HL Deb 08 June 1967 vol 283 cc559-640

5.5 p.m.

Order of the Day for the House to be again in Committee read.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STRANG in the Chair.]

Clause 15:

Restrictions on refusal of bail

(5) The foregoing provisions of this section shall not require a magistrates' court to remand or commit a person on bail— (f) where the act or any of the acts constituting the offence with which he is charged consisted of an assault on or threat of violence to another person, or of having or possessing a firearm, an imitation firearm, an explosive or an offensive weapon, or of indecent conduct with or towards a person under the age of sixteen years;

(6) The requirements of subsections (1) and (2) of this section shall not apply to the adjournment of a trial by a magistrates' court under section 26 of the Magistrates' Courts Act 1952 for the purpose of enabling a medical examination and report to be made on the defendant if it appears to the court that it would be impracticable to obtain such a report without remanding the defendant in custody.

LORD BROOKE OF CUMNOR moved, in subsection (5), to add to paragraph (a): "or detention in a detention centre." The noble Lord said: I moved this Amendment towards the end of our proceedings on Tuesday night, and our discussion came to an unhappy end because not enough noble Lords took part in the debate to enable the Division to have effect. As a result, under Standing Order No. 51, the Question remained undecided, and it falls to us to continue the discussion now. I do not know what is in the mind of the noble Lord, Lord Stonham, but, for my part, I propose to speak quite briefly, because the arguments are all set out in Hansard and have been available for noble Lords to study since yesterday morning. I will simply summarise the position to which this Amendment is directed and which it is designed to improve.

We all, I think, agree with the general purpose of Clause 15: to restrict remands in custody and to secure a larger proportion of remands on bail. The clause proceeds towards this purpose by compelling magistrates' courts in a wide variety of cases to remand on bail rather than in custody. When we come to subsection (5) of the clause, we find there set out a list of exceptions. It does not mean that in the exceptions listed the court is required to remand in custody; it means simply that in the case of these various headings the court is given an option whether to remand on bail or in custody at its own discretion.

Under paragraph (a) of subsection (5) the court is given this discretion to remand either on bail or in custody where a person is charged with an offence punishable by that court with imprisonment for a term of not less than six months and it appears to the court that he has been previously sentenced to imprisonment or borstal training. The Amendment I am putting before your Lordships is to add to that paragraph the words, "or detention in a detention centre". What is in my mind is that if the magistrates have in front of them somebody who has in the past got into sufficient trouble to land himself in a detention centre, then it is only right that the magistrates should in such a case have the same discretion as to whether they should remand him on bail or in custody as they would have under this clause if, instead of having been sent for three months to a detention centre, he had been sent for a month, two months or three months to prison.

Personally, I think the case for that Amendment is overwhelming. It compels nobody, and I cannot accept the argument of the Government that the Amendment must be resisted on the ground that it would increase, perhaps, marginally, the number of remands in custody. If the Government rest on that argument, that is asking your Lordships to accept that every word of subsection (5) is absolutely right. I do not think there would be a great number of these cases which would end with remand in custody, but I feel sure that the option should be available to the magistrates' court.

When I moved this Amendment on Tuesday night it was supported by my noble and learned friend Lord Dilhorne; it was also supported by the noble and learned Lord the Lord Chief Justice. I had, therefore, substantial legal support for what I was proposing. It was opposed by the noble Lord, Lord Stonham, on behalf of the Government. I said at the conclusion of the debate that there was a clash of opinion here, and I believed that he and I in all sincerity held contrary opinions. I have read the debate through since Tuesday, and nothing that I have read or thought about this matter since has convinced me that it would be wrong to press this Amendment.

Amendment moved— Page 13, line 11, at end insert ("or detention in a detention centre.")—(Lord Brooke of Cumnor.)

5.11 p.m.

VISCOUNT DILHORNE

I want to add a word, if I may, in support of my noble friend. I agree with him in thinking that the argument for this Amendment is overwhelming. It is one thing to give guidance to magistrates as to how they perform their duties, and another to restrict their powers. This Amendment is the first, but I think not the only, part of this Bill where there is a restriction of the powers of magistrates, and I fear the result may well be that the impression is gained that the administration of the law is getting too soft in relation to those charged with criminal offences.

It may be the fact that the granting of bail has been too much restricted in the past and that it ought to have been granted more frequently. But that is no reason for the Bill's providing that a person who has served a sentence of detention—and it may be because he has been found guilty of very serious offences—must, when charged with another offence, be admitted to bail. That is what the Bill provides now. The magistrates have a discretion if the person has been sent to borstal training or to imprisonment. As the noble and learned Lord the Lord Chief Justice pointed out, nowadays it really is quite fortuitous as to whether or not there is room in a detention centre, and if there is not it is quite fortuitous as to whether he goes to detention or indeed to borstal. I think it is quite wrong to restrict the magistrates' discretion to grant or refuse bail in a case where a man who is charged has served a sentence of detention, and that they should have the same discretion as they do if he has gone to borstal or to prison and served there before coming before the court again.

If I understand Lord Stonham's argument correctly, the only argument really advanced by him was that, as detention differs from borstal training and imprisonment, he did not want a person remanded in custody, who had served detention, to go to prison to get the taste of prison. I think that is a wholly inadequate reason for restricting the discretion of magistrates, and I think it shows undue regard for the person charged with the offence who has already been convicted of other offences, it may be of a very serious kind, and an inadequate regard for the preservation of law and order. I shall certainly support my noble friend in the Lobby on this.

THE EARL OF MANSFIELD

Do Her Majesty's Government not realise that many of the youths who are sent to those most admirable new institutions, detention centres, have been sent there because they have been guilty of very violent offences? I visited a detention centre in Perth some time ago, and at that time, to give just two examples, there was one "little angel", in appearance, who on being refused free admission to a Glasgow cinema, kicked the manager in the stomach and went on kicking him. Another young gentleman had threatened his father with a carving knife and had to be forcibly disarmed.

When, as all too often happens, despite their corrective training, lads of this description again get into trouble, surely the magistrate, or magistrates, should have a discretion to say that it is unwise from the point of view of the safety of the Queen's citizens that these young men should be at large until their trial has been carried out. If the Government are unwilling to accept this most reasonable Amendment, which does not seek to make it mandatory to refuse bail but merely leaves it to the discretion of the magistrates to do so if they think fit, then it is merely one more evidence that, unfortunately, this Government are infinitely more solicitous for the welfare of the criminal than for that of the respectable citizen.

LORD ROYLE

Since this Amendment appeared on the Order Paper one has obviously given a great deal of thought to it, and I confess at once that I have been torn asunder and that at one point I was deeply sympathetic towards it; but, after a great deal of thought. I have come down against it. I am one of those who believe that bail must be given whenever possible, and particularly when it applies to our younger offenders.

My mind goes back to the 1948 Act when the detention centres were first brought into legislation, and I remember the words of the then Home Secretary, the late Mr. Chuter Ede, when he described what the detention centres were for. He described it as, "a short, sharp shock". I regard this, therefore, as a form of penalty which is very different indeed from a sentencing to borstal. A borstal sentence is of a longer period than a sentence to a detention centre. From one's experience of young people appearing before the courts, I assure the noble Earl who preceded me that not all the youngsters who have been sent to detention centres are of the type which he mentioned.

THE EARL OF MANSFIELD

I never suggested that they were.

LORD ROYLE

I accept that at once.

LORD STONHAM

They were the only examples the noble Earl gave.

LORD ROYLE

They were the ones mentioned by the noble Earl, and there are many others. In the early days of the detention centres I remember cases in which conscientious objectors were sent there. In the past there have been many mistakes as to the type of person who should be sent to those institutions.

I am concerned because I know from experience that many of these young men may have had a period in a detention centre simply because of the shortage of remand centres, and under this Amendment magistrates would be compelled to remand such men to prison. Prison is a very different place from a detention centre. I greatly dislike the thought of some of these people, even for the short period of remand, ever getting into prison. I am all for discretion for magistrates, but I assure noble Lords that there are many magistrates who are much happier when they know precisely what the law is and what they are compelled to do. It is because of these considerations that eventually I came down on the side of the Government, believing that sentence to a borstal and sentence to a detention centre are two very different kinds of penalty, and that the people who have had experience of a detention centre are not the people who should be refused bail if they happen to appear before a court again. After having given the matter a great deal of thought I am quite confident that the Government are right on this matter.

5.20 p.m.

THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE, HOME OFFICE (LORD STONHAM)

I am most grateful to my noble friend Lord Royle, not only for the sentiments he has expressed but for the fact that they come with a great many years' experience as a magistrate, and indeed as vice-chairman of the Magistrates' Association. Despite the eminent legal authority to which we have listened this afternoon and which has been quoted in this debate, I would remind your Lordships that it is, after all, the magistrates who are concerned with Clause 15.

The noble Lord, Lord Brooke of Cumnor, told us that this clause is one with which we all agree. I imagine he means that all your Lordships agree. I hope that is right; but I must say that, from what we have heard so far, agreement in some sections seems somewhat muted. The whole purpose of this clause, and indeed a major purpose of the Bill, is to reduce the number of people sent to prison, as the noble and learned Viscount Lord Dilhorne said; but he omitted one vitally important word—sent to prison unnecessarily. This is what this clause is about.

When an accused person is remanded in custody he is sent to prison—for varying periods, unspecified, and, at the time of the remand, virtually unknown. This clause provides that in certain circumstances, but not in others, when magistrates remand an accused person they must grant bail. Magistrates have discretion now as to whether or not they should grant bail, and it is a fact, which is repeated every year, that, of some 35,000 occasions when they do not grant bail, more than half of the offenders subsequently convicted are not sent to prison. In other words, the magistrates who eventually try them, and who presumably earlier remanded them in custody, do not think that the offence was such as to justify imprisonment. This must be what the noble Lord, Lord Brooke of Cumnor, meant when he said that we all agreed with this clause; that the idea was to reduce the number of prisoners remanded in custody. That is the point on which I understand we are in agreement; and, therefore, if we are going to do this we must limit the magistrates' discretion, otherwise there is no reason to think that we shall be able to reduce the number of remands in custody.

So the point is the much narrower one of the exceptions. I must remind your Lordships again that there are powerful exceptions to the mandatory grant of bail in these courts. The first is that it must be a summary trial for an offence with a maximum punishment of not more than six months' imprisonment. In other words, the alleged offence is unlikely to be a very serious crime. The noble and learned Viscount Lord Dilhorne said that the Government's attitude in this was an example of the law getting too "soft", or of our wanting the law to be too "soft". I would remind him that we are considering here people, mainly young people, who are charged with an offence—and not a particularly serious offence at that—but who have not been convicted. Indeed, at the time when a decision is made as to whether or not they should be sent to prison, they are still in law innocent. I am arguing that they should not be sent to prison.

It has been mentioned by my noble friend and by other speakers that there is a difference between a detention centre and prison, and the very reason why the detention centres are full and why sometimes, unavoidably, young people who would otherwise go to detention centres have to go to prison is proof that the magistrates do see a difference and that they think the nature of the offence means that going to a detention centre for three months (which in fact means eight or nine weeks) is a way of dealing with the case instead of sending the man to prison or to borstal. There is a difference, and anyone who thinks otherwise cannot have been to a detention centre or to a prison and seen the very great difference in the régimes.

Another thing I want to point out is what I regard as the high success rate in detention centres. In senior detention centres it is 51 per cent., compared with the success rate in borstals (where we have boys for up to two years) of some 38 per cent. Having regard to the nature of the crimes committed by some of the boys, to which the noble Earl, Lord Mansfield, referred, that is quite a remarkable success rate.

VISCOUNT DILHORNE

Can the noble Lord explain how the success rate for detention centres, which I agree is remarkable and very satisfactory, can possibly affect the question of the discretion of magistrates in a case where there has not been a success, at least apparently, because the man, having served a sentence of detention, comes before the magistrate on another charge? Surely that is the question we are considering.

LORD STONHAM

I was, of course, hoping to come to that when the noble and learned Viscount interrupted me. I would remind him that the first detention centre opened was at Goudhurst, in Kent, over twelve years ago. That means that it is not only a young person who comes before a magistrate who may have had a term in a detention centre: it may be a man of 33. And, because of our success rates, that man of 33 might have gone straight for ten or twelve years, and when he came before the court it might not be on a serious charge but might be on one which required a remand, not because of the nature of the offence but purely for the purposes of the court. If the Amendment is accepted, it means that the magistrate, looking at the Act, would see detention centres mentioned, and it would be a strong reason for denying bail. This is why I say that the question of success rates is important.

VISCOUNT DILHORNE

I do not follow why the noble Lord says that. After all, if the magistrate looks at the Act, he will see that he has a clear discretion in the matter.

LORD STONHAM

Of course he has that discretion now, and that is why we have this clause, in order to reduce the number of people going to prison on remand, unconvicted, unnecessarily.

The noble Lord, Lord Brooke of Cumnor, said he could not accept that this Amendment would increase the number of people going to prison unnecessarily: he could not accept that it would have this effect. If it would not have that effect, what is the good of putting down the Amendment at all? If it is unnecessary, if it will not increase the number of people sent to prison on remand, then I cannot see that is an argument for having the Amendment at all. It is no use saying the magistrates could use their discretion if the Amendment were made.

THE EARL OF MANSFIELD

The noble Lord has no confidence in magistrates?

LORD STONHAM

I have perhaps a greater confidence in magistrates than the noble Earl has, but I am faced with the facts. We have this enormous number of remands in custody, so many of them afterwards proving not to have been necessary. We all agree that we should cut down the number, and I think that if there is any reason for having this Amendment it is that the magistrates will use it. Of course they will use it at their discretion, but what is the procedure when there is a question of bail? The police enter into it, of course, and if this Amendment is written into the Bill the police will regard it, quite properly, as a justification for asking that bail should be refused; and it must carry weight with the magistrates.

I would put one last argument. I am very glad that the noble and learned Lord the Lord Chief Justice is in his place, because this is a point he raised on Tuesday evening which was referred to by the noble and learned Viscount, Lord Dilhorne. I, of course, have no legal knowledge at all, and obviously I am not a very good layman. It is perhaps unutterably presumptuous for me to disagree with the Lord Chief Justice, but I do so disagree. The Lord Chief Justice said that he was for the Amendment because, as he quite rightly pointed out, there are occasions when a magistrate would like to send a boy to a detention centre but cannot do so because he cannot find a place for him, and he has to go to prison. Therefore, he argued, it was purely fortuitous whether a boy went to prison or a detention centre. So far we are together.

But the noble and learned Lord then said that that was an argument for the Amendment, for saying that boys who had been sent to detention centres, on coming up before a magistrate on another occasion, should stand a greater chance of being remanded in custody. With the greatest respect. I think that that is an argument against the Amendment, because the noble and learned Lord the Lord Chief Justice clearly felt not in favour of wanting to send these boys to prison but that it would be unfair because some other boys who had been sent to prison came under the clause anyway. It is a case for more and more detention centres, but it is a case also for persisting in our policy of training these boys and doing the utmost we can to see that they are not contaminated by prison. I hope your Lordships will not agree to the Amendment.

LORD DERWENT

Am I right or wrong in thinking that the noble Lord made a mistake in what he said? He said that subsection (5) applies only to offences where summary punishment is six months or less; when a man has been tried on an offence which only carries a penalty of six months or less. That is not the case. It also applies to those under subsection (2), where an indictable offence is dealt with summarily; six months does not come in there.

LORD STONHAM

I would be sorry if I did make an error. I think I said in cases tried summarily. That, of course, covers both summary cases and cases which can be either summary or indictable, but which the magistrates decide to try summarily.

LORD DERWENT

But in some of those cases which are indictable and tried summarily the penalty is more than six months.

LORD STONHAM

Perhaps I may read the clause. It says: Where a person who has attained the age of seventeen is charged before a magistrates' court with a summary offence which is not also an indictable offence and is punishable with not more than six months' imprisonment, then, subject to the following provisions of this section, if the court adjourns the trial and remands him, it shall remand him on bail. Subsection (2) says almost the same thing, except that it refers to those offences that can be either indictable or summary which the magistrates elect to try summarily.

LORD AIREDALE

I want to refer to what is a possible compromise. I think it is generally agreed that the basic difficulty we are presented with here is that there are not enough places in detention centres. That being so, why will not Her Majesty's Government accept this Amendment now until such time as there are enough places in detention centres? When there are, the need for this Amendment will largely have disappeared, and Her Majesty's Government can then introduce legislation at the first available opportunity to repeal it. In the meantime, while there are not enough places in detention centres, surely the thing to do is to accept this Amendment as an interim measure.

