: Where a fine has been imposed on conviction of an offender by a magistrates' court, the court may, on inquiring into his means or at a hearing under subsection (6) of this section, remit the whole or any part of the fine if the court thinks it just to do so having regard to any change in his circumstances since the conviction, and where the court remits the whole or part of the fine after a term of imprisonment has been fixed it shall also reduce the term by an amount which bears the same proportion to the whole term as the amount remitted bears to the whole fine or, as the case may be, shall remit the whole term.

The object of these Amendments is to restrict the power of remission in Clause 40(10) of the Bill to fines. Under the Bill as drafted, the power extends to any sum adjudged to be paid by a conviction, and thus includes compensation, damages and costs. In the Standing Committee of another place an Amendment with the same object—to restrict the power to fines—was moved, and was withdrawn on the understanding that the Government would consider the practical implications. After careful consideration, the Government have come to the conclusion that it would be right to restrict the power to fines. The argument in favour of doing so is that a third party's interests ought not to be compromised in his absence, as they might be if the court had power to remit compensation, damages and costs. This is, I think, a sound argument of principle and, in the Government's view, it does not raise any practical difficulties as a result of the need for courts to distinguish between fines on the one hand and compensation, damages and costs, on the other.

The new subsection (2)—Amendment No. 35—is necessary because arrears of National Insurance contributions are recoverable as a penalty. These arrears represent unpaid contributions which may affect the benefit position of the defendant, and it is desirable that the decision to write off these arrears should be taken only by the Ministry of Social Security, who alone will have full knowledge of the benefit implications. Under the present procedure, which will remain in force, the clerk of the court can write to the Ministry for their agreement to payment of the arrears not being enforced. I know it is difficult taking together six Amendments all on one point, but I hope that I have made the position clear to your Lordships. I beg to move.

Amendment moved— Page 31, line 6, leave out from first ("a") to ("means") in line 8 and insert the said new words.—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

My Lords, I think it is convenient to take these Amendments together, and I also strongly suspect that the House will agree that they are an improvement to the Bill. I am certainly very glad indeed to hear that the court is not going to be able to remit matters like compensation, or indeed costs, when, as the noble Lord so rightly said, the person in whose favour they are given is not there, as is usually the case, to be heard. So I think the substitution which the noble Lord is proposing in this series of Amendments is a good one. I would say only one other thing, which I think is convenient, if I may be forgiven for being a little out of order, and it is that I do not observe that the point that was raised by my noble friend Lord Brooke of Cumnor about the remission in Scotland of fines imposed in England, and the question of asking the senior court that imposed them, is being dealt with. It may be that this is a matter which has still not been considered by the Government, but, if it has not, I wonder whether the noble Lord will think about it again.

LORD STONHAM

My Lords, I am grateful to the noble Viscount for what he has said. I will certainly look at the last point he mentioned. I was under the impression that we should be coming to that later, but I had better not be certain about it. If not, I will look at it again.

LORD BROOKE OF CUMNOR

My Lords, perhaps I can help about the Scottish point. I have received a letter from the Government on this matter. It is extremely obscure, but in the light of that letter I am not proposing to pursue it further.

On Question, Amendment agreed to.

Amendments moved—

Page 31, line 9, leave out ("sum") and insert ("fine")

Page 31, line 12, leave out ("that sum") and insert ("the fine")

Page 31, line 15, leave out ("sum") and insert ("fine")

Page 31, line 19, at end insert— ("( ) The last foregoing subsection shall not authorise a magistrates' court to remit the whole or any part of a sum ordered under section 95 of the National Insurance Act 1965 or section 69 of the National Insurance (Industrial Injuries) Act 1965 (recovery of unpaid contributions on prosecutions under those Acts) to be paid to the National Insurance Fund or the Industrial Injuries Fund and recoverable as a penalty by virtue of subsection (6) of either of those sections.")—(Lord Stonham.)

On Question, Amendments agreed to.

Clause 43 [Fines imposed and recognizances forfeited at assizes and quarter sessions]:

LORD STONHAM

My Lords, I hope it will be convenient if I deal with Amendment No. 37 together with No. 36. These two Amendments are transitional provisions. They secure that the existing enforcement of procedure shall apply to fines imposed by assizes, quarter sessions or coroners before the commencement of Clauses 43 and 45. In such cases the sheriff will have started off the enforcement procedure, and it would be impracticable to require the courts to start afresh with the new procedure laid down by Clause 43. I beg to move.

Amendment moved— Page 32, line 40, after ("sessions") insert ("after the commencement of this Act").—(Lord Stonham.)

On Question, Amendment agreed to.

Clause 45 [Fines imposed by coroners]:

LORD STONHAM: My Lords, I beg to move.

Amendment moved— Page 35, line 23, after ("coroner") insert ("after the commencement of this Act").—(Lord Stonham.)

On Question, Amendment agreed to.

6.15 p.m.

LORD ROYLE moved, after Clause 47, to insert the following new clause:

Combination of probation order with recognizance of abstinence from intoxicating liquor. . If a court makes a probation order in a case where the offender is under the age of 21 years, and it is of the opinion that the offence was committed whilst the offender was under the influence of drink, it may order that, as a condition of probation, the defendant shall enter into a recognizance of abstinence from intoxicating liquor during the period of probation.

The noble Lord said: My Lords, this is quite a simple Amendment and rather different from anything that we have been discussing to-day or that was discussed on the Committee stage. I was unable to put down the Amendment on Committee stage and have had to take the opportunity now. On my further consideration of the Bill, it may well be that this Amendment would have been better placed after Clause 50 than after Clause 47, but I hope that my noble friend, when he comes to reply, will not hold that against me. If he agrees to the new clause, as I hope he will, then no doubt he will decide what place it should occupy in the Bill.

Experience teaches, I am sure, in almost every magistrates' court in the country, if not in every one, and in the higher courts, that young persons often make first and early appearances in court charged with offences which they probably would not have committed but for the prior consumption of alcoholic liquor. I have in mind the type of individual who is seen so often in the courts to-day, about 18, 19 or 20 years old. I do not know why it is, but he is almost invariably a builder's labourer. Having heard the case, the magistrates say: "You are 19 years of age. Would you like to say how much money you are earning?". The answer may be: "£18 a week". And then he is asked: "And how much do you give mother?", and the answer is, "Fifty shillings".

These young men have all this money, with very little control or influence from parents. They get into all manner of company, and they start not just having the odd half-pint but indulging in liquor, and often in spirits. They get themselves into all kinds of trouble, not only by being drunk or drunk and disorderly, but, in many cases, perhaps on the first occasion out of dare, in the state in which they are because of the drink, by breaking into enclosed premises. Sometimes they have gang fights and set about each other, and great damage is done. These chaps come before the courts, unfortunately, in large numbers in these days. It seems to me that these early appearances often present an opportunity to check a tendency to crime, and it may be that probation, rather than detention or even fining, would be the appropriate way to deal with them.

I should like to go back into history about this matter. Section 2 of the Probation Act 1907 provided that the offender should enter into a recognisance of abstention from intoxicating liquor where the offence is drunkenness or any offence committed under the influence of drink. Following the passage of that Act, this provision was used extensively in the courts. I have recently been reading some of the things which were said by judges and distinguished magistrates about the use of this particular section. There is no doubt that over the years it was of great value. But in 1914 there was a Consolidation Act, and the words that I have just quoted were cut down to, abstinence from intoxicating liquor". This cut out completely the words, where the offence is drunkenness or any offence committed under the influence of drink. Why the Joint Committee of both Houses of that day, if it was a Joint Committee, ever agreed to the alteration of the law in that way, I do not know. I cannot imagine that the present Joint Committee would agree to the draftsman doing that kind of thing in present circumstances.

The result was that those essential words were cut out, which made the position that it could be applied to any offence of any kind. It could be said that a man could be put on probation if he abstained from intoxicating liquor, and that was never the intention of the 1907 Act. Then in 1948 there was a further consolidation, and the Committee of those days agreed to wipe the lot out, because the words did not mean anything, in the way in which I have tried to describe to your Lordships. As the words were then, they did not mean anything at all, and so they were struck out and have never been put back into legislation.

I do not want to keep your Lordships for any length of time, but I am concerned, as I am sure every Member of your Lordships' House is, at the tremendous growth since 1907 of offences of all kinds among our young people. I say with the utmost confidence that at least 50 per cent. of the offences committed to-day by people under the age of 21 and heard before magistrates—offences of the type I have tried to describe: the breaking-in, the beating-up, and so on—are due to the fact that young people cannot carry their liquor and are taking far too much. I feel that if my noble friend could accept this Amendment it would be of great advantage and very helpful, not only to justices of the peace but, I am quite sure, to probation officers. The courts should have this power, with the recognisance being a condition of the probation.

I have heard it suggested that magistrates already have the ability to do this sort of thing. But I very much doubt it. I do not think it is so. In many courts in the country a magistrate will say to somebody he is putting on probation, "Of course, you must not take drink in future, and the probation officer will look after you". But, my Lords, that is not in legislation, and I am searching for a way of making it absolutely clear that this condition shall be there as a recognisance at the time the probation order is made. I beg to move.

Amendment moved— After Clause 47, insert the said new clause.—(Lord Royle.)

LORD PARKER OF WADDINGTON

My Lords, I have listened with great interest to the noble Lord's speech on his Amendment because I am so firmly of the opinion that every additional weapon the courts, at all levels, have at their command, the better. But I confess, having listened to him, that I am no wiser, because I certainly think there is already full power to make it a condition of probation that during the time of the probation order the offender either abstains from liquor or does not go into licensed premises, or to impose whatever condition is thought right. The noble Lord suggested there was some doubt in the matter. All I can say is that I have seen it done hundreds of times, and I am afraid that I have done it myself. Whether there is any value in saying that it should not merely be a condition of probation that he should enter into recognisance, I rather doubt. If he breaks a condition lawfully imposed, he can be brought back and punished for the offence. Therefore, while having every sympathy with this Amendment, I feel that there is ample power already.

LORD ROYLE

My Lords, would the noble and learned Lord quote to me where the power is?

LORD MERTHYR

My Lords, may I supply the deficiency? May I begin by saying that I greatly regret it if I seem to differ from the noble Lord, Lord Royle, with whom I have worked in this field—and I hope we have worked as a team—for a number of years. I certainly do not want to differ from him, because his objects are precisely those that I have in mind. But, with great respect to him, may I now agree with the noble and learned Lord the Lord Chief Justice in saying that surely there is already ample power for the courts to do just what the noble Lord, Lord Royle, wants to do. He asked, "Where is the power?" I have this afternoon copied out subsection (3) of Section 3 of the Criminal Justice Act 1948—and I think this is in point—and I would ask the permission of the House to read it. It says: … a probation order may in addition require the offender to comply … with such requirements as the court, having regard to the circumstances of the case "— and I would underline those words— considers necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences". I hope that the noble and learned Lord is right in saying that we can do it now, because I, like him, have done it myself. Really and seriously, I see no difficulty. It is most useful and I have done it, I think successfully. I have said to a man, "In addition to the ordinary requirements of a probation order"—those requirements which go into every probation order, such as complying with a request of the probation officer—"we are going to insert an additional provision, and that is that for the next year"—or three years, or whatever it may be—"you shall not enter licensed premises;" or "you shall not consume intoxicating liquor". It may be argued that the latter requirement, at any rate, if not the first, is not very easy to enforce. Be that as it may, that is what can be done by the court, and is done very frequently.

I shall be interested to hear what the Government spokesman says about this, but I shall be very surprised if he does not agree that what the noble Lord, Lord Royle, wants to do he can do now, any day of the week he likes. The only difference between his Amendment and the present situation is, as I see it, that he introduces the figure of 21 years. Now, one can impose the condition upon any offender of any age, the only difference being, I think, that where the offender is under 14 it is not necessary to ask his consent. But that will make no difference to this Amendment, because Lord Royle says in the Amendment that this is to be done only where there is a probation order, and therefore it will still be necessary to get the man's consent. As I said, I am very sorry to differ from the noble Lord, Lord Royle, but surely courts can do now exactly what he wants.

6.28 p.m.

LORD STONHAM

My Lords, if only I could be assured that on Bills of this kind I could always have the attendance of the noble and learned Lord the Lord Chief Justice and the noble Lord, Lord Merthyr, there would be no need for my officers to sit in the Box, because I am quite sure that those noble Lords would be able to furnish any answers I might require. Indeed, the noble Lord, Lord Merthyr, himself gave the answer to the question I sent to the Box; and I would indeed confirm that the power which my noble friend seeks already resides in Section 3(3) of the Criminal Justice Act 1948.