LORD STONHAM

I am always grateful for the noble Lord's suggestions, but I think it is bad policy to accept something that you know to be wrong simply because for administrative or other reasons it might be expedient. At a later stage in the Bill we are proposing to give the Secretary of State powers to stop sending people to prison for the offence of being drunk and disorderly. We shall not implement those powers until there are other arrangements available, but we will have them in the Bill. The Government's case against this Amendment is the Government's case for this whole clause; we want to stop sending people to prison unnecessarily, and no administrative convenience should weigh on that.

LORD AIREDALE

You will not achieve that by not having enough places in detention centres, so that people have to be sent to prison unnecessarily.

LORD STONHAM

We are talking about remands in custody. In fact, following the noble Lord's argument, if it was decided to remand people in custody simply because they had been to detention centres, it would mean more people going to prison unnecessarily, before they have been convicted, which is what we want to stop.

LORD BROOKE OF CUMNOR

Not only are there not enough places in detention centres, there are not enough remand centres either. If we had more remand centres, there would be no need for the noble Lord to speak about contamination by going to prison. On this main issue there is a sincere and clear clash of opinion. The noble Lord says that if this Amendment is accepted a number of magistrates will use their discretion badly.

LORD STONHAM

The noble Lord must not misquote me. I did not say they would use it badly; I said they would use it.

LORD BROOKE OF CUMNOR

What the noble Lord said was that a number of people would be remanded in custody unnecessarily. If there is any meaning in that word "unnecessarily", it means that the magistrates have used their discretion faultily. That is, of course, a hypothetical matter.

LORD STONHAM

Some of the people remanded will be found to he innocent, and the magistrates cannot possibly know that when sending them to prison on remand.

LORD BROOKE OF CUMNOR

They certainly cannot know that, but I see no reason whatever why magistrates should not be trusted to use their discretion sensibly. If this Amendment is accepted, things will not go on as before. It seems to me inconceivable that magistrates generally will not take the very strong hint contained in this clause, and all that we have been saying about it in both Houses of Parliament, and will not recognise that they should think carefully before remanding in custody if the case is a doubtful one. What is absolutely beyond question is that if this Amendment is not accepted the magistrates will have to remand on bail a certain number of people—it may be a small number, but a certain number—who may not

Resolved in the affirmative, and Amendment agreed to accordingly.

5.48 p.m.

VISCOUNT DILHORNE moved, after paragraph (c), to insert as a new paragraph: ( ) Where he is charged with driving when disqualified and he has twice been convicted of the same offence in the last three years.

The noble and learned Viscount said: I think the Committee will probably agree necessarily be young people, who they think should be remanded in custody. That seems to me an unsatisfactory situation. I sincerely believe that the magistrates should have discretion in this matter, and that is why I wish to press this Amendment.

5.40 p.m.

On Question, Whether the said Amendment (No. 19) shall be agreed to?

Their Lordships divided: Contents, 61; Not-Contents, 46.

CONTENTS
Aberdare, L. Drumalbyn, L. Massereene and Ferrard, V.
Aberdeen and Temair, M. Ebbisham, L. Merrivale, L.
Ailwyn, L. Emmet of Amberley, Bs. Milverton, L.
Airedale, L. Ferrier, L. Monckton of Brenchley, V.
Albemarle, E. Foley, L. Napier and Ettrick, L.
Amory, V Fortescue, E. Nugent of Guildford, L.
Atholl, D. Goschen, V. [Teller.] Parker of Waddington, L.
Auckland, L. Grenfell, L. St. Aldwyn, E.
Berkeley, Bs. Gridley, L. St. Helens, L.
Blackford, L. Grimston of Westbury, L. St. Just, L.
Boston, L. Hamilton of Dalzell, L. Salisbury, M.
Brooke of Cumnor, L. Headfort, M. Sandford, L.
Brooke of Ystradfellte, Bs. Howard of Glossop, L. Sandys, L.
Byers, L. Hylton, L. Sempill, Ly.
Carrington, L. Ilford, L. Somers, L.
Chesham, L. Ironside, L. Stonehaven, V.
Colville of Culross, V. Kinnoull, E. Strange of Knokin, Bs.
Cromartie, E. Lindsey and Abingdon, E. Thurlow, L.
Cullen of Ashbourne, L. McCorquodale of Newton, L. Tweedsmuir, L.
Derwent, L. [Teller.] Mansfield, E. Vivian, L.
Dilhorne, V.
NOT-CONTENTS
Addison, V. Leatherland, L. St. Davids, V.
Beswick, L. Lindgren, L. Segal, L.
Bowles, L. [Teller.] Longford, E. [L. Privy Seal.] Scrota, Bs.
Burton of Coventry, Bs Mitchison, L. Shackleton. L.
Chalfont, L. Morris of Kenwood, L. Shepherd, L.
Champion, L. Morrison, L. Sorensen, L.
Chorley, L. Moyle, L. Stonham, L.
Crook, L. Pargiter, L. Stow Hill, L.
Darwen, L. Peddie, L. Summerskill, Bs.
Gaitskell, Bs. Phillips, Bs. [Teller.] Swanborough, Bs.
Gardiner, L. [L. Chancellor.] Plummer, Bs. Walston, L.
Granville-West, L. Popplewell, L. Wedgwood, L.
Hall, V. Ritchie-Calder, L. Wells-Pestell, L.
Hilton of Upton, L. Rowley, L. Williamson, L.
Hughes, L. Royle, L. Wootton of Abinger, Bs.
Latham, L.

that driving when disqualified is not only a serious but also a most prevalent offence in these days. I do not think there is any need for me to expand on that and take up any time in commenting and enlarging on the serious nature of the offence. When a person has twice been convicted of this offence in the last three years, it must show that he has little, if any, regard for the law, and in such a case I feel that magistrates should have a discretion not to admit to bail.

It may be said by the noble Lord, Lord Stonham, when he comes to reply, that such a case will be covered by Clause 15(5)(g), where it says that there will be a discretion: where it appears to the court that unless he is remanded or committed in custody he is likely to commit an offence I have some doubt whether that would apply, because that paragraph begins with the words "where it appears to the court …". I should think—and perhaps the noble and learned Lord the Lord Chancellor will correct me if he disagrees—that that must mean that there is some evidence before the court, on which the court can act, that he is likely to commit an offence unless he is remanded or committed in custody.

I do not see how on that wording it would be open to the court to operate that subsection merely on account of the fact that he had twice been convicted in the last three years of driving when disqualified. Even if it is the view of the Lord Chancellor that that would be comprehended within paragraph (g), it seems to me that it is open to some doubt. Therefore, I feel that there would be some advantage if clear guidance on this subsection could be given to the magistrates through the insertion of the Amendment which I propose. I think it should be made clear beyond all doubt that, in a case where the charges involve driving while disqualified, and where there have been two convictions within the short period of three years, the magistrates can, if they think fit, refuse bail. I beg to move.

Amendment moved—

Page 13, line 17, at end insert the said paragraph.—(Viscount Dilhorne.)

BARONESS WOOTTON OF ABINGER

I ought perhaps to have raised this matter in connection with the previous Amendment. I am puzzled about all these conditions, both those at present in the Bill and those proposed in the Amendment of the noble and learned Viscount, all of which assume that when remanding an accused person, after he has pleaded and before he is tried, a court will know whether he has been previously convicted or sentenced to imprisonment, or borstal, or to a detention centre, and whether he has been previously convicted of driving while disqualified. I should have thought it totally contrary to the elementary principles of British justice that the magistrates who are to try a case should know the previous record of the accused when they are deciding whether or not to grant bail. In my long experience as a magistrate I have never heard a previous record given. The police will say that a man has no fixed abode, that he is likely to interfere with other witnesses, and that they think he will commit another offence while on bail, but in no circumstances have I ever heard the previous record given, and I feel that it would be most improper to do so.

LORD PARKER or WADDINGTON

Before we consider this Amendment, I was going to ask much the same question as the noble Baroness who has just spoken. I am very anxious to elucidate what is to happen. Quite clearly, those concerned with the granting or refusing of bail will inevitably know whether there is a record or not. Does this really mean that a bench has to be reconstituted? Has it to be clear that no people who sat on the bail application should sit at the hearing? If so, what happens when it becomes a question of continuing bail overnight, when objection is taken and the bench, in the middle of hearing the case, have to see what the previous convictions are? There are great difficulties, and I myself should very much like to know how it is intended that it shall work before we consider any further Amendments to the clause.

VISCOUNT DILHORNE

As the noble Baroness has raised the point, may I say that it was present to my mind that I was intending to raise this matter on the question whether the clause shall stand part. But as the noble Baroness will see that before subsection (2) was amended it obviously required that in certain cases the bench shall have it brought before them that the man has been in prison before, or that the man has been for borstal training, and that that would have to be a matter proved to them to be taken into account in considering whether or not to grant bail. That, I think, is a matter which did not arise on the last Amendment. I do not think it really arises on this Amendment, but it is certainly a matter on which I was going to say a few words when we come to the Question, That the clause stand part, because I feel that it is very important.

LORD STONHAM

I would not want there to be two discussions on this particular, and very important, point and, as the matter has now been raised by the noble Baroness and two noble and learned Lords, I think I will deal with it now.

VISCOUNT DILHORNE

If that be so, I will perhaps deal more fully with the reasons for anxieties about the clause as a whole, but I was reserving it until the Question, That the clause stand part, when we can see what final form the clause will take.

LORD STONHAM

I am in a position of some difficulty. As the matter has been raised, certainly it must be answered, and I will answer it. But if my noble friend will leave it for the time being, I will reply to it on the Question, That the clause stand part of the Bill.

To come to the noble and learned Viscount's Amendment, I am quite sure that nobody will dispute that driving while disqualified is a serious offence. If a man came up for a third time on such a charge the matter would have to be examined very closely before a magistrate would grant bail. But the Government do not regard that as a special reason for making such people less bail-worthy than people charged with other offences. I am sure that the noble and learned Viscount would agree that it is likely that a good many defendants who for the third time are before the court on this charge may well have been to prison or to borstal and will be caught by subsection (5)(a). He himself raised the point about subsection (5)(g) and asked my noble and learned friend the Lord Chancellor for advice on this point. My advice is that magistrates would have discretion to commit an alleged offender before them under paragraph (g).

The offence of driving while disqualified is a hybrid offence, being triable either summarily or on indictment. This brings it within subsection (2) of the clause, under which the magistrates are not required to grant bail until it has been decided to try the case summarily and the defendant has pleaded to the charge. It would then be only in the event of the trial not being concluded on that day that the question of mandatory bail would arise. It would be at that point for the court to consider, as I have pointed out, whether any act of the exceptions to the mandatory granting of bail in subsection (5) applied.

I think that, on looking carefully into this Amendment and what is covered by driving disqualifications, the noble and learned Viscount may agree that it would be wrong to say that people so charged should be treated, as a class, as an exception in the way he suggests. I would refer him to the First Schedule to the Road Traffic Act 1962, which lists various offences that invite disqualification. Among them, for example, are carrying a passenger on a motor-cycle in contravention of Section 8(2); failure to comply with traffic directions; leaving a vehicle in a dangerous position; contravention of traffic regulations on special roads; contravention of pedestrian-crossing regulations; failure to obey a sign exhibited by school-crossing patrols. All those, and many more, can bring about disqualification to drive, and if we were to accept the Amendment it would mean that in all these cases the magistrates would have this discretion. We feel, however, that most, indeed all, of the cases which are likely to be bad cases—and many of them would be criminals, if only by reason of the fact that the disqualification cases were bad ones—would be caught. That lessens them need for the Amendment and, with the other reason that I have given, the broad umbrella covered by disqualification at large, would be another reason for not accepting the Amendment.

VISCOUNT DILHORNE

I am grateful to the noble Lord for his explanation, but I am not in the least satisfied by it. One is not concerned here with the grounds on which the court has in the past ordered disqualification. The charge here, of which a person must have been convicted twice in the last three years before this Amendment could apply, is a charge of driving while disqualified. Having been disqualified by the court he is found driving again. It does not matter in that context what was the ground of the original disqualification. This Amendment deals with a charge of driving while disqualified by an order of the court. If a man comes before a court a third time in two years on a charge of driving while disqualified, I should like it to be clear that the magistrates have a discretion to remand him in custody.

I am not quite clear from the noble Lord's answer whether he says that in those circumstances under this clause the magistrates have or have not got that discretion. At one part of his reply he rather seemed to indicate that he thought they had, if I understood him correctly, because he thought it came, or might come, under subsection (5) (g). I am not concerned with the possibility of whether, in other respects of the accused's character, he comes within any other provision; I am concerned with this particular category of driving while disqualified. If the noble Lord says that it comes within, and can come within subsection (5) (g), is he then saying (and I hope we shall discuss this when we come to the Question, That the clause stand part of the Bill) that proof of these previous convictions for driving while disqualified will suffice to justify a court in saying that it appears to them likely that if he is remanded on bail he will commit that offence?—be-cause I should not have thought that that necessarily followed.

If the noble Lord would like to say that he will give further consideration to this, I should certainly not be disposed to press this Amendment. But it is a serious point and one to which further consideration should be given. With the greatest respect to the noble Lord—perhaps he was not anticipating what arguments might be put forward in support of this proposal—his reply really has not met the case advanced for it.

LORD STONHAM

I think that, so far as subsection (5)(g) is concerned, I made the view of the Government clear, and I think that when the noble and learned Viscount reads what I said he will agree. On the other hand, I agree with him that this is a very difficult case. We do not want to create what I regard as additional classes of exceptions to the mandatory provision—certainly, we would not do it lightly—but I am impressed by what he has said, and I shall be very glad to look at this again and see whether we can find some solution.

VISCOUNT DILHORNE

In those circumstances I have much pleasure in asking the leave of the Committee to withdraw the Amendment. I am very grateful to the noble Lord for what he has said, as this merits very serious consideration; in particular, as to whether the point really is covered by subsection (5)(g).

Amendment, by leave, withdrawn.

6.5 p.m.

LORD DERWENT moved to add to paragraph (f): or an offence under the Drugs (Prevention of Misuse) Act 1964 or the Dangerous Drugs Act 1965;".

The noble Lord said: As your Lord-ships know, subsection (5) of this clause deals with a variety of cases where magistrates have the option of granting or not granting bail. By my Amendment I seek to add something to paragraph (f) of subsection (5), which deals with serious cases of offences against the person—offences such as assault on or threat of violence to another person, having or possessing a firearm and so on. It deals with offences against the person, and I am seeking to add offences under the two main Drugs Acts—the Drugs (Prevention of Misuse) Act 1964, and the Dangerous Drugs Act 1965.

As your Lordships probably know but may have forgotten, the first of these Acts, the Drugs (Prevention of Misuse) Act 1964 deals largely with things like pep pills; and the more serious drugs, the hard drugs such as cocaine, heroin and so on, are dealt with under the 1965 Act. May I just digress to say that I was in some doubt whether to include the 1964 Act in this Amendment, but I have done so for one reason only. It does not deal only with the pep pill trouble; it deals with the drugs which cause hallucination such as LSD. In the early days of LSD it was thought that there would probably be no lasting effect, but it has since been found from people who take LSD that it can have the most serious side effects. It is now quite clear that in many cases the taking of LSD leads eventually to the taking of hard drugs, and that is why I have put in the less important of the two Acts as well as the 1965 Act.

Under both of those Acts there are, in the main, two classes of offenders. There is the trafficker in drugs, the man who trades in illegal drugs, and it is for that reason that I propose this Amendment to the paragraph which deals with offences against the person. The other class of offender is the person who has drugs in his possession because he is taking them. Magistrates have power under paragraph (h) to use their discretion in suitable cases about remanding a person in custody or on bail. That paragraph says: where it appears to the court necessary for his own protection to refuse to remand or commit him on bail. In the case of somebody who is more or less permanently under the influence of drugs, they can use that clause to keep him in custody while he is on remand—maybe for medical reasons, maybe because he is not in a fit condition to be released.

What we are dealing with here are those who traffic in drugs. There is not the slightest doubt that if it were not for the traffickers in drugs—those who make money out of this evil trade—the vast majority of people who now take drugs, whether they are addicts or whether they are taking drugs which are not really drugs of addiction, would not be taking them. If the middlemen, the pushers, did not exist, most of the drug addicts would not exist either, and that is what makes this such a very serious offence.

I do not know how many of your Lord-ships, apart from those who are doctors, have any personal experience of people who take drugs. It is quite horrible. There is a fairly slow physical deterioration. There is an almost immediate mental deterioration and, quite rapidly, there is a loss of any moral standard. In addition there is the frightful craving, which is horrible to see, when the last dose is dying out, and it brings appalling misery to the person's family and his friends. In my view, people who make money out of this illegal trade are as bad as, and in many cases worse than, murderers. They slowly kill their victims, if not always physically then certainly mentally; and it is an appalling crime.

In case your Lordships think I am exaggerating, may I just point out what Parliament thinks the penalties for this offence ought to be? For the milder offences, which come under the Drugs (Prevention of Misuse) Act, on summary conviction the penalty is a fine not exceeding £200 or imprisonment for a term not exceeding six months, or both; and on conviction on indictment a fine or imprisonment for a term not exceeding two years, or both—for dealing with the less dangerous drugs, a pretty heavy penalty. When we are dealing with the hard stuff, this is what Parliament thought the offence was worth: on conviction on indictment, a fine not exceeding £1,000 or imprisonment for a period not exceeding ten years, or both; and on summary conviction a fine not exceeding £250 or imprisonment for a term not exceeding twelve months, or both—very heavy penalties indeed.

Coming back to the matter we have been discussing, I think there are two points here. There is the very dangerous criminal element, and there are the less important young people carrying pep pills. Is it really suggested that in this case magistrates are not fit to use their discretion as to whether they remand in custody or not? And, even if there is some doubt about that, are we to let this Bill go forward saying that the criminal element are to be remanded on bail so that they can go on pushing their drugs while they are waiting for their case to come up? It is not reasonable to ask us to accept that. I hope the Government will accept this Amendment. I beg to move.

Amendment moved—

Page 13, line 29, at end insert the said words.—(Lord Derwent.)

LORD STONHAM

Listening to the noble Lord, Lord Derwent, no one could fail to be moved by his concern about the effect of drug-taking. It is a concern we all share. Though they may not use exactly the same terms, no one can but share at least the sentiments the noble Lord has expressed with regard to the horror felt about the people who ply this ghastly trade. They presumably make a lot of money out of it, but at the same time they literally destroy human lives. There is no dispute at all between us about that, and the week after next I shall be moving the Second Reading of the Dangerous Drugs Bill, in which, with your Lordships' approval, we shall be taking legislative steps to deal with part of that problem.

What we are now considering, however, is whether in this Bill we should not include all the offenders under these two Acts in the mandatory provisions in so far as they apply under subsections (1), (2), (3) and (5)(a) to (g). In addition to these dreadful people, however, there are, unfortunately, large numbers of silly, foolish people who get picked up, sometimes 40 or 50 of them at a time, and who clutter up the magistrates' courts. The difficulty is that the noble Lord's Amendment would mean that these would all be put in a separate paragraph of subsection (5). I think he would agree with me that in any case he has suggested putting his Amendment in quite the wrong place, because subsection (5)(f) deals with violence and frightful crimes against people. I am not saying that drug-pushing, drug-peddling, drug-selling is not a frightful crime. Certainly it is a crime against the person in some sense, but it is not a violence in the context that we have it in subsection (5)(f). That is the difficulty.

With regard to the major offenders, I would submit this to the noble Lord. He read out the maximum penalties; up to ten years for a conviction on indictment. If a court had someone like that in front of them, it appears to me unlikely that they would grant bail; but certainly people concerned in an offence of that kind are not covered by the mandatory provisions, because they would be outside subsection (1) of the clause. That is at one end of the scale. If, however, they come within subsections (1), (2) or (3), where they are to be tried on indictment, they would not in any case fall within the restrictions of the clause; and even when these offences are tried summarily the magistrates would not, under subsection (2) of the clause, be required to grant bail until the defendant pleaded to the charge and the summary trial was adjourned. The question of mandatory bail could then arise only if the summary trial lasted more than a day, and any remand before the start of the summary trial would not be caught by the clause. Even then, assuming that it evades all those provisos, the other exceptions of subsection (5) would come into play. If the court considered that the defendant was likely to commit further drugs offences unless kept in custody, they could remand him in custody by virtue of paragraph (g).

Whilst we are very conscious of the gravity of drug offences—indeed, it is be- cause of this that we are introducing new legislation—we should be reluctant to categorise particular offences (that is, the whole field of them, including those of many of the people I have spoken about, the ones more sinned against than sinning) as being less bailworthy than others, because this would at least give magistrates the impression that bail should usually be refused in cases of that kind. Offences involving violence and other aggressive conduct directed against the person are in a different category, and even a brief release on bail might have disastrous consequences. But offences of that kind are in category (f). We do not think it appropriate that offences under the Dangerous Drugs Act should be put there, first because if they are really serious offences then the difficulty does not arise anyway, and secondly, because when they are not serious offences we think that bail should be granted.

VISCOUNT DILHORNE

I have great sympathy with the thought that lies behind the Amendment moved by my noble friend, but I cannot agree with the noble Lord, Lord Stonham, that the inclusion of this category in subsection (5) would mean that the magistrates would get the impression that bail should be refused in respect of any case coming within the subsection. That is putting it far too high. If I understand it correctly, the subsection gives magistrates the discretion to refuse bail. I agree with the noble Lord, Lord Stonham, that serious drug cases would be dealt with not summarily but on indictment. But there may be some cases not of such gravity as to warrant trial on indictment with which it would be proper to deal summarily. Sometimes there can be a considerable adjournment between the laying of the information and the hearing of the case. In London I believe that the period is now shorter than it used to be, but there may be a considerable lapse of time.

I suggest that the noble Lord might have a further look at this problem, because it seems to me wholly illogical that the magistrates should have discretion to refuse bail where a man is charged with common assault under subsection (5)(f)—an assault which might involve just a blow with a fist—but no discretion to remand in custody someone charged with a serious offence under the Drugs Act, when it is contemplated that although the case is serious, it should be dealt with summarily. There seems to be no principle in that, and I ask the noble Lord also to give further consideration to it, because I think that is warranted.

LORD STONHAM

Of course I will have another look at it, but I am bound to say that I do not approach the task with any great degree of confidence. The noble and learned Viscount has stated the difficulties in clear terms. He has agreed with me that in the major cases there would be no bother, because they would not be dealt with summarily. We come to the less serious cases, down to the comparatively trivial ones involving just the victims. I do not mean those needing care—they will be caught by the exemptions anyway; I mean the others who are trying it on for "kicks" and that kind of thing. They will still be brought to the police court.

LORD ROYLE

The magistrates' court.

LORD STONHAM

That is where the distinction is made between those and others which are perhaps more serious, those which the noble and learned Viscount mentioned as a class, though he did not give an example. However, I realise the problem and I will look at it to see whether it may be solved. If I cannot, I will come back to the noble Lord.

LORD DERWENT

I am grateful to the noble Lord. I agree with my noble and learned friend that the big criminals who run the "rackets" would be dealt with on indictment: that I quite appreciate. But the people who do so much harm, who are usually not very well off and in need of money, are the "pushers". The noble Lord, Lord Stonham, doubtless knows that term. They are really a pretty awful lot. They are the sort of people who will go on doing it to get some money, but they will be dealt with summarily, I am quite certain, in nine cases out of ten.

I would ask the noble Lord to see whether we can get these people covered by the Bill by some such term as those who sell or dispose illegally of the drags mentioned in the two Acts. I am not now trying to draft the wording, but that is the sort of thing I have in mind. I do not know whether it is possible, but I should not have thought it impossible. We come back to the same question. I think this is one of the occasions when some discretion must be given to the magistrates whether or not to grant bail. Having said that, unless the noble Lord wishes to say any more, I ask leave to withdraw the Amendment.

LORD ROYLE

Before the noble Lord, Lord Derwent, is given leave to withdraw the Amendment, may I raise one small point which has nothing to do with the Amendment? I am quite sure that the noble Lord, the Under-Secretary at the Home Office, would not like it to go into the Record that he referred to a "police court". I am quite sure I heard him say that in his remarks.

LORD STONHAM

I have complete confidence that that will be properly dealt with.

Amendment, by leave, withdrawn.

LORD HAMILTON OF DALZELL moved, in subsection (6), after "defendant" to insert: nor to an adjournment for the purpose of an enquiry under paragraph 3(5) of the Fifth Schedule to the Criminal Justice Act 1948". The noble Lord said: I beg to move Amendment No. 22, and I suggest that it may be convenient if the following Amendment is considered at the same time, since the two Amendments are part of the same matter. Subsection (5) which we have been considering, sets out the circumstances in which a person may be remanded in custody instead of being granted bail. Subsection (6) adds one more by allowing a person to be remanded in custody "for the purpose of enabling a medical examination and report" to be made on him. The effect of my two Amendments is to give courts the power to remand in custody for the purpose of obtaining a social inquiry report as well.

The relevant part of the Criminal Justice Act 1948 referred to in the Amendment is that part which provides for such reports. It says: it shall be the duty of probation officers"— among other things— to inquire, in accordance with any directions of the court, into the circumstances or home surroundings of any person with a view to assisting the court in determining the most suitable method of dealing with his case. … It then goes on to other matters. Admittedly, in the situation set out in subsection (1) the trial will not have reached the state where a social inquiry report is likely to be needed. But subsection (2), as I understand it, seems to cover the whole period of the trial up to conviction, and that is the point at which the court may well want to adjourn the trial for the purpose of obtaining a social inquiry report. Normally, the need to remand in custody for this purpose will be covered by one or other of the grounds in subsection (5), but there will be occasions, especially in respect of young people, when none of these circumstances apply. Nevertheless, a remand in custody will still be valuable to enable a proper report to be obtained.

What I have particularly in mind is the position which will arise when more remand centres are opened. These centres will provide facilities for a thorough diagnostic appraisal of a defendant, and a report based on this would be of great value to the court. But it will be possible to obtain it only if the defendant is actually living at the centre. I know that there are not many of these centres yet, and we hope for better things in the future; but we are legislating for the future. I imagine that it may be some considerable time before a Bill would provide another opportunity for making a provision of this kind. I hope it will not be suggested that in the meantime magistrates will take advantage of the power I am proposing they should now be given in order to remand people to prison unnecessarily. I believe that this power will be useful under the conditions that I have suggested, in helping courts to come to the right decision about how to deal with an offender. I hope that the Amendment commends itself to the Committee, and I beg to move.

Amendment moved— Page 13 line 40. after ("defendant") insert the said words.—(Lord Hamilton of Dalzell.)

6.28 p.m.

THE LORD CHANCELLOR (LORD GARDINER)

I listened with great attention to what the noble Lord, Lord Hamilton of Dalzell, said, but I was not quite clear what were the practical grounds on which he considered this power necessary. Clause 15 restricts the power of magistrates' courts to remand in custody a defendant charged with offences pun- ishable with not more than six months imprisonment. These are subject to the restrictions in the exceptions in subsection (5). Paragraph 3(5) of the Fifth Schedule to the Criminal Justice Act 1948, which is referred to in the Amendment, says: It shall be the duty of probation officers to supervise the probationers and other persons placed under their supervision and to advise, assist and befriend them, to inquire in accordance with any directions of the court into the circumstances or home surroundings of any person with a view to assisting the court in determining the most suitable method of dealing with his case, to advise, assist and befriend, in such cases and in such manner as may be prescribed, persons who have been released from custody, and perform such other duties as may be prescribed or may be imposed by any enactment. In subsection (6) of Clause 15 it is stated that the restrictions shall not apply to the adjournment of a trial by a magistrates' court under section 26 of the Magistrates' Court Act 1952 for the purpose of enabling a medical examination and report to be made upon the defendant if it appears to the court that it would be impracticable to obtain such a report without remanding the defendant in custody. We know from experience that it may be necessary to have a remand in custody in order to get a medical report, but the purpose of this Amendment is to inquire into home background. Courts frequently adjourn proceedings in order to enable a report on a defendant to be prepared by a probation officer, but I do not understand why for this purpose the defendant should be in prison. If the object of the probation officer's inquiry is to inquire into the circumstances or home surroundings of any person, there seems to be no particular necessity why the defendant should be committed in custody while the inquiry is taking place. If a defendant has no fixed abode, then under subsection (5)(e) the court may remand him in custody even though his offence comes within the restricted classes. But when a defendant has a fixed abode, one would not have thought that there was any special reason attaching to a probation inquiry which required him to be kept in custody when, if no report was being prepared, he might be released on bail. On the contrary, I should have thought that if his background was being inquired into, this could much more usefully be done if he was seen while he was at home.

The noble Lord's Amendments may be on the general grounds that where the courts are minded to obtain reports by a probation officer, they should not be restricted in the general exercise of their discretion. But the whole object of Clause 15 is precisely to restrict the discretion of magistrates in remanding defendants in custody in the case of offences which are not of a serious nature. I hope that when the noble Lord has an opportunity of considering what I have said he will agree that that is right, and the mere fact that a probation officer is asked to inquire into a defendant's home background is no reason for putting him in prison meanwhile.

LORD HAMILTON OF DALZELL

I hoped I had made clear that I had not in mind that a person should be put in prison. I had in mind particularly young people who get themselves into trouble, and when the background of the trouble seems to be that they are completely at odds with their parents, very probably with their fathers, and the home situation is unsatisfactory. If there are to be remand centres—not prisons—where proper diagnostic facilities are to be available to which a person can go while the probation officer is making inquiries, reports could be obtained from the remand centre as well as from the probation officer, and that is something which from time to time would be useful for the courts. It seems a pity that when remand centres are there, with facilities for diagnostic appraisal waiting to be used, it should not be possible for any person to be remanded to one of these centres so as to enable one of these reports to be obtained. I may have my machinery wrong, but that is what I am trying to achieve.

THE LORD CHANCELLOR

I am afraid that I cannot add much to what I have said. The noble Lord spoke of "diagnosis". The clause already provides for medical examination. I still think that if the object is merely to inquire into the circumstances of a man's home surroundings, it is not necessary to remand him in custody. I hope that, having considered it, the noble Lord may be prepared to withdraw his Amendment.

LORD BROOKE OF CUMNOR

I expect my noble friend will be so minded, but I hope that the Government will give some further consideration to this, be cause some of us have attached a good deal of importance to the additional work which the creation of remand centres will render possible. I had always assumed that part of the theory behind the remand centre was that certain people could be sent there for a study by the probation service which would not be a purely medical study. It would seem to me unfortunate if we should inadvertently so draft the Statute that it was impossible in future to use remand centres for that purpose. I entirely appreciate that there are many cases where, if a person is to be studied in his social environment, it is better that he should be in that environment and not in a remand centre. But I am one of those who attach a good deal of importance to the potentiality of remand centres, and all I am asking is that we should draft this Bill in a way which will not prevent us from using them to their full potentialities.

LORD HAMILTON OF DALZELL

I am grateful to my noble friend for expressing so well what I was trying to state. In the circumstances, I think it is as well that I should ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

6.8 p.m.

On Question, Whether Clause 15, as amended, shall stand part of the Bill?

VISCOUNT DILHORNE

I should like to say a few words on this important clause, because I think it raises some difficulties which I should like to have cleared up, if possible, by the Government. I am sorry that the noble Lord, Lord Stonham, is not here at this moment, because in the the course of a debate on an earlier Amendment he made some observations about the clause in general. I should like to start my remarks by saying that I do not dissent from the object of this clause; namely, to reduce the number of persons who are not admitted to bail where it is possible to do so without affecting the administration of justice.

It may well be the case that in the last few years too many people have been remanded in custody when they need not have been. But at the same time I do not accept the conclusion that, because when they have been tried they have not been sent to prison, it necessarily follows that it was wrong to remand them in custody any more than when a quarter session changes a sentence of imprisonment imposed by a magistrate to a sentence not involving imprisonment, it follows that the original sentence was at that time wrong. But I am doubtful about the wisdom of trying to achieve this objective by statutory enactment.

It may be too late to consider this issue, but I do not think that magistrates are reluctant to take guidance. It is true, thanks to the efforts made by my noble and learned friend the Lord Chief Justice and others, that magistrates get much more guidance now than they ever did in the past; and it is also true that they listen to it carefully and respond to it. I cannot but believe that if, instead of trying to restrict their discretion by Act of Parliament, magistrates had been given some guidance not in statutory form as to the general principles to apply, that would have been better than trying to draft this complicated provision.

I am wondering what will be the reaction of magistrates when they read this clause as a whole. They will see from subsections (1) to (4) that their power of remanding in custody is taken away. But when they look at subsection (5), it seems an absolute hotchpotch of provisions from which no real principle is to be derived. I must say that in trying to formulate the matters which magistrates have to take into account in a statutory provision I should have liked to see set out in clear terms what are the general provisions which should be applied.