I think it would be difficult for my noble friend to put a case on any subject without exciting a considerable degree of sympathy for the cause he advocated. The only point that I was not quite clear about was why it was always builders' labourers, aged 19, who are concerned. I do not know whether they are extra husky, or whether builders' labourers gather an exceptional thirst. Certainly we understand that if a proposal such as that which has been made by my noble friend would help, it should be carefully considered, but it is the case that all that he wants to do not only can be done but is, in fact, already being done by magistrates.

I was glad that the noble Lord, Lord Merthyr, mentioned the question of consent, because in making a probation order the offender would have to agree before the order was made, but in my noble friend's new clause he assumes that, since the order was being made, the offender had in fact already agreed to the condition. That is the assumption. I was going on to say that it was not clear to me, from the terms of the Amendment, that consent had to be obtained, and I should say that probation officers attach very great importance to the obtaining of consent. That is why they will often object to the linking of, say, a suspended sentence with probation, or something of that kind. This is particularly the case when the probationer has been told that a condition of the probation order is that he must refrain from intoxicating liquor. Then his consent to the order is of vital importance, because the probation officer can refer him to his promise and bring him up against it.

Granting the difficulty of consent being overcome, as the noble Lord, Lord Merthyr, assumed that it had, it is extremely doubtful whether a requirement such as my noble friend suggests would really achieve very much in keeping a probationer off intoxicating liquor, if only for the reason that it would be extremely difficult to enforce. The kind of case that my noble friend described was not so much that the boy was drunk, but that the consumption of alcohol had almost certainly led him to commit another crime. But under the probation system there would be no opportunity for the close supervision which, to be effective, such a provision as that suggested by my noble friend would require. It would be possible for the probationer to consume, if not excessive at least substantial quantities of drink without the knowledge of his supervising officer. It might induce the feeling that he could defy the order with impunity, and that might well tempt him into more serious breaches.

I am sorry that I cannot accept my noble friend's new clause but I hope he is convinced, if not by me then certainly by the noble and learned Lord, the Lord Chief Justice, and the noble Lord, Lord Merthyr, that the powers he requires are already there, and it is simply for the courts to use them if they think them suitable.

LORD ROYLE

My Lords, I know that I am up against a very strong trio, but in spite of that I am not convinced. I feel that there is a difference between what magistrates are doing at the present time and what they could do under the terms of this new clause. There is a recognisance here; it is not just a question of saying, "This is a condition", and I still have my doubts as to whether magistrates are doing everything in accordance with the law in the way in which they are saying these things in these days in the courts. The only satisfaction I can get out of this discussion is that it may have created a little publicity. It may be that some magistrates who have never thought of it before, in spite of it not being in strict accordance with the law—

LORD STONHAM

My Lords, may I interrupt my noble friend? Nothing that I have said, and certainly nothing that the noble and learned Lord, the Lord Chief Justice, has said, should be taken as implying that it is not strictly in accordance with the law. We quoted from subsection (3) of Section 3 of the Criminal Justice Act 1948.

LORD ROYLE

Very well, my Lords. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 52 [Committal to, sentence for offences tried summarily]:

LORD STONHAM: My Lords, I beg to move.

Amendment moved— Page 39, line 17, leave out from ("sentence") to ("and") in line 18.—(Lord Stonham).

On Question, Amendment agreed to.

Clause 55 [Constitution and functions of Prison Licensing Board and local review committees]:

6.35 p.m.

LORD BROOKE OF CUMNOR moved, in subsection (1), to leave out the first "Prison Licensing" and to insert "Parole". The noble Lord said: My Lords, we now come to Part 3 of the Bill. We are making good progress, and I should like to assure the Government that if they accept this Amendment, which I will move as persuasively as I can, I will then proceed in due course to move formally Amendments Nos. 41, 42, 43, 44, 46, 47, 49, 50, 108, 112 and 113, not to speak of Amendments 124 and 125 which are down as Amendments to Amendment No. 123, so we shall make considerable progress in clearing the Marshalled List.

This Amendment is identical with one which I moved in Committee and then withdrew. In my speech on that occasion I said that I had no intention of pressing the Amendment to a Division because I should like to think of a word better than "parole". I have done my best in that direction, but I have not succeeded. The noble Lord, Lord Mitchison, suggested that we might call the body the "central review committee", as against the local review committees for which the Bill provides. But that might mean anything. It might be something connected with the Licensing Acts, with planning legislation, or what you will.

I think I gained a good deal of sympathy among your Lordships in the debate on this Amendment in Committee when I urged that we should devise a name for this Board which did not contain any reference to prison or prisoners. The reason for that is that it will be of value to the discipline and the atmosphere of prisons if this is accepted by prisoners as an entirely independent body—independent of the Prison Service. I know that that is what the Government also wish to achieve. The trouble is that if one includes in the name of the Board any word relating at all to prisons or prisoners, as one might well wish to do for the purpose of identification, one will then imperil one's success in the aim of convincing prisoners that it is completely independent.

I grant at once that this is not exactly a parole board, but I am inclined to think that even if we managed to work out an elaborate name that precisely described the Board and its functions, it would come to be called, for short, "the Parole Board", so it seems to me that the phrase "Parole Board" is not a bad name. Indeed, I doubt whether there is a perfect name. If I am not too far out of order I should like, in moving this Amendment, to ask the noble Lord, Lord Stonham, whether the Government have been able to meet in any way the similar point I made with regard to the local review committees, that they also should not be closely identified in the prisoner's mind with the Prison Service. I suggested that a local review committee should contain no member of the present Prison Service. I recognised that there would be difficulties about that, but I urged very strongly that the local review committees, contrary to what had previously been said by the Home Secretary, should include members who were nothing to do with the prisons.

I know that his original idea was to have the prison governor or deputy governor, a senior probation officer and a member of the visiting committee or board of visitors of the prison. It seems to me that that does not go far enough and that both in the naming of this Licensing Board and in the rules that the Secretary of State will in due course make under this Bill for the local review committees it is important to break any idea there may be in the prisoner's mind that the body which is going to consider the possibility of his release on licence, whether the local body or the central body, is somehow under the thumb of the governor or of the prison administration generally. I know that provision is made in this clause for a member of the Prison Licensing Board or the Parole Board, or whatever we call it, to interview a prisoner who is under consideration for release on licence. I asked that it should be made quite clear in the rules for the local review committees, which are also covered under this clause but are not actually included in the Bill, that any prisoner should have the right to be seen personally by at least one member of the committee.

In all this I am seeking to achieve what I feel fairly sure is in the Government's mind, too: to convince all prisoners that they are going to have an absolutely fair hearing and that nobody shall be in a position to decide in advance that, however strong the prisoner himself thinks his case is, it shall be ruled out of court because he has fallen foul of the governor or had some other quarrel with the Prison Service. I am sorry to have spoken at length over this simple, though oft-repeated Amendment, but I think it is important in fulfilling what I know the Government are seeking to achieve by these clauses in Part III—that is, to construct a piece of machinery which will satisfy the public as well as the prison authorities that there will be safeguards against prisoners being arbitrarily let out on licence, and equally will satisfy prisoners that they will have an absolutely independent and fair review of their case. I beg to move.

Amendment moved— Page 43, line 7, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

LORD PARKER OF WADDINGTON

My Lords, may I support this Amendment. Although it is a small point, it is one of very great importance. I drew attention to it myself on Second Reading and at the Committee stage. We all want the Board to be a success and start off, as it were, on the right foot. Certainly all those I have spoken to who have been connected with prisons feel that it is quite hopeless to treat this as a Prison Licensing Board. I am not referring to the fact that it does not licence prisons, but to the fact that the prisoner will immediately think that this Board is in some way associated with the prison. I am sure the Government have given attention to some alternative, but, failing anything better, I would support "parole". After all, one of the most successful Boards of this sort is in New Zealand and it is called the Parole Board in Australia, certainly the State of Victoria, it is called the Parole Board, and in Canada it is called the Parole Board. Why we should not adopt "Parole Board" I really do not know.

LORD STONHAM

My Lords, I am grateful for the offer which the noble Lord, Lord Brooke of Cumnor, made in moving this Amendment and I shall try to earn it. As the noble Lord reminded us, I gave an undertaking during Committee stage to consider whether we could decide on a better title than Prison Licensing Board and one which did not have the admitted defects of Parole Board. We have given a good deal of thought to this matter but we have to confess failure. The only thing we are quite certain about is that the name "Prison Licensing Board" just will not do. As the noble and learned Viscount reminded us in Committee, the Board would not be licensing prisons, and it would not, strictly speaking, even be licensing prisoners, because that is something that the Home Secretary would do, to anticipate events, on the Board's recommendation.

I think the most important point which was made by the noble Lord, Lord Brooke of Cumnor, was that the reference to "prisons" in the name of the Board that we have in the Bill suggests—it almost says—that it is part of the Prison Service, which it will certainly not be. I think that is the main point: that the Board's name should not use the word "prison" or "prisoner". I think we are also agreed that the other names that were suggested during Committee stage are not satisfactory. Certainly, if reference to prisons and prisoners is ruled out, as I think it should be, then "Licensing" also has to be ruled out because it cannot stand on its own. We considered "Review"; we considered "Advisory". We considered all sorts of alternatives, but we have finally come to the conclusion that there is no neat alternative which accurately reflects the Board's function.

"Parole Board", although not entirely appropriate, as we are all agreed, at least has the advantage that it will mean what most people intend it to mean or think it means. Therefore, if most people are going to call it the Parole Board anyway, we might as well call it Parole Board officially in the Bill; and I would therefore recommend your Lordships to approve Lord Brooke of Cumnor's Amendment. I would also thank him very much for all the work he has done on this subject and particularly the way in which he presented his case in Committee, which I think has helped us to come to what I regard as the most satisfactory conclusion we could have come to.

May I now deal quite briefly with the points about local review committees which the noble Lord asked me about; and as I cannot make another speech, if what I say is not clear to your Lordships, perhaps you will interrupt me for purposes of clarification. First of all, the noble Lord said that we must include in the local committees independent people who are nothing to do with the prisons. We shall provide in the rules for the appointment of independent persons in addition to representatives of the Probation and After-care Service and the board of visitors and visiting committee. We shall so provide in the rules. As a matter of drafting, the rule providing for these appointments will probably be permissive rather than obligatory. The reason for that is that there may be difficulty in finding enough people of the right kind to cover every meeting at each of the 60 or so prisons where we shall have local review committees. But the policy will certainly be to aim to have an independent member—independent in the sense which I have now described—at every meeting.

With regard to interviews, the noble Lord kept mentioning "Board". I think he was referring to the committee and not the Parole Board, which is the national body.

LORD BROOKE OF CUMNOR

My Lords, I am sorry if I may have used the wrong term. As I understand the Bill, it provides that a member of the Board, the national body, can interview a prisoner who is under consideration, and that is as it should be. There is also mention in the clause of a prisoner being interviewed by a member of the local review committee who is not a prison officer. I want to make sure that that is a right which the prisoner enjoys, and not simply a discretion in the hands of the committee, to appoint one of its members to interview him if it thinks fit. I am sure that the prisoner ought to have a right to be seen by somebody at the appropriate stage.

LORD STONHAM

My Lords, I am glad to make that clear. The prisoner will have a statutory right to be interviewed by a member of the local review committee. There will be written in the Bill a power for the Parole Board to ask one of its members, if it thinks fit, to see a prisoner. Those are the two kinds of power that exist. But for the moment I am talking about the statutory interview, which is the local one. This will be carried out by either a probation representative, a board of visitors or visiting committee, or an independent member—independent in the sense I have just mentioned; and there will be nothing to prevent more than one person from interviewing a particular prisoner, although it is not envisaged that that will be a frequent occurrence, or that two members would interview a single prisoner at the same time. Which members interview which prisoners will be left to the committee's discretion.

Interviewing will be a fairly time-consuming process, especially during the initial phase, when large numbers of prisoners who have already technically qualified, as it were, will have to be dealt with as soon as we can deal with them, and for members to do interviews in pairs would considerably increase the estimated number of man-hours required at each prison. It seems likely that at a large prison six or seven persons of each kind would be needed in order not to overburden committee members.

On the question of the chairman, it is proposed that the rule shall be silent on the subject of chairmen. The difficulty about making statutory provision, even conferring power on the Secretary of State to nominate a chairman, is that the committee will work in panels, and no one committee member other than the governor could be expected to take the chair at every meeting. It is proposed to leave it to the members attending any particular meeting to decide who among them shall take the chair. But as the noble Lord will appreciate, the point about the chairmanship is largely academic.

Panel decisions will not be by a majority vote. If the panel members cannot agree, we shall want to know what each member thinks, and the chair will have no powers that will be likely to affect the outcome. But we feel that the governor must be on the committee, because it is felt that the Prison Service could not carry out the proper programme for the treatment and training of prisoners if the Service were completely divorced from the process of selection for release on licence. The presence of three other members on the committee, at least one of whom will have seen the prisoner, and each of whom will be free and will be expected to make his own views known to the Home Secretary if he differs from his colleagues in a particular case, is considered to be an adequate safeguard against any possibility that undue influence, real or apparent, will be exerted by the Prison Service. As regards those who are strong candidates for release, the Parole Board will provide a completely independent check.

I hope that your Lordships will be satisfied from what I have said that not only will the Parole Board be independent of the prison in name, but the whole system, except that it deals with the release of prisoners, will be independent of the prison in fact.

LORD BROOKE OF CUMNOR

My Lords, it would be ungracious of me not to express my thanks to the noble and learned Lord, the Lord Chief Justice, for bearing out what I had sought to say about the importance of the name, and thanks to the noble Lord, Lord Stonham, for accepting this Amendment on behalf of the Government. I am also grateful to him for having said that the local review committees will always include at least one person who is outside the original trio mentioned by the Home Secretary. I think that we in your Lordships' House have made valuable progress through our debates on this point, and while I can give full credit to the Government for having decided, since the original introduction of the Bill, to have some kind of independent Board, I think your Lordships' House also can take credit for the fact that we have by our debates made a constructive contribution to turning this experiment into a practical success.

On Question, Amendment agreed to.

LORD BROOKE OF CUMNGR: My Lords, I beg to move Amendment No. 41.

Amendment moved— Page 43, line 9, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

On Question, Amendment agree to.

LORD BROOKE OF CUMNOR: My Lords, I do not know whether it would be permissible for me to suggest that Amendments Nos. 42, 43 and 44 be taken together. If so, I beg to move those Amendments.

Amendments moved—

Page 43, line 14, leave out ("Prison Licensing") and insert ("Parole");

Page 43, line 15, leave out ("Prison Licensing") and insert ("Parole");

Page 43, line 16, leave out ("Prison Licensing") and insert ("Parole").—Lord Brooke of Comnor.)

On Question, Amendments agreed to.

6.58 p.m.

VISCOUNT DILHORNE moved, in subsection (4), to add to paragraph (a): and of any reports it has called for and any information whether oral or in writing that it has obtained".

The noble and learned Viscount said: My Lords, I beg to move the Amendment standing in my name. This I regard as a rather important Amendment, and despite the vast mass of Government supporters on the Back Benches, I shall be inclined to press it firmly.

LORD STONHAM

My Lords, I can tell the noble and learned Viscount that a good soldier never looks behind.

VISCOUNT DILHORNE

My Lords, it speaks well for the noble Lord's training. Perhaps he will gain strength in due course.

LORD MITCHISON

My Lords, may I say to the noble and learned Viscount that we more than make up in quality any temporary lack of quantity.

VISCOUNT DILHORNE

My Lords, I thought it would be invidious of me to comment on the quality; I thought it would be less damaging to talk about the quantity. The Amendment I am moving deals with Clause 55(4). That subsection, as it stands now, says: The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say

1. (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State; and
2. (b) if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member."

Looking at that subsection as it stands, it appears to me clear beyond doubt that it defines the Board's functions. It can operate only on consideration of documents given to it by the Secretary of State, and it can have an interview by one of its members with the prisoner concerned and take into account the report of that member. I do not think that is the intention of the Government, nor do I think it is right.

I raised this matter on Committee and moved an Amendment to make it quite clear that the Board, in the discharge of its duties should be able to call for such reports and see such persons as it wished. The noble Lord, Lord Stonham, when he came to reply to that Amendment on June 12, said: The procedure for calling for reports of this kind must, in our view, be left to be worked out with the Board. When it comes to calling for any further information, further reports that the Board wants, we should expect it to obtain all the additional information through the Home Office, if only to ensure that there is no unnecessary overlapping or repetition or duplication of effort. I do not think there is anything between us, and I think that, in practice, the Board will be able to proceed broadly as the noble and learned Viscount wishes it to do, and as I think we all wish it to do."—[OFFICIAL REPORT, 12/6/67, col. 729.] It would seem from that that our objectives are much the same, but I would make the point that to my mind the language of the clause does not in any way carry out the objective as stated by me, and I think as agreed to by Lord Stonham. Then the noble Lord went on to say in column 730: I want to make it quite clear that in our view paragraph (a) should remain as it is, because it establishes that the Board's consideration of a case is primarily a consideration in private, and is of a quasi-administrative and certainly not a judicial character. I do not think those words establish that it is not of a quasi-judicial character. Certainly there is nothing there which says that the Board shall sit in private. Therefore I do not think that argument is acceptable. The noble Lord, Lord Stonham, in rejecting my Amendment last time, attached considerable weight to the fact that it contained the word "witnesses"—that the Board should call such other witnesses as it wished. I am quite prepared to meet that criticism and have endeavoured to do so by this Amendment. This Amendment will make the clause run in this way: The Board shall deal with the case on consideration of any documents given to it by the Secretary of State and of any reports it has called for and any information whether oral or in writing that it has obtained. I think that really accords with what Lord Stonham was saying in Committee.

I visualise that the ordinary channel would be for the Board to say, through the Home Office, "We want an up-to-date report from a psychiatrist", and the Home Office would lay it on. But that is a very different thing from the clause just providing that the Board has to determine the case on consideration of documents supplied by the Home Office, which carries the clear implication that it has to decide on what the Home Office gives it, and is not able to ask for and obtain further information should the Board require it. I do not think that is the intention. I think it is a drafting matter, but a drafting matter of considerable importance, and I hope that the noble Lord can meet me on this. I beg to move.

Amendment moved— Page 43, line 33, at end insert the said new words.—(Viscount Dilhorne.)

LORD STONHAM

My Lords, I think that this is a matter of importance. It is not a matter of drafting in the sense that we normally apply to that term. On Second Reading my noble and learned friend the Lord Chancellor said that if the Board wants any documents and the Home Office has not sent them, then the Board has only to say so. We then had a discussion of the matter when the noble and learned Viscount raised this point in a similar Amendment on Committee stage. I was then disturbed by the use of the word "witnesses". He instanced the fact that the Board may wish to get in touch with the prison medical officer, and I thought it was a natural thing for the Board to want to do in regard to a particular report. I would say again that it was never the Government's intention that the Board should be precluded from asking for further information, and it was always envisaged that there might be cases in which it would want to have contact with, for example, the governor, the medical officer, or others.

What I could not accept, and what I do not think the noble and learned Viscount at any stage has suggested, is that the Board would call in outside consultants or advisers or set up its own inquiry machinery in any real sense. If that was the intention, my Department would have to reserve its decision, because things of this kind could not be settled until there was a chance to discuss with the Board its procedures generally. I do not think that that is intended. We want the Parole Board to have all the tools it needs for the job, both those which can be envisaged and those which, in the light of experience, it may find it needs. After the further consideration which I promised to give the matter, we agree with the noble and learned Viscount that subsection (4)(a) is drawn rather too narrowly, and we are glad to take the opportunity presented by the noble Viscount's Amendment to widen it. Therefore, I commend your Lordships to accept the Amendment.

VISCOUNT DILHORNE

I must, even at this late hour, thank the noble Lord most sincerely. I think this is a most important matter. I agree with him that I was not contemplating that the Board would set up its own machinery of inquiry, but I think that it is very important that the Board should be independent and should appear to be independent. Although it has to work in close association with the Home Office, it must be an independent Parole Board, and I think that this Amendment will help to establish that.

On Question, Amendment agreed to.

LORD BROOKE OF CUMNOR: My Lords, I beg formally to move Amendment No. 46. I do not know whether the House would agree to take Amendments No. 46 and 47 together.

Amendment moved— Page 44, line 24, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

On Question, Amendment agreed to.

Clause 56 [Release on licence of persons serving determinate sentences]:

Loan BROOKE OF CUMNOR: My Lords, I beg to move Amendment No. 47.

Amendment moved— Page 44, line 27, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

On Question, Amendment agreed to.

LORD STONHAM

My Lords, this Amendment can be explained very briefly. It is designed to ensure that, for the purpose of calculating the prisoner's one-third date, his sentence shall be treated as if it had commenced at the date of his conviction, notwithstanding that it may not have been pronounced until some subsequent date. This is consistent with the Prison Rules, whereby a prisoner starts earning remission as from the date of his conviction. I beg to move.

Amendment moved—

Page 44, line 30, leave out ("is the longer") and insert ("expires the later. ( ) A person whose sentence falls to be reduced under section (Computation of sentences of imprisonment) of this Act shall, for the purpose of determining under the foregoing subsection whether he has served one third of his sentence, be treated as if any period spent in custody between conviction and sentence and taken into account under that section were included in his sentence and as if he had served that period as part of that sentence."—(Lord Stonham.)

On Question, Amendment agreed to.

Clause 57 [Release on licence of persons sentenced to imprisonment for life, etc.]:

LORD BROOKE OF CUMNOR: My Lords, I beg to move Amendment No. 49.

Amendment moved— Page 45, line 37, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cuinnor.)

On Question, Amendment agreed to.

Clause 58 [Revocation of licences and conviction of prisoners on licence]:

LORD BROOKE OF CUMNOR: My Lords, I beg to move Amendment No. 50.

Amendment moved— Page 46, line 18, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

On Question, Amendment agreed to.

LORD STONHAM

My Lords, I beg to move Amendment No. 51, and I hope that your Lordships will agree to consider with it No. 52. Subsection (10) of Clause 58 provides that where a licence has been revoked by a court the person concerned shall not be released again on licence until he has served a further year, or one-third of the unexpired period of the licence, whichever gives the later date. In the subsection as it reads at present, this restriction could be construed as preventing the prisoner from being released again not only under subsection (1) but also under subsection (2), which relates to licences to be given instead of remission in certain cases.

The effect of these Amendments is that the one year/one-third bar after revocation by a court will apply only to discretionary re-release under subsection (1) of Clause 56—that is, through the Parole Board—and will not affect the re-release on licence of an extended-sentence prisoner or a young prisoner on his remission date under subsection (2) of Clause 56. Release on this date is, of course, virtually automatic and it would be inappropriate for it to be affected by the revocation of the earlier licence. Power to release on remission will be unaffected by subsection (10) and it is therefore not right, that a licence in lieu of remission should be affected either.

We intend to provide in the Prison Rules that where an extended-sentence prisoner or a young prisoner is recalled from licence he should get a new remission date fixed at two-thirds—that is, two-thirds of the remaining period of the licence. He may be released on licence before that date, but only under subsection (1) of Clause 56; that is, on the recommendation of the Board and subject to the restriction in subsection (10) of Clause 58 where the licence was revoked by a court. These are two necessary Amendments and I hope that I have made them clear. I beg to move.

Amendment moved— Page 47, line 31, after ("under") insert ("subsection (1) of").—(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM: My Lords, I beg to move No. 52.

Amendment moved— Page 47, line 36, leave out ("section") and insert ("subsection").—(Lord Stonhatn.)

On Question, Amendment agreed to.

7.15 p.m.

LORD STONHAM moved, after Clause 62, to insert the following new clause:

Computation of sentences of imprisonment

" .—(1) The length of any sentence of imprisonment imposed on an offender by a court shall be treated as reduced by any period during which he was in custody by reason only of having been committed to custody by an order of a court made in connection with any proceedings relating to that sentence or the offence for which it was passed or any proceedings from which those proceedings arose, but where the offender was previously subject to a probation order, an order for conditional discharge or a suspended sentence in respect of that offence, any such period falling before the order was made or suspended sentence passed shall be disregarded for the purposes of this section.

(2) For the purposes of this section a suspended sentence shall be treated as a sentence of imprisonment when it takes effect under section 36 of this Act and as being imposed by the order under which it takes effect.