If, while I am on my feet, I may seek to suggest what they are, I would say, first of all, that a man should not be remanded in custody unless it is thought likely that he will not appear to attend his trial. That seems to be covered by paragraph (e): Where it appears to the court that he has no fixed abode or that he is ordinarily resident outside the United Kingdom. The next principle, I suggest, would be that he ought not to be refused bail unless, having regard to his record, it is likely that he may commit another offence before his trial. That is a general proposition, and it seems to me much simpler and clearer than paragraph (a), to which it is obviously directed. That seems to me to be the one example of the application of that principle, but it is dealt with in terrific detail. The other category of cases where there should be discretion is, surely, where the offence charged is of such a serious character as to necessitate his remaining in custody. We have that set out in some detail, but with tremendous width, because it includes common assault, in paragraph (f).

There is another category which is not dealt with in this subsection and which I should have thought in these days was a most important category. I know that I may be chided for not having put down an Amendment to deal with it, but one has had to do a lot of work on this Bill, and every time one reads through it one is inclined to notice something else. I do not apologise for not having put down an Amendment, because I hope that the Government will reconsider the whole of this clause. I am in favour of the objective of the clause, but I do not like the clause itself. I think you could do without this particular clause and express what is required more satisfactorily to produce the same effect.

The category which is left out is this. Surely a man should be refused bail where it appears to the court likely that he will interfere with, and possibly intimidate, witnesses for the prosecution. Even though there be the strongest evidence brought before the court by the police that this is a real fear, in many cases here the magistrates will have no discretion and they will have to grant bail. That, I think, is wrong. If subsection (5) is to be retained in the Bill I should like to see it redrafted to try to state the principles in clear terms, so that magistrates can easily understand what principles they ought to apply. I do not think this is apparent from the present subsection (5).

Then one considers how subsection (5) will operate. This is the point raised by the noble Baroness, Lady Wootton of Abinger, with her great experience. I must say that I feel very worried about this. To take the case which comes within paragraph (a) under the Bill before it was amended, this must contemplate that before the person is tried in the magistrates' court evidence will be given by someone—we know the nature of the offence—that he has been previously sentenced to imprisonment or borstal training. That would have to be proved before the magistrates' court. If we take paragraph (b), that he has failed to comply with the conditions of any recognizance entered into by him on that occasion", that again involves proof, before he is tried for the offence with which he is charged, that he has committed a previous offence. Paragraph (c), where he is charged with an offence alleged to be committed while he was released on bail", involves the same thing. That would imply that he has been charged with another offence. How is it going to be done? Is it not quite new to require the police, if this subsection is to operate, to come forward and give evidence of that character before the trial takes place?

What will be the position of the magistrates? Will the magistrates, or any of them, who sit to hear this application over bail—the arguments put forward by the police and the facts which it is their duty to bring to the notice of the court—be disqualified from sitting on the case? Will other magistrates have to decide? It seems to me to involve great difficulties. And, quite apart from that, with this statutory provision on the Statute Book, will not the inference be drawn by any bench of magistrates before whom a man is brought for trial from custody, not having been on bail, that he is a man of bad or indifferent character, before his trial ever starts? I should have thought that very likely; and I think it is serious if that is the consequence.

I hope the Government will say that it is not too late to reconsider the wording—I am not asking them to reconsider in any detail the substance—of this subsection (5), so that if possible the two results to which I think the subsection now leads can be avoided. The first, as I have said, is the inference when it comes to trial before any bench from custody that he is a man of bad character; and secondly, the requirement of the proof of such detail about his past which subsection (5) seems to require. I should like this subsection—and I come back to this point—to contain some guidance in the way of some indication of principle which lies behind it. When I look at subsection (5) it seems to me to be a hotchpotch. I hope the Government will give further thought to this, because it is an important provision. I doubt whether it is wise to have a clause on this matter at all. I should have thought that it would be much more flexible if we did not. But if we are going to have a clause, let it at least show that there is some principle behind it, and let us avoid the difficulties to which I have drawn attention.

6.48 p.m.

BARONESS WOOTTON OF ABINGER

I do not wish to repeat what I said just now or what has been said more eloquently than I could say it by the noble and learned Viscount, Lord Dilhorne, but I should like to add one point. When it is proved that a man has previous convictions, and the court therefore are required to remand him in custody, it is no answer to say that the case must then be tried by a different bench of magistrates. This is quite unrealistic. It might be possible in the big cities, but in the country districts it is unrealistic to suppose that you could mobilise a different bench of magistrates to hear a case, when another bench has heard the previous record before deciding whether the accused is eligible for bail. It seems to me that this raises an important point. It is bound, in practice, to lead to the situation that magistrates will hear cases where they are already aware from what they have been told a fortnight before that a man has a long history of imprisonment. I should have thought that it was quite impossible to suppose that this could be done without prejudicing the trial. It seems to me quite contrary to the principles that run through the whole of the rest of British justice.

LORD LEATHERLAND

I had not intended to speak on this matter, but I am rather disturbed. When I sit in my court, weekly or fortnightly, as the case may be, and I see that a man is brought in custody and placed in the dock and has evidently been brought from prison where he has been remanded in custody, I do not know whether he is likely to turn out to be innocent or guilty. My mind is quite open until the end of the case. But under the clause as we have it here a clear line of demarcation is drawn, and it would be pretty clear to me that if the man was brought in from prison and placed in the dock he had a record, and undoubtedly a record of a very serious kind.

I am all in favour of granting bail wherever it is possible to grant it. I know that sometimes rather outrageous applications for bail are made by counsel appearing for prisoners. I had a case a few years ago where three men were breaking into a post office. They were arrested, and their van was found outside with a dozen sticks of dynamite in it, but learned counsel appealed to us to grant bail. We exercised our discretion and did not. But in these cases, if this Bill goes through in its present form, the whole theory of bail will be vitiated and a man will be condemned before the evidence against him has been heard, because he has come into court by a certain door and on that door it will say, "This man has a prison record". I think that magistrates should be given as much discretion as possible, with as few rules as possible. I think also that administrative circulars could be devised which would be circulated to benches of magistrates giving them general advice as to the circumstances in which bail should be granted, and that the clause here, instead of going into such detail as it does, might content itself with saying that magistrates' courts should grant bail wherever it is possible to do so.

LORD ROYLE

A record is going to be broken at this moment, because this is the first time on these matters that I find myself on the same side as the noble and learned Viscount, Lord Dilhorne. But I am perfectly confident that what he has said in this latter debate is perfectly true, and I share his worries. It would be ridiculous at this time of the night to try to say anything supplementary to what he has said, and I am going to content myself by asking my noble and learned friend, when he comes to reply, to deal with another problem which is in my mind.

Subsection (5)(a) says that a man need not be remanded on bail: where he is charged with an offence punishable by that court with imprisonment for a term of not less than six months and it appears to the court … and so on. Exactly what does that mean? My noble friend Lady Wootton of Abinger pointed out in the previous debate that it was wrong that magistrates should hear a man's record when a question of bail was being considered. What does paragraph (a) mean? It says "it appears to the court". I take it that this does not relate to what is read out. This is something which is very vague indeed. Is it being left to the magistrates to draw their own conclusion, from the person's behaviour and other things which have gone on in the court, that it "appears to" them that he might previously have suffered a term of imprisonment? This wording causes me concern, and I am wondering whether my noble and learned friend can give an indication of what the Government have in mind regarding these words which are so vague.

LORD HAMILTON OF DALZELL

We have heard a great deal on this from noble Lords who have spoken, and I feel that we are in danger of getting ourselves into a muddle here, I believe largely unnecessarily, because I do not think these provisions are going to make much difference to the number of people remanded in custody. Looking back over my own experience, I do not remember ever having remanded in custody anyone who would not have come under one of the exceptions given here. I think that the question of the number of people who are remanded in custody and are not subsequently sent to prison is largely a red herring, because so many people who are remanded in custody by magistrates' courts are the homeless, wandering people who go around the country getting themselves into trouble of one kind or another. We may know perfectly well that we are not going to send a man to prison, but we have to remand him in custody, otherwise we shall never see him again. I think that here we are in danger of creating many difficulties, possibly without achieving the effect that we are trying to achieve.

6.56 p.m.

THE LORD CHANCELLOR

We have had an interesting and full discussion on the whole of this clause, and particularly on subsection (5). I rather think that when the noble and learned Viscount invited the Government to reconsider the clause he meant subsection (5). We start off, I think, agreeing—I think that nearly everyone who has spoken has agreed—that to have 17,500 people a year remanded in custody who are not sentenced to any form of custodial treatment, and at least 1,000 who are completely innocent, is, particularly at a time when the prisons are as full as they are, too many. We all, I think, agree that that total ought to be reduced, remembering always that it is a very difficult thing for an innocent man to get up his defence from a prison cell.

My noble friend Lord Leatherland says that it should be left to the discretion of the justices. That is exactly the position now. They have a complete discretion, and these enormous figures are the result of leaving it to the discretion of the justices. I think one criticism was made that one of the grounds ought to be a likelihood of the defendant interfering with witnesses. But that, I suggest, is covered in paragraph (g) because interference with witnesses is a Common Law offence.

The real difficulty, I think, in the division of opinion has been as to whether the justices are to be informed of previous convictions. The intention of the clause, as I understand it, is that they should be. There has always been a dilemma about this. At the moment, very largely, the discretion is not really exercised at all. As we all know, in a great many justices' courts when the police say, "We oppose bail", nobody says, "Why?", or, "What is your evidence?". If the police oppose bail the justices automatically say, "No bail". The reasons why the police oppose bail will obviously be reasons adverse to the accused, and if the justices ought to be exercising their discretion on the relevant facts, how are they to do that if they do not know the facts? If the facts are inimical to the accused, well, there they are.

As we all know, practice in magistrates' courts tends to vary. That is why the Home Office from time to time circularise courts with any directions, or indeed any sort of recommendations, to magistrates which the Court of Criminal Appeal (as it used to be called) may have made. If on this point I may cite from Stone's Justices Manual, Volume 1, page 42, the law is stated in this way: The justices may also take into consideration previous convictions recorded against the accused (R. v. Fletcher (1949)) … in which case Humphreys, J. commented that it is desirable that if newspapers are reporting the case they should not include in the report any mention of previous convictions. It is recommended"— and this was, I think, taken from a case called Dyson, in 1949, in the Court of Criminal Appeal— that information of previous convictions, when advanced in opposition to an application for bail, be submitted in writing rather than given viva voce in open court. Then there was this specific direction in the case of Armstrong, in 1951, when the Court of Criminal Appeal reaffirmed that—and I quote: it is clear that it is the duty of the justices to inquire into the antecedents of a man who is applying to them for bail, and that it is undesirable that a newspaper should disclose such evidence, but such publication by itself is not a ground for quashing a conviction …".

LORD PARKER OF WADDINGTON

I wonder if the noble and learned Lord would allow me to intervene, to ask whether what he is citing really refers to cases in which the justices have decided to commit, and the question is whether a person should be committed in custody or on bail. Then, clearly, the magistrates must know the record of the man; and it is quite right that they should, because they are functus officio: they are not going to deal with the case any more. I understood that we were talking about applications for bail in cases which were going to be tried by that very bench of magistrates.

THE LORD CHANCELLOR

I am afraid I cannot answer the question because I did not know the point was going to be raised. It appears to be a general recommendation applying to bail generally. Of course we shall have an opportunity of considering this again at the next stage of the Bill.

VISCOUNT DILHORNE

Will the noble and learned Lord give way to me for one moment? I think that it must be that that applies only in respect of committal, because otherwise I cannot see how it would have come to what was the Court of Criminal Appeal.

THE LORD CHANCELLOR

That particular case may have been, but of course the dilemma remains: are people to be remanded in custody on the ipse dixit of the police or are the justices to exercise discretion? If they are to exercise a discretion, how are they to do that if they do not know the relevant facts? If there must be a discretion in the justices to decide whether a man should be remanded on bail I am not quite clear why the discretion should be entirely differently exercised according to whether or not it is a committal case.

LORD PARKER OF WADDINGTON

If the noble and learned Lord would allow me to intervene for a moment, I should like to point out that in one case the justices are not going to deal with the case any further: they have committed. But in the case we are now considering they are going on at once to hear that case on the merits.

THE LORD CHANCELLOR

It is quite possible to have a different court. The proceedings are not necessarily going on at once, and there may be a substantial period of remand, for one reason or another. For instance, last week there was a case reported in the papers with six weekly remands running, during which I think the accused had been in custody. The question whether he ought to have been in custody for that time or whether he ought to have been on bail must, I apprehend, have been decided on some facts. Obviously there will be some cases where defendants ought to be in custody and there will be other cases where they ought not to be in custody; and unless somebody has told the justices the facts I do not understand how they are to decide, unless they refuse bail whenever the police object and grant it whenever the police do not object to it. However, this is not my field and I am quite sure that my right honourable friend will carefully consider everything that has been said in connection with this clause. I think it raises questions of some difficulty which do require consideration.

LORD PARKER OF WADDINGTON

I hope that the noble and learned Lord will not think I am against the object of this Bill. I was only anxious to know how it would work. But I am sure that in many districts it is quite unrealistic to think that you can get a bench differently constituted. so that no member of it has dealt with the question of bail.

There is just one other matter that I should like to know before making up my mind on this clause. The noble and learned Lord the Lord Chancellor said that some 17,500 persons were remanded in custody who ultimately were not sent to any form of detention. That I can understand, but the figure that I should like to have, I confess, is how many of these 17,500 fail to come within paragraphs (a) to (h) of subsection (5). It may be, as the noble Lord, Lord Hamilton of Dalzell, said, that we are not going to save anything by this clause if all the 17,500 would possibly have been refused bail because they came within one of these paragraphs.

VISCOUNT DILHORNE

I feel that in one way I owe an apology to the noble and learned Lord the Lord Chancellor for not having given him or the noble Lord, Lord Stonham, notice of these matters. The difficulty is this. If I had put down an Amendment to leave out this clause it would have created an entirely wrong impression, and I am not going to ask the Committee now to agree to leave it out because, like everyone else who has spoken, I am in favour of its objective. I share the fears and doubts expressed by the noble Baroness, Lady Wootton of Abinger, and the noble Lord, Lord Leatherland. I do not think it is any answer to say to the noble Lord, Lord Leatherland: "The justices have this discretion now, and look how they have exercised it", because I believe that in these days (although it may have been different some time ago) you can achieve the result you want to achieve in this clause by giving guidance to the magistrates—guidance which I think they almost invariably follow to the best of their ability. On principle, where we can achieve the result by giving guidance to people who voluntarily discharge these duties I am against imposing a restriction by Statute.

I ventured to suggest that the drafting of this clause might be looked at again with a view to trying to make it clear that there is some principle behind the exceptions in subsection (5). I think there is, but it does not emerge, and I suggest that the whole of this could be thought about again. I tried to adumbrate the various principles which I think ought to apply, and I mentioned the case of interfering with witnesses. That was only one of the categories in which I thought bail could properly, in certain circumstances, be refused. Of course interfering with witnesses is an offence. I am not sure whether, in a summary case, it is a criminal offence to interfere with somebody who is going to be called, or who may be called, as a witness—I think that is much more doubtful. But one of the categories of case in which it might be right to refuse bail would be a case where, in the view of the court, there was a real risk of someone who was going to be, or might be, called as a witness for the prosecution being interfered with before the trial took place. If that is one of the recognised categories it does not emerge very clearly from subsection (5).

However, we have a great deal of business to get through. I think we are making good progress, and I do not think we are debating points which have not considerable substance. I hope the Government will give serious consideration to all the points which have been raised on this before we come to the Report stage, because I believe that if this clause is left in its present form it can be productive of quite a considerable amount of trouble and uncertainty.

Clause 15, as amended, agreed to.

7.9 p.m.

THE LORD CHANCELLOR moved, after Clause 15, to insert the following new clause:

Power of magistrates' court to commit on bail for sentence

". Where a magistrates' court has power to commit an offender to a court of quarter sessions under section 5 of the Vagrancy Act 1824 (incorrigible rogues) or section 28 or 29 of the Magistrates' Courts Act 1952 (committal for sentence), the court may instead of committing him in custody commit him on bail."

The noble and learned Lord said: In moving this Amendment, may I refer also to Amendments Nos. 68, 134, and 139. The substantive Amendment is the new clause, Amendment No. 24. The last three Amendments are merely consequential to that new clause.