(3) No period of custody, other than a period which would have been taken into account before the commencement of this Act under section 17(2) of the Criminal Justice Act 1962 (duration of sentence) for the purpose of reducing a term of imprisonment shall be taken into account for the like purpose under this section unless it falls after the commencement of this Act.

(4) Any reference in this Act or any other enactment (whether passed before or after the commencement of this Act) to the length of any sentence of imprisonment shall, unless the context otherwise requires, be construed as a reference to the sentence pronounced by the court and not the sentence as reduced by this section."

The noble Lord said: My Lords, I beg to move Amendment No. 53; I should be grateful if Amendment No. 131 to Schedule 6 could also be considered with it. Section 17(2) of the Criminal Justice Administration Act 1962 provides—as recommended by the Streatfeild Committee on the business of the criminal courts—that time spent in custody after committal for trial or sentence at courts of assize and quarter sessions shall count towards any eventual sentence of imprisonment. This provision does not enable any time spent in custody before committal or in connection with a summary trial—that is, time on remand in connection with magistrates' court hearings—to count towards the sentence. The Streatfeild Committee recognised that this distinction between time in custody before and after committal is illogical, but pointed out that periods in custody before committal tend to be much shorter than those after committal, and that to count the former periods would be complicated for the prison administration. The fact that these earlier periods do not count is, however, a continuing source of grievance to prisoners, many of whom cannot appreciate the distinction between time before and time after committal. I see before me the noble Lord, Lord Brooke of Cumnor, and the noble Earl, Lord Jellicoe, both of whom have signed many letters to Members of both Houses on this particular subject, when prisoners just could not understand it. Recently we have had a report by Justice on the use of bail which recommended that all time in custody should count. The Government now consider that it would be administratively feasible to require all the time spent in custody to count towards the sentence, provided that the new provision is not made retrospective—for that would involve recalculating the dates of some 30,000 cases. Such a provision should also lead in due course to a slight reduction in the prison population. The Government Amendment is therefore designed to replace the 1962 provision with a new provision to the effect that the length of any term of imprisonment, whether imposed by a magistrates' court or a superior court, should be reduced by any period during which the offender was in custody by reason only of having been committed to custody by an order of a court made in connection with those proceedings. Subsection (1) gives effect to this proposition. It is, however, restricted to sentences of immediate imprisonment without the option of a fine.

I hope that the purpose of this new clause is clear. Certainly, it is one which I believe noble Lords who have experience of these matters will support. It is a reform and improvement which I think is a welcome one, and a just one, and I hope that it will be supported. I beg to move.

Amendment moved— After Clause 62 insert the said new clause.—(Lord Stonham.)

LORD BROOKE OF CUMNOR

My Lords, I join with the noble Lord, Lord Stonham, in thinking that this is a rational and a common-sense thing to do. The former arrangements were confusing to many people, not only to prisoners; and, as I said on a previous Amendment, it is important that prisoners should not have an opportunity to get wrong ideas about the conditions under which they are serving. Whether in the long term this will bring about a small reduction in the prison population remains to be seen. This might, of course, be frustrated by the courts' passing longer sentences. But I really believe, having some experience in writing explanatory letters based on the law as it used to stand, that it will be very much better if we make a clean sweep and do as this new clause proposes.

On Question, Amendment agreed to.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR SCOTLAND (LORD HUGHES) moved, after Clause 62, to insert the following new clause:

Consideration of time spent in custody in passing sentence in Scotland. 1952 c. 61.

" . A court in Scotland, in passing a sentence of imprisonment or detention in a young offenders institution as defined in section 31(1)(d) of the Prisons (Scotland) Act 1952 on a person for any offence shall, in determining the period of imprisonment or detention, have regard to any period of time spent in custody by that person on remand awaiting trial or sentence."

The noble Lord said: My Lords, the effect of the new clause will be to place Scottish criminal courts under a statutory obligation to have regard to any time spent in custody waiting trial or sentence in fixing the term of imprisonment (or detention in a young offenders institution) which an offender will be required to serve. It is the Scottish counterpart of the provision for England and Wales in the new clause, "Computation of sentences of imprisonment", which has just been accepted.

The present position in Scotland is that all sentences of imprisonment, and of detention in a young offenders institution, run from the day on which the sentence is imposed, unless—exceptionally—the court directs otherwise. Time spent in custody on remand is a factor to which courts have regard in deciding what period of imprisonment, or detention, to impose. This is a matter for their discretion and they are not obliged by Statute to do so. Frequently in passing sentence the court makes specific reference to time spent in custody, thus demonstrating that it has had regard to that factor. On the other hand, courts often make no specific reference to time spent in custody (and, indeed, there is sometimes no indication in the proceedings in court that the court is aware that the accused has been in custody), and on these occasions the offender has no means of knowing whether or not regard has been had to this factor.

This position has been the subject of a certain amount of grievance by prisoners who have no means of knowing whether or not the court has taken into account time spent in custody. Now that fresh provision is being made for England and Wales on this subject, it is clear that fresh provision is also desirable for Scotland. The grievance of Scottish prisoners in this position would be justifiably much greater if they knew that English prisoners were having their sentences of imprisonment computed to take account of time spent awaiting trial, while they in Scotland had reason to suspect that not only had the Scottish courts not had regard to this factor, but they were not even aware of it. The new clause will replace the court's present discretion to have regard to this factor by a statutory obligation. Further, administrative arrangements will be made for the public prosecutor, following the offender's conviction, to inform the court of the details of any period the offender may have spent in custody awaiting trial or sentence. Thus the court will have regard to this factor, and will be seen to have it in mind by proceedings in open court. I beg to move.

Amendment moved— After Clause 62, insert the said new clause.—(Lord Hughes.)

VISCOUNT COLVILLE OF CULROSS

My Lords, it must have been a nasty moment for the noble Lord, Lord Hughes, when his opportunity to move Amendment No. 54 was nearly diverted until a considerably later hour. I think that everybody in the House will appreciate what the noble Lord has said, and will feel that this is a good opportunity to bring the Scottish provision into line with what is being done South of the Border. I therefore welcome this Amendment.

On Question, Amendment agreed to.

LORD STONHAM

My Lords, we have made excellent progress. I hope that it will be to the convenience of the House if we now adjourn during pleasure and return at 8.30—I hope, like lions refreshed.

[The Sitting was suspended at 7.22 p.m. and resumed at 8.30 p.m.]

Clause 68:

Supplementary provisions as to legal aid orders

68.—

(6) Legal aid which may be ordered to be given to any person convicted or sentenced by a magistrates' court for the purpose of an appeal to a court of quarter sessions by a legal aid order under subsection (3) of the last foregoing section shall be authority for counsel or the solicitor assigned to him to give advice, in the event of the court confirming or varying his conviction or sentence, on the question whether there appear to be reasonable grounds of appeal from the decision of the court and, if such grounds appear to exist, assistance in the making of an application for a case to be stated.

VISCOUNT COLVILLE OF CULROSS moved, in subsection (6), to leave out "convicted or sentenced by a magistrates' court". The noble Viscount said: This is a point with which the Committee dealt on the last stage of the Bill. I think it was not wholly clear to the noble and learned Lord the Lord Chancellor what it was I was getting at, because he thought I was dealing with the matter of phraseology, when in fact I had a point of substance. It is not a very large point of substance but, nevertheless, I believe there will be an anomaly here one way or another.

As the Bill stands at the moment, if you are a defendant in a magistrates' court you may be given legal aid, and you may also have legal aid when you go to quarter sessions on appeal. If your appeal is not upheld by quarter sessions, the legal aid that has been given to you as a defendant for that purpose is extended by subsection (6) of Clause 68, so that your legal advisers can give you advice whether or not to appeal by way of case stated, and assist you in making the application for that case. There is also the contrary circumstance of a private prosecutor. The Widgery Committee recommended that there should be no legal aid for a private prosecutor before the magistrates' court, and the Bill bears out this recommendation in that it does not provide such legal aid. If the private prosecutor is successful and the defendant appeals to quarter sessions, then for the purpose of re-presenting his case—which is heard afresh—the private prosecutor gets legal aid under the Bill. Unlike what the noble and learned Lord said on the Committee stage, the private prosecutor has the right under Section 20 of the Criminal Justice Act 1925 to ask for a case to be stated to the High Court, if the appeal is upheld—in other words, if his case, having succeeded in the magistrates' court, fails at quarter sessions.

I have two Amendments down, and I hope the House will forgive me if I deal with them together. They suggest that since he has got legal aid to present his case before quarter sessions, he should have the small extension which is on the other side of the picture; that is, if it is the defendant who is legally aided, to advise the prosecutor whether or not there is a case to go to the High Court, and advise him on a case stated. I understand the position, and the noble and learned Lord kindly wrote to me about this. There is in fact the recommendation in the Widgery Committee's Report, that in the magistrates' court the private prosecutor should not have legal aid. It follows, therefore, that if he wishes to ask the magistrates' court to state a case to the High Court, instead of the matter going to the quarter sessions, he will not get legal aid for the purpose.

On the other hand, the noble and learned Lord also told me in his letter that this is something which is likely to affect in the region of 30 cases a year. I suppose of that number only a very small proportion indeed would be cases where the private prosecutor might want to know whether there was a case to go to the High Court on a point of law. On the one hand, I appreciate that the noble and learned Lord does not wish to accept these Amendments because he says that on the general principle the private prosecutor ought not to have legal aid, and should only get it under the Bill so that he can properly present his case at quarter sessions. On the other hand, I think there is the comparatively simple argument that if he has been given legal aid to go to quarter sessions what on earth is the harm of extending that by his fraction to allow his legal advisers to be paid to advise him whether or not there is a case to go to the High Court?

As I say, I suppose that there will be five or six cases a year. I cannot imagine that the fees would add up to anything of the slightest substance at all, yet there may be a man who has had his case reversed at quarter sessions and who is deprived of the official services of counsel and solicitors in deciding whether or not to take it on. I have no doubt that in practice they might advise him, but they cannot be paid for doing so. Therefore you will have this paradox. You have, it is true, a point of principle which is supported, in general, though not in particular, by what the Widgery Committee said; and on the other hand the common-sense approach, which I would ask the noble and learned Lord the Lord Chancellor to consider: that if the legal advisers are there, it seems only sensible that they should be allowed to continue (as they do, I think, in every other case mentioned in this Bill) to advise whether there is a further point of law to be taken on, and how to do it. I therefore ask the noble and learned Lord, although he has told me that in principle he does not consider this a good point—and although I appreciate that it is a very small point—to think again about this, so that we can adopt the method I suggest in these two Amendments. I beg to move.

Amendment moved— Page 53, line 30 leave out from beginning to ("for").—(Viscount Colville of Culross.)

8.36 p.m.

THE LORD CHANCELLOR

My Lords, I am very sorry, but I cannot agree to this Amendment. I am, as everybody knows, a legal aid enthusiast, and I think there are various ways in which we ought to extend legal aid. The legal aid income limits are gradually becoming out of date and, I think, ought to receive reconsideration before long. There are tribunals before which it would be advantageous that legal aid should be granted. On the other hand, in the economic circumstances in which we find ourselves, my right honourable friend the Chancellor of the Exchequer, so far from being anxious to increase legal aid, is, in the way that all Chancellors of the Exchequer have done, constantly complaining at the increased cost of legal aid.

This Bill very considerably increases legal aid in the criminal field, and I have been able to persuade my right honourable friend to accept this only because it is supported by the strong Committee of which Mr. Justice Widgery was Chairman. We have, therefore, to see what they say. In paragraphs 288 and 289 of their Report the Committee say: Legal aid is at present granted only to persons who have been charged with an offence, and no assistance of this kind is available to persons who wish to institute criminal proceedings. In indictable cases the costs of a private prosecution can however be repaid out of local funds by an order of the court under the Costs in Criminal Cases Act 1952, while in both indictable and summary cases a successful prosecutor can be awarded costs against the defendant. The majority of prosecutions not undertaken by the police or a public authority are instituted by stores, in shop-lifting cases, and the question of legal aid does not arise. Prosecutions by private persons also often take place in cases of common assault, usually arising out of family quarrels or disputes between neighbours. Obviously, the fact that the defendant, but not the prosecutor, may be granted legal aid in such cases does not necessarily reflect the merits of the case. Bearing in mind, however, that a private prosecutor takes the initiative in commencing criminal proceedings, and that civil legal aid is available if he wishes to seek a remedy in the civil courts, we have reached the conclusion that there is not a strong case for altering the present position. The Government have already gone beyond this, in a case not recommended by the Widgery Committee, in that they have agreed that a prosecutor should have legal aid on an appeal from a summary court to quarter sessions. And now the noble Viscount, Lord Colville of Culross, says, "Well, having done that, would it not be logical, on a case stated, to allow the prosecutor legal aid for a case stated?". But, my Lords, the only reason why the Government have already gone beyond the recommendations of the Widgery Committee in relation to appeals from a court of summary jurisdiction to quarter sessions is the fortuitous and, I think, largely historical fact that these appeals are peculiar, in that whereas in an ordinary appeal the appellant starts by explaining what it is all about, and why he contends that the court below was wrong, appeals to quarter sessions from courts of summary jurisdiction have always been re-hearings.

The prosecution starts and all the witnesses are called over again, because this is an appeal on fact as well as on law. If somebody who has been convicted in a summary court wishes to appeal to quarter sessions, unless the prosecutor was there and recalled the evidence, his appeal could not be heard. It is simply because of that practical reason and because on a point of law an appellant may need legal assistance that the Government have agreed to legal aid for the prosecutor when a convicted person is appealing from a court of summary jurisidiction to quarter sessions. I do not feel able to go beyond that.

The Bill does not provide that the prosecutor is to have legal aid on a case stated from a court of summary jurisdiction, and therefore it would be illogical to provide that he should have legal aid on a case stated from quarter sessions. I agree that the amount involved is not large, but this Bill is going to increase considerably what either the taxpayer or the ratepayer will have to pay for legal aid in the criminal field. It is for those reasons that I do not feel able to accept this Amendment.

VISCOUNT COLVILLE OF CULROSS

My Lords, the truth of the matter is that the Widgery Committee did not recommend on this point at all, or on the point mentioned by the noble and learned Lord, on which he has already gone beyond the Committee's recommendation. So, with the greatest respect, I do not see how that argument answers my case. I think the noble and learned Lord will admit that there is illogicality in either case, whether his view or mine is accepted. I am not asking—and I am sure that he did not mean to suggest this—legal aid for the whole process of stating a case in the High Court. When a man has been represented in quarter sessions and if he is prosecutor and he fails, his counsel can wave him goodbye and say that he cannot do any more. Whereas, if he is the defendant and is unsuccessful, his counsel can say to him that under the Bill as it now is he can advise on whether or not there is ground for appeal and how to state his case. This is such a small point that I am astonished that the noble and learned Lord cannot give way on it. However, if he wishes illogicality that way, I am bound to say that I simply must disagree with him.

On Question, Amendment negatived.

Clause 77 [Regulations]:

THE LORD CHANCELLOR

My Lords, this Amendment and No. 58, if I may refer to it, are drafting Amendments which are in the main consequential on changes made in Committee in the provisions of the Bill relating to the collection of legal aid contributions. Subsection (1)(f) provides power to prescribe the rates of payment of legal aid costs. Subsection (1)(h) enables regulations to provide for the courts to give relevant information to the authorities responsible for payment of legal aid costs or the collection of contributions. The Amendments are necessary because the terms "appropriate fund" and "appropriate authority" no longer mean the fund out of which, and the authority by whom, legal aid costs fall to be paid.

The Amendment to subsection (1)(h) also adds orders for costs under the Costs in Criminal Cases Act 1952 to the matters about which courts may be required by regulations to give information to the authorities concerned. It is desirable that authorities responsible for paying the costs of legal aid should be informed when a court makes an order for costs under the 1952 Act in favour of a legally-aided person, as by virtue of Clause 73(1) such costs are payable into the fund out of which legal aid costs are paid. I beg to move.

Amendment moved— Page 62, line 8, leave out from ("payable") to end of line and insert ("in accordance with section 75(1) of this Act")—(The Lord Chancellor).

On Question, Amendment agreed to.

THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 58.

Amendment moved— Page 62, line 15, leave out from ("whom") to ("and") in line 17 and insert ("legal aid orders or orders for the payment of costs under the Costs in Criminal Cases Act 1952 are made to persons responsible for the administration of funds mentioned in section 75(1) of this Act, and for the giving of information as aforesaid, where an order is made under section 70(1) of this Act, to the appropriate authority").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 79:

Prohibition on possessing or acquiring shot gun without a certificate

79.—

(3) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding £200 or both.

(6) Any person who has been in Great Britain for not more than one month in all in the preceding twelve months may have in his possession, or purchase or acquire, a shot gun without holding a shot gun certificate.

(7) A person may without holding a shot gun certificate use a shot gun at a place approved for shooting at artificial targets by the chief officer of police for the area in which that place is situated.

8.45 p.m.

THE DUKE OF ATHOLL moved, in subsection (3), to leave out "imprisonment for a term not exceeding six months or". The noble Duke said: My Lords, it may be for the convenience of the House if I speak to Amendments Nos. 59, 60 and 61, all of which stand in my name, together as they are on the same point. Subsection (3) of Clause 79 sets out the penalties for not having in your possession a shot-gun certificate when you have in your possession or acquire a shot-gun. The penalties laid down in this Bill are imprisonment for a term not exceeding six months, or a fine not exceeding £200, or both. These penalties seem to be excessively large for what, in my opinion, will be a comparatively trivial offence.

I would fully support these penalties if I thought there was any hope that they would deter the criminal population of this country from owning shot-guns. But they simply will not. So far as I can make out from the Committee stage, it will be possible for almost anyone to obtain a shot-gun certificate if he wishes to do so. The checks on it are going to be extremely difficult, partly owing to the number of shot-guns in circulation in the country, and partly owing to the fact that one seems to be able to apply to any chief constable in any area in which one is residing at the time. So, presumably, if a man's chief constable knows too much about him, he can move to some other area to an accommodation address and apply to the chief constable there.

I do not think these certificates will have any effect on the criminal population. Further, when a criminal is caught using a shot-gun he is not going to be "had up" for not having a certificate; he is much more likely to be "had up" for armed robbery, or something like that, for which the penalties are far higher. The people who will be caught by this are the perfectly respectable people who either will not know when the Bill becomes law, and therefore will fail to get a certificate, or will not realise that it applies to them. In this class I would put people coming from abroad, once the month they are allowed is up, and people who at some future date are given a gun, perfectly legally and legitimately, and simply do not realise the existence of this Bill.

I also think these penalties are excessive because they seem to me to be entirely out of line with the penalties applied in other Acts on this subject. In the Firearms Act 1937—and a rifle is much more dangerous than a shot-gun—the maximum penalty is three months or a £50 fine, or both; and in the Air Guns and Shot Guns, Etc., Act 1962 (and I think air guns are more dangerous in the wrong hands than shot-guns, because the bullets they fire are much cheaper and easier to obtain) the maximum penalty is three months and a fine of £20. So it seems to me that we are here providing for a very large fine for what is a fairly trivial offence. Also, I had always thought that the maximum penalties inserted in Bills were supposed to give some indication to courts of what Parliament thought of the offence, and I should have thought that this provision, subsection (3), would show that Parliament thought that not having a shot-gun certificate ranks fairly high in the list of offences; and personally I think it should rank much, much lower. I therefore beg to move.

Amendment moved— Page 63, line 24, leave out ("imprisonment for a term not exceeding six months or").—(The Duke of Atholl.)

LORD DERWENT

My Lords, I find it extraordinarily difficult whether to say I agree with my noble friend, or to tell him not to bother. We all know that much of this Part of the Bill is sheer nonsense. We know that, as my noble friend has said, if somebody uses a shotgun to commit an offence he is going to be tried under some quite different charge; and we also know that if no other offence has been committed and anyone comes in front of the court for not having a firearms certificate, it is not conceivable that any court is going to send him to prison or fine him £200. I do not know what the noble Lord, Lord Stonham, is going to say, but I am inclined to say to my noble friend that this Part of the Bill—in fact, practically the whole of this Part of the Bill—is such nonsense that he had better not bother about it.

8.52 p.m.

LORD BOWLES

My Lords, the effect of the Amendments would be to substitute a maximum penalty of £50 fine only for the maximum penalties of six months' imprisonment and/or £200 for offences under subsections (1) and (2) of Clause 79. A maximum penalty of a £50 fine, only, applies under the Air Guns and Shot Guns etc. Act 1962, and Clause 80 to offences of giving to and accepting gifts by children of air weapons and shot-guns. These are much lesser offences than those under Clause 79 of uncertificated possession of a shot-gun, and of the associated offences of making a false statement in order to obtain a shot-gun certificate or a permit, producing a false certificate, or personating a certificate holder, which are attracted by subsection (5) and in respect of which maximum summary penalties of six months and/or £200 would continue to apply.

All the Clause 79 offences may relate to serious incidents which the courts should be empowered to deal with appropriately. If the shot-gun certificates system is to deter, and not to be regarded as a sort of local registration only, then the possibility of imprisonment as well as a fine for uncertificated possession is necessary. The present maximum penalties in the clause are the same as those provided under the Firearms Act 1937, as amended by the Firearms Act 1965—I think the noble Duke was really wrong in what he thought the present penalties were in that respect—

THE DUKE OF ATHOLL

My Lords, I apologise to the noble Lord. I had not realised that it had been amended by the Firearms Act 1965.

LORD BOWLES

My Lords, this helps me, and probably does not help him at all. The shot-gun certificate system is complementary to the firearm certificate system, and it is appropriate that the penalty provisions should correspond. The Part I, but not the Clause 79, offences are also triable on indictment, and this reflects the closer control that is exercised over Part I firearms. I therefore ask the House to resist and to reject the Amendment.

VISCOUNT DILHORNE

My Lords, the noble Lord, Lord Bowles, has read out, if I may say so, very clearly what is obviously a well-designed Civil Service brief in dealing with this Amendment. I am not criticising him at all for that, except that I must say it is not satisfactory. It is wrong to relate the absence of a certificate for a shot-gun as comparable with the absence of a firearm certificate for a rifle. It is much more necessary to have a strict control over the possession of rifles than it is over that of shot-guns. We have really had no case made out by the Government for this control over shot-guns. How many cases

have there been of improper use of shot-guns in the last five years? Is it really necessary to have this most extensive control?

The Amendment moved by my noble friend deals solely with the amount of penalties. By and large, I am always in favour of the court's having ample discretion, but when the noble Lord says that this can be a most serious offence with grievous consequences, may I say that in my opinion it is not comparable with the offence of a person who is disqualified from sitting on a jury. That may not invalidate a trial, because we have put in an Amendment to secure that it does not, but it is certainly not satisfactory, whatever be the result of the trial—whether the finding be "Guilty" or "Not guilty"—that during a long trial a man has sat there, day by day, although he was disqualified. I regard that as a more serious offence, affecting, it may be, the trial of someone for a very serious offence indeed, and for that the maximum penalty will be a fine of £250.

I hope the noble Lord will say that he will look at this matter again. I can see no force in the argument that just because it is a shot-gun the penalty should be the same as it is for a rifle. I cannot believe for one moment that any court would dream of imposing anything like the penalty which the noble Lord wishes to have contained in this Bill. The noble Lord's argument seemed to suggest that the failure to have this piece of paper in one's possession, quite apart from what use one made of the shot-gun, could be almost as serious an offence as driving a motor car when uninsured.

8.58 p.m.

On Question, Whether the said Amendment (No. 59) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 34.