Where magistrates commit an offender to quarter sessions for sentence under the provisions of Section 28 or 29 of the Magistrates' Courts Act 1952 or Section 5 of the Vagrancy Act 1824 (incorrigible rogues), they have no discretion as to bail and must commit him in custody. The principle behind this requirement is that in these circumstances the magistrates consider that their own sentencing powers are insufficient and are committing the offender for the express purpose of enabling quarter sessions to impose a longer sentence; committal in custody could therefore be regarded as appropriate and necessary. But it is doubtful whether this is any longer a sufficiently strong reason for making committal in custody manda- tory. First, if an offender committed for sentence under these provisions appeals against his conviction by the magistrates, there is power in the High Court under Section 37 of the Criminal Justice Act 1948 to release him on bail pending the determination of the appeal. An offender who does not appeal against conviction is unable to be released on bail until he is dealt with by quarter sessions, and your Lordships may feel that it does not seem right that bail should depend upon the somewhat fortuitous existence of an appeal against conviction; the anomaly may actually have the effect of encouraging frivolous appeals merely to attract the right to apply for bail. Secondly, while it may in general be true that magistrates have in mind a long custodial sentence when committing the defendant to sessions (although they could in theory commit with the view to the imposition of a larger fine than they have power to impose), the fact is that in 1965 just under 2,000 offenders out of 8,500 so committed did not receive custodial sentences at all. Thirdly, in the context of encouraging courts to be liberal in the exercise of their discretion on bail, it is incongruous to make the refusal of bail mandatory in certain circumstances. Fourthly, a provision on these lines will help a little to reduce the number of remand prisoners.

The three Amendments to Schedule 5 and the one to Schedule 6 are consequential, in that they amend the Vagrancy Act 1824 and Sections 28 and 29 of the Magistrates' Courts Act, which three enactments require an offender committed to sessions for sentence to be committed in custody. The consequential Amendment to Clause 51 of this Bill (revocation of licences and conviction of prisoners on licence), provides that where a magistrates' court convicts a person subject to a licence under Clauses 49 or 50 of this Bill of an offence punishable, on indictment, with imprisonment and commits him to quarter sessions for sentence in accordance with section 29 of the Criminal Justice Act 1948, then it may commit him on bail or in custody; the clause as at present drafted would require the committal to be in custody. I beg to move.

Amendment moved—

After Clause 15, insert the said new clause.—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

The Committee will be grateful to the noble and learned Lord for explaining so fully the purposes of this Amendment. In fact I believe it has a cross reference to his Amendment No. 27 later on, because if this Amendment is not made and Section 37(1) of the Criminal Justice Act is repealed, as is proposed later on, the High Court will lose the power which it decided in Whitehouse it had; so I think there is a distinct connection between those two Amendments. Particularly bearing in mind what the noble and learned Lord has said, and the fact that magistrates will have complete discretion, I am sure the Committee will welcome the Amendment proposed.

On Question, Amendment agreed to.

Clause 16:

Special conditions of bail

16.—(1) The conditions on which bail is granted to any person may include conditions appearing to the court to be likely to result in his appearance at the time and place required or to be necessary in the interests of justice or for the prevention of crime.

(2) A court which on granting bail to any person imposes a condition under the foregoing subsection shall not require him to find sureties in respect of that condition.

7.15 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "bail is granted to any person" and to insert "any person is admitted to bail". The noble and learned Lord said: In moving this Amendment, may I also refer to the subject matter of Amendments Nos. 26, 27, 28, 29, 30, and 142. The object of the new clause, Amendment No. 27, is to extend the range of circumstances in which the High Court may admit a person to bail or vary the conditions upon which bail has been allowed by a lower court. It was the Law Commission which drew the attention of the Home Office to inadequacies or doubts which exist as regards the grant of bail by a judge in chambers when bail has been refused (or offered on such terms as to amount to a refusal) by the court below. This is so in three cases. First, there is no power in the High Court to admit to bail where the magistrates' court has remanded an accused in custody after conviction for reports before sentence, although the magistrates have power to admit to bail under Sections 14 and 105 of the Magistrates' Courts Act 1952. Secondly, there is no power in the High Court to admit to bail where a court of quarter sessions has remanded an accused for reports after conviction; and, thirdly, there is no power in the High Court to interfere where the court below has offered bail in such terms, as to sureties and so forth, that the defendant is unable to comply with them.

There is room for argument about the High Court's powers in some of these cases, but it is clearly right that the High Court should have power to grant bail in all these cases and that the power should be stated in terms which do not admit of doubt. The new clause therefore provides that, without prejudice to any existing power of the High Court over bail applications, that court may allow bail in any case in which the lower court could have allowed it, and vary any conditions on which bail was offered by a lower court. I venture to think the Committee will think that in principle that must be right.

Subsection (1) states the main proposition of the clause: that in connection with any criminal proceedings, the High Court may admit to bail any person who could have been allowed bail by an inferior court, and may vary any conditions on which bail was offered by an inferior court. By "conditions" are meant the conditions which may be attached to the grant of bail under Clause 16 of the Bill. There is no provision that the High Court should not consider an application for bail which has not first been considered by the court below, since the High Court can be left lo determine its own rule of practice in this matter.

Subsections (2) and (3) make the necessary procedural arrangements to support subsection (1) and are modelled on Section 37 of the Criminal Justice Act 1948. Subsection (4) defines an "inferior court" as a court of quarter sessions, a magistrates' court or a coroner. Subsection (5) states that the powers conferred on the High Court by the new clause shall be in substitution for the more limited powers in section 37(1) of the 1948 Act. The new powers are, however, without prejudice to any other jurisdiction of the High Court to grant bail. The Amendment to Schedule 6 is the consequential repeal of certain provisions of the Criminal Justice Act 1948.

There are five drafting amendments to Clauses 16 and 17, which replace the references to "granting bail" by references to "admitting to bail". These Amendments are necessary to produce consistency throughout the Bill with the language of the new clause. It was found to be necessary to use "admit to bail" in that clause because "grant bail" does not distinguish very happily between the case where the magistrates release a man on hail and the case where they offer him bail but he stays in custody because he cannot find the required sureties. I hope that the Committtee will be in sympathy with the principle of the clause which encourages only the High Court, if it thinks fit, to grant bail in cases in which the lower court may do so. I beg to move.

Amendment moved— Page 14. line 10, leave out ("bail is granted to any person") and insert ("any person is admitted to bail").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

Again I think this is a good series of Amendments. Indeed when I looked at the existing law on the matter I was surprised to find that in the present legislation there was a possible source of doubt whether the High Court was in fact restricted as the noble and learned Lord has explained. It seems a curious thing that the legislation as recent as 1948 should have been of an obscure nature, and such as to cause doubt, and in fact apparently to preclude the High Court from dealing with bail where the magistrates' courts or quarter sessions could have done it in certain cases. I am sure, therefore, that the general provisions of the new clause are a great improvement.

There is, however, one thing that I should like to ask the noble and learned Lord. I rather think that this will mean an amendment of Order 79. Rule 9 of the Rules of the Supreme Court, which deals with the powers of the High Court to grant bail and the procedure for it. I think this will be required because at the present moment it looks to me, at any rate, as though this rule deals only with the question whether or not bail should be granted and not at all with the question of conditions on bail. Therefore I hope that the noble and learned Lord will give an assurance that no sooner does this Bill come into force than the equivalent alteration will be made in the Rules of the Supreme Court.

I should also like to ask him about one other point. The rule at present provides, in the cases where application is made to the High Court for bail, that if the prisoner has not the means to instruct a solicitor he shall be represented, if the court so thinks, by the Official Solicitor. Is the noble and learned Lord able to tell the Committee whether there have been any problems about this matter? In this Bill we have wide revisions of the whole question of legal aid, and I wonder whether it may be that over the years experience has shown that it might be better to do this through legal aid rather than to use the Official Solicitor, who I know has a large number of other duties to perform; and whether, if any information is available to the Committee, it might be that we could consider taking this duty away from him and empowering either him or the High Court, or somebody, to appoint a solicitor or counsel under the Legal Aid scheme to make this application where the prisoner has not sufficient means. It is only a suggestion, but since we have the whole subject matter before us in this Bill it might be worth consideration.

THE LORD CHANCELLOR

I am most grateful to the noble Viscount for the two points which he has raised. I am afraid I cannot answer them on the spot. They will both be considered and I will write to him about them before the next stage of the Bill.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move Amendment No. 26.

Amendment moved— Page 14, line 15, leave out ("granting bail to any person") and insert ("admitting, or directing the admission of, any person to bail").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 16, as amended, agreed to.

THE LORD CHANCELLOR

I beg to move Amendment No. 27.

Amendment moved—

Insert the following new clause:

Extension of power of High Court to grant, or vary conditions of, bail

(".—(1) Where in connection with any criminal proceedings an inferior court has power to admit any person to bail, but either refuses to do so or offers to do so on terms unacceptable to him, the High Court may admit him or direct his admission to bail or, where he has been admitted to bail, may vary any conditions on which he was so admitted or reduce the amount in which he or any surety is bound or discharge any of the sureties.

(2) The conditions as to the time and place of appearance of a person admitted to bail under this section which are to be included in a recognizance entered into by him shall be such conditions as the inferior court had power to impose.

(3) Subsections (3), (4) and (6) of section 37 of the Criminal Justice Act 1948 (ancillary provisions as to persons admitted to bail by the High Court under that section and the currency of sentence in the case of persons so admitted) shall apply in relation to the powers conferred by this section and persons admitted to bail in pursuance of those powers as it applies in relation to the powers conferred by that section and persons admitted to bail in pursuance of those powers, except that the said subsection (6) shall not apply in relation to a person admitted to bail pending an appeal from a magistrates' court to a court of quarter sessions.

(4) In this section 'inferior court' means a court of quarter sessions, a magistrates' court or a coroner.

(5) The powers conferred on the High Court by this section shall be in substitution for the powers so conferred by paragraphs (a), (b) and (c) of section 37(1) of the Criminal Justice Act 1948, but except as aforesaid this section shall not prejudice any powers of the High Court to admit or direct the admission of persons to bail.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 17 [Arrest of persons granted bail]:

THE LORD CHANCELLOR

I beg to move Amendment No. 28.

Amendment moved— Page 14, line 19, leave out ("granted") and insert ("admitted to").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move this Amendment.

Amendment moved— Page 14. line 23, leave out ("bail was granted") and insert ("he was admitted to bail").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move Amendment No. 30.

Amendment moved— Page 15, line 4, leave out ("bail was granted") and insert ("he was admitted to bail").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 17, as amended, agreed to.

Clause 18:

Process for minor offences. 1952 c. 55

(2) A warrant for the arrest of any such person shall not be issued under section 15 of the said Act of 1952 (non-appearance of defendant) unless

  1. (a) the offence to which the warrant relates is punishable with imprisonment; or
  2. (b) the court, having convicted the defendant, proposes to impose a disqualification on him.

(3) Where a summons has been issued under the said section 1 and a magistrates' court has begun to try the information to which the summons relates, then if—

  1. (a) the defendant, at any time during or after the trial, makes a statutory declaration that he did not know of the summons or the proceedings until a date specified in the declaration, being a date after the court has begun to try the information; and

7.25 p.m.

LORD STONHAM moved, in subsection (2) after "15" to insert "(2)". The noble Lord said: I beg to move Amendment No. 31 standing in the name of my noble and learned friend. I hope that it will meet your Lordships' convenience if I deal also with Amendment No. 32 which is the substantive Amendment, and also with the Sixth Schedule, Amendment No. 145, which is consequential. As your Lordships are aware, the aim of Clause 18 is twofold: first, to restrict the unnecessary issue of warrants of arrest under Sections 1 and 15 of the Magistrates' Courts Act 1952; secondly, to enable courts, after the necessary amendments have been made to the Magistrates' Courts Rules, to proceed in the absence of a defendant who has failed to acknowledge receipt of a summons for a summary offence. It is expected that these provisions will enable courts to deal more efficiently and expeditiously with minor offences without having to resort to warrants for the arrest of defendants, who are sometimes recalcitrant in ignoring process, but probably are just as often genuinely unaware of the proceedings. Such defendants are protected by the right given by the clause to have the proceedings against them annulled by way of statutory declaration.

The procedure on the non-appearance of the defendant is at present regulated by Section 15 of the 1952 Act. After the passing of the Bill the position will be that the court will be able to issue a warrant for the defendant's arrest if the offence is punishable with imprisonment or if the court, having convicted the defendant, proposes to disqualify him. It will be able to do this even though he may not have acknowledged receipt of the summons, since the Magistrates' Courts Rules will be amended to dispense with strict proof of service. Similarly, without proof of service, the court will be able to proceed in the absence of the accused. If, however, the court chooses to do neither, but instead adjourns the hearing, perhaps to give the defendant the opportunity to be present, it will not subsequently be able to proceed in his absence or to issue a warrant for his arrest unless it is satisfied (by strict proof of service) that the notice of adjournment came to his knowledge. Under Clause 20 of the Bill, which deals with restrictions on passing sentence in the absence of the defendant, the court is under a duty to adjourn if the defendant fails to appear: his presence is necessary for a sentence of imprisonment to be passed; and he must be apprised of the court's intention to disqualify him. In effect, therefore, if the court adjourns, either because it must do so or if it merely wishes to give the defendant a second chance to appear before issuing a warrant, it loses the procedural advantage that will accrue from this clause and the subsequent amendment of the Magistrates' Courts Rules.

We think that this represents a significant defect in the procedure and that it exposes two questions. First, should proof of service of the notice of adjournment be a pre-requisite to the issue of a warrant of arrest on the non-appearance of the defendant? Secondly, should such proof be necessary before the court may proceed with an adjourned hearing in the defendant's absence? There is no reason why, on the non-appearance of the defendant at an adjourned hearing, a warrant should not be issued without strict proof that the defendant received the notice of adjournment. Where the offence is punishable with imprisonment a warrant could have been issued in the first instance, instead of a summons, and on the first occasion of non-appearance a warrant could similarly have gone out. If the court does not have the power to issue a warrant on the second non-appearance without strict proof that the defendant received the notice of adjournment, there may well be a tendency to issue one on the first occasion instead of following the perhaps more enlightened course of adjourning. Section 15 of the Magi-states' Courts Act 1952 is therefore amended to dispense with the need for the court to be satisfied that a defendant received the notice of adjournment before issuing a warrant under that section for his arrest. The power to issue the warrant will remain restricted by Clause 18(2) of the Bill—the offence must be punishable with imprisonment or the court, having convicted the defendant, must propose to disqualify him.

Courts are not to be enabled to proceed with an adjourned hearing in the absence of the defendant unless satisfied that he received the notice. Where, under Clause 20 of the Bill, the court necessarily adjourns in order to give the defendant an opportunity to be present at a hearing where it is proposed to disqualify him, it would be wrong for it to proceed in his absence without being satisfied that he received the notice. In other cases, where the question of disqualification has not arisen, the fact that the court has adjourned will usually indicate that it would prefer him to be present, and it would be incongruous then to proceed regardless of whether he had received the notice of adjournment. I beg to move.

Amendment moved— Page 15, line 18, after ("15") insert ("(2)").—(Lord Stonham.)

7.30 p.m.

VISCOUNT DILHORNE

I am grateful to the noble Lord for giving a summary of the way in which he sees that Clauses 18 and 20 will work together. I am not sure if I correctly took it all in, because he spoke rather fast. I will not ask him to repeat it to-night, but I will look to see what he said in Hansard. I rise to ask the noble Lord this question. I see that under Clause 20, where there is a question of imposing a sentence of imprisonment or disqualification, that cannot be done in the accused's absence. I think that is right. What bothers me is this—and again I am looking at the matter from the magistrates' point of view. If a Bench of magistrates, with the accused not being present and there being no mitigation, decide that there must be disqualification and adjourn the case, can that case at the adjourned hearing be dealt with by a different bench, or has it to be dealt with by the bench of magistrates who heard the case originally? If it is to be dealt with by the bench of magistrates who heard the case—and sometimes in country districts the adjournment will be for as long as a month, for the court sits for only once a month—then I can see great difficulties in the way of the magistrates reconstituting the same court after a month's delay.

If, on the other hand, it can be heard by a differently constituted bench of magistrates, the result seems to me very unsatisfactory because it surely would be quite wrong for a bench which has not heard the evidence to sentence a man to imprisonment, when he is present, merely because the bench which has heard the evidence adjourned the case with a view to passing a sentence of imprisonment. I hope that the noble Lord will think further about this matter, because I see great practical difficulties arising if one has to reconstitute the same court at the adjourned hearing, with all the same magistrates, in order to pass the sentence which those magistrates at the earlier hearing thought was the right one. I do not know whether the noble Lord can say anything about that, but it seems to me to be a real point of difficulty.

LORD STONHAM

I take the noble and learned Viscount's point. I understand that he is presupposing a case where the first court dealt with a case in the absence of the accused, and he is then asking whether, when the accused is finally present, it would be right for another court to sentence him, not having heard the evidence.

VISCOUNT DILHORNE

The first court decides that he is guilty, they hear all the evidence and say that the right sentence is to send him to prison. They cannot do it because he is not there; and he is brought before the court in a month's time. I ask whether the court will need to be similarly constituted or differently composed.

LORD STONHAM

I have now received the answer just in time. The sentencing justices do not have to be those who heard the case. The Magistrates' Court Act provides for that.

On Question, Amendment agreed to.

LORD STONHAM

I beg to move.

Amendment moved— Page 15, line 23, at end insert ("and proviso (a) to that subsection (restriction on issue of warrant for arrest of defendant who fails to appear at an adjourned trial) shall cease to have effect").—(Lord Stonham.)

On Question, Amendment agreed to.

7.33 p.m.

VISCOUNT DILHORNE moved, in subsection (3)(a), after the first "or" to insert: "within six months". The noble and learned Viscount said: In dealing with this clause the noble Lord, Lord Stonham, said that where there had been a conviction in the absence of the accused it could be vitiated by a statutory declaration. I do not object to that happening, but I am a little worried about one aspect of this matter. A statutory declaration may be true or may be false. It will say that the man did not know of the proceedings until a date specified in the declaration. That may be true or it may be false. But if it is false it will be very difficult indeed to prove the falsity of it. It seems to me that under the clause as it now stands the position may arise that a man who is dealt with in his absence will learn in due course that he has been convicted. He will then wait a bit, and will file his statutory declaration. Whether that statutory declaration be true or false, it clearly has the immediate effect that all the proceedings are void, without prejudice to the validity of the information. Am I not right in thinking that there is a time limit within which an information can be heard and a summons can be issued? I have not looked it up, but I think I am right in saying that there is a time limit and that it is not very long.

Under this clause as it stands a man could, for instance, three years after he has been convicted, file a statutory declaration and of his own act make that conviction void. All he has to say is that he did not hear of the proceedings until a date specified in the declaration. There is no stipulation as to the period within which he has to make that declaration. I consider that a period ought to be specified, otherwise this could operate as a considerable loophole. I suggest that he should have the opportunity to make the declaration within six months of the conviction. My reason for saying this is that if he has been convicted and a penalty of any kind has been imposed—for instance, it may be a fine—an attempt ought to have been made to recover that fine from him within the period of six months, in which case he then will have had notice of his conviction and will have had time to make his declaration. If it is done then, the original information can remain and a further summons can be issued. I do not want to take up time on this matter, but I feel that the point requires looking into. I beg to move.

Amendment moved— Page 15, line 27, after ("or") insert ("within six months")—(Viscount Dilhorne.)

THE LORD CHANCELLOR

Subsection (3) of the clause enables a defendant to have proceedings which have taken place in his absence annulled, subject to certain conditions. It is necessary to appreciate that it is proposed to amend Rule 76 of the Magistrates' Courts Rules 1952 concerning proof of service of a summons. Rule 76 regards service of a summons as proved only if the defendant was served personally with it or if he acknowledged receipt. It is proposed to amend Rule 76 so as to dispense with the necessity for an acknowledgement of a summons for a summary offence served by being left at the accused's place of abode or sent to him by registered post or recorded delivery. In these circumstances it may happen that the defendant does not know of the proceedings, and it would clearly be wrong for those proceedings to stand.

The subsection provides therefore that, where a magistrates' court has begun to try a case following the issue of a summons under Section 1 of the 1952 Act, the defendant may, at any time during or after the trial, make a statutory declaration that he did not know of the summons or proceedings until a date after the court had begun to try the case. If he then serves the declaration on the clerk to the justices within fourteen days of the date on which he claims the proceedings came to his knowledge, the summons and all subsequent proceedings become void. Where a defendant does not receive a summons he may become aware of the proceedings at any time. He may hear about the proceedings before the court begins to try the case. If so, he must act at once, because this new procedure is not open to him. Or the defendant may become aware of the proceedings after the court has begun to try the case, but before it has made its adjudication—again possibly on receipt of the notice of adjournment, perhaps with a view to the imposition of a sentence of imprisonment or disqualification.

Finally, the defendant may remain ignorant of the summons and proceedings until after the court has tried and adjudicated on the case. The first he may know of them may be the notice of fine, or even his arrest on a means inquiry warrant. In these circumstances, he would be required to serve his statutory declaration on the clerk to the justices within fourteen days of that date, but in practice would no doubt do so more quickly.

There is no need to impose a further time limit on the service of a statutory declaration on the clerk of the court. To impose a limit of six months after the close of the trial would be unfair to the defendant who is not reached by the court's subsequent enforcement process until after that date, which would be quite possible. For example, the defendant may have been tried and convicted and fined in his absence; but, because he has been abroad, or his new address cannot be traced, it may be up to a year before the court is able finally to achieve the execution of an enforcement warrant upon him. In such circumstances it would be wrong if the defendant were precluded from showing that he had no knowledge of the proceedings, but it would remain his duty to serve his statutory declaration that he was ignorant of the proceedings within fourteen days of his becoming aware of the proceedings. The clause gives the defendant only 14 days' grace; any longer delay is not the fault of the defendant (who has no knowledge of the proceedings at this stage) and it is wrong that he should be penalised for it.

The time limit on the laying of information, under Section 104 of the Magistrates' Courts Act, is six months for a summary offence and this is why the words "without prejudice to the … information" appear in Clause 18(3). It is said by the noble and learned Viscount that all a person has to do is to swear a declaration to have the whole matter automatically set aside, and this is really requiring very little of him. But, of course, it is we who are wanting to simplify things by not always having to prove a personal service and so on, and if one is going to do that then there must be a right for somebody who knows absolutely nothing at all about the matter, and who has been tried and convicted without his having any opportunity of defending himself. We must agree that in those circumstances we must go back to the beginning, because that is the only fair thing to do. In a sense it is a convenience for society to depart from our hitherto rather strict rules about personal service in legal and, certainly, criminal proceedings; but if, for our convenience, we are to do that, then if someone does not get notice and if he knows nothing about it at all we must start again.

LORD PARKER OF WADDINGTON

The difficulty about this clause, as it is worded at the moment, is that the summons and all subsequent proceedings become void on the making of a statutory declaration, whether that declaration is true or false. While everybody would welcome the idea that an honest man, who makes an honest declaration that he did not know of the summons or the procedings until, say a year after the event, should be able to have the proceedings declared void, there is a tremendous loophole which enables a dishonest man to make a dishonest statutory declaration that not for months, or it may be years, after had he heard of the trial. It seems to me that if this clause is to be kept in this form, there must be some provision to test the truthfulness or falsity of the declaration.

VISCOUNT DILHORNE

I am grateful to the noble and learned Lord the Lord Chancellor for his reply, and I do not disagree with his proposition that if you try a man in his absence and he is convicted but has not heard of the conviction there must be a procedure for quashing that conviction. But I am worried about the provisions of this clause as it stands because, as I said, it seems to me—and the noble and learned Lord the Lord Chief Justice agrees to open a wide door to the dishonest man, and a door where it will not be very easy to find out if he is being dishonest when he walks through it.

I put this to the noble and learned Lord because it is a real problem. Again, I am not going to press it tonight, but I would ask him to think about it. Am I not right in saying—and perhaps he can answer this tonight—that a man could swear a declaration two years after his conviction, and say—it may be true or it may be false—that he only heard of that conviction less than 14 days before the expiry of those two years? That will automatically have the effect of voiding the conviction.

That would be all right if he could he tried again for that offence; but can he be, having regard to the time limit on the hearing of information and the hearing of summonses? Even if he could be, is it likely—if we take, say, a motoring offence—that after the lapse of two years the prosecution will again be able to call the evidence which they called at the original trial? This needs more thinking about, though I am not against it in principle, and it requires more safeguards written into it to prevent abuse of the right which is here being given to the defendant when the trial is in his absence. Having said that, and in the hope that the noble and learned Lord the Lord Chancellor will look at this point again, as I think he will—is that so?—

THE LORD CHANCELLOR

Yes. I quite understand what is said. Of course, there is a penalty of two years for making a false declaration, and while I quite understand what is said I am still not quite clear how the Amendment proposed by the noble and learned Viscount really meets the point. If I have been abroad and have not had any notice at all and I come back after six months, it cannot be right that I cannot get the proceedings set aside.

VISCOUNT DILHORNE

I am not arguing so much that the Amendment is right—if I may say so, that is not my point. I put down this Amendment to draw attention to this difficulty. Maybe the period of six months is not right. There are two ways by which this could be dealt with. I am speaking off the cuff, but I hope the Government will think about it. One way is by prescribing a time limit—it may not be six months; it may be nine months, it may be 12 months. I quite agree that it might be somewhat arbitrary, but taking into account the probabilities of getting notice there might be some provision for enlarging the time period on the defendant's satisfying the court that there was a good reason for the enlargement of the time. Another point which I think will have to be considered, if this clause is kept in anything like its present form, is the enlarging of the time within which the original information or summons can be heard.

THE LORD CHANCELLOR

I think that point is covered, because the last two lines of subsection (3)(b) of Clause 18 say: without prejudice to the validity of the information, the summons and all subsequent proceedings shall be void. So the validity of the information, if it has been laid in due time, whatever the time limit may be, is preserved.

VISCOUNT DILHORNE

I should like to look at that, because I was under the impression—I may be wrong—that there was a time limit within which information had to he heard, as apart from a summons. At any rate, we need not pursue that now. I think there is a point here which deserves attention, but with the leave of the House I will withdraw this Amendment.

Amendment, by leave withdrawn.

Clause 18, as amended, agreed to.

Clause 19 [Restriction on issue of search warrants under Obscene Publications Act 1959]:

On Question, Whether Clause 19 shall stand part of the Bill?

LORD BROOKE OF CUMNOR

As I know it is desired that we should complete Clause 29 to-night, and also that we should if possible rise by 8.30 p.m. or so, I propose not to move the deletion of this clause. I shall make no comment on the clause at this stage, and I shall put down the Motion again on Report. I hope that that will be a convenient course for those of us who need to get home at a reasonable hour.

Clause 19 agreed to.

Clauses 20 to 23 agreed to.

7.50 p.m.

THE LORD CHANCELLOR moved, after Clause 23, to insert the following new clause:

Extension of costs in Criminal Cases Act 1952.

".—(1) Subject to the following provisions of this section the Costs in Criminal Cases Act 1952 shall apply to proceedings under section 6, 8 or 9 of the Criminal Justice Act 1948 for dealing with an offender subject to a probation order or an order for conditional discharge, and to proceedings under section 31(1) of this Act for dealing with an offender subject to a suspended sentence within the meaning of Part II of this Act, as if the offender had been tried in those proceedings for the offence for which the order was made or the sentence passed.

(2) The provisions of the said Act of 1952 other than section 6 (costs as between parties) shall apply with all necessary modifications to proceedings in which it is alleged that an offender required on conviction of an indictable offence to enter into a recognizance to keep the peace or be of good behaviour has failed to comply with a condition of that recognizance, as if that failure were an indictable offence committed in the same place as the offence of which he was convicted.

(3) Where any proceedings mentioned in either of the foregoing subsections take place before a court of assize or quarter sessions and the fund out of which the costs of those proceedings fall to be paid by virtue of that subsection is maintained by a local authority other than the authority for the local government area in which that court is held, those costs shall—

  1. (a) be paid in the first instance by the local authority for that area; and
  2. (b be recoverable, together with such sum (if any) in respect of the expenses of holding that court as may be determined in accordance with regulations made by the Secretary of State under section 18(3) of the Criminal Justice Administration Act 1962 (contributions to certain costs), from the local authority maintaining that fund.

(4) Where proceedings under section 8 of the Criminal Justice Act 1948 for dealing with an offender subject to a probation order or an order for conditional discharge or under section 31(1) of this Act for dealing with an offender subject to a suspended sentence take place before a court of assize or quarter sessions before which the offender is convicted of an indictable offence committed while he was so subject, or by which he is sentenced for any such offence after being committed for sentence to that court, the costs of those proceedings shall be treated for the purposes of the Costs in Criminal Cases Act 1952 as part of the costs of the proceedings in which he was convicted or sentenced.

(5) Where any proceedings mentioned in subsection (1) of this section take place before a magistrates' court, and relate to an order made or a sentence passed for an offence committed outside the local government area for which or for part of which that court acts, the offence shall be treated for the purposes of section 7(1) of the said Act of 1952 (local funds out of which costs are to be paid) as having been committed in that area.

(6) In this section "local authority" means the council of a county or county borough or the Greater London Council and "local government area" means a county, county borough or Greater London.

The noble and learned Lord said: The purpose of this new clause is to extend the application of the Costs in Criminal Cases Act 1952 to certain criminal proceedings which are at present outside the scope of the Act, in order that a court may have power to make an order for the payment of prosecution or defence costs, including witnesses' expenses, arising in those proceedings. The Costs in Criminal Cases Act at present enables an order for the payment out of local funds of the costs of the prosecution or, if the accused is acquitted, of the costs of the defence, to be made by a court of assize or quarter sessions before which a person is prosecuted or tried on indictment or inquisition or to which he is committed for sentence under various enactments; namely, a committal to quarter sessions (a) under Section 28 of the Magistrates' Courts Act 1952 with a view to borstal training; (b) under Section 29 of that Act for sentence for an indictable offence tried summarily; and (c) with a view to the making of a hospital order with an order restricting a person's discharge, under Part V of the Mental Health Act 1959. A court of assize also has power (at present limited, but extended by Clause 24 of the Bill to all cases in which a person is prosecuted or tried on indictment or inquisition) to order the accused, on conviction, to pay the costs of the prosecution or to order the prosecutor, if the accused is acquitted, to pay the costs of the defence. An order for costs may be made by a magistrates' court dealing with a case summarily or enquiring into an offence as examining justices.

It is necessary to make the 1952 Act applicable to proceedings under Clause 31 of the Bill in which a person subject to a suspended sentence who is convicted of a further offence is dealt with in respect of the suspended sentence. It is also desirable that the Act should apply to certain existing types of proceedings in criminal courts which are at present outside the scope of the Act. The proceedings in question are, first, proceedings in which a person who is subject to a probation order or an order for conditional discharge is dealt with by a court for failure to comply with a requirement of the probation order or for the original offence following the commission of a further offence. Secondly, there are proceedings in which a person who has been convicted of an indictable offence and required to enter into a recognisance to keep the peace or be of good behaviour is dealt with by a court for failure to comply with a condition of the recognisance.

The effect of the Amendment is to give to the court which deals with an offender in such proceedings the same powers of awarding costs as if the offender had been tried in those proceedings for the original offence as a result of which the suspended sentence was imposed or the probation order or order of conditional discharge made, or the recognisance entered into. This means that, in general, where a court makes an order for the payment of costs out of local funds in such proceedings, the costs will be paid out of the funds of the county or county borough where the original offence was committed.

For reasons of practical convenience, however, this general principle is subject to the following modifications. First, where the costs of proceedings before a court of assize or quarter sessions fall to be paid by a local authority other than the authority for the area in which the court is held, the costs will be payable in the first instance by the latter authority, which will recover them from the authority responsible for bearing the expenditure. Secondly, where a person subject to a probation order or order of conditional discharge, or on whom a suspended sentence has been imposed, is convicted of or sentenced for a further offence by a court of assize or quarter sessions and the court then proceeds to deal with him for the original offence or in respect of the suspended sentence, the costs of the latter proceedings will be treated as part of the costs of the proceedings in which he was convicted of or sentenced for the further offence. Finally, where the proceedings for dealing with an offender subject to a probation order, order for conditional discharge or suspended sentence take place before a magistrates' court, for the purpose of determining which local authority should bear the costs the offence will be treated as having been committed in the area for which the court acts. Unless the Committee wish me to deal with each subsection separately, I will leave the matter there, and I beg to move accordingly.

Amendment moved—

After Clause 23, insert the said new clause.—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

Again, this is clearly a very sensible and timely Amendment which takes account not only of the new position under Clause 31 but of various anomalies and inconveniencies which have doubtless arisen and were not foreseen in the legislation in 1952. I am sure, therefore, that noble Lords on this side of the Committee will welcome it. I would make only one comment: that the more the noble and learned Lord does tidying up operations on this sort of matter the more it seems to me we shall be in need of something in the region of seven or eight Consolidation Bills very soon.

On Question, Amendment agreed to.