CONTENTS
Ailwyn, L.	Emmet of Amberley, Bs.	Jellicoe, E.
Albemarle, E.	Falkland, V.	Killearn, L.
Atholl, D.	Falmouth, V.	Kinnoull, E.
Brooke of Cumnor, L	Fraser of Lonsdale, L.	Milverton, L.
Brooke of Ystradfellte, Bs.	Goschen, V. [Teller.]	Mowbray and Stourton, L.
Colville of Culross, V.	Greenway, L.	Oakshott, L.
Cork and Orrery, E.	Grenfell, L.	Redmayne, L.
Denham, L. [Teller.]	Hawke, L.	St. Just, L.
Derwent, L.	Howard of Glossop, L.	Sandford, L.
Dilhorne, V.	Iddesleigh, E.	Somers, L.
Drumalbyn, L.	Inglewood, L.	Stonehaven, V.
Strange of Knokin, Bs.	Templemore, L.	Windlesham, L.
Stuart of Findhorn, V.	Thurlow, L.	Wrottesley, L.
Swanborough, Bs.
NOT-CONTENTS
Addison, V.	Gaitskell, Bs.	Sainsbury, L.
Archibald, L.	Henderson, L.	St. Davids, V.
Beswick, L.	Hilton of Upton, L. [Teller.]	Samuel, V.
Blyton, L.	Kennet, L.	Segal, L.
Bowles, L.	Lloyd of Hampstead, L.	Serota, Bs.
Brown, L.	Longford, E. (L. Privy Seal)	Shepherd, L.
Burden, L.	Merthyr, L.	Snow, L.
Burton of Coventry, Bs.	Pargiter, L.	Sorensen, L. [Teller.]
Champion, L.	Peddie, L.	Stonham, L.
Collison, L.	Phillips, Bs.	Stow Hill, L.
Crook, L.	Rhodes, L.	Taylor of Mansfield, L.
Darwen, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

THE DUKE OF ATHOLL

My Lords, I do not quite know whether the noble Lord, Lord Bowles, has another brief which he would like to read out about this Amendment, but I should have thought it was so close to being consequential on the last Amendment that I might move it forthwith. If the noble Lord, Lord Bowles, opposes it, I can reply afterwards. I beg to move.

Resolved in the affirmative, and Amendment agreed to accordingly.

THE DUKE OF ATHOLL

My Lords, This Amendment is purely consequential on No. 59. I beg to move.

Amendment moved— Page 63, line 25, leave out ("£200") and insert ("£50").—(The Duke of Atholl.)

LORD BOWLES

My Lords, these are serious offences and we are not going to reduce the penalty for people who commit them.

9.6 p.m.

On Question, Whether the said Amendment (No. 60) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 33.

CONTENTS
Ailwyn, L.	Fraser of Lonsdale, L.	Oakshott, L.
Albemarle, E.	Goschen, V. [Teller.]	Redmayne, L.
Atholl, D.	Greenway, L.	St. Just, L.
Brooke of Cumnor, L.	Grenfell, L.	Sandford, L.
Brooke of Ystradfellte, Bs.	Hawke, L.	Somers, L.
Colville of Culross, V.	Howard of Glossop, L.	Stonehaven, V.
Cork and Orrery, E.	Iddesleigh, E.	Strange of Knokin, Bs.
Denham, L. [Teller.]	Inglewood, L.	Stuart of Findhorn, V.
Derwent, L.	Jellicoe, E.	Swanborough, Bs.
Dilhorne, V.	Killearn, L.	Templemore, L.
Drumalbyn, L.	Kinnoull, E.	Thurlow, L.
Emmet of Amberley, Bs.	Milverton, L.	Windlesham, L.
Falkland, V.	Mowbray and Stourton, L.	Wrottesley, L.
Falmouth, V.

NOT-CONTENTS
Addison, V.	Gaitskell, Bs.	St. Davids, V.
Archibald, L.	Henderson, L.	Samuel, V.
Beswick, L.	Hilton of Upton, L. [Teller.]	Segal, L.
Bowles, L.	Kennet, L.	Serota, Bs.
Brown, L.	Longford, E. (L. Privy Seal.)	Shepherd, L.
Burden, L.	Merthyr, L.	Snow, L.
Burton of Coventry, Bs.	Mitchison, L.	Sorensen, L.
Champion, L.	Peddie, L.	Stonham, L.
Collison, L.	Phillips, Bs. [Teller.]	Stow Hill, L.
Crook, L.	Rhodes, L.	Taylor of Mansfield, L.
Darwen, L.	Sainsbury, L.	Winterbottom, L.

Amendment moved— Page 63, line 25, leave out ("or both").—(The Duke of Atholl.)

VISCOUNT DILHORNE

My Lords, I hope that the Government will not force us to go through the Lobby on this Amendment, because it really is consequential. I understand their attitude, but if they let this be carried I do not think it would imply that they would not make any further efforts to reverse it.

LORD BOWLES

My Lords, I should have thought that the noble Viscount would have seen that, as imprisonment is out owing to the first Division that was taken, then the words "or both" are not relevant any more. The Government are not opposing this one.

LORD FRASER OF LONSDALE

My Lords, may I ask how you can have "or both" of nothing?

On Question, Amendment agreed to.

9.16 p.m.

VISCOUNT DILHORNE moved, in subsection (5) to leave out "(3)". The noble and learned Viscount said: My Lords, this is an Amendment to leave out from subsection (5) of Clause 79 subsection (3) of Section 11 of the Firearms Act 1937. Clause 79 begins by providing that a person must have a certificate authorising him to possess or purchase or acquire a shot-gun, and if he does not have such a certificate he is to be guilty of an offence. Of course, the Government have not yet explained whether it is their desire that everyone who has a gun should have a certificate, in which case they will know where all the guns are—or they should do—and that would encourage everyone who was a doubtful character to get a certificate; or whether they believe that by this certification process they can prevent guns from getting into the possession of potential wrong-doers. I am inclined to think that the latter is the view which they are taking on this Part of the Bill. I personally find it difficult to suppose that a wrongdoer will have any difficulty in getting possession of a gun, with this certificate procedure and without a certificate.

We ought to examine with some care the provisions of the Firearms Act which are brought into operation by this particular clause. Section 11(3) of the Firearms Act reads as follows: No person shall undertake the repair, test or proof of a firearm or ammunition to which this Part of this Act applies for any other person in the United Kingdom, other than a registered firearms dealer as such, unless that other person produces or causes to be produced a firearm certificate authorising him to have possession of the firearm or ammunition, or shows that he is by virtue of this Act entitled to have possession of the firearm or ammunition without holding such a certificate. I have read the whole of the subsection, because it relates not only to firearms but also to ammunition, and so far we have heard nothing from the Government justifying the imposition of any control in relation to cartridges or ammunition for shot-guns.

But what is meant by this clause, which is brought into full operation in relation to shot-guns by subsection (5), is that if you take your guns to your gunmaker to have them repaired by him, or for safe custody or for testing, he will not be able to accept them without breaking the law, unless at the time you produce your certificate for him to see. Does that really serve a useful purpose? I would not say that it was not necessary in relation to rifles, but in relation to shotguns will not the ordinary gunmaker keep a record of all the work he does, and for whom he does it? Is it really necessary to provide by Act of Parliament that before he can make a trivial repair to a gun he must see the certificate? I should like the noble Lord who is going to reply to deal fully—and more fully than by just saying that it is a serious matter—with the argument for saying that there must be imported into Clause 79 this provision in relation to ammunition—which in relation to a shot-gun, I suppose, means cartridges. It means that you cannot take some cartridges in to be tried in your gun by your gunmaker without, at the time you take your cartridges in—it may be the week before you bring your gun in—producing your short-gun certificate for him to be able to receive the cartridges.

What is the point of this? How is it going to prevent crime? The Government have put this Part in the Bill, which they ought not to have done. It ought to have been a separate Bill, and should have been given proper, full, detailed consideration. Dealing with it in this way, by legislation by reference, makes it much more difficult. What they ought to have done was to put forward for examination the case they required to be dealt with. It may be suggested that this procedure, under which you have to take a certificate in when you take your gun to be repaired, will prevent the wrongdoer from getting his gun repaired, because he will not have a certificate. But, my Lords, is that really likely? If there be gunmakers willing to repair guns for criminals, they are going to do it on a cash basis, without the production of any certificate at all; and the only people who will be penalised by this tiresome clause are the honest, law-abiding citizens. Why should it be necessary for them to take the certificate with them every time they go to a gun-maker?

I should like to ask the Government—I certainly do not want to divide the House again on this matter—to give some further consideration to the question whether it really is necessary to introduce this paraphernalia (I know it is there with regard to rifles) in relation to shot-guns, when we have never had it before; and to ask them to consider whether this is not over-egging the pudding. Would it not be much better just to keep to the simple certification procedure, without all these trimmings attached to it? I beg to move.

Amendment moved— Page 63, line 35, leave out ("(3)").—(Viscount Dilhorne.)

LORD STONHAM

My Lords, the noble and learned Viscount has, it appears to me, advanced his arguments on two false premises. The first is that a shot-gun, unlike a rifle, is not a lethal weapon. The whole of the noble Viscount's argument—as, indeed, was the case with the noble Duke's arguments on the Amendments with which we have just dealt—was that this was a matter which is not comparable with other firearms which are dealt with under other firearms legislation. The Government take the view—and we are supported by the fact that shot-gun offences have more than quadrupled in the last six years—that very serious criminal offences have been carried out with shot-guns; not just by hooligans, poachers and people like that, but by hardened criminals, such as the one who recently held up a Securicor van and shot the guard.

My Lords, these are serious offences, and it astounds me that noble Lords opposite can troop into the Lobby, as they did twice just now, and demonstrate to the public that their great concern about this Bill is how it will affect them in using shot-guns for sporting purposes. In some cases the provisions of this Part of the Bill will lead to some minor—no more than minor—inconvenience. That, of course, is to be regretted, and we shall reduce that inconvenience as much as we possibly can when we come to make the regulations. I ask all your Lordships, as we consider the remaining Amendments to Part V, to reconsider this attitude which, in my submission, your Lordships are in danger of adopting because of this false assumption—this totally false assumption, this demonstrably false assumption—that shot-guns are not lethal weapons in the hands of criminals.

The second misconception advanced by the noble and learned Viscount, in my estimation, is that he finds it difficult to conceive that any wrongdoer will not find it easy to get a gun despite the provisions of this Bill. I do not say they are the noble and learned Viscount's actual words, but a fair paraphrase. He may well be right, but, my Lords, it will make it a lot easier for a criminal to get a shot-gun if you persistently oppose and try to defeat every single kind of precaution we try to put into this Bill, which is precisely what you are doing. This particular Amendment—and I make no apology for the preamble in which I have indulged, because the noble and learned Viscount started to talk about ammunition, which has no kind of relevance to the Amendment which we are discussing, except that you do put ammunition in shot-guns—

VISCOUNT DILHORNE

My Lords, would the noble Lord confirm or deny that in Section 11(3), which is among the provisions included in this subsection, the words "ammunition" appear as I read them out? And if they are in there, what is their significance in that section?

LORD STONHAM

I propose to deal with the question of ammunition when we come to discuss the noble and learned Viscount's Amendment on this point.

VISCOUNT DILHORNE

My Lords, with great respect, I made the point about the reference to ammunition in Section 11(3) which the noble Lord is seeking to have incorporated in this subsection. If the noble Lord wishes to get emotional, he might at least do me the civility of treating my arguments seriously, because I have never argued for one moment that a shot-gun was not a lethal weapon. My argument is that the certification procedure will not stop wrongdoers from getting guns.

LORD STONHAM

The whole purport of the argument in my view—and I listened to it very carefully, and it is the whole purport of all the arguments we have heard from noble Lords opposite—is that we should not deal with shot-guns in the same way as we deal with other firearms under Part 1 of the 1937 Act. That is implicit in everything that they say. I make no apology for referring to this. As to the question of ammunition, which the noble and learned Viscount brought in, Clause 79 has no application whatever in relation to ammunition. Subsection (5) of Clause 79 applies these provisions of the 1937 Firearms Act to shot-guns only, not the ammunition. It would be better, I should have thought, if the noble and learned Viscount would agree to deal with this matter in some detail when we come to the Amendments which he later has on ammunition.

To come back to the Amendment to leave out "(3)" in line 35—that is subsection (3) in the Firearms Act—I would point out that the effect of the Amendment would be to relieve a person undertaking to repair, test or prove a shot-gun from the obligation to require the production of the owner's certificate before he undertakes the work. If a gunsmith accepts a shot-gun for repair, he would also, as the clause is at present drafted, be under an obligation to require production of the appropriate shot-gun certificate. The purport of this Amendment is that that is not necessary, and the noble and learned Viscount, Lord Dilhorne, asked, "Does the present provision in the Bill serve a useful purpose?" I think it serves a very useful purpose, because the effect of the Amendment, if it were accepted, would be that the gunsmith who manufactured or repaired the shot-gun would be under no obligation to ensure that the party for whom he undertook the work had a shot-gun certificate. This could create a dangerous loophole in the control. It would enable broken guns to be mended and other guns to be refurbished and made more efficient and dangerous for the very persons to whom shot-gun certificates would not be issued —the criminals. In this way a gunsmith could become armourer to the criminal community.