Clause 24 [Amendments of Costs in Criminal Cases Act 1952]:

THE LORD CHANCELLOR moved, after subsection (1), to insert the following new subsections: ( ) Sections 1 and 5 of the said Act of 1952 (costs awarded by assizes, quarter sessions or magistrates' courts out of local funds), section 8 of the Criminal Appeal Act 1966 (payment of expenses of witnesses in connection with criminal appeals out of local funds) and paragraph 8 of Schedule 1 to the said Act of 1966 payment out of moneys provided by Parliament of expenses of witnesses in connection with appeals to the Courts-Martial Appeal Court) shall apply in relation to a registered medical practitioner making a written report to a court in pursuance of a request to which this subsection applies as they apply in relation to a person called to give evidence at the instance of the court, and in the case of a report made in pursuance of such a request made by a magistrates' court shall so apply notwithstanding that the proceedings for the purposes of which the report is made are not proceedings to which the said section 5 applies. ( ) The last foregoing subsection applies to a request to a registered medical practitioner to make a written or oral report on the medical condition of an offender or defendant, being a request made by a court—

  1. (a) for the purpose of determining whether or not to make an order under section 4 of the Criminal Justice Act 1948 (probation orders requiring treatment for mental condition) or section 60 of the Mental Health Act 1959 (hospital orders and guardianship orders) or otherwise for the purpose of determining the most suitable method of dealing with an offender; or
  2. (b) in exercise of the powers conferred by section 26 of the Magistrates' Courts Act 1952 (remand of a defendant for medical examination and requirement of such an examination on committing a defendant for trial on bail).
( ) Sections 1 and 5 of the Costs in Criminal Cases Act 1952 shall apply to a person properly attending at the instance of the court to give evidence as they apply to a person called to give evidence at the instance of the court.

The noble and learned Lord said: The main purpose of this clause is to enable the courts to order the payment out of local funds of a fee to a medical practitioner who furnishes a written medical report on a defendant at the request of the court. Provision already exists (in Sections 1 and 5 of the Costs in Criminal Cases Act 1952, in Section 8 of the Criminal Appeal Act 1966 and in paragraph 8 of Schedule 1 to the latter Act) for payments to be made out of local funds to a doctor who attends court and makes an oral report on a defendant, but there is no corresponding power to order payment for a medical report which is made in writing.

A medical report may be obtained by remanding a defendant in custody or by arranging for him to see a doctor while he is at large. When a person is committed in custody for a medical report the medical examination is arranged by the prison authorities and the prison doctor is not paid a separate fee for such an examination; if an outside doctor is also asked to examine the patient, his fees are paid by the Home Office. It is where the defendant is not in custody that difficulty sometimes arises. There is no statutory provision enabling anyone to pay the fees of the doctors who examine a defendant in such circumstances. Where the examination is carried out by a hospital doctor, the examination and the furnishing of a report are at present among the services which are normally provided without charge in accordance with the doctor's terms and conditions of service under the National Health Service Act 1946. This position may change, however, as the Ministry of Health are shortly to review, with the Joint Consultants' Committee, the current classification of work which is done free by hospital doctors as part of their duties and work which is not part of their duties and for which they may charge a fee. Moreover, if a report is furnished by a general practitioner, or if a report by a second doctor is necessary—as is the case where a court contemplates the making of a hospital order under Section 60 of the Mental Health Act 1960—this work is already outside the scope of the services provided free of charge under the doctor's conditions of service. It is intended that the power to order payment of a fee out of local funds should be used by the courts only in those cases where the provision of a written report is outside a doctor's terms of service.

Subsection (2) is, I think, clear. Further, as Section 5 of the Costs in Criminal Cases Act 1952 relates only to indictable cases in magistrates' courts, and as it is necessary to provide these courts with power to order payment for written medical reports in both indictable and summary cases, the subsection provides that where a medical report is furnished at the request of a magistrates' court the provisions of the 1952 Act shall apply notwithstanding that the proceedings are not proceedings to which Section 5 applies. Subsection (3) provides that subsection (2) shall apply to a request by a court for a written or oral medical report for the purposes which are there set out.

The purpose of subsection (4) is to enable the court of assize, quarter sessions, or a magistrates' court, to order payment out of local funds to a person who attends at the instance of the court to give evidence, but who, in the event, is not called to give evidence. Section 1(6) and Section 5(6) of the Costs in Criminal Cases Act 1952, already defines a witness as a person properly attending to give evidence, whether or not he gives evidence. But this provision does not cover persons attending at the instance of a court, who may be made the subject of an order for payment only if they are "called to give evidence". Subsection (4) will place persons attending to give evidence at the instance of the court in the same position as other persons properly attending to give evidence, and enable them to receive payment irrespective of whether they actually give that evidence. I beg to move.

Amendment moved—

Page 17, line 38, at end insert the said subsections. —(The Lord Chancellor.)

8.1 p.m.

VISCOUNT COLVILLE OF CULROSS

Again, this seems to be an admirable Amendment, and one which I should advise the Committee to accept. There can be no doubt that the doctor's reports and, in the case of an order restricting discharge, his oral evidence are now an absolutely crucial part of the machinery of the court, both under the Mental Health Act and also in cases where a probation order with a condition of residence in an institution for mental treatment is required. I know that sometimes these matters have to be dealt with rather quickly and at the last moment, particularly where a second report has to be acquired for the purposes of compliance with the Mental Health Act.

Having listened to the noble and learned Lord the Lord Chancellor, it seems to me that all possible combinations of events have now been covered, save for this: in the second of the new subsections which the noble and learned Lord is proposing to insert, it says that the request must be "made by a court". It usually happens that these things do not turn out in any clear cut way. It is true that sometimes the court says, "We think that this is the sort of case where we should like to act under Section 60 of the Mental Health Act, and therefore we must have a second Report." In such a case, no doubt the written report would be at the request of the court. Equally, it may appear to the county prosecuting solicitor, or one of the officials of the court, that for the sake of safety, and so as not to hold up the case when perhaps the accused has been brought under escort from somewhere or other, they ought to have a second report in any event in order to be perfectly safe.

I simply raise this query: what is a "request made by a court"? Does it have to be made in open court? Will a request by the clerk in advance of the hearing suffice? Is the noble and learned Lord satisfied that all possible methods by which these reports may be required are covered, either as a request by the court or as the evidence of a witness which is covered under other legislation?

THE LORD CHANCELLOR

I am much obliged. We shall certainly consider the point which the noble Viscount has raised.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 to 27 agreed to.

Clause 28:

Punishment of persistent offenders

28.—(1) No person shall be sentenced by a court to preventive detention or corrective training.

(2) Where an offender is convicted on indictment of an offence punishable with imprisonment for a term of two years or more and the conditions specified in subsection (4) of this section are satisfied, then, if the court is satisfied, by reason of his previous conduct and of the likelihood of his committing further offences, that it is expedient to protect the public from him for a substantial time, the court may impose an extended term of imprisonment under this section.

(3) The extended term which may be imposed under this section of any offence may exceed the maximum term authorised for the offence apart from this section if the maximum so authorised is less than ten years, but shall not exceed ten years if the maximum so authorised is less than ten years or exceed five years if the maximum so authorised is less than five years.

(4) The conditions referred to in subsection (2) of this section are:—

8.5 p.m.

LORD BROOKE OF CUMNOR moved, in subsection (3), to leave out from "for any offence" to the end of the subsection, and to insert: shall not exceed twice the maximum term authorised for the offence apart from this section, or fourteen years, whichever is the less. The noble Lord said: I beg to move Amendment No. 36. It is followed in the Marshalled List by two Government Amendments which I think are principally designed to improve the drafting; and then I have two Amendments down to one of those Amendments. I do not wish to embarrass the noble Lord, Lord Stonham, in any way, but it would be perfectly acceptable to me if, on this group of Amendments, we could have a general debate about preventive detention and what we are to do about it. I think that would save time, and at the end the Amendments could be put separately without further debate.

I need hardly say that I welcome subsection (1) of this clause, the subsection which will abolish preventive detention and corrective training. I welcome it particularly because I announced to Parliament on July 23, 1964, as Home Secretary, the then Government's intention to abolish both these penalties, and my only regret is that it has not been possible to legislate to that effect earlier. The purpose of my Amendments is to ascertain from the Government why they have departed in certain particulars from the proposals which I was responsible for announcing to the House of Commons some three years ago.

If I may remind your Lordships, this originated from a Report in 1963 from the Advisory Council on the Treatment of Offenders which recommended the abolition of preventive detention, and made certain suggestions as to the longer periods of ordinary imprisonment with which it should be replaced. I am sure that the main purpose of that Report was right, and indeed if I remember correctly I acted immediately to amend the prison rules so that that the troublesome five-sixths rule, which caused a great deal of ill-feeling in the prisons, was abolished; but to go further needed statutory action, and we now have that to-day.

I do not know whether it is right or not to say that it is unfortunate that the experiment of preventive detention and corrective training failed. I think one may look on the good side and say that we are now getting so much greater variety in the possible prison treatments that we can give to different kinds of prisoners under modern classification, that there is no need still to call different forms of custody in prison under different names. Fortunately, we are getting well towards the point where all prisoners will receive what it was thought in days past only a certain number could be given in the form of corrective training. That at any rate is the purpose, but the main issue here is what shall be put in place of the old preventive detention.

I think that both my announcement in 1964 and the proposals in this clause are an improvement on what was recommended by the Advisory Council on the Treatment of Offenders. That Advisory Council recommended no special provision of extended sentence where the sentence was five years or under. What it recommended was that the courts should be empowered to pass sentence up to ten years imprisonment on persistent offenders convicted of offences at present punishable with imprisonment for terms of five years or more. That seemed to my colleagues and me, and to the Government, an inadequate solution, in that it provided nothing at all of a special character for the persistent offender who was guilty of an offence punishable with imprisonment for a maximum of less than five years, or, as in the case of many offences, where the maximum is two years. That would not be covered or provided for at all.

It seemed to me at the time (this is the first point I want to ask the Government) that it was a mistake to limit the maximum sentence in a very serious case to ten years, unless, of course, a longer period was provided as a maximum for the ordinary sentence for that offence. Under preventive detention the maximum sentence is fourteen years. Though I am well aware that the ordinary sentence period was seven or eight years, nevertheless it seemed to me, and it still seems to me, that there is some value in having authority in a really bad case to extend a sentence beyond ten years and up to fourteen years. That is the point with which my first Amendment deals.

I appreciate that the proposals in this clause give a considerable flexibility in shorter sentences. I had proposed that a two-year sentence could be doubled. The clause would provide that a two-year sentence could be increased to five years. The principal difference here is that the Government are proposing that none of these extended sentences should go beyond ten years. whereas the old pre- ventive detention maximum was fourteen years.

The other change which I perceive in the Government's proposal is that a person should not be sentenced to what is called here an extended sentence unless, under Amendment No. 38, one of the sentences which he has already received was a sentence of imprisonment for a term of three years or more. That is coupled in Amendment No. 38 with the provision that he must have been sentenced to a total of not less than five years in the past. In the proposals which I announced my intention of putting before Parliament it was suggested that a person would be liable to an extended sentence, and in my plan to a double sentence, if he had in the past served three years, not five years. Again, I should like to ask the Government why they have altered that period of three to five.

What is at the back of my mind is this. I think that the Government may possibly be taking a different view from mine as to the kind of persistent offender who is to be dealt with here. I had envisaged that when we replaced preventive detention there should be provision for the persistent petty offender, the man who never did anything that was terribly serious but was an unmitigated nuisance to society; the sort of person who could never keep out of prison for long; the sort of person who could not keep his hands off other people's property. Sorry as one is for people like that, it appeared to me—and still does—that in planning our substitute for preventive detention we should not forget about them. I know how difficult they are to provide for adequately and constructively in prison, but we ought not to give up hope. We ought to have a prison system which is diversified enough to enable us to do something constructive with the persistent petty offender.

I have the idea that the Government are not considering any special plans for these people. They are considering only people who have served at least one sentence of three years and have actually served sentences of five years in the aggregate. That will exclude a number of persistent petty offenders whom my plans would have included. There may be good reason for these changes. I doubt whether any of us could put his hand on his heart and say that the views expressed here to-day will inevitably be proved correct in ten years' time. Those who expressed views in Parliament on preventive detention and corrective training in the old days were absolutely sincere and genuine, and knowledgeable and well-advised, but it did not work out right. What we ought to do is to put our heads together and make every endeavour to see that these new plans will work out right.

I have put down these Amendments partly to invite the Government to explain why they have made these changes and partly to try to elicit an answer to the question whether they consider that the extended sentence should apply only to people who have committed some fairly serious offence and not to persistent petty offenders. If Clause 28 is not to apply to persistent petty offenders, then I am entitled to ask the Government what they propose to do about them.

Amendment moved— Page 19, line 15, leave out from ("offence") to end of line 20, and insert the said new words.—(Lord Brooke of Cumnor.)

8.17 p.m.

BARONESS WOOTTON OF ABINGER

I think that there is a real difference of aim here. The noble Lord, Lord Brooke of Cumnor, clearly intended that preventive detention, or what would take its place, should catch the persistent petty offender. It is equally clear that the Bill as drafted, with the Amendments proposed by my noble friend Lord Stonham, is designed to catch only the more serious offender and exclude the persistent petty offender. In other words, these clauses are to carry out the purpose which was laid down in the White Paper The Adult Offender, in which it was suggested that the persistent offender: must be clearly defined in such a way as to apply only to delinquents whose character and record of offences are such as to put it beyond all doubt that they are a real menace to society and exclude the petty criminal who commits a series of lesser offences. The noble Lord is trying to take us much closer to preventive detention as it was. For instance, he is trying to restore the maximum of fourteen years, whereas the Government are proposing an absolute maximum for extended imprisonment of ten years, or five if the normal penalty is less than five years' imprisonment.

When I read the proposals in the White Paper I put down a Question in your Lordships' House to find out how far the proposals, which are those in the unamended Bill, would exclude the petty offender and how far they would carry out the intention expressed in the White Paper of subjecting to extended imprisonment only the really dangerous criminal who is a menace to society. The answer I got was that, of 178 detainees under preventive detention examined in the Fifth Report of the Home Office Research Unit, 176 would still be caught by the new proposals for extended imprisonment; and of these 91 would be convicted of offences against property involving less than £100 and without personal violence. In other words, they were not offenders who could be said to be a dangerous menace to society.

It appears that in the Bill with the Amendments proposed by my noble friend the conditions that qualify for extended imprisonment will be made much more rigid, so that we may hope that these petty offenders who have committed offences against property involving less than £100, and involving no personal violence, will not be subject to extended imprisonment. My noble friend Lord Stonham proposes to amend the Bill so that anyone will qualify for extended imprisonment if he has a total of not less than five years' imprisonment, and if he has been in prison either once for three years or more for one offence, or twice for two years or more for one offence; whereas the noble Lord, Lord Brooke of Cumnor, proposes to cast the net much wider. He proposes to bring it down to three years previous imprisonment, instead of a total of five years, and he removes the requirement that the prisoner should have been subject to previous sentences of imprisonment of a specified length. The net result would be that we should be getting back very close to the old form of preventive detention, and that we should certainly still be catching a high proportion in this extended imprisonment of persons who are not dangerous menaces to society but are admittedly nuisances.

LORD PARKER OF WADDINGTON

Perhaps I might say a word or two on this Amendment. I say, quite frankly, that I do not think I mind very much what is done. I have been consulted on some such clause as this by the Home Office under three different Home Secretaries, each of whom has had a different approach; and each has said, after we had arrived at some amicable agreement, that a fresh look must be taken and we must start all over again. On the whole, I think I prefer a maximum of fourteen years, if only because the courts always envisage that there can be another case that is worse than the one they are dealing with, and, therefore, they never get anywhere near the maximum. And if the maximum is lowered, then I think, on the whole, instead of giving under preventive detention, where the maximum is fourteen years, seven or eight years, if the maximum is ten, probably no more than six years will be given. A period of fourteen years gives one a little greater elasticity.

When one comes to the qualifying conditions, they are a "headache" to administer in practice. Instead of thinking what sentence is the appropriate one in any particular case, the court has to see that this, that and the other has been complied with, and there are often mistakes. Ideally one would like to leave it to the discretion of the court. But I frankly confess that, as soon as one realises that there are no fewer than 347 people at the moment who would be entitled to give an extended sentence, one recognises that it is necessary to impose qualifying conditions, and rather strict ones.

Mention has been made of the object of this provision—whether it is to deal with petty offenders or the more serious cases. My difficulty is to know what is meant by a petty offender or the more serious case. The sort of case I have in mind that we get before the courts is what I call the constant false pretender, a crime which now merits five years' imprisonment. This is the sort of man who goes on, perhaps stealing a cheque book and then passing worthless cheques. He comes before the court with a great number of cases taken into consideration, and he goes on, getting perhaps slightly increased sentences, but never getting up to five years. Finally, a time comes when perhaps you get to a figure of something like 248 (or whatever it may be) of these cases, and the court says: "For the protection of society, although they are comparatively small sums, he must be put away for a substantial length of time." That is probably never done until the maximum for the offence has been given at least once.