It is all very well for the noble and learned Viscount to say, "Of course, you could have a dishonest gunsmith, and he would become armourer to the criminal community, despite the Bill." That may well be true. It is always possible to say in any law, in any legislation, that the criminal will not become subject to it because he will not observe the law. That is no reason for not having a law. We say that the shot-gun certificate system is meant to exercise control. For that reason a person's authority for possessing a shot-gun must be produced whenever he is involved in a transaction with a gunsmith. We say also that the natural time for a gunsmith to scrutinise a shot-gun certificate is when he receives the weapon and before he has undertaken the work. It is agreed that in any case he will have to enter in his register of transactions details of the shot-gun concerned, the name and address of the person for whom the work is undertaken, and particulars of his shot-gun certificate.

We believe that the control that this Part of the Bill will impose will not be complete or perfect, and will not stop the utterly criminal people; but it will impose a check and make things much more difficult for them. To say that when a customer brings a shot-gun for repair a gunsmith should ask to see the certificate is just part of that pattern of control. We think it necessary, and indeed I think I have made out a case to show that it is necessary. I hope that the noble and learned Viscount will recognise that and agree to withdraw the Amendment.

9.32 p.m.

LORD BROOKE OF CUMNOR

My Lords, I think that the noble Lord, Lord Stonham, will have much greater success in getting this Part of the Bill through the House in a proper and useful shape if he will respect the sincerity of those who criticise particular points in it. There is no question whatever of my noble friends' wishing to minimise the known fact that shot-guns may be used by criminals. What we are investigating by these Amendments is whether it is appropriate to employ the whole apparatus of the Firearms Acts and import that into the shot-gun certificate procedure.

I know the noble Lord feels that he has given a convincing reply to my noble and learned friend, but he must also remember that laws which appear to be unnecessary tend not to be observed; and it is most important, if this control over shot-guns is to be effective, that the provisions of the law shall be respected for themselves.

The noble Lord is arguing that this control will be more effective if no gunsmith may accept a shot-gun for repair unless he is required by law to see the certificate. Honourable gunsmiths, not anxious to do work for the criminal classes, will be liable to regard this as quite unnecessary, because if they are dealing with known customers they will think it a trivial imposition put on them by Parliament that they cannot undertake the work until the certificate is produced. If, on the other hand, a gunsmith is prepared to be an armourer to the criminal classes, that branch of work will be sufficiently profitable for him to be prepared to risk doing it and ignoring the requirements of a certificate. It is most important therefore (this is what I am seeking to impress on the noble Lord) that all these provisions, some of which are necessary, should be limited to what will be accepted by everybody concerned as a sensible measure of control. Quite frankly, my Lords, I do not think the noble Lord has yet convinced your Lordships of that.

It does not seem to me that the dishonest, the dishonourable, gunsmith in league with criminals will be much impressed by this requirement. It will be so easy for him to ignore it. He could proceed, as my noble and learned friend said, on a cash basis and it would not be difficult for him to conceal what was happening. The honourable gunsmith dealing with honourable customers will simply regard this law as a "blasted nuisance", and again I doubt whether it will be respected. Do not let us clutter up the criminal law with provisions which are not necessary and will bring the law into disrepute. I can assure the noble Lord that he will receive the full support of this side of the House for all provisions which will be of effective and practical use in establishing control of shot-guns. But we shall here and in future Amendments examine critically those proposals which do not seem really requisite for the purpose and seem liable to bring the law into disrepute.

LORD STONHAM

My Lords, while I agree with the view that the noble Lord has tendered to me and will try to follow it, nothing has been said so far in support of this Amendment which has given any indication that the gun trade thinks that this is a foolish provision which will be useless.

LORD REDMAYNE

My Lords, the noble Lord said that offences by criminals armed with shot-guns had increased fourfold in the last six years. I would ask whether he can put that increase into figures and say what is the relation between those figures and offences with weapons which are already covered by the Firearms Act. If he can produce figures for offences carried out with shotguns, will he say how many of those were carried out with guns of normal length and how many with guns sawn off to less than 24 inches, which would be covered by the Firearms Act in any case? If it is the fact that most of these offences were carried out with that type of sawn-off shot-gun, will he say how he thinks these provisions are going to prevent that.

Secondly, the noble Lord talked about the necessity of gun makers or gun sellers of any type keeping a register of guns brought in for repair. Is the noble Lord aware that there are a great number of guns in the possession of the public which bear no number at all? How, therefore, does he expect that a gun maker trying to do his duty by the law is going to be able to carry out this provision?

LORD STONHAM

My Lords, if, with your Lordships' permission, I may answer the noble Lord's question, I gave these figures on Second Reading, but will give them again if the noble Lord wants them. In 1961 there were 107 indictable offences known to the police involving the use of shot-guns. I mentioned a six-year period and will give the 1966 figure, which was 404. I think the noble Lord will agree that when I said that there had been a fourfold increase in six years, I was perfectly fair.

The other point of substance the noble Lord put to me was as to how many of these offences involved sawn-off shotguns. There were no sawn-off shot-guns included in that figure, for the very good reason that they are regarded under Part I of the 1937 Act as a different category. All the offences were for ordinary shotguns, and many of them involved death and injury. If I become emotional about these offences and the deaths they cause, it is because they can be avoided. I think that some of these crimes and deaths can be prevented, and we should have regard to that.

LORD REDMAYNE

My Lords, I asked the noble Lord to relate those offences to offences with lethal weapons covered by the previous Act.

LORD STONHAM

Yes, of course, my Lords. I am sorry. In 1961 against the figure of 107 offences involving shot-guns there were 552 offences involving firearms other than shot-guns. In 1966 there were 1,511. So the increase with those more serious weapons, if the noble Lord regards them as more serious, was almost threefold, whereas the increase with the ordinary shot-gun offences was almost fourfold.

THE DUKE OF ATHOLL

My Lords, the noble Lord, Lord Stonham, keeps on saying that we think shot-guns are not lethal weapons. I must assure him that I am convinced that a shot-gun is a lethal weapon. What I said was that a shot-gun is a less lethal weapon and has less range than a rifle. This has always been regarded as such in the law until now. I think I should be convinced that this is a reasonable provision if the noble Lord, Lord Stonham, could assure me that, although Section 11(3) of the 1937 Act mentions ammunition, because subsection (5) of Clause 79 says, . shall apply in relation to shot-guns and shot-gun certificates as they apply in relation to firearms …", this expressly excludes the ammunition provisions in the 1937 Act. I think this is a point of some importance, and if the noble Lord can assure me of this I should be a good deal happier about this provision.

LORD STONHAM

My Lords, I must again say that I should prefer to discuss this question of ammunition in detail when the noble and learned Viscount moves his Amendment on this point. I say again that Clause 79 of the Bill is not related to ammunition. I think that when we come to discuss this we may be able to remove most of the fears that the noble Duke has in this matter.

LORD MOWBRAY AND STOURTON

My Lords, having just heard the noble Lord, Lord Stonham, mention the member of Securicor who was shot the other day, as a fellow member and director of Securicor, I was rather saddened to have the slight imputation, as I felt, put upon this side that we were somehow helping people like that criminal who assaulted the man. I would only reiterate what my noble friend Lord Brooke of Cumnor said just now as to how he felt.

VISCOUNT ST. DAVIDS

My Lords, there is one point that the House is missing in this, which I consider to be important. I have some sympathy with the argument of the noble and learned Viscount that if he wishes a criminal will always be able to get a shot-gun for his criminal purposes. I believe that to be true. I believe that if the price of anything rises high enough, some criminal will be found to provide it at a price. But there is a far more important point which I think is being missed. These provisions will put a very powerful weapon in the hands of the police. The difficulty that the police face in matters of violent crime is that generally they are called in after the crime has been committed, and when somebody has been wounded or possibly killed.

These provisions give the police a powerful weapon, in that any shot-gun which is found in criminal hands labels its owner as a violent criminal before he has committed his crime, and when he has not wounded or killed anybody. And the criminal gunsmith will be in the same position. There will be a man repairing guns without the necessary authorisation and records, and it will be quite clear from the fact that he has not got those records that he is a criminal gunsmith, and this will damn him. It has only to be known by the police that somebody is repairing weapons without the necessary authorisation, and the matter can be hunted down. Or if in the course of other investigations—perhaps stopping a motor car or examining luggage, or doing something like stopping a small fight or helping to put out a fire in a house: there are any number of purposes for which the police happen to be in a particular spot—the police come across an unauthorised shot-gun, it immediately tells them that the owner is a criminal, a dangerous criminal, a criminal who has arms and means to commit a dangerous offence. That is the weapon we are putting into the hands of the police, something that will help them prevent the crime, and that is the most important thing of all.

LORD DERWENT

My Lords, what the noble Viscount says is always on the assumption that the criminal is going to have—so far as gunsmiths are concerned; and it is those people we are largely talking about at the moment—a gun without a certificate. I do not believe it. If he does not get a certificate himself, then, considering the number of shotguns there are, it will not be difficult to get a certificate from another source. He will undoubtedly have friends, who will get him a certificate, or who will lend him a certificate, if necessary. He will take the certificate to a gunsmith, and it will frequently have no number. So far as we know, there is going to be no record of the number actually on a shotgun, because on one certificate you can have a dozen shot-guns. The case of a rifle is quite different. In the case of a rifle or a revolver, the gun is licensed as well as the owner; in the case of shotguns it is only the owner. No one knows where the shot-gun comes from. A certificate is produced—what is the gunsmith to tell from that? He will not know whether the owner has the right gun. A man may have six guns. How is the gunsmith to know whether the gun and the owner of a certificate all go together? Of course he will not.

VISCOUNT STONEHAVEN

My Lords, we are dealing with criminals, and to say that a shot-gun without a certificate denotes that the owner is a criminal is quite wrong. It is the easiest thing in the world to steal a shot-gun, just as a criminal steals a car. I do not know whether in the case being referred to the weapons were stolen or not; but many weapons are stolen and none of this certificate business helps in the question of stealing weapons at all.

9.47 p.m.

VISCOUNT DILHORNE

My Lords, I listened with interest to what the noble Lord, Lord Stonham, said. He started off his speech in an emotional fashion and completely misrepresented the argument I had put forward for this Amendment. I did not say a single word to suggest that a shot-gun is not a lethal weapon. The noble Lord really did me a great injustice in misrepresenting my argument to that extent. Of course a shot-gun is a lethal weapon. It has not the range of firearms, but it is a lethal weapon just the same. The noble Lord does not really advance his case by misrepresenting the arguments of his opponents.

The noble Lord proceeds upon the assumption that the certificate procedure as contained in this Bill now will make things much more difficult for criminals. I certainly should support anything that I was satisfied would make things much more difficult for criminals. Where we part company in relation to this particular provision is just on that. Supposing we do keep in this provision, subsection (3) of Section 11, and apply it to shotguns, is it really going to make things more difficult for criminals? The noble Lord shakes his head. But shaking his head is no substitute for argument; and apart from shaking his head he has advanced no proof for that. Indeed, the statistics he has given point in exactly the opposite direction, because we have had this certification procedure in relation to rifles and other firearms.

We had it in 1961 through to the year 1966, and the effect of this certification procedure in relation to rifles has been that the figure of crimes committed has risen in that short period from 552 to 1,511. If we want any evidence as to the efficacy of the certification procedure, surely we have it there. But it is evidence which tells against what the noble Lord is seeking to include in this Bill. It does not suffice to say that the shot-gun offences have risen from 107 to 404—multiplied four times. The number of those offences is just over a quarter of the offences with rifles, where we have had this certification procedure, and I cannot for one moment believe that a certification procedure for shot-guns is likely to be any more successful than it has been in relation to rifles. There have been 404 shot-gun offences out of the thousand and thousands of shot-guns which there are throughout the country.

LORD STONHAM

My Lords, the noble and learned Viscount has twice said "rifles". I was giving the figures for the whole range of firearms offences under Part I, which covers a much wider range than rifles.

VISCOUNT DILHORNE

My Lords, I am perfectly willing to accept that emendation of my argument, but the point remains the same. The certification procedure with regard to what was covered by the 1937 Act has not prevented a rise from 552 to 1,511—far more offences than the offences in relation to shot-guns.