Therefore, I do not think it really matters, when one is dealing with that sort of person, whether the two previous convictions that he must have had have attracted three or four years in total, because the court will never give an extended sentence until the aggregate is well above that. On the whole, I am quite content with the conditions. I should prefer the raising of the maximum term which can notionally be imposed from ten to fourteen years.

VISCOUNT D1LHORNE

I cannot speak on this subject with anything like the authority of the Lord Chief Justice, but I support him in thinking that there is a strong case for putting the maximum higher than it is in the Bill, for the reason that courts, as the noble and learned Lord has just said, seldom think the case with which they are dealing is the worst possible case of that category.

I have risen to my feet on this Amendment because of what was said by the noble Baroness, Lady Wootton of Abinger. She said that these people who are petty offenders are not dangerous to society; they are offenders against property. Looking back over the years, I think that some of the cruellest cases I have seen have been where people of limited means have been defrauded of those means by conduct that was cruel and heartless. When it has been done, it has been an offence against property, and an offence which one might say, compared with some others, was a petty offence. I think that all those who have had any experience of the administration of the criminal law are familiar with cases of the petty criminal if you like to call him that, who goes round a council estate, or goes round places where the people are really of poor means, and defrauds people by false pretences of money that they can ill afford to part with. It may be right to say that that is not, in the words of the noble Baroness, a danger to society, but I am not sure that it is right so to regard it. I feel that this Bill will be less good than it ought to be unless it contains some provision for dealing with that category of offender.

The noble Baroness says that there is a difference of aim here between my noble friend Lord Brooke of Cumnor and the Government. That may well be the case. It may well be that, so far as this clause is concerned, there is a difference of aim. I do not think I should mind very much about that if I could be satisfied by the Government that there is some machinery in the Bill to deal with this type of persistent petty offender, who can cause great suffering and hardship by a series of petty offences against property to people who can ill afford the loss of that property. I do not see anything in this Bill, apart from this clause, which makes provision for that. This is why I support the Amendment moved by my noble friend.

8.30 p.m.

LORD STONHAM

I am most grateful to the noble Lord, Lord Brooke of Cumnor, for the suggestion he made, that we should have one debate, and also for the welcome that he has given to the belated abolition of preventive detention. I am also grateful to everyone who has spoken for the helpful tone in which the discussion has been held, because if there is one thing in penal reform which I have worked hard at over the last 19 years it is the abolition of preventive detention. Its introduction was one of the things which I regretted most of all about the 1945–50 Parliament, in whose other Acts I was very proud to take a part

The noble Lord, Lord Brooke of Cumnor, quite rightly pointed out the differences between the proposals which he made for replacing preventive detention and those which were made by the Advisory Council for the Treatment of Offenders. I recall that when his noble friend, Lord Derwent, then Minister of State, announced those proposals in your Lordships' House, I then gave it as my view that the proposals for replacement of preventive detention would be no improvement whatsoever on the situation which had been prevailing for a long time. Therefore I was very sad when I saw the noble Lord's Amendment, because I had the feeling that we were back to square one, or would be if the Amendment was accepted. Therefore I am the more grateful for the way in which Lord Brooke of Cumnor has explained his purpose.

I propose to try to start the extremely difficult task of persuading some—I was going to say supremely eminent people, but that would be laying it on too thick—some extremely eminent people on my right. First of all, we propose that sentences carrying a maximum of less than five years should carry an extended sentence of five years as a maximum. Lord Brooke of Cumnor proposes that they should merely be doubled. We also propose that where the normal maximum sentence exceeds five years the maximum for an extended sentence should be ten years, and Lord Brooke of Cumnor proposes 14 years. I want to say why I think we are right in both cases.

I agree—and in this I agree with the noble and learned Viscount, Lord Dilhorne—that continual thefts of property are not only vexatious but cause great distress. Even the entry of a burglar or housebreaker into someone's home is a dreadful and an upsetting thing, and its effect can go on perhaps for years; and even if almost nothing is stolen I do not underestimate the consequences of such acts. But we are here considering the length of sentence, whether it be 10 or 14 years in the maximum, and what good it will do both to the offender and to society. These are relevant facts for consideration.

I want to examine first of all the lower end of our proposals and the lower end of Lord Brooke of Cumnor's proposals. First of all, the maximum sentence for cruelty to children is only two years. That is an appalling offence, in my submission—I repeat, an appalling offence. Lord Brooke of Cumnor would make it in an extended sentence for the persistent child beater four years; under the Bill it would be five years. I think that a man who persistently assaults a policeman in the execution of his duty should be dealt with severely by society, but at present the maximum penalty is two years. It would be four years by Lord Brooke of Cumnor's proposal; five years by the proposal in the Bill. The man who is a persistent procuror of prostitutes can get only two years at present. He would get four years if an extended sentence was doubled under Lord Brooke of Cumnor's proposal; and five years under the Bill's proposals. I have not just taken those instances to make a case; I have taken them because, in my submission, they are bad. Those are the kind of cases I hate, where I should like to see the ordinary penalties more severe. But, in any case, we are doing something about them there for the persistent people and making the penalty five years, and, in my submission, at the lower end of the scale our proposal is an improvement on that which the noble Lord put forward.

Now we come to offences at the other end of the scale—I will come to the middle ones later, because I think the middle ones are the crux of the matter. I had a look at Archbold and I picked out, or tried to pick out, the offences which were punishable in the maximum with a sentence of 14 years or life. The list was so long that I picked only a few. I will give just a few of what I regard as serious offences, some more serious than others. These are all life: armed assault or assault with aggravation; burglary; grievous bodily harm with attempt to maim; throwing corrosives; arson, 14 years or life; explosive offences, 14 years for some, life for others. Firearms: either using to resist arrest or endanger life, 14 years. Forgery offences, many of 14 years, some for life. Housebreaking, 14 years if a felony is committed. Larceny by a tenant or lodger, seven years if the value is over £5. There are not many offences, other than those two-year offences I quoted earlier, where the maximum is not 14 years. I have had to search and I found only two which were seven years.

A NOBLE LORD: False pretences.

LORD STONHAM

The kind of offence the noble and learned Viscount, Lord Dilhorne, was speaking about was very often larceny of various kinds.

VISCOUNT DILHORNE

I was thinking in particular, as a matter of fact, of false pretences.

LORD STONHAM

I mentioned one form of false pretences. But I will go on. I would mention that larceny covers something like 80 per cent. to 90 per cent. of indictable offences and therefore it covers an enormous field in crime, and when you mention that the penalty for larceny by a tenant or lodger is seven years and for all other larceny offences (except simple larceny, which is five years) it is fourteen years or more, you already have your maximum. In two cases the maximum for larceny is life. Malicious damage: in four cases, fourteen years; and in nine cases, life. Demanding money by menaces, life. Poaching has a seven- year maximum. That would be fourteen years if we doubled it. It is already fourteen years if three or more people go out together to poach armed. Rape, life. Robbery, fourteen years maximum. Armed robbery or robbery with violence, life. Sexual intercourse with a girl under 13, life.

The point I am making is that if it is what I think all of us would regard as a serious offence, I am not arguing and you can put all the penalties up to life and say that it is necessary, but, in my submission, in relation to the Amendment, fourteen years for all these offences, or life, is enough.

VISCOUNT DILHORNE

Could the noble Lord deal with the false pretences case, because that is the one I had particularly in mind—the case of a housewife in a council house being deprived by false pretences?

LORD STONHAM

I agree. But in relation to the Amendment and the Bill the maximum for false pretences is not the same in all cases because there are various kinds of false pretences. In most cases, doubling it would bring the extended sentence up to at least fourteen years, I agree. But in other cases the ten year extended sentence which is in the Bill would apply, and I should have thought that where one is dealing with that kind of person there is enough scope in the sentence of ten years. At the moment one offender of whom I know, an old, regular customer, who would I am quite sure qualify as a persistent offender, got ten years for an extreme offence. We must have some regard for consistency in these matters. I think I am right in saying that it would be a sentence of ten years for false pretences. The ordinary maximum is five years, and therefore the extended maximum would be ten years under the proposals of the noble Lord, Lord Brooke of Cumnor. So on the question of false pretences there is absolutely nothing between us.

I should now like to point out another matter not mentioned by the noble Lord. Lord Brooke of Cumnor. It is that with the extended sentence under this Bill the offender will either be in prison or under supervision for three-thirds of his sentence. I think that is a significant fact.

VISCOUNT DILHORINTE

Three-thirds?

LORD STONHAM

That is right—the whole of it. If I may put it this way, whichever alternative you choose, if he is released on licence after one-third of his sentence he stays on licence for the remaining two-thirds; if he is released in the ordinary way after two-thirds of his sentence, he stays on licence for the remaining one-third.

The noble Lord, Lord Brooke of Cumnor, and his noble and learned friend Viscount Dilhorne asked what are our intentions about this kind of petty persistent offender. This is one of them. The kind of person that we mainly have in mind will need continuous support of one kind or another. They are the petty persistent offenders, the socially inadequate people. We are rearranging our prison system in order to look after them better, to have them in "C" class prisons, and to enable them to have some responsibility.

May I now come to a matter which will be completely within the knowledge of the noble and learned Lord the Lord Chief Justice. In February, 1962, the Lord Chief Justice issued a practice direction with regard to preventive detention. I cannot quote it verbatim now—my memory is not what it was; I used to be able to quote it in full. But at least he will agree with me that it was to draw the attention of his fellow judges, and those with the power of sentencing, to the importance of reserving this particular sentence for the more important crimes. I think he will also agree with me that this practice direction during the first two or three years or so was not as effective as he might have hoped, and it is only since the announcement by the noble Lord, Lord Brooke of Cumnor, when he was Home Secretary, of the intention to abolish preventive detention, that this sentence began to disappear.

In those days, we had a sentence of fourteen years for stealing an overcoat; we had a sentence of eight years for false pretences in obtaining apples to the value of 1s. 6½d.; and we had eight years for stealing two books. These are not just sentences to me; they are men; I knew them. I have known them for years, and hundreds of others. I do not know them now—I am not allowed to know them as a Minister—but they are men, and I do not want the possibility of that kind of sentence being passed for that kind of offence. It is my ministerial responsibility to try to get them back into society again. There will have to be ways other than long prison sentences.

My noble friend Lady Wootton of Abinger, who has striven manfully—if she will not he offended by the term—in this field and with so much knowledge and energy, asked me that question in January, 1966, and this is another of the reasons why we have amended our proposals—that is, the Amendments to which the noble Lord, Lord Brooke of Cumnor, will move Amendments, in order to try to be more selective about the people who will be given extended sentences, so that the more serious offenders will be given extended and longer sentences.

I was asked whether that would apply to petty offenders in future. Only the judges can answer that. In some cases it will, because if a man commits an offence of, say, stealing £5 or more, which incurs a maximum prison sentence of 7 years, then obviously if he went on doing it he could be given an extended sentence of 10 years, although I think we should all call him a persistent petty offender. But we have done some research on this matter, and the Bill as it stands would mean that of the persistent offenders—P.D. men—sentenced in 1957. 70 to 80 per cent. of those eligible for preventive detention and 99 per cent. of those so sentenced would have been liable to extended sentences under the present provisions of the Bill which I now seek to amend. Under the amended provisions of the Bill, if your Lordships approve the Amendments, 50 to 60 per cent. of them would still be liable for extended sentences, and of those 85 to 90 per cent. would receive extended sentences.

I hope, as a result of our discussions, and particularly as a result of the advice given by the noble and learned Lord, the Lord Chief Justice, that the percentages will be lower than that. I think there will be a realisation that for the violent, savage offender—the enemy of society—the existing maximum sentences, most of which are life sentences, are adequate. The offender who persistently commits an offence of a fairly serious nature will run a great risk of getting his sentence extended up to 10 years, and that will mean he will be in prison or under supervision for 10 years. It will mean 10 years. But for the petty offender, the socially inadequate, the person who for most of his life needs constant support, long incarceration in prison is expensive, stupid and wasteful, both of men's lives and our money. We are providing, and will provide, more and different forms of treatment for them—perhaps even non-custodial treatment, in the sense that it will not be prison. This, I am sure, is the way to deal with them, and this is the way we are going on. I am grateful to the noble Lord, Lord Brooke of Cumnor, for creating an opportunity to discuss this matter, and I hope that if I have not entirely satisfied him that the facts are on my side I have convinced him that I believe they are.

8.50 p.m.

LORD BROOKE OF CUMNOR

I appreciate the intense feeling with which the noble Lord, Lord Stonham, approaches this whole subject, and I give him full credit for it. He, for his part. will appreciate that I envy him that it should have fallen to him to bring before your Lordships the proposal to abolish preventive detention, because I think it has gone on for too long. I felt sure that it should no longer be a separate form of penal treatment, and I wanted to see greater flexibility. I have listened very carefully to what he has said. and. like him, I had studied that Appendix to Archbold before this debate. I say this with diffidence in the presence of the Lord Chief Justice, but study of that appendix and the course of this debate combine to persuade me that some of these maximum sentences need looking at afresh, lust as much as some of these maximum fines at which we are looking in a Schedule to this Bill. I appreciate the difficulty, but I am quite sure if some of these maximum sentences could be reviewed, and a better relationship could be established between them, there would be much less difference between myself and the noble Lord, Lord Stonham, as to how we should proceed at this time.

I am not going to press any of these Amendments. I am grateful to the noble and learned Lord, the Lord Chief Justice for saying that he, too, thinks that the maximum term of extended sentence should be fourteen years rather than ten years. This does, of course. affect only those offences for which the maximum sentence now is seven years, and it is somewhat curious in some of these cases why the maximum should be seven years. So what we are trying to do by the words we put in here is, in my opinion, to clear up arrangements which are already somewhat arbitrary, and I do not think we can do it effectively by any of these doublings or other mathematical formulae. I think the whole matter needs to be looked at afresh.

As regards the petty offenders, I am not happy about the situation there. I understand how the Government, under pressure from the noble Baroness, Lady Wootton of Abinger, have sought to exclude the application of the extended sentence to the petty offender.

LORD STONHAM

Did I understand the noble Lord to say the Government were under pressure from my noble friend Lady Wootton of Abinger? It is a pressure of which I have not been conscious. I should have known about it.

LORD BROOKE OF CUMNOR

I noticed that reference was made to this Question which was asked, and it appeared to me that the Question which was asked in your Lordships' House had an effect on this Bill. That is what the noble Baroness said, at any rate; and I believed her—I think one should believe what a lady says whenever one can.

LORD STONHAM

It was the information produced by the Question which produced the eventual result. As soon as I saw the result we had it altered.

LORD BROOKE OF CUMNOR

I give the noble Baroness great credit for having asked the Question, which must have been a productive one. Perhaps we can agree on that.

As I have said, I am not going to press any of these Amendments. I should like to think about this matter further between now and the Report stage. I think your Lordships must take cognisance, for example, of what the noble and learned Lord the Lord Chief Justice, said about making the maximum term fourteen years. I am inclined to agree with him, on the other matters, that one cannot be sure exactly what is right. Here am I criticising some of the provisions of this Clause 28, while I well know that a number of these provisions derive directly from my announcement to Parliament in 1964, which broke fresh ground that the Advisory Council had not gone over. On the understanding that we shall all have a further opportunity to think about this matter before the Report stage. I beg leave to withdraw this Amendment, and I will not move the two Amendments to Amendment 38.

Amendment, by leave, withdrawn.

LORD STONHAM

I beg to move Amendment No. 37.

Amendment moved— Page 19, line 34, leave out from ("more") to end of line 37. —(Lord Stonham.)

On Question, Amendment agreed to.

LORD STONHAM

I beg to move Amendment No. 38.

Amendment moved— Page 19, line 41, leave out from ("occasions") to end of line 45 and insert ("was not less than five years and—

  1. (i) on at least one of those occasions a sentence of preventive detention was passed on him; or
  2. (ii) on at least two of those occasions a sentence of imprisonment (other than a suspended sentence which has not taken effect) or of corrective training was so passed and of those sentences one was a sentence of imprisonment for a term of three years or more in respect of one offence or two were sentences of imprisonment each for a term of two years or more in respect of one offence."). — (Lord Stonham.)

On Question, Amendment agreed to.

Clause 28, as amended, agreed to.

Clause 29 agreed to.

LORD STONHAM

I am most grateful for the progress we have made, and I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.