The whole of this discussion is getting topsy-turvy. The noble Lord said that he would rather deal later with the question of ammunition. I am quite content with that, subject to one thing: this is legislation by reference and one wants to know exactly what is included and what is not. Subsection (5) of Clause 79 states: The following provisions of the Firearms Act 1937"— including Section 11(3)— … shall apply in relation to shot guns and shot gun certificates as they apply in relation to firearms to which the said Part I applies and firearm certificates … So one would take it from that that the whole of Section 11(3) applies in relation to shot-gun certificates and shot-guns. If that is not the case, and ammunition is being put in per incuriam, all I can say is that it is a really disgraceful piece of drafting. We were told so much about how our Statutes were to be drafted, and about the clarity of them, that it would be disgraceful to let this pass in regard to Section 11(3) with a reference to ammunition if it is not intended that this shall have any application in relation to ammunition. I make that point now because it is a different point from that which arises on the later clauses in relation to ammunition.

Having said that, I hope the noble Lord will give some indication that he will give further consideration, in the calm of to-morrow, to what has been said tonight on this Amendment. If he does so I am perfectly prepared to withdraw this will give further consideration, in the calm Amendment. I thought at the end that he put forward, perfectly sincerely, from this side of the House have a certain amount of force behind them. Without making any concession, I ask the noble Lord to say that he will give further consideration between now and the next stage of the Bill. I assure him that we will support anything that he can satisfy us will make life more difficult for criminals. I myself do not believe that this particular provision does, and I ask the noble Lord if he can go so far as to say that. If not, he will put me in a very difficult position.

9.55 p.m.

LORD STONHAM

My Lords, I am grateful for what the noble and learned Viscount has said, and I will say at once that nothing I have said indicated in any way my belief that noble Lords opposite were not highly sincere in everything they said. However, I believed—and I still believe—that in many respects they are quite mistaken, particularly in some of the things which were said, but which I did not answer. I felt that they showed a misunderstanding about this part of the Bill.

The noble Lord, Lord Brooke of Cumnor, appealed to me not merely to be reasonable but to accept that your Lordships were willing to support any measure which seemed reasonable and a reasonable precaution. The difficulty that I am in, in view of the offer that the noble and learned Viscount has made, is that as of now (although, he said, without giving any kind of assurance; and I do not want to raise any false hopes) I am firmly convinced that at this end of the gunsmith's job, for the reasons I have given, he must see the certificate. At the other end, when the job is done (this relates to Amendment 69; and I say this to show how reasonable we are), once the gunsmith has seen the certificate, of course I can take a different view. But at the moment I cannot see that even in the cool of the morning, as the noble Viscount says, I am likely to take a different view. I shall be glad to accept the offer to look at again, and if I can come back with a different answer on Third Reading I will do so.

VISCOUNT DILHORNE

My Lords, I am grateful to the noble Lord for taking that course. We will deal with ammunition later, but purely from the point of view of drafting I think he will have to make some Amendment, even if he includes the whole of Section 11(3) in this Bill. In view of his assurance, which I know is completely without commitment—but sometimes things look different in the morning from what they do at this hour of the night—I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT DILHORNE

My Lords, this is an Amendment to ask the Government why it is that they have incorporated in this subsection Section 14 of the Firearms Act 1937, which makes it impossible to pawn your gun. I do not know whether, if you pawn your gun (not that I have ever done it), it is going to make it more likely that guns get into the hands of the criminal classes. If that be the case, that would be an argument for incorporating Section 14 of the 1937 Act. I should be very interested to know how many guns have been stolen, for instance, from pawnbrokers in the last year. I think the noble Lord will have to establish that pawnbrokers are not safe custodians of guns to justify the incorporation of this particular provision in the Bill. I beg to move.

Amendment moved— Page 16, line 35, leave out ("14").(Viscount Dilhorne.)

LORD STONHAM

My Lords, as the noble Viscount has made clear, the effect of this Amendment would be to delete the prohibition on taking shot-guns in pawn. He has correctly guessed at our reasons for this. Pawnbrokers are already prohibited under Section 14 of the Firearms Act 1937 from taking Part I firearms in pawn. As I indicated in reply to an earlier question, Part I fire-arms include sawn-off shot-guns. The shot-gun certificates we are now introducing are complementary, and it is logical that once all shot-guns are brought within the overall control system they should be treated similarly in various ancillary matters, such as pledging with pawnbrokers. But the basic reason is that firearms dealers, including those who deal only in shot-guns and that only incidentally—places such as fishing tackle shops—have to register with the police, and may have conditions, and usually do have conditions, attached to their registration: that the arms should be kept in security and should not be freely accessible to a thief. All this makes the theft of firearms less easy. I do not say thieves cannot break in and steal firearms; we know they do. They can break into banks and all sorts of strong places. But at least the dealers have to keep the firearms under secure conditions set out by the police.

But conditions like that cannot be imposed on pawnbrokers. A pawnbroker's stock is therefore most attractive to a thief. We think it would be better that a pawnbroker should not take shotguns as pledges, because that presents a comparatively easy way for criminals to steal guns. In this case, it is as simple as that. I think that here the case is made out. Obviously, there is a difference between a dealer who is obliged to keep his weapons in secure conditions, and a pawnbroker who is not.

VISCOUNT DILHORNE

My Lords, I have heard the noble Lord's answer. I am not entirely satisfied, but I do not intend to press it. I should have thought that the pawnbroker could well be relied upon to look after his pledges, but we will not pursue that argument at this hour.

Amendment, by leave, withdrawn.

VISCOUNT DILHORNE moved to add to subsection (5)(a): and for the words 'to be of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm' there shall be substituted 'to have been convicted of a criminal offence involving the use of firearms'

The noble and learned Viscount said: My Lords, I regard this as a rather important Amendment. The certificate which you are required to have is dealt with by Section 2 of the Firearms Act, certain subsections but not all subsections of which are applied by subsection (5). One of the subsections is subsection (2) the proviso to which reads: Provided that a certificate shall not be granted to a person whom the chief officer of police has reason to believe to be prohibited by this Act from possessing a firearm to which this Part of this Act applies, or to be of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm.

The Amendment I am moving is to leave out the words after of intemperate habits or unsound mind, or to be for any reason unfitted to be entrusted with such a firearm, and to substitute: To have been convicted of a criminal offence involving the use of firearms.

When one looks at the proviso to Section 2(2) it is really quite unnecessary that there should be any specific reference to "intemperate habits or unsound mind", because the latter part of the proviso is of such width that it covers everything. The words, "to be for any reason unfitted to be entrusted with such a firearm" would cover intemperance, unsound mind and many other defects. It is not good for the police, because they hear that the noble Lord would not be safe in his handling of a gun when out shooting, to refuse him a certificate. They would have power to do so. That I think the noble Lord cannot dispute. It may or may not be a good thing. A firearm is a lethal weapon. But this is not something designed to prevent firearms being used by criminals. So I suggest to the noble Lord that the wording of this proviso will not do. It is giving far too much power, far too wide a discretion to the police, and it really is not answered by saying, "Oh well, if the police refuse a certificate there can be an appeal". We do not want the courts, busy as they are, to be cluttered up with appeals of this sort, with all the time and money involved.

What I should like the noble Lord to say is that he agrees that this clause requires some rewording and some limitation. I do not feel very strongly about keeping in "intemperate habits and unsound mind", though I am not very sure that the police are the best judges of either of those matters as a ground for withholding a shot-gun certificate. But I certainly object most strongly to the latter words. The words which I suggest as a ground for refusal of a certificate are to have been convicted of a criminal offence involving the use of firearms. On reflection, I think that may be a little too narrow. I believe it is right that the police should have power to refuse a certificate to someone with a criminal record. I use the phrase "criminal record" in the widest sense, covering people who have been put on probation, who have had absolute discharges, who have been found guilty of certain conduct although not having had a conviction recorded against them—for instance, persons found what we used to call "guilty but insane", but which, I think, now goes by another formula.

If something of that sort were put in it would be much more acceptable. But to leave it to any police officer to whom the certification procedure is entrusted to refuse a certificate for any reason which appears to him to make a person unfit to be entrusted with a shot-gun is to give far too much power to the police. In order to alleviate any anxiety in the mind of the Chief Whip, who is looking more anxious than usual at this late hour, I will say that I am not going to press this matter to a Division, because I do not think that the alternative suggested in my Amendment is sufficiently wide. I hope the noble Lord will give an undertaking that he will look into the point and put down an Amendment with some wider wording, but narrowing the discretion which is to be possessed by the police.

Amendment moved— Page 64, line 3, at end insert the said words.—(Viscount Dilhorne.)

10.8 p.m.

LORD STONHAM

My Lords, I certainly cannot give any kind of "umbrella" undertaking to the noble and learned Viscount on this matter, but I want to discuss his point so that he and your Lordships may see our difficulties. At an earlier stage of the Bill the noble and learned Viscount indicated that his view was that these words were far too wide and that we were giving the police far too wide powers—powers which in some cases could be abused and could lead to the harassment of respectable and innocent people. He has now illustrated that with reference to the words in the Bill "intemperate habits or unsound mind", which he was not prepared to argue about too strongly. But the other words, or to be for any reason unfitted to be entrusted with such a firearm", led him to say that the police may say that I was not fit to be entrusted with a firearm—not because of any criminal proclivities, but because of lack of skill with a shot-gun, an alleged lack of skill which I do not admit to at all.

Let us consider, first of all, the noble Viscount's alternative proposal, which he admits may be too narrow; that is to say: to have been convicted of a criminal offence involving the use of firearms". One could have a man with a criminal record who had not been guilty of any firearms offence at all. If we used those words, the police would be obliged to issue a certificate to a known criminal with a very bad record. So most certainly the suggested words in the Amendment are unacceptable because they are far too narrow. I am sure we should all regard it as scandalous if the law, avowedly intended to deal with an increase in crime and hooliganism involving the use of shot-guns, were so drafted as to compel a chief constable to issue a certificate to a known criminal. Our feeling is that once it is accepted that the system is intended to exercise some form of control—and I hope that is beginning to be accepted—then the authorities issuing the certificates must be given a reasonable discretion to act in the public interest.

In the cases of "intemperate habit" or of "unsound mind" the powers of refusal on those grounds will of course be used, or are intended to be used, only in extreme and difficult cases. But there must be that power; otherwise, a person who had been acquitted of murder because he was of unsound mind could still qualify for a certificate to have a shotgun. You might have—and this is within my knowledge—criminal lunatics, who were released from Broadmoor on condition that they kept away from the drink, and who sometimes have to be brought back to Broadmoor because they do not observe that condition, who could also have a certificate and a shot-gun if we accepted the Amendment. My own feeling is that the public at large think that these discretions in the hands of the police are right for their protection and would think it wrong that the issuing authority should not be able to refuse certificates in cases which were clearly wrong.

With regard to possible abuse by the police of their powers (I am not suggesting that they would, but I think it was perhaps implicit in the noble and learned Viscount's remarks that they might occasionally do so; that they might be a bit rough with a respectable person), in my view any constable who abused this power would only be likely to do it once. In any case, if there was a case of a misunderstanding or a misconception, then the right of appeal to quarter sessions should be quite sufficient to prevent this power from being used oppressively. We must consider the position of the law-abiding public and their very real and well-founded concern, especially in the countryside where I know that in many parts they have been very upset by hooligans roaming around with shotguns. We must have regard to their fears, their wishes, in this matter, and at the same time we must have regard to the quite fair proposition that ordinary law-abiding citizens who use shot-guns should not be put to inconvenience if it can be avoided.

This is quite a difficult problem. Obviously, the powers must be wider—and I think the noble and learned Viscount accepts this—than his Amendment suggests. I cannot see at the moment how, in safety, they could be narrowed from the present position. But I will have a look at it and see whether we can come back with a proposition which will be, as it were, between the two.

VISCOUNT DILHORNE

My Lords, I am grateful for what the noble Lord said about that, because it certainly should be possible to find a proposition between the two. I think—and I hope the noble Lord will agree with me—that the present formula is far too wide. The words, "for any reason unfitted" give the authorities a completely unfettered discretion to withhold a certificate. I quite agree that if there is to be any discretion to withhold certificates there must be some power to do so. It is impossible to lay it down in black and white. But I suggest to the noble Lord that something like the formula which I suggested, "of criminal record", or "of criminal habits"—something fairly vague—would do the trick and provide a halfway house. I am hopeful that he will really try to do that, because I think it will meet a lot of criticism if he does. In the hope that with the aid of Parliamentary Counsel he will succeed, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM

My Lords, I think that at least there will be general agreement that we have made very good progress on the Bill, and that we finished up by firing quite a good few shots from either side. If it would meet your Lordships' convenience, I think we might now agree to adjourn the Report stage until to-morrow.